M.Syed Ali Fathima vs A.Ahamed Azmi
2022 Latest Caselaw 12020 Mad

                                                                              TR.C.M.P(MD).No.628 of 2021

                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED : 06.07.2022

                                                           CORAM:

                                    THE HONOURABLE MR.JUSTICE B.PUGALENDHI

                                                TR.C.M.P(MD).No.628 of 2021
                                                          and
                                                C.M.P(MD).No.11358 of 2021


                     M.Syed Ali Fathima                                                  ... Petitioner


                                                             versus

                     A.Ahamed Azmi                                                  ... Respondent


                                  Transfer Civil Miscellaneous Petition is filed under Section 24 of
                     C.P.C, to withdraw the suit in O.S.No.70 of 2019 on the file of the learned
                     District Munsif, Karaikudi and transfer the same to the Family Court,
                     Madurai to be tried along with O.S.No.39 of 2019.


                                        For Petitioner         : Mr.R.Sundar Srinivasan

                                        For Respondent         : No-appearance




                     1/6



https://www.mhc.tn.gov.in/judis
                                                                                TR.C.M.P(MD).No.628 of 2021




                                                           ORDER

This Transfer Civil Miscellaneous Petition has been filed seeking

transfer of the proceedings in O.S.No.70 of 2019 from the file of the

District Munsif Court, Karaikudi to the Family Court, Madurai.

2. The petitioner is the wife and the respondent is the husband. The

marriage between the petitioner and the respondent was solemnized on

02.02.2017, as per the Muslim Rites and Customs. After few days of the

marriage, the family members of the respondent harassed the petitioner and

driven out her from the matrimonial house. The petitioner and the

respondent are living separately. Thereafter, the respondent has filed

O.S.No.70 of 2019 before the District Munsif Court, Karaikudi seeking

restitution of conjugal rights. Since the petitioner/wife is a resident of

Madurai, she filed this present Transfer Civil Miscellaneous Petition to

transfer the proceedings in O.S.No.70 of 2019 from the file of the District

Munsif Court, Karaikudi, to the Family Court, Madurai.

https://www.mhc.tn.gov.in/judis TR.C.M.P(MD).No.628 of 2021

3.The learned counsel appearing for the petitioner submits that the

distance between Karaikudi and Madurai is around 86 kms and it is very

difficult for the petitioner to travel such a long distance for appearing before

the District Munsif Court, Karaikudi, for each and every hearing.

4. It is seen from the records that notice taken to the respondent

was returned with an endorsement that the respondent has left India.

Therefore, on 14.06.2022, the petitioner was permitted to serve notice on

the counsel, who is appearing for the respondent before the trial Court.

However, there is no representation for the respondent. The petitioner has

also filed a proof of service to that effect.

5.The Hon'ble Apex Court in the case of Amitha Shah vs-

Virendar Lal Shah, reported in (2003)10 SCC 609 has held that the

convenience of the wife and more so of the child must be taken into account

while deciding the petition for transfer and in the case of Rajani Kishor

https://www.mhc.tn.gov.in/judis TR.C.M.P(MD).No.628 of 2021

Paradeshi Vs Kishor Babulal Paradeshi reported in (2005) 12 SCC 237,

the Hon'ble Apex Court has held that in such type of transfer petitions, the

inconvenience of the wife is to be preferred over the convenience of the

husband.

6.This Court being satisfied with the reasons stated in the affidavit

filed in support of this petition and also taking into consideration that the

convenience of wife is to be taken into consideration at the time of

considering transfer petitions as held by the Hon'ble Supreme Court in the

judgments cited supra, is inclined to allow the present petition.

7. In the light of the above, this transfer civil miscellaneous petition

stands allowed. The proceedings in O.S.No.70 of 2019 on the file of the

District Munsif Court, Karaikudi is withdrawn and ordered to be transferred

to the file of the Family Court, Madurai. The learned Judge, District Munsif

Court, Karaikudi, is directed to transmit the entire case records to the

Family Court, Madurai forthwith and the learned Judge, Family Court,

Madurai, who in turn, on receipt of the case, shall try it along with O.S.No.

https://www.mhc.tn.gov.in/judis TR.C.M.P(MD).No.628 of 2021

39 of 2019 and shall dispose of the same as expeditiously as possible. No

costs. Consequently, connected miscellaneous petition is closed.

06.07.2022 ssb Index : Yes / No Internet: Yes / No

To

1. District Munsif Court, Karaikudi

2. Family Court, Madurai

https://www.mhc.tn.gov.in/judis TR.C.M.P(MD).No.628 of 2021

B.PUGALENDHI, J.

ssb

TR.C.M.P(MD).No.628 of 2021

06.07.2022

https://www.mhc.tn.gov.in/judis