Mrs.G.K.Manikanda Easwari vs Mr.P.Narayana Moorthy
2021 Latest Caselaw 6024 Mad

                                                                              Tr.CMP No.58 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.58 of 2021
                                                        and
                                               C.M.P.No.2145 of 2021

                      Mrs.G.K.Manikanda Easwari                                        .. Petitioner

                                                           vs.

                      Mr.P.Narayana Moorthy                                          .. Respondent

                      PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
                      Code, to withdraw and transfer the petition for Restitution of Conjugal rights
                      in H.M.O.P.No.150 of 2019 on the file of the Sub-Court, Tiruchendur to be
                      tried along with the M.C.No.274 of 2020 on the file of the II Additional
                      Family Court, Chennai.
                                For Petitioner          : Dr.S.S.Swaminathan
                                For Respondent            : Mr.P.R.Balasubramanian

                                                       ORDER

The petition for transfer is filed to transfer H.M.O.P.No.150 of

2019 from the Sub Court, Tiruchendur to the II Additional Family Court,

Chennai.

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2. The marriage between the petitioner and the respondent was

solemnized on 22.03.2015 in Alandur, Chennai, as per the Hindu Rites and

Customs. The petitioner and the respondent started their Matrimonial life

happily and on account of certain difference of opinion, now the petitioner

states that she is forced to live separately. The petitioner is now residing in

her parents house at Chennai. The petitioner stares that she is unemployed

and residing at Chennai. The learned counsel for the petitioner states that the

respondent/husband is working in Southern Railway at Palani and in spite of

that he has filed a petition for restitution of conjugal rights at Tiruchendur.

Thus, the respondent/husband filed the petition only with a view to harass

the petitioner. Already the petitioner filed M.C.No.274 of 2020 on the file of

the II Additional Family Court, Chennai.

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

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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

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

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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,

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

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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

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.

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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

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:-

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''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

jurisdiction of the Court where she resides.''

4. In view of the facts and circumstances, H.M.O.P.No.150 of

2019 pending on the file of the Sub Court, Tiruchendur stands transferred to

the II Additional Family Court, Chennai.

S.M.SUBRAMANIAM, J.

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Kak

5. Accordingly, this Transfer Civil Miscellaneous Petition No.58

of 2021 stands allowed and H.M.O.P.No.150 of 2019 pending on the file of

the Sub Court, Tiruchendur, is directed to be transferred to the II Additional

Family Court, Chennai, to be tried along with M.C.No.274 of 2020.

However, there shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.

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

Index: Yes/No.

Kak To

1.The Judge, Sub Court, Tiruchendur.

2.The Judge, II Additional Family Court, Chennai.

Tr.CMP No.58 of 2021

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