Madras High Court
R.Bagyalakshmi vs K.Sreehari on 5 January, 2021
Tr.CMP No.227 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.227 of 2020
And
C.M.P.No.6785 of 2020
R.Bagyalakshmi .. Petitioner
vs.
K.Sreehari .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code to withdraw FCOP No.2 of 2020 on the file of the Family Court
No.I at Chengalpet, Kancheepuram District and transfer the same to
the file of the II Additional Sub Court, Coimbatore District and the
same is to be tried along with HMOP No.40 of 2020.
For Petitioner : Mr.M.Dinesh Sharma for
Mr.P.Saravanan
For Respondent : No Appearance
ORDER
The petition for transfer is filed to transfer FCOP No.2 of
2020 pending on the file of the Family Court No.I at Chengalpet,
Kancheepuram District to the file of the II Additional Sub Court,
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Tr.CMP No.227 of 2020
Coimbatore District and the same is to be tried along with HMOP No.40
of 2020.
2. Marriage between the petitioner and the respondent was
solemnized on 14.11.2018 as per Hindu Rites and Customs at
Coimbatore.
3. The petitioner filed HMOP No.40 of 2020 for divorce before
the II Additional Sub Court at Coimbatore.
4. The respondent filed FCOP No.2 of 2020 for restitution of
conjugal rights, which is now pending before the Family Court No.I at
Chengalpet, Kancheepuram District.
5. Learned counsel for the petitioner states that the
petitioner is unemployed and residing at Coimbatore along with her
aged parents. Therefore, she is not in a position to spend and travel
from Coimbatore to Chengalpet, Kancheepuram District in order to
defend the case filed by the respondent.
6. The principles regarding transfer petitions, more
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Tr.CMP No.227 of 2020
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
inserted in Section 19 with a specific purpose.
Experience is the best teacher. The
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Tr.CMP No.227 of 2020
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
stay at Bombay, the Supreme Court ordered
transfer of proceedings.
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Tr.CMP No.227 of 2020
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
Baikunthpur to be transferred to Allahabad,
where the petitioner's wife was residing, on the
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Tr.CMP No.227 of 2020
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
legislator is to safe-guard the interest and rights of
the women, who are being subjected to harassment
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Tr.CMP No.227 of 2020
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, FCOP No.2 of 2020
pending on the file of the Family Court No.I at Chengalpet,
Kancheepuram District stands transferred to the file of the II Additional
Sub Court, Coimbatore and the same is to be tried along with HMOP
No.40 of 2020.
8. Accordingly, this Transfer Civil Miscellaneous Petition
No.227 of 2020 stands allowed and FCOP No.2 of 2020 pending on the
file of the Family Court No.I at Chengalpet, Kancheepuram District is
directed to be transferred to the file of the II Additional Sub Court,
Coimbatore and the same is to be tried along with HMOP No.40 of
2020. 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
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Tr.CMP No.227 of 2020
S.M.SUBRAMANIAM, J.
Svn
To
1.The Judge,
Family Court No.I at Chengalpet,
Kancheepuram District.
2.The II Additional Sub Judge,
II Additional Sub Court,
Coimbatore District.
Tr.CMP No.227 of 2020
05-01-2021
https://www.mhc.tn.gov.in/judis/
