Madras High Court
S.Banupriya vs R.Elumalai on 17 February, 2021
Tr.CMP No.22 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.02.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.22 of 2021
and
C.M.P.No.859 of 2021
S.Banupriya .. Petitioner
vs.
R.Elumalai .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code to order withdrawl of the proceedings in F.C.O.P.No.340 of 2020
from the file of the Family Court at Tiruvannamalai and transfer the same to
the Family Court at Chennai with a direction to conduct the proceedings in
F.C.O.P.No.340 of 2020.
For Petitioner : Mr.A.Saranraj
For Respondent : Mr.P.Udhaya shankar
ORDER
The petition for transfer is filed to transfer F.C.O.P.No.340 of
2020 from Family Court, Tiruvannamalai to the Family Court, Chennai.
2. The marriage between the petitioner and the respondent was
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Tr.CMP No.22 of 2021
solemnized on 02.02.2014 as per the Hindu Rites and Customs. The
petitioner and the respondent started their matrimonial life happily. A male
child born from and out of the wedlock and the petitioner states that the
respondent started harassing her and she was forced to leave the
Matrimonial home. The petitioner is now residing in her parents house
along with her 5 year old child, who is studying 1 st Standard at S.V.Kids
Primary School. The petitioner states that she has no independent source of
income and the petitioner/wife and her son are the dependents of her parents
and therefore, she is not in a position to travel all along from Chennai to
Tiruvannamalai and contest the petition for divorce filed by the
respondent/husband before the Family Court at Tiruvannamalai.
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:-
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Tr.CMP No.22 of 2021
''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
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
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Tr.CMP No.22 of 2021
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
Aresh Goel vs. Aresh Satya Goel), when the wife
pleaded that she was unable to bear the traveling
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Tr.CMP No.22 of 2021
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
allowed the transfer petition.
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Tr.CMP No.22 of 2021
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:-
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Tr.CMP No.22 of 2021
''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 F.C.O.P.No.340 of
2020 pending on the file of the Family Court, Tiruvannamalai stands
transferred to the Family Court, Chennai.
S.M.SUBRAMANIAM, J.
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Tr.CMP No.22 of 2021
Kak
5. Accordingly, this Transfer Civil Miscellaneous Petition No.22
of 2021 stands allowed and F.C.O.P.No.340 of 2020 pending on the file of
the Family Court, Tiruvannamalai, is directed to be transferred to the Family
Court, Chennai. However, there shall be no order as to costs. Consequently,
connected miscellaneous petition is closed.
17.02.2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Kak
To
1.The Judge,
Family Court, Tiruvannamalai.
2.The Judge,
Family Court, Chennai.
Tr.CMP No.22 of 2021
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