Madras High Court
N.Banu vs B.Nagarajan on 18 February, 2021
Tr.C.M.P.No.541 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.541 of 2020
and
C.M.P.No.14312 of 2020
N.Banu ..Petitioner
Vs.
B.Nagarajan ..Respondent
Prayer : Transfer Civil Miscellaneous Petition filed under Section 24 of
Code of Civil Procedure praying to withdraw the H.M.O.P No.1335 of
2020 from the file of the Hon'ble 5th Additional Principal Family Court,
Chennai and to transfer the same to the Hon'ble Sub-Court,
Thiruchengode, Namakkal District.
For Petitioner : Mr.B.Mohan
For Respondent : Mr.G.Muthukumar
1/10
https://www.mhc.tn.gov.in/judis/
Tr.C.M.P.No.541 of 2020
JUDGMENT
The petition for transfer is filed to transfer H.M.O.P.No.1335 of
2020 from the 5th Additional Principal Family Court, Chennai to the
Sub-Court, Thiruchengode, Namakkal District.
2. The marriage between the petitioner and the respondent was
solemnized on 19.02.2018 as per the Hindu Rites and Customs. The
petitioner and the respondent started their matrimonial life happily. On
account of difference of opinion, the petitioner states that she was forced
to leave the matrimonial home and she was living separately in her
parents home at Inkadachanallur, Komarapalayam Taluk, Namakkal
District. The respondent/husband filed H.M.O.P.No.1335 of 2020
seeking dissolution of marriage, which is pending before the 5th
Additional Principal Family Court, Chennai. The petitioner states that
she is residing along with her aged parents and she is dependent of her
parents. Thus, she is not in a position to travel all along from Namakkal
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Tr.C.M.P.No.541 of 2020
to Chennai which is about 402 kms from Komarapalayam.
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
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Tr.C.M.P.No.541 of 2020
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 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
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Tr.C.M.P.No.541 of 2020
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 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
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Tr.C.M.P.No.541 of 2020
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.
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
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Tr.C.M.P.No.541 of 2020
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:-
''18.It is true that section 19 of the Hindu
Marriage Act, has been amended by insertion of
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Tr.C.M.P.No.541 of 2020
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 H.M.O.P.No.1335
of 2020 pending on the file of the 5th Additional Principal Family Court,
Chennai stands transferred to the Sub-Court, Thiruchengode, Namakkal
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Tr.C.M.P.No.541 of 2020
District.
5. Accordingly, this Transfer Civil Miscellaneous Petition
No.541 of 2020 stands allowed and H.M.O.P.No.1335 of 2020 pending
on the file of the he 5th Additional Principal Family Court, Chennai, is
directed to be transferred to the Sub-Court, Thiruchengode, Namakkal
District. No costs. Consequently, connected miscellaneous petition is
closed.
18.02.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
1. The 5th Additional Principal Family Court,
Chennai.
2. Sub-Court, Thiruchengode, Namakkal District.
S.M.SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis/
Tr.C.M.P.No.541 of 2020
Pns
Tr.C.M.P.No.541 of 2020
18.02.2021
https://www.mhc.tn.gov.in/judis/
