VINISHA JITESH TOLANI @ MANMEET LAGHMANIversusJITESH KISHORE TOLANI

                      (2010] 5 S.C.R. 595


     VINISHA JITESH TOLANI @ MANMEET LAGHMANI                       A
                                v.
                  JITESH KISHORE TOLANI
          (Transfer Petition (Civil) No. 1127 of 2008)
                        APRIL 28, 2010
                                                                    8
      [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.)

         Code of Civil Procedure, 1908 - s. 25 - Transfer of
. matrimonial petition - Marriage between parties conducted in
   Goa under their personal laws and under Hindu rites and C
   traditions ..,. Registration of marriage in Goa - Husband filing
   petition for annulment of marriage in Goa - Meanwhile, wife
   v.!ls commuting between United Kingdom and India and finally
   settled in Delhi - Petition u/s. 25 by wife, seeking transfer of
   case pending in Goa to Delhi - Maintainability of - Held; D
   Maintainable - Provisions of Hindu Marriage Act are
 · applicable and matter can be heard by any court having
  jurisdiction within the territories to which it applies - In view of
   ss. 5 and 6 of the 1962 Act, even if the customary law in Goa
. would prevail over the personal law of parties, it would not be E
   a bar to transfer the matter outside the State of Goa to any
   other State - Goa, Daman & Diu (Administration) Act, .1962
   - ss. 5 and 6 - Hindu Marriage Act, 1955 - s. 12.

      The marriage between the petitioner-wife and the
 respondent-husband was conducted in Goa as per the                 F
 Hindu rites and customs. Thereafter, the marriage was
 registered in Goa. The respondent-husband filed a
 petition under section 12 of the Hindu Marriage Act, 1955
 for annulment of marriage. It is alleged that the petitioner-
 wife was residing in United Kingdom with her parents               G
 having been given the status of an Afghan refugee. The
 petitioner came back to India to contest the petition filed
 by the respondent. In view of the several developments                      •
 she took up a rented accommodation in Delhi. Thereafter,
                            595                                     HI'
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        596     SUPREME COURT REPORTS              [2010] 5 S.C.R.


    A   she filed a petition u/s. 25 Code of Civil Procedure, 1908
        for transfer of the matrimonial petition pending before the
        court in Goa to a court of competent jurisdiction in Delhi.

            Allowing the transfer petition filed by the wife and
        dismissing the transfer petition filed by the husband, the
    8
        Court

             HELD: 1.1. As far as the Civil Code as enacted on
        25th December, 1910, and the provisions of the Law of
        Marriage as a Civil Contract in Goa, Daman and Diu which
    C   came into force on 26th May, 1911, are concerned, it
        cannot be accepted that all marriages performed within
        the territory of Goa unless registered should be void. The
        said provision was altered by the decree of 22nd January,
        1946, which restored the validity of both Catholic
    O   marriages and Hindu marriages. Therefore, two Hindus
        can contract a marriage according to Hinclu religious rites
        or by way of a civil marriage. Section 2 of the Hindu
        Marriage Act extends the operation of the Act to the whole
        of India except Jammu and Kashmir and also applies to
    E   Hindus domiciled in the territories to which the Act
        extends who are outside the said territories. Thus, the
.
•       provisions of the Hindu Marriage Act, 1955 would be
        applicable to the petitioner's case and can be heard by
        any Court having jurisdiction within the territories to
    F   which it applies. [Para 13] [603~D-G]

