Madras High Court
T.Maheshwari vs B.Ashok on 5 January, 2021
Tr.CMP No.945 of 2019
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.945 of 2019
And
C.M.P.No.25711 of 2019
T.Maheshwari .. Petitioner
vs.
B.Ashok .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code to withdraw OP No.4039 of 2019 on the file of the VII Additional
Family Court, Chennai and transfer the same to the file of the
Additional District Court, Nagercoil, Kanyakumari District.
For Petitioner : Mr.D.Muthukumar for
M/s.Paul and Paul.
For Respondent : No Appearance
ORDER
The petition for transfer is filed to transfer OP No.4039 of
2019 from VII Additional Family Court, Chennai to Principal District
Court, Nagercoil, Kanyakumari District.
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Tr.CMP No.945 of 2019
2. Marriage between the petitioner and the respondent was a
second marriage.
3. The petitioner states that on account of difference of
opinion and due to the harassment of the respondent, she left the
matrimonial home and now residing at her native place along with her
aged parents. The petitioner has stated that her father is aged about
80 years old and suffering from various ailments. The mother of the
petitioner is aged about 78 years and therefore, she is not in a position
to travel and conduct the case now pending before the VII Additional
Family Court at Chennai.
4. The respondent instituted the proceedings for divorce
under Section 13(i)(a) of the Hindu Marriage Act in O.P.No.4039 of
2019.
5. The learned counsel for the petitioner states that the
petitioner would not be in a position to come over to Chennai all along
from Kanyakumari District for each and every hearing. She has to look
after her aged parents and she has no sufficient income to spend and
come over to Chennai frequently.
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Tr.CMP No.945 of 2019
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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Tr.CMP No.945 of 2019
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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Tr.CMP No.945 of 2019
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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Tr.CMP No.945 of 2019
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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Tr.CMP No.945 of 2019
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, this Court is
inclined to transfer OP No.4039 of 2019, now pending on the file of the
VII Additional Family Court at Chennai, to the Additional District Court,
Nagercoil, Kanyakumari District.
8. Accordingly, this Transfer Civil Miscellaneous Petition
No.945 of 2019 stands allowed and OP No.4039 of 2019, now pending
on the file of the VII Additional Family Court at Chennai, is directed to
be transferred to the Additional District Court, Nagercoil, Kanyakumari
District. 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.945 of 2019
S.M.SUBRAMANIAM, J.
Svn
To
1.The VII Additional Judge,
VII Additional Family Court,
Chennai.
2.The Additional District Judge,
Additional District Court,
Nagercoil,
Kanyakumari District.
Tr.CMP No.945 of 2019
05-01-2021
https://www.mhc.tn.gov.in/judis/
