Madras High Court
Bharathi vs Senguttuvan on 4 March, 2021
Tr.C.M.P.No.557 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2021
CORAM
THE HON'BLE Mr. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.557 of 2020
and
C.M.P.No.14636 of 2020
Bharathi ...Petitioner
Vs
Senguttuvan ... Respondent
PRAYER: Transfer Civil Miscellaneous Petition filed under Section 24
of C.P.C., praying to withdraw M.O.P.No.175 of 2020 from the file of
Family Court, Pondicherry and transfer the same to the District Court,
Nagapattinam.
For Petitioner : Mr.S.M.Muralidharan
For respondent : Mr.V.S.Senthilkumar
ORDER
The petition for transfer is filed to transfer M.O.P.No.175 of
2020 from the Family Court, Pondicherry to the District Court,
Nagapattinam.
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Tr.C.M.P.No.557 of 2020
2. The marriage between the petitioner and the respondent was
solemnized on 31.08.2003 as per the Hindu Rites and Customs. Two
male children were born from and out of the wedlock and both are grown
up now. First son is studying + 2 and second son is studying 8th standard.
Though the petitioner and the respondent started their matrimonial life
happily, on account of difference of opinion, various cases were filed by
the respective parties and some of them were withdrawn and the
respondent is now not willing for re-union. The respondent now filed
M.O.P.No.175 of 2020, for dissolution of marriage before the Family
Court, Pondicherry.
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.
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Tr.C.M.P.No.557 of 2020
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 matrimonial proceedings.
The report submitted by the Law Commission
as well as National Commission for Women,
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Tr.C.M.P.No.557 of 2020
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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Tr.C.M.P.No.557 of 2020
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
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Tr.C.M.P.No.557 of 2020
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 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
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Tr.C.M.P.No.557 of 2020
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.''
4. In view of the facts and circumstances, M.O.P.No.175 of 2020
pending on the file of the Family Court, Pondicherry, stands transferred
to the District Court, Nagapattinam.
5. Accordingly, this Transfer Civil Miscellaneous Petition No.557
of 2020 stands allowed and M.O.P.No.175 of 2020 pending on the file of
Family Court, Pondicherry, is directed to be transferred to the District
Court, Nagapattinam. No costs. Consequently, connected miscellaneous
petition is closed.
04.03.2021
Pns
Index:Yes/No
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Tr.C.M.P.No.557 of 2020
S.M.SUBRAMANIAM, J.
Pns
To
1. The Family Court, Pondicherry.
2. The District Court, Nagapattinam.
Tr.C.M.P.No.557 of 2020
04.03.2021
https://www.mhc.tn.gov.in/judis/
