Madras High Court

M.Mahalakshmi vs S.Arjunan on 4 February, 2021

                                                                              Tr.CMP.No.480 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 04.02.2021

                                                           CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                    Tr.C.M.P.No.480 of 2020
                                                             and
                                                    C.M.P.No.11820 of 2020

                     M.Mahalakshmi                                                .. Petitioner
                                                              vs.
                     S.Arjunan                                                     .. Respondent

                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code, to withdraw F.C.O.P.No.383 of 2019 from the Family Court,
                     Chengalpattu and transfer the same to the V Additional Family Court,
                     Chennai in lieu of the joint trial with the proceedings in H.M.O.P.No.1490
                     of 2020 pending on the file of the Family Court, Chennai.

                                   For Petitioner               : Mr.S.Gowsik Sundar

                                   For Respondent               : No-appearance


                                                    ORDER

The petition is filed to transfer F.C.O.P.No.383 of 2019 from the

Family Court, Chengalpattu to the V Additional Family Court, Chennai.

https://www.mhc.tn.gov.in/judis/ Tr.CMP.No.480 of 2020

2. The marriage between the petitioner and the respondent was

solemnized on 05.02.2018 as per the Hindu Rites and Customs. A male

child was born from and out of the wedlock. The petitioner states that she

was forced to leave the matrimonial home on account of continuous

harassment. However, those allegations need not be adjudicated in the

transfer petition.

3.The learned counsel for the petitioner states that the petitioner filed

H.M.O.P.No.1490 of 2020 for divorce before the Family Court, Chennai.

The respondent is also residing at Guduvancherry and in order to harass the

petitioner, the respondent filed F.C.O.P.No.383 of 2019 for restitution of

conjugal rights before the Family Court, Chengalpattu. The petitioner has to

take care of her child and therefore, she is not in a position to travel and

contest the case filed by the respondent before the Family Court,

Chengalpattu.

https://www.mhc.tn.gov.in/judis/ Tr.CMP.No.480 of 2020

4. 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.

https://www.mhc.tn.gov.in/judis/ Tr.CMP.No.480 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.''

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(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

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

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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 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

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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 Chengalpet 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 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

https://www.mhc.tn.gov.in/judis/ Tr.CMP.No.480 of 2020

jurisdiction of the Court where she resides.''

5. In view of the facts and circumstances, the F.C.O.P.No.383 of 2019

pending on the file of the Family Court, Chengalpattu stands transferred to

the V Additional Family Court, Chennai.

6. Accordingly, this Transfer Civil Miscellaneous Petition No.480

of 2020 stands allowed and F.C.O.P.No.383 of 2019 pending on the file of

the Family Court, Chengalpattu is directed to be transferred to the V

Additional Family Court, Chennai to be tried along with H.M.O.P.No.1490

of 2020. However, there shall be no order as to costs. Consequently,

connected miscellaneous petitions are closed.

04.02.2021 Speaking Order/Non-Speaking Order. Internet : Yes/No.

Index: Yes/No.

ssb

https://www.mhc.tn.gov.in/judis/ Tr.CMP.No.480 of 2020

S.M.SUBRAMANIAM, J.

ssb