Madras High Court
M.Vivekkumar vs A.Divya Bharathi on 25 June, 2021
Crl.O.P.(MD).No.8478 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.07.2021
Delivered On: 19.08.2021
CORAM
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD).No.8478 of 2021
and Crl.M.P.(MD).No.4361 of 2021
M.Vivekkumar .. Petitioner/1st Respondent
Vs.
1.A.Divya Bharathi
2.Minor Resiga
(Rep. by her mother - 1st respondent)
.. Respondents 1 & 2/Petitioners
3.M.Mriyappan
4.M.Panchali @ Rani
5.M.Dinesh Kumar
6.D.Pappathi
7.M.Senbagavalli
8.Rukmani ... Respondents 3 to 8/
Respondents 2 to 7.
1/9
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD).No.8478 of 2021
Prayer: This Criminal Original Petition is filed under Section 407 of
Cr.P.C., to transfer the case in DVOP.No.3 of 2021 pending before the
Judicial Magistrate Court at Thirumangalam to the Family Court, Madurai
or to any other competent Court at Madurai.
For Petitioner : Mr.M.S.Parthiban
For Respondent : Mr.J.Gunaseelan Muthiah for R1 & R2
ORDER
This petition has been filed seeking transfer of D.V.O.P.No.3 of 2021,
pending on the file of the learned Judicial Magistrate, Thirumangalam to the
file of the Family Court, Madurai or any other competent Court at Madurai.
2.The facts in brief:
The parties are married each other, on 28.07.2017, as per Hindu
Customary rites. After their marriage, the petitioner and the first respondent
lived in the petitioner's father's house situated at Karuppayurani for few
days. Right from the first day the first respondent is not co-operating with
the petitioner. The petitioner was waiting for a good day to come. Later he
shifted his family to Karaikudi due to his transfer, since he was working as
an employee in a Bank. The first respondent later told the petitioner that
she is not willing to live with him. She demanded transfer of property in her
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Crl.O.P.(MD).No.8478 of 2021
name. The petitioner refused to do so. Hence, she left the matrimonial home
and went to the parental home. After some compromise, she returned to the
matrimonial home. Thereafter also, there was no change in the attitude. The
first respondent's family was creating problem which was also intimated to
the police. Enquiry was also held. In the meantime, the first respondent
gave birth to a female child, on 23.03.2019. Even after the birth of the
child, there was no change in her attitude. She even did not allow the
petitioner and his parents to visit the child. So because of her attitude, the
petitioner filed a petition seeking divorce in H.M.O.P.No.141 of 2020,
before the Sub Court, Madurai and it is pending and after that, the first
respondent filed D.V.O.P.No.3 of 2021, seeking reliefs under Sections 17,
19(1)(c), 19(7), 20(d), 22 and 23 of the Protection of Women from
Domestic Violence Act before the Judicial Magistrate Court,
Thirumangalam. The first respondent's father is working as a Sub Inspector.
So, the petitioner is frightened to attend the case at Thirumangalam.
Moreover, now the petitioner is working in Jeyamkondam, which is 300
kms. faraway from Madurai. Therefore, he is not in a position to attend the
hearings in D.V.O.P.No.3 of 2021, filed by the petitioner on the file of the
Judicial Magistrate Court, Thirumangalam as well as for the divorce case in
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Crl.O.P.(MD).No.8478 of 2021
H.M.O.P.No.141 of 2020 filed by the petitioner on the file of the Sub Court,
Madurai. On that ground, this petition is filed.
3.Heard both sides.
4.This is a case of transfer of DVOP from the file of Judicial
Magistrate Court, Thirumangalam to the file of the Family Court, Madurai.
The ground on which the petition has been filed are not serious in nature.
