Madras High Court
G.Sindhuja vs R.Elangovan on 5 January, 2021
Tr.CMP No.210 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.210 of 2020
And
C.M.P.No.6368 of 2020
G.Sindhuja .. Petitioner
vs.
R.Elangovan .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code to withdraw HMOP No.1339 of 2019 on the file of the Family
Court, Madurai and transfer the same to the file of the Family Court,
Salem and the same is to be tried along with MC No.41 of 2019.
For Petitioner : Mr.W.Camyles Gandhi
For Respondent : No Appearance
ORDER
The petition for transfer is filed to transfer HMOP No.1339 of
2019 from the Family Court, Madurai to the Family Court, Salem and
the same is to be tried along with MC No.41 of 2019.
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Tr.CMP No.210 of 2020
2. Marriage between the petitioner and the respondent was
solemnized on 09.12.2016 as per Hindu Rites and Customs at Madurai.
3. Out of the wedlock, a female child was born on
03.08.2017 at Salem. The petitioner frequently requested the
respondent to take her back to Singapore along with him. However,
the respondent deliberately refused to take the petitioner and the child
along with him to Singapore.
4. The difference of opinion arose between the petitioner and
the respondent and the petitioner was forced to come back to her
parents house at Salem and now she is residing there.
5. The petitioner states that the girl child is now 2-1/2 years
old and the respondent is residing in abroad and earning monthly
salary of Rs.2 lakhs. The petitioner is unemployed and living with the
support of her parents and under these circumstances, she is not in a
position to spend and travel all along from Salem to Madurai in order
to defend the case filed by the respondent in HMOP No.1339 of 2019.
The respondent filed the said HMOP for restitution of conjugal rights.
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Tr.CMP No.210 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
inserted in Section 19 with a specific purpose.
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Tr.CMP No.210 of 2020
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
stay at Bombay, the Supreme Court ordered
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Tr.CMP No.210 of 2020
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
Baikunthpur to be transferred to Allahabad,
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Tr.CMP No.210 of 2020
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
legislator is to safe-guard the interest and rights of
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Tr.CMP No.210 of 2020
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.1339 of
2019 pending on the file of the Family Court, Madurai stands
transferred to the file of the Family Court, Salem and the same is to be
tried along with M.C.No.41 of 2019.
8. Accordingly, this Transfer Civil Miscellaneous Petition
No.210 of 2020 stands allowed and HMOP No.1339 of 2019 pending on
the file of the Family Court, Madurai is directed to be transferred to the
file of the Family Court, Salem and the same is to be tried along with
M.C.No.41 of 2019. 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.210 of 2020
S.M.SUBRAMANIAM, J.
Svn
To
1.The Judge,
Family Court,
Madurai.
2.The Judge,
Family Court,
Salem.
Tr.CMP No.210 of 2020
05-01-2021
https://www.mhc.tn.gov.in/judis/
