The Gujarat High Court recently observed that courts must lean toward targeted affirmative action to ensure women have equal access to justice in matrimonial proceedings [Purvaben vs Hirenbhai Chaganbhai Solanki].

Justice D N Ray added that women deserve to be protected so that their right to legal remedy does not become illusory due to the inherent difficulties they face while in litigation.

"The only test is to be applied is the convenience of the weaker party. While suppression, misdeclaration etc., on the part of the applicant would always have their due weightage before any court of law, the primary ingredient which would influence the decision of the Court would be whether, by transferring a petition from one jurisdiction to the other, the Court has been able to balance the inherent inequality which the party seeking access to legal remedy is faced with," the Court said.

The Court added that matrimonial disputes represent a distinct category of litigation where parties often suffer more through the legal process than the grievance itself.

"Matrimonial disputes form a special category of disputes where both the parties suffer through the process of litigation sometimes even more than the malady they were seeking to redress by invoking legal remedies available to them. The legal process very often itself becomes the punishment," the Court said.

The Court was dealing an application filed by a wife under the Code of Civil Procedure, 1908 (CPC), seeking the transfer of a family suit from the family court at Amreli to the family Court at Junagadh, situated roughly 100 kilometers away.

The applicant submitted that she has no independent source of income and finds it exceedingly difficult to bear travel expenses and legal fees to attend the proceedings at Amreli. The husband opposed the plea and sought its dismissal.

Invoking Article 15(3) of the Constitution, the Court emphasized that the judiciary must move past formal non-discrimination to foster substantive social justice.

"Protective discrimination is a tool of social context judging by which two inherently inequal parties accessing legal remedies are deliberately discriminated upon, so that thereafter, they have equal access to the legal remedy," the Court observed.

It underlined that at the stage of considering a transfer plea, the Court is unconcerned with the rival allegations on merits.

Considering the hardships presented by the wife, the Court directed the transfer of the family suit to the court at Junagadh.

Advocate Yogeshkumar A Ratanpara represented the applicant- wife.

Advocate P J Kanabar appeared for the respondent- husband.

[Read Judgment]