Madras High Court
Jayasindhu vs Mahendran on 9 March, 2021
Tr CMP No. 25 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. 25 of 2021
Jayasindhu ..Petitioner
Vs
Mahendran ..Respondent
Petition filed under Section 24 of CPC to withdraw the
restitution petition filed by the respondent in in HMOP No. 6 of 2020
pending on the file of Subordinate Judge, Gudalur, Nilgiris District
and transfer the same to the file of Subordinate Judge of Attur,
Salem District.
For Petitioner : Ms.S.Sumathi
For Respondent : No apeparance
ORDER
This petition is filed to transfer H.M.O.P.No. 6 of 2020 from
the Subordinate Judge, Gudalur, Nilgiris District to the Subordinate
Judge of Attur, Salem District.
2. The marriage between the petitioner and the respondent
was solemnized on 15.11.2004 as per Hindu Rites and Customs.
Two male children were born from and out of the wedlock and the
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Tr CMP No. 25 of 2021
first son is aged about 13 years and the second son is aged about
11 years. The petitioner and the respondent are living separately.
The petitioner states that now she is residing along with her aged
parents and depending on her parents. The children are under the
care of the parents of the petitioner.
3. The respondent filed a petition for restitution of conjugal
rights in H.M.O.P. 6 of 2020 before the Sub-Court Gudalur, Nilgris
District. Under these circumstances, the petitioner is not in a
position to travel from Attur to Nilgiris to contest the case.
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,
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Tr CMP No. 25 of 2021
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 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
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Tr CMP No. 25 of 2021
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 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
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Tr CMP No. 25 of 2021
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
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. 6 of
2020 pending on the file of the Subordinate Judge, Gudalur, Nilgiris
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Tr CMP No. 25 of 2021
District stands transferred to the Subordinate Judge of Attur, Salem
District.
6. Accordingly, this Transfer Civil Miscellaneous Petition
No. 25 of 2021 stands allowed and H.M.O.P.No. 6 of 2020 pending
on the file of the Subordinate Judge, Gudalur, Nilgiris District stands
transferred to the Subordinate Judge of Attur, Salem District.
However, there shall be no order as to costs. Consequently, the
connected C.M.P.No. 923 of 2021 is closed.
09.03.2021
Index: Yes
ssm
To
1.The Subordinate Judge, Gudalur, Nilgiris District.
2.The Subordinate Judge of Attur, Salem District.
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Tr CMP No. 25 of 2021
S.M.SUBRAMANIAM, J.
(ssm)
Tr.C.M.P.No. 25 of 2021
09.03.2021
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