Dismissal of Transfer Petition May Not Operate as Res Judicata if Fresh Petition is filed on Change of Circumstances

May 14, 2021

The Supreme Court held that a dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances.

– The court took note of the stage of the proceedings before the Family Court and said that when a case is at its final stage, the Court will be extremely reluctant to order the transfer, as it may derail the entire process. Though it rejected the prayer to Transfer the case, the court issued following directives: the Petitioner is permitted to move an application for reopening of her evidence before the family court. The application may be allowed to be filed on line if such a facility is available. Else, it may be permitted to be filed through counsel without the petitioner having to undertake a travel. The Family Court may take a lenient view on the said application and have the evidence on the side of the petitioner restored. Thereafter, the case may be posted for the cross examination of the petitioner. For facilitating the cross examination of the petitioner by the sounsel for the respondent husband, the Court may be grnated a firm date. On the date so fixed, the petitioner shall appear before the Family Court. The Respondent shall ensure that the cross examination of the petitioner is carried out without fail by the Counsel for the respondent. No request for any adjournment on behalf of the respondent shall be allowed.

RajendraKhare v.SwaatiNirkhi on 28 January, 2021. In The Supreme Court Of India Criminal Appellate Jurisdiction (Before Justice Ashok Bhushan, ) REVIEW PETITION (CRL.) NO. 671 OF 2018IN TRANSFER PETITION (CRL.) NO.262 OF 2018

– On all occasions except the date on which the petitioner is to be cross examined, the petitioner may be permitted by the Family Court to be represented by a counsel without being present. If video conferencing is available, the petitioner may be granted the said facility.

– On evert occasion when the family court wants the physical presence of the petitioner, the respondent shall pay sum of Rs. 10,000/- to the petitioner, towards expenses for travel and stay. If the respondent fails to pay, the petitioner will be at liberty to approach this court.