Dismissal Of Transfer Petition May Not Operate As Res Judicata If Fresh Petition Is Filed On Change Of Circumstances: Supreme Court
The Supreme Court held that when a new petition is filed for a change of circumstances, dismissal of a petition for transfer does not act as res judicata. In this case, for the second time, a woman moved the Apex Court seeking the transfer of a 'Family Suit' from the Family Court in Gujarat, to a court in Mumbai, Maharashtra, filed by her husband [under Section 9 of the Hindu Marriage Act, for restoration of conjugal rights]. The Court denied the same prayer earlier in 2016. After three years of dismissal of the above Transfer Petition, the petitioner filed the present Transfer Petition on the basis that there was a change of circumstances 1) the death of her mother 2) the dismissal of the application by the Family Court to order her husband to pay her travel expenses. Opposing this plea, the 'husband' argued that a second petition could not be sustained once a request for transfer had been refused on an earlier occasion. Regarding maintainability, Justice V. Ramasubramanian agreed with the petitioner that the earlier dismissal of a petition for transfer, may not operate as res judicata. However, the court took notice of the stage of the litigation before the Family Court and claimed that the Court would be highly reluctant to order the transfer while the case is at its final stage, as it might derail the entire process.
On the said application, the Family Court may take a lenient view and have the proof on the petitioner's side restored. The case can subsequently be posted to the petitioner for cross-examination. A firm date may be given to the Court to allow the cross-examination of the plaintiff by the defendant's husband's counsel. The complainant shall, on the date thus set, appear before the Family Court.