Madras High Court
S.Nivetha vs B.Suresh on 18 January, 2021
Tr.CMP No.459 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.01.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.459 of 2020
and
C.M.P.No.10900 of 2020
S.Nivetha .. Petitioner
vs.
B.Suresh .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw and transfer the H.M.O.P.No.7 of 2020 pending on the
file of Sub ordinate Court at Arni and transfer the same to Family Court at
Thiruvallur and try the same along with H.M.O.P.No.37 of 2020.
For Petitioner : Mr.Sabrish
For M/s.Kingston Jerold
For Respondent : No appearance
1/10
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Tr.CMP No.459 of 2020
ORDER
The petition for transfer is filed to transfer H.M.O.P.No.7 of
2020 from the Subordinate Court, Arni to the Family Court, Thiruvallur.
2. The marriage between the petitioner and the respondent was
solemnised on 31.08.2017 as per the Hindu Rites and Customs. The
petitioner and the respondent started their Matrimonial life happily. The
petitioner states that due to the continuous harassment of the respondent,
she was forced to leave the matrimonial home. Various allegations are
raised against the respondent and this Court is of an opinion that such
allegations cannot be adjudicated in the present petition for transfer.
However, the fact remains that the petitioner/wife is now residing at
Thiruvallur and she filed a case in H.M.O.P.No.37 of 2020 for Divorce
before the Family Court, Thiruvallur. The respondent/husband filed
H.M.O.P.No.7 of 2020 before the Sub-Court, Arni for Restitution of
Conjugal rights.
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Tr.CMP No.459 of 2020
3. 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
wife.
22. While considering a provision like
Section 19 (iii-a) of the Hindu Marriage Act, the
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Tr.CMP No.459 of 2020
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
interpretation by Courts.''
(ii) In yet another case in TR.CMP.Nos.138 and 139 of 2006,
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Tr.CMP No.459 of 2020
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
that case, the petitioner is having a small child and
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Tr.CMP No.459 of 2020
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.459 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
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Tr.CMP No.459 of 2020
jurisdiction of the Court where she resides.''
4. In view of the facts and circumstances, the H.M.O.P.No.7 of
2020 pending before the Sub-Court, Arni stands transferred to the Family
Court, Thiruvallur, to be tried along with H.M.O.P.No.37 of 2020 filed by
the petitioner.
5. Accordingly, this Transfer Civil Miscellaneous Petition
No.459 of 2020 stands allowed and H.M.O.P.No.7 of 2020 pending on the
file of the Sub-Court, Arni is directed to be transferred to the Family Court,
Thiruvallur to be tried along with H.M.O.P.No.37 of 2020 filed by the
petitioner. However, there shall be no order as to costs. Consequently,
connected miscellaneous petition is closed.
18.01.2021
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Kak
To
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Tr.CMP No.459 of 2020
1.The Judge,
Sub-Court, Arni.
2.The Judge,
Family Court, Thiruvallur.
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Tr.CMP No.459 of 2020
S.M.SUBRAMANIAM, J.
Kak
Tr.CMP No.459 of 2020
18.01.2021
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