Madras High Court

R.Vimala vs V.Tamilselvan on 5 January, 2021

                                                                               Tr.CMP No.796 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.796 of 2019



                     R.Vimala                                        .. Petitioner

                                                              vs.

                     V.Tamilselvan                                   .. Respondent


                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code to withdraw and transfer the E.P. No.1 of 2018 in I.A. No.679 of
                     2015 in FCOP No.306 of 2015 on the file of the Family Court, Salem to
                     the file of the Family Court, Coimbatore.


                                     For Petitioner           : Mr.T.N.Murali Moghan

                                     For Respondent            : No Appearance

                                                           ORDER

The petition for transfer is filed to transfer E.P. No.1 of 2018

in I.A. No.679 of 2015 in FCOP No.306 of 2015 from Family Court,

Salem to Family Court, Coimbatore.

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2. Marriage between the petitioner and the respondent was

solemnised on 30.09.1990 as per Hindu Rites and Customs. A female

child was born out of the wedlock and now the girl child completed

Engineering Graduation and living along with the petitioner.

3. The petitioner states that the respondent deserted her on

02.06.2015 and thereafter filed a petition for divorce in FCOP No.306

of 2015 before the Family Court, Salem. The petitioner filed a petition

for restitution of conjugal rights in FCOP No.545 of 2015. I.A.No.679 of

2015 was filed in FCOP No.306 of 2015 for interim maintenance. The

Family Court, Salem granted an interim maintenance of Rs.20,000/-

per month and the said amount was subsequently modified by the

High Court in CMA No.1096 of 2016 as Rs.15,000/- per month.

4. The contention of the petitioner is that the respondent is

deliberately not paying the interim maintenance of Rs.15,000/- per

month ordered by this Court. The arrears of maintenance as on the

date of filing of the present transfer petition was about Rs.97,500/-. To

recover the said arrears of maintenance, the petitioner filed REP No.1

of 2018 in I.A.No.679 of 2015 in FCOP No.306 of 2015 before the

Family Court, Salem.

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5. The petitioner states that due to some personal problems,

the daughter is also unmarried and in order to get employment to her

daughter and considering the future career of her daughter, the

petitioner has shifted her residence from Salem to Coimbatore. Now

she is residing at Coimbatore along with her unmarried daughter. The

petitioner is not having any independent source of her own and she is

suffering from ill-heath and diabetic and the respondent also not

paying the maintenance punctually. Therefore, she filed the present

transfer petition.

6. This Court is of the considered opinion that the petitioner

is now residing at Coimbatore along with her unmarried daughter. The

respondent is not paying the interim maintenance punctually and even

as of September 2019, the arrears of maintenance to be paid to the

petitioner by the respondent is Rs.97,500/-. Under these

circumstances, it is a fit case for transferring E.P. No.1 of 2018 in I.A.

No.679 of 2015 in FCOP No.306 of 2015 from the Family Court, Salem

to the Family Court, Coimbatore.

7. 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.''

8. In view of the facts and circumstances, the E.P. No.1 of

2018 in I.A. No.679 of 2015 in FCOP No.306 of 2015 now pending

before the Family Court, Salem stands transferred to the Family

Court, Coimbatore.

9. Accordingly, this Transfer Civil Miscellaneous Petition

No.796 of 2019 stands allowed and E.P. No.1 of 2018 in I.A. No.679 of

2015 in FCOP No.306 of 2015 pending on the file of the Family Court,

Salem is directed to be transferred to the Family Court, Coimbatore.

However, there shall be no order as to costs.

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.796 of 2019

1.The Judge, Family Court, Salem.

2.The Judge, Family Court, Coimbatore.

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.796 of 2019