          1.2. It cannot be accepted that the annulment
      proceedings cannot be heard outside the State of Goa in
      view of the existing laws which made the Civil Code and
      the laws relating to marriage applicable to all persons
    G residing within the State of Goa. Sections 5 and 6 of the
      Goa, Daman & Diu (Administration) Act, 1962, indicate that
      the Central Government has the authority to extend
      enactments applicable to the rest of the country. In other
      words, even if it were to be held that it is the customary
    H law in Goa which would prevail over the personal law of
VINISHA JITESH TOLANI @ MANMEET LAGHMANI v. 597_
            JITESH KISHORE TOLAN!
the parties, the same could not be a bar to the transfer        A
of the matter C'JUtside the State of Goa to any other State.
The finding arrived at in *Monica Variato's case that even
applying the principles of Private International Law,
bearing in mind various personal laws in this country,
even though the spouses are domiciled in Qoa in respect         B
of a marriage performed outside Goa but in any other
State of the Union, they would be governed by their
personal laws in so far as dissolution of marriage is
concerned, is relevant. Notwithstanding tile fact that the
marriage between the parties had been conduct~d in              C
Goa, the same having been conducted under their
personal laws and under Hindu rites and traditions, the
claim of the petitioner is justified and there can be no
difficulty in allowing the prayer of the petitioner. Thus, it
is directed that the matrimonial petition pending in- the
Court of Civil Judge, Senior Division, at Vasco-da-gama,        0
Goa, be transferred to the Family Court at Tis Hazari,
 Delhi, for disposal, in accordance with law. [Paras 14 and
 15] [603-G-H; 604-A-F]

     Sumita Singh vs. Kumar Sanjay (2001) 10 SCC 41; *          E
Monica Variato vs. Thomas Variato (2000) 2 Goa LT. 149,
referred to.

     Pamily Laws o{ Goa, Daman & Diu by M.S. Usgaocar,
referred to.
                                                                F
                     Case Law Reference:
     (2001) 10 sec 41        Referred to.         Para 8
    (2000) 2 Goa LT. 149 Referred to.             Para 11
                                                                G
    CIVIL ORIGINAL JURISDICTION :Transfer Petition (Civil)
No. 1127 of 2008.

     Petition Under Section 25 Code of Civil Procedure.

                                                                H
    598      SUPREME COURT REPORTS                     [2010] 5 $.C.R.


A                                  WITH
    T.P: (Criminal) No. 74 of 2009

         S. K. Sharma, Dhruv Kumar and Sanjay Ji'3in for the
    Petitioner.
B
          Suruchii Aggarwal for the Respondent.

          The Judgment of the Court was delivered by

       ALTAMAS KABIR, J. 1. This is a petition filed by the wife
C of the respondent under Section 25 of the Code of Givil
  Procedure for transfer of Matrimonial Petition No.9 of 2008
  pending before the Civil Judge, Senior Division, at Vasco-da-
  Gama, Goa, to a Court of competent jurisdiction in Delhi.

D         2. The case of the petitioner is that she is a Sikh by religion
    and was born in Kabul in Afghanistan on 16th October, 1984.
    Till January, 1998, she pursued her primary education in
    Afghanistan. Her family shifted to Delhi in the month of February,
    1988, where she continued to live with her grandparents. She
E   thereafter continued her studies at the Guru Harkrishan Public
    School, Nanak Piao, Rana Pratap Bagh, Delhi, and continued
    her education there till 1999.

         3. The petitioner's father who had stayed behind in Kabul
    on account of his business commitments till 1992, finally shifted
F   to London where he was granted Afghan Refugee Asylum by
    the United Kingdom. In May, 2001, the petitioner also migrated
    to United Kingdom where her parents had been given British
    ~ationality.                                                ·

