Madras High Court
M.Bharani vs S.S.Rajadurai on 5 December, 2022
Tr.CMP No.680 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05-12-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.680 of 2022
and
C.M.P.No.11696 of 2022
M.Bharani .. Petitioner
vs.
S.S.Rajadurai .. Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw the case in HMOP No.1557 of 2022 from the file of II
Additional Family Court at Chennai and transfer the same to the Subordinate
Court at Perundurai.
For Petitioner : Ms.A.Sumathy
For Respondent : Mr.S.Sathish Rajan
ORDER
The petition for transfer is filed to withdraw the case in HMOP
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Tr.CMP No.680 of 2022
No.1557 of 2022 from the file of II Additional Family Court at Chennai and
transfer the same to the Subordinate Court at Perundurai, Erode District.
2. The petitioner-wife is the respondent in HMOP No.1557 of 2022
pending on the file of the II Additional Family Court at Chennai. The
respondent-husband instituted the HMOP for dissolution of marriage, which
is pending.
3. The learned counsel for the petitioner mainly contended that the
petitioner-wife was previously working in TCS at Chennai. Now she resigned
her job on 11.08.2022 and joined with her parents at Perundurai, Erode
District. Therefore, she is not in a position to travel all along from Perundurai,
Erode District to Chennai and contest the case filed by the respondent-
husband.
4. The petitioner further states that her parents are retired Teachers
and her brother is mentally disabled and under those circumstances, she may
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Tr.CMP No.680 of 2022
not be in a position to contest the case at Chennai and therefore, the case filed
by the respondent for dissolution of marriage is to be transferred to the Court
at Perundurai, Erode District.
5. The principles regarding transfer petitions, more specifically in
the matters of matrimonial cases, are well settled through the three 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, wherein in paragraphs-21 and 22,
it has been observed as under:-
''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
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Tr.CMP No.680 of 2022
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
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Tr.CMP No.680 of 2022
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 of Hon'ble Supreme Court of India:-
''(1). In the case of Mona Aresh Goel vs.
Aresh Satya Goel [(2000) 9 SCC 255], 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.
(2) In the case of Geeta Heera vs. Harish
Chander Heera [(2000) 10 SCC 304], the Hon'ble
Supreme Court has held that where the petitioner's
wife has pleaded lack of money, the same has to be
considered.
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Tr.CMP No.680 of 2022
(3) In the case of Lalita A.Ranga vs. Ajay
Champalal Ranga [(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.
(4) In a decision in Archana Singh vs.
Surendra Bahadur Singh [(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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Tr.CMP No.680 of 2022
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, wherein in paragraph-
18, it has been 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
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Tr.CMP No.680 of 2022
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.''
6. In view of the facts and circumstances, the HMOP No.1557 of
2022 pending on the file of the II Additional Family Court at Chennai stands
transferred to the Subordinate Court at Perundurai, Erode District. The II
Additional Family Court at Chennai is directed to transmit the case papers to
the Court at Perundurai, Erode District, within a period of four weeks from
the date of receipt of a copy of this order.
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Tr.CMP No.680 of 2022
7. With the abovesaid directions, the Transfer Civil Miscellaneous
Petition stands allowed. However, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
05-12-2022
Speaking Order/Non-Speaking Order.
Internet : Yes/No.
Index: Yes/No.
Svn
To
1.The Judge,
II Additional Family Court,
Chennai.
2.The Judge,
Subordinate Court at Perundurai,
Erode District.
S.M.SUBRAMANIAM, J.
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Tr.CMP No.680 of 2022
Svn
Tr.CMP No.680 of 2022
05-12-2022
https://www.mhc.tn.gov.in/judis
