Valarmathi vs Saravana Kumar
2021 Latest Caselaw 2417 Mad

                                                                            Tr.CMP No.643 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 03.02.2021

                                                         CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                 Tr.C.M.P.No.643 of 2019
                                                          and
                                                 C.M.P.No.18522 of 2019


                     Valarmathi                                                    .. Petitioner

                                                            vs.

                     Saravana Kumar                                                 .. Respondent

                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code to withdraw and transfer the H.M.O.P.No.43 of 2019 on the file of
                     Sub Court, Thuraiyur to be heard and decided along with H.M.O.P.No.43 of
                     2019, on the file of Sub Court, Attur.
                                   For Petitioner          : M/s.R.Poornima
                                   For Respondent          : Mr.T.Dhamodharan

                                                         ORDER

The petition for transfer is filed to transfer H.M.O.P.No.43 of

2019 from Sub Court, Thuraiyur to the Sub Court, Attur.

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.643 of 2019

2. The marriage between the petitioner and the repsondent was

solemnized on 09.06.2014 as per the Hindu Rites and Customs. The

petitioner states that they started their matrimonial life happily and a girl

child born from and out of the wedlock. However, the respondent started

harassing the petitioner by questioning the paternity. Thus, the difference of

opinion arouse and the petitioner was forced to leave the matrimonial home

and now living along with her parents at Attur Town, Salem District. The

petitioner filed H.M.O.P.No.43 of 2019 before the Sub Court, Attur for

Dissolution of Marriage. Simultaneously, the respondent also filed

H.M.O.P.No.43 of 2019 on the file of the Sub Court, Thuraiyur, Trichy

District. The petition for transfer is filed mainly on the ground that the

petitioner has to take care of the girl child and she is studying Pre KG and

she has no other sources of income to spend and contest the case. Now, the

petitioner is depending on her aged parents and therefore, she is not in a

position to conduct divorce case filed by the respondent before the Sub

Court, Thuraiyur.

3. The principles regarding transfer petitions, more specifically in

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.643 of 2019

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.

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

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.643 of 2019

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 following

judgments:-

''16.In AIR 2000 SC 3512 (1) (Mona

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.643 of 2019

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

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.643 of 2019

allowed the transfer 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:-

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.643 of 2019

''18.It is true that section 19 of the Hindu

Marriage Act, has been amended by insertion of 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.''

4. In view of the facts and circumstances, the H.M.O.P.No.43 of

2019 pending on the file of the Sub-Court, Thuraiyur stands transferred to

the Sub Court, Attur.

S.M.SUBRAMANIAM, J.

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.643 of 2019

Kak

5. Accordingly, this Transfer Civil Miscellaneous Petition

No.643 of 2019 stands allowed and H.M.O.P.No.43 of 2019 pending on the

file of the Sub Court, Thuraiyur, is directed to be transferred to the Sub

Court, Attur, to be tried along with H.M.O.P.No.43 of 2019, which is

pending before the Sub Court, Attur. However, there shall be no order as to

costs. Consequently, connected miscellaneous petition is closed.

03.02.2021 Speaking Order/Non-Speaking Order. Internet : Yes/No.

Index: Yes/No.

Kak To

1.The Judge, Sub Court, Thuraiyur.

2.The Judge, Sub Court, Attur.

Tr.CMP No.643 of 2019

https://www.mhc.tn.gov.in/judis/