Case Note & Summary
The applicant, Crystal Fernandes, filed a Misc. Civil Application under Section 24 of the Code of Civil Procedure, 1908, seeking transfer of two proceedings pending in the Civil and Criminal Court at Mapusa, Goa, to the Family Court at Bandra, Mumbai. The proceedings were RCS No. 6/2023 filed by the respondent, Joshua Henry Fernandes, for restitution of conjugal rights, and CMAP No. 52/2023 for permanent custody of their minor child (aged two and a half years) under Articles 137 and 138 of the Goa Portuguese Civil Code, 1867. The applicant resided in Mumbai with her parents and the child, and had also filed a DV Act case (No. 288/DV/2022) before the JMFC, Andheri, Mumbai. The applicant contended that traveling to Goa with the child and elderly parents caused severe hardship. The respondent opposed the transfer, arguing that the applicant had previously appeared in Goa, had a legal aid advocate there, and that her earlier application under Section 151 CPC had been rejected. The respondent also raised jurisdictional objections under the High Court Appellate Side Rules, claiming that petitions under Articles 226 and 227 should be filed before the Goa Bench. The court rejected these arguments, relying on the decision in Irene Blanch Khera v. Glenn John Vijay, which held that the Bombay High Court, as a common High Court for Maharashtra and Goa, has jurisdiction under Section 24 CPC. The court noted that the respondent's submissions were insensitive and that the hardship of the wife and child must be prioritized. The court emphasized that in matrimonial matters, the wife's convenience is paramount, considering socio-economic factors. The court allowed the application, transferring both cases to the Family Court in Mumbai, and directed the Goa courts to act on a server copy of the order.
Headnote
A) Civil Procedure - Transfer of Proceedings - Section 24 CPC - Matrimonial Matters - Wife's Convenience - The court considered the transfer of RCS No. 6/2023 (restitution of conjugal rights) and CMAP No. 52/2023 (permanent custody of child) from Mapusa, Goa to Family Court, Bandra, Mumbai. The applicant wife, residing in Mumbai with her minor child and elderly parents, faced hardship in traveling to Goa. The court held that in matrimonial matters, the wife's convenience is paramount, and the transfer was allowed to ensure ends of justice. (Paras 4-7) B) Civil Procedure - Jurisdiction - Section 24 CPC - Common High Court - The respondent raised an objection regarding jurisdiction, but the court relied on the decision in Irene Blanch Khera v. Glenn John Vijay, which held that the Bombay High Court, being a common High Court for Maharashtra and Goa, has jurisdiction to decide applications under Section 24 CPC. This decision was confirmed by the Supreme Court. (Paras 4-5.1) C) Civil Procedure - Transfer of Proceedings - Section 24 CPC - Rejection of Earlier Application - The respondent argued that the applicant's earlier application under Section 151 CPC was rejected. The court held that the power under Section 24 CPC is to achieve ends of justice, and rejection of a previous application under Section 151 does not preclude maintaining an application under Section 24. (Para 5)
Issue of Consideration
Whether the proceedings pending in Goa should be transferred to Mumbai under Section 24 of CPC considering the hardship of the wife and child.
Final Decision
Application allowed. RCS No. 6/2023 and CMAP No. 52/2023 pending in Mapusa Criminal and Civil Court, Goa, are transferred to the Family Court in Mumbai. Both courts in Goa shall take cognizance of a server copy of the order and act accordingly. MCA is allowed and disposed.
Law Points
- Section 24 CPC
- Transfer of proceedings
- Matrimonial matters
- Wife's convenience paramount
- Hardship of wife and child
- Jurisdiction of common High Court
