Madras High Court
K.Shanmuga Priya vs K.Vigneshkumar on 1 February, 2021
Tr.CMP No.543 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01-02-2021
Coram
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.543 of 2020
And
C.M.P.No.14319 of 2020
K.Shanmuga Priya .. Petitioner
vs.
K.Vigneshkumar .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code to withdraw and transfer the HMOP No.33 of 2020 pending on
the file of the Principal Subordinate Court, Vellore to the file of the
Family Court at Chennai for further proceedings.
For Petitioner : Mr.N.Sivakumar
For Respondent : Mr.P.Balamurugan
ORDER
The petition on hand is filed to transfer the HMOP No.33 of
2020 from the file of the Principal Sub Court, Vellore to the file of the
Family Court at Chennai.
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Tr.CMP No.543 of 2020
2. The petitioner mainly states that the marriage between
the petitioner and the respondent was solemnized on 24.02.2019 at
Vellore as per Hindu Rituals and Customs and the spouses started their
matrimonial home happily. A female child was born from and out of
the wedlock.
3. The petitioner states that the respondent started harassing
her and he has not even visited the new born baby. The petitioner is
now living with her parents and she has to take care of her child aged
about 7 months. Under these circumstances, she is not in a position to
travel all along from Chennai to Vellore and defend the divorce case
filed by the respondent in HMOP No.33 of 2020.
4. In view of the fact that the allegations raised against the
petitioner by the respondent, are flimsy, this Court directed the parties
to be present before this Court. Accordingly, Today i.e., on
01.02.2021, the petitioner and the respondent are present before this
Court.
5. Though the petitioner is willing for re-union and join the
matrimonial home, the respondent is adamant and not expressed his
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Tr.CMP No.543 of 2020
willingness to resume the matrimonial home. Contrarily, he is raising
unnecessary and serious allegations against the petitioner without any
basis. The respondent is not having any mind to accept the petitioner
at this point of time and therefore, this Court is of an opinion that the
case is to be transferred from Vellore to Chennai.
6. The principles regarding transfer petitions, more
specifically in the matters of matrimonial cases are well settled through
the decisions 3 of the High Court of Madras, in the following cases:-
(i) The Hon'ble Division Bench of the High Court of Madras in
W.A.No.1181 of 2009, dated 09.07.2010 has held as follows:-
''21. The domicile or citizenship of the
opposite party is immaterial in a case like this.
In case the marriage was solemnized under
Hindu Law marital relationship is governed by
the provisions of the Hindu Marriage Act.
Therefore, Section 19 has to be given a
purposeful interpretation. It is the residence of
the wife, which determines the question of
jurisdiction, in case the proceeding was
initiated at the instance of the wife.
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Tr.CMP No.543 of 2020
22. While considering a provision like
Section 19 (iii-a) of the Hindu Marriage Act, the
objects and reasons which prompted the
parliament to incorporate such a provision has
also to be taken note of. Sub Clause (iii-a) was
inserted in Section 19 with a specific purpose.
Experience is the best teacher. The
Government found the difficulties faced by
women in the matter of initiation of
matrimonial proceedings. The report submitted
by the Law Commission as well as National
Commission for Women, underlying the need
for such amendment so as to enable the
women to approach the nearest jurisdictional
court to redress their matrimonial grievances,
were also taken note of by the Government.
Therefore such a beneficial provision meant for
the women of our Country should be given a
meaningful interpretation by Courts.''
(ii) In yet another case in TR.CMP.Nos.138 and 139 of 2006,
dated 30.08.2006, the High Court of Madras has considered the
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Tr.CMP No.543 of 2020
following judgments:-
''16.In AIR 2000 SC 3512 (1) (Mona
Aresh Goel vs. Aresh Satya Goel), when the wife
pleaded that she was unable to bear the
traveling expenses and even to travel alone and
stay at Bombay, the Supreme Court ordered
transfer of proceedings.
In 2000 (10) SCC 304, the Honourable
Supreme Court has held that where the
petitioner's wife has pleaded lack of money, the
same has to be considered.
In 2000 (9) SCC 355, the wife has filed
a petition to transfer the proceedings initiated by
the husband for divorce, at Bombay. The place
of residence of the wife was at Jaipur, Rajasthan.
In that case, the petitioner is having a small
child and that she pleaded difficulty in going all
the way from Jaipur to Bombay to contest the
proceedings from time to time. Considering the
distance and the difficulties faced by the wife,
the Supreme Court has allowed the transfer
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Tr.CMP No.543 of 2020
petition.
In a decision reported in 2005 (12)
SCC 395, the wife has sought for transfer of
matrimonial proceedings and a divorce petition
has been filed by the respondent's husband at
Baikunthpur to be transferred to Allahabad,
where the petitioner's wife was residing, on the
ground that it would be difficult for her to
undertake such long distance journey,
particularly in circumstances, in which she finds
that the proceedings under 5 Section 125 Cr.P.C.
was already pending before the Family Court,
Allahabad. Considering the difficulties faced by
the wife and also the long distance journey, the
Honourable Supreme Court was pleased to order
transfer of the proceedings to Allahabad.
(iii) In a decision made in TR.CMP(MD)No.108 of 2010, dated
03.03.2011, the Madurai Bench of Madras High Court, has observed as
below:-
''18.It is true that section 19 of the Hindu
Marriage Act, has been amended by insertion of
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Tr.CMP No.543 of 2020
proviso of (iii)(a) to section 19. Of Course, this
amended section 19(iii)(a) gives special preference
to the wife to file a petition or defending the case of
the husband before the Court within whose
jurisdiction she resides. The intention of the
legislator is to safe-guard the interest and rights of
the women, who are being subjected to harassment
and cruelty. But this special preference conferred
under section 19(iii)(a) of the Hindu Marriage Act
shall not be used to wreck vengeance on the
husband. There must be a justifiable cause to select
the jurisdiction of the Court where she resides.''
7. In view of the facts and circumstances, the HMOP No.33 of
2020 now pending before the Principal Sub Court, Vellore stands
transferred to the file of the Family Court at Chennai.
8. Accordingly, this Transfer Civil Miscellaneous Petition
No.543 of 2020 stands allowed and H.M.O.P.No.33 of 2020 pending on
the file of the Principal Sub Court, Vellore is directed to be transferred
to the file of the Family Court at Chennai. However, there shall be no
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Tr.CMP No.543 of 2020
order as to costs. Consequently, connected miscellaneous petition is
closed.
01-02-2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Svn
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Tr.CMP No.543 of 2020
To
1.The Principal Sub Judge,
Principal Sub Court,
Vellore.
2.The Judge,
Family Court,
Chennai.
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Tr.CMP No.543 of 2020
S.M.SUBRAMANIAM, J.
Svn
Tr.CMP No.543 of 2020
01-02-2021
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