G       4. While in the United Kingdom, the petitioner started her
    own business and was self-employed and independent till she
    got married to the respondent in October, 2007. The
    respondent is a partner in a construction bus'iness with his father
    under the name and style of Tolani Developers at Panaji, Goa.
H
VINISHA JITESH TOLANI @ MANMEET LAGHMANI v. 599
   JITESH KISHORE TOLANI [ALTAMAS KABIR, J.]
     5. It appears that the petitioner met the respondent through     A
her brother-in-law who were both Merchant Naval Officers and,
thereafter, talks of marriage between the petitioner and the
respondent were commenced. The Rokka ceremony was
performed at London and the marriage was fixed in New Delhi.
However, on the insistence of the resp.ondent the marriage was        B
performed before the Civil Registrar of Mormugao Taluka,
Vasco-da-Gama, Goa, on 15th November, 2007 and the same
was registered in the pres~mce of three witnesses arranged by
the mspondent. Thereaft,er, the petitioner along with the
respor,,dent shifted to a flat in Kamat Place, i'Ylangoor Hill in     C
Vasco-da-Gama, Goa. Accon':ling to the petitioner, her troubles
began U'iereafter and in the month of February, 2006', she was
informed by the respondent and his parents that she ha.:i to go
to London' for completion of certain formalities as the marri'.:age
registration had not been accepted by the authorities and th~~
marriage W<>S a nullity according to them. Ultimately, on arriving
                                                                      0
at London, she was informed by the Indian Consulate that since
the marriage had been performed within India, the formalities
had to be completed within !ndia itself.

      6. Severa11 incidents occurred thereafter which caused her E
to commute between the United Kingdom and India till finally
she took up residence in a rented accommodation in New
Delhi. During the said period the petitioner was served with
certain papers from the Court and she had no option but to
engage a lawyer to obtain a copy of the petition filed by the F
respondent to enable her to protect her rights. To her surprise
she found that the matter had been proceeded with ex-parte,
without even serving summons to her, showing her address as
Flat No.12, 2nd Floor, Kamat Place, Mangoor Hill, Vasco-da-
Gama, Goa, although, it was within the knowledge of the G
respondent that she no longer resided in the said flat. The
petitioner also discovered that proceedings for declaring her
marriage to be a nullity had been commenced while she was
in London and much before she returned to India after her
marriage. Even when the petitioner was in India, she was not
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        600       SUPREME COURT REPORTS                      [2010] 5 S.C.R.


    A   informed about the pendency of the said proceedin'."j ... during
        her stay between April., 2()ll,l to July, 20013. This c..::.impelled her
        to fight for her rights while staying     at Delhi, but it was nea1r
        impossible to contest the litigation filed dt Goa, as a result of
        which the petitioner was compelled to file the present transfer
    s   petition.

              7. Appearing in support of the Transfer Petition, Mr. S.K.
        Sharma, learned Advocate, submitted that the marriage
        between the petitioner and the respondent had been conducted
        in Goa accord'1ng to Hindu rites and customs, on 25th October,
    C 2007. Subsequently, the marriage. was registered on 15th
        November, 2007, also at Goa. On 18th April, 2008, the
         respondent filed a petition under Section 12 of the Hindu
         M~rriage Act, 1955, for annulment of the marriage, although,
        'che petitioner was then residing in the United Kingdom having
    D been given the status of an Afghan refugee. However, between
         1989 and 1999, the petitioner and her parents lived in Delhi and
      - it is only in 1999 that the petitioner left for the United Kingdom
         alo_ng with her parents. 't was also submitted that the petitioner
         came back to India in order to contest the petition filed by the
    E respondent for annulmert of the marriage between him and the
/        petitioner in Goa. Learned counsel submitted tt1at having lived
         in Delhi for about 1a-years, the petitioner has a circle of friends
       - and acquaintances in Delhi to provide her support for contesting
         the an~ulment petition filed by the respondent, which she would
    F- _not be in a position to do .in Goa, where she has no friends or
         acquaintances. In fact, the petitioner went to Goa for the first
         time after her marriage with the respondent.

             8. Mr. Sharma submitted that this was a fit case where an
      order for transfer, as prayed for, was required to be made in
    G keeping With the decision of this Court in Sumita Singh vs.
      Kumar Sanjay [(2001) 10 SCC 41]. In the said decision, it was
      t1efci that since it was a matrimonial proceeding instituted by the
      husband against the wife, the convenience of the wife had to
      be considered in contesting the suit and, accordingly, the
    H
VINISHA JITESH TOLANI @ MANMEET LAGHMANI v. 601
  JITESH KISHORE TOLANI [ALTAMAS KABIR, J.)
matrimonial proceedings ought to be transferred to Delhi,              A
where the wife was residing. Mr. Sharma submitted that this
was a case where the facts are more or less similar and hence
the transfer petition was liable to be allowed.

