Madras High Court

Priyankaa vs R.Arul Kumar on 4 January, 2021

                                                                              Tr.CMP No.664 of 2019

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated : 04-01-2021

                                                            Coram

                                   THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                  Tr.C.M.P.No.664 of 2019
                                                            And
                                                  C.M.P.No.19137 of 2019


                     Priyankaa                                      .. Petitioner

                                                             vs.

                     R.Arul Kumar                                   .. Respondent


                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code to withdraw the HMOP No.1591 of 2019 on the file of the IV
                     Additional Family Court, Chennai and transfer the same to the Family
                     Court, Vellore to be tried along with FCOP No.158 of 2019.


                                     For Petitioner           : M/s.P.Pandiyaraj

                                     For Respondent           : Mr.S.Nambi Arooran

                                                          ORDER

The relief sought for in the present Tr.CMP petition is to

withdraw the HMOP No.1591 of 2019 on the file of the IV Additional

Family Court, Chennai and transfer the same to the Family Court,

Vellore, to be tried along with FCOP No.158 of 2019.

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2. Wife is the petitioner in the present transfer CMP. The

marriage between the petitioner and the respondent was solemnised

on 09.11.2018 at Tirupathy. They commenced their family life with

happy note and subsequently difference of opinion arose.

3. The allegations set out in the present petition for transfer

is no further adjudication as the respective parties are bound to

adjudicate the issues before the Trial Court by producing documents

and evidences.

4. The present petition, being a transfer petition, is to

transfer the case. The consideration is whether the petitioner is

entitled for the relief as such sought for.

5. In Paragraph-9 of the affidavit filed in support of the

transfer petition, the petitioner has stated that she was working in

Chennai in order to meet out her livelihood. The respondent had not

maintained her. She left the matrimonial home. The respondent filed a

divorce petition. The petitioner has stated that she is not in a position

to stay alone in Chennai. Thus, she resigned her job and went to her

parent's home at Vellore. Under these circumstances, she is not in a

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position to come over to Chennai during every hearing and conduct the

case at Chennai. Thus, the petitioner has chosen to file the present

transfer petition.

6. The learned counsel for the respondent opposed the

contentions of the learned counsel for the petitioner by stating that the

petitioner is still working at Chennai and she has approached this Court

with unclean hands. Though she has submitted some documents

showing that she had resigned her job, the facts are incorrect and

therefore, the transfer petition is liable to be dismissed.

7. This Court is of the considered opinion that the merits and

demerits advanced by the respective counsel for the petitioner and the

respondent, cannot be adjudicated with reference to the facts and

circumstances. However, even at the time of filing of the transfer

petition, the petitioner has stated that she had resigned her job and

now she is living along with her parents at Vellore.

8. The principles regarding transfer petitions, more

specifically in the matters of matrimonial cases are well settled through

the decisions of the High Court of Madras, in the following cases:-

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(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

Government found the difficulties faced by

women in the matter of initiation of

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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.

In 2000 (10) SCC 304, the Honourable

Supreme Court has held that where the

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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

ground that it would be difficult for her to

undertake such long distance journey,

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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

and cruelty. But this special preference conferred

under section 19(iii)(a) of the Hindu Marriage Act

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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.''

In view of the principles laid down and considering the facts and

circumstances, the petitioner is entitled for the relief.