Only the inconvenience faced by the petitioner, because of the long distance
in travelling from Jeyamkondan to Thirumangalam for attending the case
cannot be a strong ground for transfer. Similarly, the ground that because of
the first respondent's father is working as a Sub Inspector of Police is afraid
of attending the concerned Court is also not a valid ground. So these two
grounds has to be rejected at the outset. Next ground mentioned in the
petition is that he has filed a divorce petition in H.M.O.P.No.141 of 2020
before the Sub Court, Madurai. So, on that ground, this petition may be
transferred to the Family Court, Madurai.
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Crl.O.P.(MD).No.8478 of 2021
5.The learned counsel for the respondent will oppose this petition on
the ground that the first two grounds are not at all maintainable. It has been
held so by me also. The main ground on which the objection is raised is that
she has filed a petition in H.M.O.P.No.119 of 2020 for restitution of
conjugal rights under Section 9 of the Hindu Marriage Act, before the Sub
Court, Thirumangalam. In this petition, he has suppressed the pendency on
the above said petition before the Sub Court, Thirumangalam. Suppressing
this fact, an order has been obtained seeking transfer of the above said
divorce petition from the file of the Sub Court, Madurai to Family Court,
Madurai in Tr.C.M.P.(MD).No.246 of 2021, dated 25.06.2021. Now it is
seen that the divorce petition is pending in the Family Court and the petition
for restitution of conjugal rights is pending before the Sub Court
Thirumangalam and DVOP is pending before the Magistrate Court,
Thirumangalam. So according to the learned counsel for the first
respondent, when two cases are pending before the Thirumangalam Courts
transfer of DVOP to Family Court cannot be appropriate.
6.The learned counsel for the petitioner would rely upon the judgment
of Bombay High Court in Santhosh Machindra Mulik Vs. Mohini Mithu
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Crl.O.P.(MD).No.8478 of 2021
Choudhari reported in (2020) 1 CivCC 198, for the purpose of arguments
that a petition filed under Sections 12 and 26 of the Domestic Violence Act
can be heard by the family Court, before which, matrimonial proceedings
are pending. So in that case, the desirability of transferring the DVOP
proceedings to family Court has been decided on it is own merits and on the
ground that conflicting of conclusions can be avoided. But the problem
come in the form of order of Tr.C.M.P.SR.No.15785 of 2021, wherein, it
has been decided that such a proceedings cannot be transferred to the family
Court. As per this judgment, the criminal consequences ensures under the
provisions of prevention of Domestic Violence Act. Therefore, it cannot be
transferred to the family Court on that ground, since it is the latest judgment
by this Court. So, when valid reason is there, I cannot differ from the view
that has been expressed in the judgment. Further the order relied upon by
the petitioner in Crl.O.P.No.29476 of 2017, dated 20.07.2020 in N.Prasad
Vs. Harithalakshmi, has been decided much prior to the decision as
mentioned earlier. Moreover, it is a case, which has been decided on the
point of limitation.
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Crl.O.P.(MD).No.8478 of 2021
7.As rightly contended by the respondent by suppressing the
pendency of petition filed by the respondent seeking restitution of conjugal
rights, an order has been obtained in Tr.C.M.P.(MD).No.246 of 2021. Even
in Tr.C.M.P.(MD)No.246 of 2021, a plea has been raised to the fact that
DVOP.No.3 of 2021, must be transferred to the family Court, Madurai. But
their plea was not entertained on the basis of the objection raised by the
respondent. No doubt, that if all the matters are heard by a same Court,
conflicting of conclusion can be avoided. But, as I mentioned earlier, latest
judgment of this Court comes in the way of ordering this petition. So, in
the light of the above development, the DVOP proceedings that has been
filed by the respondent has to be independently enquired. So the petition
deserves to be dismissed and accordingly dismissed. Consequently,
connected miscellaneous petition is closed.
19.08.2021
Index : Yes/No
Internet : Yes/No
TM
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD).No.8478 of 2021
NOTE:
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Judicial Magistrate, Thirumangalam.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD).No.8478 of 2021
G.ILANGOVAN,J.
TM
Crl.O.P.(MD).No.8478 of 2021
19.08.2021
https://www.mhc.tn.gov.in/judis/
