M.Saranaya vs V.Parasuraman
2021 Latest Caselaw 6020 Mad

                                                                            Tr.CMP No.7 of 2021

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 08.03.2021

                                                      CORAM

                            THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                Tr.C.M.P.No.7 of 2021

                      M.Saranaya                                                   .. Petitioner

                                                         vs.

                      V.Parasuraman                                               .. Respondent

                      PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                      Code, to withdraw the petition in H.M.O.P.No.1182 of 2019 pending on the
                      file of the Additional Family Court of Coimbatore and transfer the same to
                      the file of the Subordinate Judge of Uthangarai to be tried along with
                      H.M.O.P.No.96 of 2019.

                               For Petitioner          : Mr.N.E.A.Dinesh
                               For Respondent            : No appearance

                                                      ORDER

The petition for transfer is filed to transfer H.M.O.P.No.1182 of

2019 from the Additional Family Court, Coimbatore to the Sub Court,

Uthangarai.

2. The marriage between the petitioner and the respondent was

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solemnized on 07.07.2014 as per the Hindu Rites and Customs. The

petitioner and the respondent started their Matrimonial home and after some

time, on account of difference of opinion, they are forced to leave the

Matrimonial home. The petitioner states that now she is residing in her

parents house and the respondent filed a Divorce petition at Coimbatore,

which is far away from her village. The petitioner states that she has no

source of income and she has to incur heavy expenditure as her parents are

aged, therefore, they are not in a position to spend for the petitioner and

thus, it would be very difficult for the petitioner to travel and contest the

case. The petitioner states that she filed H.M.O.P.No.96 of 2019 before the

Sub Court, Uthangarai for restitution of conjugal rights.

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:-

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''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

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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,

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

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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

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

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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

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

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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.''

4. In view of the facts and circumstances, H.M.O.P.No.1182 of

2019 pending on the file of the Additional Family Court, Coimbatore, stands

transferred to the Sub Court, Uthangarai.

S.M.SUBRAMANIAM, J.

Kak

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5. Accordingly, this Transfer Civil Miscellaneous Petition No.7 of

2021 stands allowed and H.M.O.P.No.1182 of 2019 pending on the file of

the Additional Family Court, Coimbatore, is directed to be transferred to the

Sub Court, Uthangarai, to be tried along with H.M.O.P.No.96 of 2019.

However, there shall be no order as to costs.

08.03.2021 Speaking Order/Non-Speaking Order. Internet : Yes/No.

Index: Yes/No.

Kak To

1.The Judge, Additional Family Court, Coimbatore.

2.The Judge, Sub Court, Uthangarai.

Tr.CMP No.7 of 2021

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