Madras High Court

R.Aswatha vs R.Ragavendran on 26 February, 2021

                                                                              Tr.CMP No.57 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 26.02.2021

                                                         CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                 Tr.C.M.P.No.57 of 2021
                                                          and
                                                 C.M.P.No.2075 of 2021

                     R.Aswatha                                                         .. Petitioner

                                                            vs.

                     R.Ragavendran                                           .. Respondent
                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code, to withdraw the original petition in F.C.O.P.No.235 of 2020 pending
                     on the file of the Family Court at Vellore and transfer the same to the file of
                     IV Additional Family Court, Chennai and try along with F.C.O.P.No.368 of
                     2021 pending on the file of the IV Additional Family Court, Chennai.
                                   For Petitioner           : Mr.R.Ravindran
                                   For Respondent           : Mr.D.Karthikeyan

                                                         ORDER

The petition for transfer is filed to transfer F.C.O.P.No.235 of

2020 from Family Court, Vellore to the IV Additional Family Court,

Chennai.

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2. The marriage between the petitioner and the respondent was

solemnized on 02.12.2019 as per the Hindu Rites and Customs. The

petitioner states that the marriage itself was not consummated owing to the

impotency and physical incapacity of the respondent. Thus, there was no

opportunity for the petitioner/wife to continue in the Matrimonial home and

accordingly, she left the Matrimonial home and now living separately along

with her parents. The petitioner states that she filed F.C.O.P.No.368 of 2021

for Dissolution of marriage. The respondent/husband filed F.C.O.P.No.235

of 2020 for Restitution of Conjugal rights

3. The learned counsel for the petitioner states that the petitioner

is now residing along with her parents at Chennai and she is unemployed.

Therefore, she is not in a position to contest the case filed by the respondent

before the Court at Vellore.

4. The learned counsel for the respondent disputed the

contentions of the petitioner by stating that the family members of the

petitioner are threatening. However, there is no materials to establish the

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allegation and in the absence of any incidence or materials, this Court

cannot consider such blanket allegations of threatening by either of the

parties.

5. 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

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.57 of 2021

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

taken note of by the Government. Therefore such a

beneficial provision meant for the women of our

Country should be given a meaningful

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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

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

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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 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

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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 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.''

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6. In view of the facts and circumstances, the F.C.O.P.No.235 of

2020 pending on the file of the Family Court, Vellore stands transferred to

the IV Additional Family Court, Chennai.

7. Accordingly, this Transfer Civil Miscellaneous Petition No.57

of 2021 stands allowed and F.C.O.P.No.235 of 2020 pending on the file of

the Family Court, Vellore, is directed to be transferred to the IV Additional

Family Court, Chennai, to be tried along with F.C.O.P.No.368 of 2021 and

the IV Additional Family Court, Chennai, is requested to expedite the trial

and dispose of the same as expeditiously as possible. However, there shall

be no order as to costs. Consequently, connected miscellaneous petition is

closed.

26.02.2021 Speaking Order/Non-Speaking Order. Internet : Yes/No.

Index: Yes/No.

Kak To

1.The Judge,