Madras High Court
Swetha vs Prasanna on 6 January, 2021
Tr.CMP No.520 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.520 of 2020
Swetha .. Petitioner
vs.
Prasanna .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code to withdraw the case in H.M.O.P.No.236 of 2018 on the file of the
learned Principal Sub Court at Ponneri and transfer the same to Chennai or
to any other Court having competent Jurisdiction.
For Petitioner : Mr.M.Rajavelu
For Respondent : No Appearance
ORDER
The petition for transfer is filed to transfer H.M.O.P.No.236 of
2018 from Principal Sub Court, Ponneri to Chennai.
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Tr.CMP No.520 of 2020
2. The petitioner filed H.M.O.P.No.236 of 2018, seeking
Dissolution of Marriage. The H.M.O.P was filed before the Principal Sub
Court, Ponneri. The Transfer application is filed to transfer the case to
Family Court, at Chennai mainly on the ground that the jurisdiction point is
raised by the respondent as the marriage was solemnized at Kodungaiyur
and the petitioner and the respondent lastly residing within the jurisdiction
of Ponneri Court. In view of the said fact, the respondent is now attempting
to raise the point of maintainability for the purpose of dismissal of H.M.O.P.
The H.M.O.P is filed, seeking Dissolution of Marriage on various grounds.
In the event of rejecting the petition on the ground of maintainability, great
hardship would be caused to the petitioner. Thus, the petitioner is
constrained to move the present Transfer Petition.
3. This Court is of the considered opinion that the petitioner is the
wife and the marriage between the petitioner and the respondent was
solemnized on 22.04.2015 as per Hindu Rites and Customs. On account of
misunderstanding between these spouses, they left the Matrimonial home
and now living separately. The petitioner filed H.M.O.P for Divorce. Now
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Tr.CMP No.520 of 2020
she herself seeks transfer of the case from Ponneri to Chennai and in the
event of transfer, the same would not cause any prejudice to the interest of
the respondent to defend the case.
4. 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
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Tr.CMP No.520 of 2020
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 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
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Tr.CMP No.520 of 2020
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.
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
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Tr.CMP No.520 of 2020
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 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
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Tr.CMP No.520 of 2020
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 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.''
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Tr.CMP No.520 of 2020
5. This being the factum, the H.M.O.P.No.236 of 2018 now
pending on the file of the Principal Sub Court, Ponneri stands transferred to
the Family Court, Chennai.
6. Accordingly, this Transfer Civil Miscellaneous Petition
No.520 of 2020 stands allowed and H.M.O.P.No.236 of 2018 pending on
the file of the Principal Sub Court, Ponneri is directed to be transferred to
the Family Court, Chennai. However, there shall be no order as to costs.
06.01.2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Kak
To
1.The Judge,
Principal Sub Court,
Ponneri.
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Tr.CMP No.520 of 2020
2.The Judge,
Family Court,
Chennai.
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Tr.CMP No.520 of 2020
S.M.SUBRAMANIAM, J.
Kak
Tr.CMP No.520 of 2020
06.01.2021
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