Madras High Court
A.Geetha vs Mr.M.Madhumohan on 8 March, 2021
Tr.CMP No.68 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.68 of 2021
A.Geetha .. Petitioner
vs.
Mr.M.Madhumohan .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw the H.M.O.P.No.217 of 2020 on the file of the Family
Court at Coimbatore and transfer the same to be tried before the Hon'ble
Principal District Court at Chengalpattu.
For Petitioner : M/s.S.Kala
For Respondent : Mr.B.Mohan
For Mr.M.N.Balakrishnan
ORDER
The petition for transfer is filed to transfer H.M.O.P.No.217 of
2020 from the Family Court, Coimbatore to the Principal District Court,
Chengalpattu.
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Tr.CMP No.68 of 2021
2. The marriage between the petitioner and the respondent was
solemnized on 07.04.2019 as per the Hindu Rites and Customs. The
petitioner states that she was harassed by the respondent and forced to leave
the Matrimonial home. Now she is residing along with her parents at
Urapakkam, which is nearby Chengalpattu. The petitioner is now depending
on her parents for all her needs and she is unemployed. Thus, she is not in a
position to spend and contest the divorce petition filed by the respondent
before the Family Court at Coimbatore.
3. The learned counsel for the respondent/husband states that the
petitioner/wife is having Vision problem in her one eye.
4. This Court is of the considered opinion that such an illness
alone cannot be a ground for declaration of marriage as nullity. But the
learned counsel reiterated that one eye is blind and the husband has got a
medical report. However, all these factors are to be adjudicated.
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5. The learned counsel for the petitioner/wife states that she is
capable of performing her works efficiently and in a regular manner. When
the wife is capable of performing her Matrimonial obligations and perform
her duties, there is no reason whatsoever to nullify of marriage. However,
the fact remains that the petitioner is unemployed and now residing in her
parents house and she is not in a position to travel to Coimbatore and
contest the case.
6. 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
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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, underlying the
need for such amendment so as to enable the
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Tr.CMP No.68 of 2021
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 petitioner's
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Tr.CMP No.68 of 2021
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
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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
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
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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.''
7. In view of the facts and circumstances, H.M.O.P.No.217 of
2020 pending on the file of the Family Court, Coimbatore, stands transferred
to the Family Court, Chennai.
8. Accordingly, this Transfer Civil Miscellaneous Petition No.68
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Tr.CMP No.68 of 2021
of 2021 stands allowed and H.M.O.P.No.217 of 2020 pending on the file of
the Family Court, Coimbatore, is directed to be transferred to the Family
Court, Chennai. 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,
Family Court, Coimbatore.
2.The Judge,
Family Court, Chennai.
S.M.SUBRAMANIAM, J.
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Tr.CMP No.68 of 2021
Kak
Tr.CMP No.68 of 2021
08.03.2021
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