Madras High Court
N.Kousalya vs L.Vinoth on 9 March, 2021
Tr CMP No. 67 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No. 67 of 2021
N.Kousalya ..Petitioner
Vs
L.Vinoth ..Respondent
Petition filed under Section 24 of CPC to withdraw H.M.O.P.No.
369 of 2020 pending before the Family Court, Tiruchirapalli and
transfer it to the Family Court, Villupuram.
For Petitioner : Ms.R.Meenal
For Respondent : Mr.Sundar
ORDER
This petition is filed to transfer H.M.O.P.No. 369 of 2020 from
the Family Court, Tiruchirapalli to the Family Court, Villupuram.
2. The marriage between the petitioner and the respondent
was solemnized on 23.01.2017. The petitioner and the respondent
started their matrimonial life happily. On account of
misunderstanding, the petitioner states that she was forced to leave
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Tr CMP No. 67 of 2021
the matrimonial home. The petitioner is now residing with her
parents at Villupuram.
3. Learned counsel for the petitioner submitted that the
parents of the petitioner are aged and she has to take care of her
parents. Under these circumstances, she is not in a position to
travel and contest the divorce petition filed by the respondent
before the Family Court, Trichy.
4. The principles regarding transfer petitions, more
specifically, in the matters of matrimonial cases are well settled
through the decisions 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
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.
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Tr CMP No. 67 of 2021
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 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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Tr CMP No. 67 of 2021
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
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
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Tr CMP No. 67 of 2021
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
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.''
5. In view of the facts and circumstances, H.M.O.P.No. 369 of
2020 pending on the file of the Family Court, Tiruchirapalli stands
transferred to the Family Court, Villupuram.
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Tr CMP No. 67 of 2021
6. Accordingly, this Transfer Civil Miscellaneous Petition
No. 67 of 2021 stands allowed and H.M.O.P.No. 369 of 2020
pending on the file of the Family Court, Tiruchirapalli stands
transferred to the Family Court, Villupuram. However, there shall
be no order as to costs. Consequently, the connected C.M.P.No.
2332 of 2021 is closed.
09.03.2021
Index: Yes
ssm
To
1.The Judge,
Family Court, Tiruchirapalli.
2.The Judge,
Family Court, Villupuram.
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Tr CMP No. 67 of 2021
S.M.SUBRAMANIAM, J.
(ssm)
Tr.C.M.P.No. 67 of 2021
09.03.2021
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