Madras High Court
Oviya vs Karthick on 17 February, 2021
Tr.C.M.P.No.35 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.02.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.35 of 2021
and
C.M.P.No.1252 of 2021
Oviya ..Petitioner
Vs.
Karthick ..Respondent
Prayer : Transfer Civil Miscellaneous Petition filed under Section 24 of
Code of Civil Procedure praying to order to withdraw the
H.M.O.P.No.62 of 2020 on the file of the Subordinate Court,
Nagapattinam and transfer the same to Subordinate Court, Mannargudi.
For Petitioner : Swami Subramaniam
For Respondent : No appearance
1/10
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Tr.C.M.P.No.35 of 2021
JUDGMENT
The petition for transfer is filed to transfer H.M.O.P.No.62 of
2020 from the Subordinate Court, Nagapattinam to the Subordinate
Court, Mannargudi.
2. The marriage between the petitioner and the respondent was
solemnized on 27.08.2017 as per the Hindu Rights and Customs. A male
child born from and out the wedlock and now the petitioner and the
respondent are living separately. The petitioner states that she is
dependent on her parents and she has to take care of her 2 years old
child. Thus, she is not in a position it contest the H.M.O.P.no.62 of 2020
pending on the file of Subordinate Court, Nagapattinam for Restitution
of Conjugal Rights.
3. 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:-
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Tr.C.M.P.No.35 of 2021
(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
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Tr.C.M.P.No.35 of 2021
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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Tr.C.M.P.No.35 of 2021
(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
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Tr.C.M.P.No.35 of 2021
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
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,
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Tr.C.M.P.No.35 of 2021
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
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
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Tr.C.M.P.No.35 of 2021
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.62 of
2020 pending on the file of the Subordinate Court, Nagapattinam, stands
transferred to the Subordinate Court, Mannargudi.
5. Accordingly, this Transfer Civil Miscellaneous Petition No.35
of 2021 stands allowed and H.M.O.P.No.62 of 2020 pending on the file
of the Subordinate Court, Nagapattinam, is directed to be transferred to
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Tr.C.M.P.No.35 of 2021
the Subordinate Court, Mannargudi. No costs. Consequently, connected
miscellaneous petition is closed.
17.02.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
1. Subordinate Court, Nagapattinam
2. Subordinate Court, Mannargudi.
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Tr.C.M.P.No.35 of 2021
S.M.SUBRAMANIAM, J.
Pns
Tr.C.M.P.No.35 of 2021
17.02.2021
https://www.mhc.tn.gov.in/judis/
