Madras High Court

G.Sharmila vs S.Shivadurga Rajasekar on 17 February, 2021

                                                                                        Tr.C.M.P.No.40 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.40 of 2021
                                                            and
                                                   C.M.P.No.1510 of 2021

                     G.Sharmila                                                          ..Petitioner
                                                                Vs.

                     S.Shivadurga Rajasekar                                             ..Respondent

                     Prayer : Transfer Civil Miscellaneous Petition filed under Section 24 of
                     Code          of   Civil   Procedure     praying   to   withdraw    and      transfer
                     H.M.O.P.No.160 of 2020 which is pending on the file of the
                     Subordinate Court at Uthamapalayam, Theni District to be tried before
                     Family Court, Coimbatore.


                                        For Petitioner      : Mr.P.Saravanan

                                        For Respondent : No appearance




                     1/10




https://www.mhc.tn.gov.in/judis/
                                                                                   Tr.C.M.P.No.40 of 2021


                                                    JUDGMENT

The petition for transfer is filed to transfer H.M.O.P.No.160 of

2020 from the Sub-Ordinate Court, Uthamapalayam, Theni District to

the Family Court, Coimbatore.

2. The marriage between the petitioner and the respondent was

solemnized on 06.09.2018 as per the Hindu Rights and Customs. A girl

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

was forced to leave matrimonial home along with her 8 months child.

The respondent filed H.M.O.P.No.160 of 2020 for dissolution of

marriage. The petitioner states that she is dependent on her parents and

she is unemployed. Thus, she is not in a position to travel all along from

Coimbatore to Uthamapalayam, in order to defend the divorce petition.

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:-

https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.No.40 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

https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.No.40 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.''

(ii) In yet another case in TR.CMP.Nos.138 and 139 of 2006,

https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.No.40 of 2021

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.

https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.No.40 of 2021

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,

particularly in circumstances, in which she finds

https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.No.40 of 2021

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

jurisdiction she resides. The intention of the

https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.No.40 of 2021

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.160 of

2020 pending on the file of the Sub-Ordinate Court, Uthamapalayam,

Theni District, stands transferred to the Family Court, Coimbatore.

6. Accordingly, this Transfer Civil Miscellaneous Petition No.40

of 2021 stands allowed and H.M.O.P.No.160 of 2020 pending on the file

of the Sub-Ordinate Court, Uthamapalayam, Theni District, is directed

to be transferred to the Family Court, Coimbatore. No costs.

https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.No.40 of 2021

Consequently, connected miscellaneous petition is closed.

17.02.2021

Pns

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

1. Sub-Ordinate Court, Uthamapalayam, Theni District.

2.Family Court, Coimbatore.

S.M.SUBRAMANIAM, J.