Madras High Court

Shanthi vs Sakthivel on 7 January, 2021

                                                                               Tr.CMP No.433 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 07.01.2021

                                                           CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                    Tr.C.M.P.No.433 of 2020
                                                             and
                                                     C.M.P.No.9253 of 2020

                     Shanthi                                                         .. Petitioner

                                                              vs.

                     Sakthivel                                                        .. Respondent

                     PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code to withdraw and transfer H.M.O.P.No.259 of 2019 pending on the file
                     of the learned IV Family Court, Puducherry to the learned Sub-Court, Ginji
                     trying the case along with H.M.O.P.No.42 of 2019.

                                   For Petitioner             : Mr.S.N.Subramani

                                   For Respondent             : Mr.E.Thiyaga




                     1/9


https://www.mhc.tn.gov.in/judis/
                                                                             Tr.CMP No.433 of 2020




                                                          ORDER

The petition for transfer is filed to transfer H.M.O.P.No.259 of

2019 from Family Court, Puducherry to Sub-Court, Ginji trying the case

along with H.M.O.P.No.42 of 2019.

2. The marriage between the petitioner and the respondent was

solemnized on 20.01.2016 as per Hindu Rites and Customs. Both the

petitioner and the respondent started their Matrimonial life happily and on

account of certain disputes, the petitioner was forced to leave the

matrimonial home.

3. Several allegations are raised against the respondent by the

petitioner regarding the cruelty. However, those allegations are to be

established before the trial Court. As far as the petition to transfer is

concerned, the petitioner states that now she is residing with her parents and

her child. She has no independent source of income and she is eagerly

awaiting for re-union with the respondent. However, the respondent is

surprisingly sent a legal notice on 22.04.2019 seeking divorce and he filed

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.433 of 2020

H.M.O.P.No.259 of 2019 before the IV Family Court at Puducherry for

dissolution of marriage. The petitioner filed H.M.O.P.No.42 of 2019 before

the Sub-Court, Ginjee seeking restitution of conjugal rights.

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

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.433 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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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

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.433 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

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.433 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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5. In view of the facts and circumstances, the H.M.O.P.No.259 of

2019 pending on the file of the IV Family Court, Puducherry stands

transferred to the Sub-Court, Ginji.

6. Accordingly, this Transfer Civil Miscellaneous Petition

No.433 of 2020 stands allowed and H.M.O.P.No.259 of 2019 pending on

the file of the IV Family Court, Puducherry is directed to be transferred to

the Sub-Court, Ginji to be tried along with H.M.O.P.No.42 of 2019.

However, there shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.

07.01.2021 Speaking Order/Non-Speaking Order. Internet : Yes/No.

Index: Yes/No.

ssb To

1.The Judge, IV Family Court, Puducherry.

2.The Judge, Sub-Court, Ginji.

https://www.mhc.tn.gov.in/judis/ Tr.CMP No.433 of 2020