      9. Ms. Suruchi Aggarwal, learned Advocate appearing for          8
the respondent-husband, while opposing the stand taken on
behalf of the petitioner, denied that the petitioner was in fact
living in Delhi. Ms. Aggarwal submitted that the petitioner was
a resident of the United Kingdom where she stayed with her
parents on the basis of the residential status of an Afghani           C
refugee, as granted to her by the U.K. Government. It did not
really matter to her whether the petition under Section 12 of the
Hindu Marriage Act was heard either in Delhi or in Goa.
Furthermore, Ms. Aggarwal also raised a point of some interest
to the effect that civil proceedings relating to marriage were         D
governed by the Civil Code of 1867 which was in force in Goa
and that as a result, the petition for annulment could only be tried
in the State of Goa and not in any other State. Ms. Aggarwal
urged that the family laws of Goa, Daman & Diu apply uniformly
to all persons residing within the State of Goa and that by virtue
of the provisions of the Goa, Daman & Diu (Administration) Act,        E
1962, enacted on 27th March, 1962, provision was made for
continuance of existing laws and their adaptation. Learned
counsel referred to Section 5 of the Act which reads as
follows:-

     "5. Continuance of existing laws and their adaptation. (1)
     All laws in force immediately before the appointed day in
     Goa, Daman and Diu or any part thereof shall continue to
     be in force therein until amended or repealed by the
     competent Legislature or other competent authority.               G

     (2). For the purpose of facilitating the application of any
     such law in relation to the administration of Goa, Daman
     and Diu as a Union Territory and for the purpose of bringing
     the provisions of any such law into accord with the
     provisions of the Constitution, the Central Government may,
    602      SUPREME COURT REPORTS                   [2010] 5 S.C.R.

A         within two years from the appointed day, by order, make
          such adaptations and modifications, whether by way of
          repeal or amendment, as may be necessary or expedient
          and thereupon, every such law shall have effect subject to
          the adaptations and modifications so made."
B
          10. Ms. Aggarwal also pointed out that by virtue of Section
    6 of the aforesaid Act, the Central Government was empowered
    to extend different enactments to Goa, Daman & Diu, and the
    same reads as follows :-

C         "6. Power to extend enactments to Goa, Daman and Diu.
          The Central Government may, by notification in the Official
          Gazette, extend with such restrictions or modifications as
          it thinks fit, to Goa, Daman and Diu any enactment which
          is in force in a State at the date of the notification."
D
          11. Relying on Shri M.S. Usgaocar's book on Family Laws
    of Goa, Daman & Diu, Ms. Aggarwal submitted that family law
    in Goa treats the law of marriage as a civil contract. It was
    pointed out that Article 3 of the Chapter on Civil Marriage and
E   its solemnization provides that all Portuguese shall solemnize
    their marriage before the respective officers of Civil
    Registration, under the conditions and in the manner
    established in civil law, and only such marriage would be valid.
    Ms. Aggarwal contended that having regard to the provisions
F   of the Civil Code as prevalent in Goa, the pending proceedings
    could only be heard and disposed of within the State of Goa.
    Reference was made by Ms. Aggarwal to a decision of the
    Bombay High Court in LPA No.31 of 1998, Monica Variato vs.
    Thomas Variato ((2000) 2 .Goa L.T. 149], in which it was held
    that the Special Marriage Act, 1954, did not have any
G   application in the State of Goa since the same had not been
    extended to the State of Goa. It was ultimately held that even
    applying the provision~ of Private International Law and bearing
    in mind the various personal laws in the country, it would be the
    Civil Court exercising jurisdiction in divorce matters in the State
H   of Goa that could hear and d~cide the petition. Ms. Aggarwal,
\ VINISHA JITESH TOLANI@ MANMEET LAGHMANI v. 603
     JITESH KISHORE TOLANI [ALTAMAS KABIR, J.]
 therefore, urged that it is only the Civil Court in Goa which would A
 have the jurisdiction to try matrimonial disputes and no other·
 Court would have jurisdiction in that regard. Accordingly, the
 transfer petition had to fail and the annulment petition would
 have to be heard within the State of Goa.
                                                                         B
      12. We have carefully considered the submissions made
 on behalf of the respective parties, and, in particular, the
 submissions made by Ms. Aggarwal with regard to the
 application of the Goa, Daman & Diu (Administration) Act,
 1962, the Civil Code as enacted on 25th December, 1910, and
 the provisions of the Law of Marriage as a Civil Contract, which        C
 came into force in Goa, Daman and Diu with effect from 26th
 May,1911.

