Madras High Court

Lekha vs M.Maheshwaran on 5 January, 2021

                                                                                   Tr.CMP No.14 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.14 of 2020
                                                           And
                                                   C.M.P.No.463 of 2020



                     Lekha                                         .. Petitioner

                                                             vs.


                     M.Maheshwaran                                 .. Respondent


                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code to withdraw HMOP No.307 of 2019 on the file of the Sub Court,
                     Ponneri to the file of the Family Court, Coimbatore.


                                     For Petitioner           : Mr.M.Balaji

                                     For Respondent           : Mr.T.Ganesan

                                                          ORDER

The petition for transfer is filed to transfer HMOP No.307 of

2018 from the Sub Court, Ponneri to the Family Court, Coimbatore.

2. Marriage between the petitioner and the respondent was

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solemnized on 01.02.2009 as per Hindu Rites and Customs at

Coimbatore.

3. The petitioner states that her parents paid huge amount of

dowry and gold jewels and utensils at the time of her marriage. At the

time of marriage, the parents of the respondent informed the

petitioner that the respondent was working as Electrical Engineer and

the petitioner states that subsequently she was tortured and without

any other option, she left the matrimonial home and now residing with

her parents at Coimbatore.

4. The petitioner was not even allowed to enter into the

house of the respondent and the same was witnessed by the

neighbours. The petitioner came to know that the respondent was not

worked as Electrical Engineer at Singapore and he was working in

Saudi Arabia. Misunderstanding arose and thereafter, the respondent

filed HMOP No.307 of 2019 for divorce. Now the petitioner is residing

with her parents at Coimbatore and she is not in a position to spend

and travel all along from Coimbatore to Ponneri to attend the case filed

by the respondent before the Sub Court at Ponneri.

5. The principles regarding transfer petitions, more

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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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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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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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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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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.''

6. In view of the facts and circumstances, HMOP No.307 of

2019 pending on the file of the Sub Court, Ponneri stands transferred

to the file of the Family Court, Coimbatore.

7. Accordingly, this Transfer Civil Miscellaneous Petition

No.14 of 2020 stands allowed and HMOP.No.307 of 2019 pending on

the file of the Sub Court, Ponneri is directed to be transferred to 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.14 of 2020

S.M.SUBRAMANIAM, J.

Svn

1.The Sub Judge, Sub Court, Ponner.