Madras High Court

B.Yamuna Bai vs C.Jaya Prabhu on 17 February, 2021

                                                                                  Tr.C.M.P.No.23 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.23 of 2021
                                                          and
                                                  C.M.P.No.911 of 2021
                     B.Yamuna Bai                                                ..Petitioner
                                                           Vs.

                     C.Jaya Prabhu                                           ..Respondent
                     Prayer : Transfer Civil Miscellaneous Petition filed under Section 24 of
                     Code of Civil Procedure praying to withdraw and to tranfer the
                     O.P.No.2384 of 2020 before the Hon'ble Principal Family Court,
                     Chennai to the Subordinate Court, Arakkonam.
                                      For Petitioner    : Mr.A.Nagarajan

                                      For Respondent : Mr.S.Sundar

                                                       JUDGMENT

The petition for transfer is filed to transfer O.P.No.2384 of 2020

from the Principal Family Court, Chennai to the Subordinate Court,

Arakkonam.

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2. The marriage between the petitioner and the respondent was

solemnized on 05.03.2010 as per the Hindu Rights and Customs. The

petitioner and the respondent started their matrimonial life happily and

on account of certain difference of opinion, the petitioner states that she

was forced to leave the matrimonial home. Several allegations raised by

the petitioner/wife and all such allegations need not be adjudicated in

this transfer petition and the parties are at liberty to adjudicate the issues

and allegations with the reference to the documents and evidences. As

far as the transfer petition is concerned, the petitioner stated that she has

already filed Domestic Violence Case against the respondent/husband in

D.V.C.No.2 of 2017 now pending before Judicial Magistrate,

Arakkonam. Further, she filed M.C.No.7 of 2020 for maintenance and

the same is aslo pending before the Judicial Magistrate, Arakkonam.

Now she is residing with her parents and she has no independence

income. Thus, she is not in a position to contest the OP filed by the

respondent/husband before the Principal Family Court, Chennai.

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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:-

(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

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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

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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

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

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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

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

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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

proviso of (iii)(a) to section 19. Of Course, this

amended section 19(iii)(a) gives special preference

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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. The learned counsel for the respondent made a submission that

the petitions are unnecessarily prolonged. It is needless to state that the

Courts are bound to dispose of the cases as early as possible, more

specifically, matrimonial cases as in the event of long delay parties

would suffer.

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5. In view of the facts and circumstances, the O.P.No.2384 of

2020 pending on the file of the Principal Family Court, Chennai, stands

transferred to the Subordinate Court, Arakkonam.

6. Accordingly, this Transfer Civil Miscellaneous Petition No.23

of 2021 stands allowed and O.P.No.2384 of 2020 pending on the file of

the Principal Family Court, Chennai, is directed to be transferred to the

Subordinate Court, Arakkonam. No costs. Consequently, connected

miscellaneous petition is closed.

17.02.2021

Pns

Index: Yes/No Internet:Yes/No Speaking order/Non speaking order To