      13. As far as the Civil Code as enacted on 25th
 December, 1910, and the provisions of the law of Marriage as            D
 a Civil Contract in Goa, Daman and Diu which came into force
 on 26th May, 1911, are concerned, we are unable to agree with
 Ms. Aggarwal that all marriages performed within the territory
 of Goa unless registered should be void. The said provision
 was altered by the decree of 22nd January, 1946, which                  E
 restored the validity of both Catholic marriages and Hindu
 marriages. Two Hindus, therefore, can contract a marriage
 according to Hindu religious rites or by way of a civil marriage.
 Section 2 of the Hindu Marriage Act extends the operation of
 the Act to the whole of India except Jammu and Kashmir and              F
 also applies to Hindus domiciled in the territories to which the
 Act extends who are outside the said territories. In other words,
 the provisions of the Hindu Marriage Act, 1955, would be
 applicable to the petitioner's case and can be heard by any
 Court having jurisdiction within the territories to which it applies.   G

      14. We are not convinced with the submissions made by
 Ms. Aggarwal that the annulment proceedings cannot be heard
 outside the State of Goa in view of the existing laws which
 made the Civil Code and the laws relating to marriage
 applicable to all persons residing within the State of Goa. In          H
    604      SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A addition to the above, Sections 5 and 6 of the Goa, Daman &
  Diu (Administration) Act, 1962, indicate that the Central
  Government has the authority to extend enactments applicable
  to the rest of the country. In other words, even if it were to be
  held that it is the customary law in Goa which would prevail over
B the personal law of the parties, the same could not be a bar to
  the transfer of the matter outside the State of Go.a to any other
  State. What would be of relevance is the finding arrived at by
  the Bombay High Court in Goa in Monica Variato's case
  (supra) that even applying the principles of Private 'International
c Law, bearing in mind various personal laws in this country, even
  though the spouses are domiciled in Goa in respect of a
  marriage performed outside Goa but in any other State of the
  Union, they would be governed by their personal laws in so far
  as dissolution of marriage is concerned. Notwithstanding the
D fact that the marriage between the parties had been conducted
  in Goa, the same having been conducted under their personal
  laws and under Hindu rites and traditions, we are satisfied that
  the claim of the petitioner is justified and there can be no
  difficulty in allowing the prayer of the petitioner.

E        15. We, accordingly, allow the Transfer Petition (Civil)
    No.1127 of 2008 and direct that Matrimonial Petition No.9/
    2008/A titled Jitesh Kishore Tolani Vs. Vinisha Jitesh Tolani @
    Manmeet Laghmani pending in the Court of Civil Judge, Senior
    Division, at Vasco-da-gama, Goa, be transferred to the Family
F   Court at Tis Hazari, Delhi, for disposal, in accordance with law.1

        16. Transfer Petition (Crl.) No.74 of 2009 filed by the
    husband is, therefore, dismissed.
                                                                        I
    N.J.                            Transfer Petitions disposed of.;