Madras High Court

Ms.Thendral Thamaraiselvan vs Mr.Manikandan Balasubramanian on 5 January, 2021

                                                                              Tr.CMP No.485 of 2020

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated : 05-01-2021

                                                           Coram

                                   THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                  Tr.C.M.P.No.485 of 2020
                                                            And
                                                  C.M.P.No.12017 of 2020



                     Ms.Thendral Thamaraiselvan                            .. Petitioner

                                                             vs.


                     Mr.Manikandan Balasubramanian                         .. Respondent


                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code to withdraw HMOP No.108 of 2020 on the file of the Sub Court,
                     Pudukottai and the same is to be transferred to the file of any other
                     Court which is suitable and having jurisdiction to try the case in
                     Coimbatore.


                                     For Petitioner           : Mr.V.Balamurugane

                                     For Respondent           : No Appearance

                                                          ORDER

The petition for transfer is filed to transfer HMOP No.108 of

2020 on the file of the Sub Court, Pudukottai and the same is to be

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.485 of 2020

transferred to the file of any other Court, which is suitable and having

jurisdiction to try the case in Coimbatore.

2. Marriage between the petitioner and the respondent was

solemnized on 11.09.2019 at Pudukottai.

3. The petitioner along with the respondent started their

matrimonial home at United States of America (U.S.A.).

4. The respondent committed an act of cruelty against the

petitioner and she was forced to return back to her parents home.

5. Learned counsel for the petitioner states that the

petitioner is now residing with her aged parents at Coimbatore and she

is a dependent. Further, the petitioner states that she apprehends that

in the event of travelling to Pudukottai, there is a life threat to her.

However, the fact remains that the respondent is also not residing at

Pudukottai and he is in abroad. This being the factum, the place of

choice of the petitioner is preferable for the purpose of conducting the

trial in the case of HMOP filed by the respondent, seeking dissolution of

marriage.

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.485 of 2020

6. 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

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

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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,

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

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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.

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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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

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

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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.''

7. In view of the facts and circumstances, HMOP No.108 of

2020 pending on the file of the Sub Court, Pudukottai stands

transferred to the file of the Family Court, Coimbatore.

8. Accordingly, this Transfer Civil Miscellaneous Petition

No.485 of 2020 stands allowed and HMOP.No.108 of 2020 pending on

the file of the Sub Court, Pudukottai is directed to be transferred to the

file of the Family Court, Coimbatore. However, there shall be no order

as to costs. Consequently, connected miscellaneous petition is closed.

05-01-2021 Speaking Order/Non-Speaking Order. Internet : Yes/No.

Index: Yes/No.

Svn

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.485 of 2020

S.M.SUBRAMANIAM, J.

Svn

1.The Sub Judge, Sub Court, Pudukottai.