Madras High Court
S.Pavithra vs Virendar on 23 September, 2022
TR.C.M.P(MD).No.424 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
TR.C.M.P(MD).No.424 of 2022
and
C.M.P(MD).No.6954 of 2022
1.S.Pavithra
2.Minor N.Sri Adhidev
Rep. by his mother / natural guardian,
the first petitioner ... Petitioners
v.
M.Natrayan ... Respondent
Transfer Civil Miscellaneous Petition filed under Section 24 of C.P.C
to withdraw the case in HMOP.No.20 of 2022 on the file of the Sub Court,
Uthamapalayam and transfer the same to the Family Court, Theni for joint
hearing along with HMOP.No.184 of 2021.
For Petitioners : Mr.C.Christopher
For Respondent : Mr.P.Prakash
1/7
https://www.mhc.tn.gov.in/judis
TR.C.M.P(MD).No.424 of 2022
ORDER
This Transfer Civil Miscellaneous Petition has been filed seeking
transfer of the case in HMOP.No.20 of 2022 from the file of the Sub Court,
Uthamapalayam to the file of the Family Court, Theni and for joint hearing
along with HMOP.No.184 of 2021.
2. The first petitioner is the wife and the respondent is the husband. The
marriage between them was solemnized on 21.08.2020 and out of the
wedlock, they are having a male child, the second petitioner. Due to some
misunderstanding, now, they are living separately and the petitioner has filed
HMOP.No.184 of 2021 seeking restitution of conjugal rights and MC.No.21
of 2021 seeking maintenance for herself and for her child. The respondent has
also filed HMOP.No.20 of 2022 before the Sub Court, Uthamapalayam,
seeking divorce. The petitioner is residing at Theni in her parental house.
Since the petitioner is not having sufficient means to travel and meet out her
day-to-day expenses, she finds it difficult to travel. Therefore, she filed the
present Transfer Civil Miscellaneous Petition to transfer the case in
https://www.mhc.tn.gov.in/judis
TR.C.M.P(MD).No.424 of 2022
HMOP.No.20 of 2022 from the file of the Sub Court, Uthamapalayam, to the
file of the Family Court, Theni, for joint hearing.
3. The learned counsel appearing for the petitioner submitted that the
respondent is working in the Army and taking advantage of his position, he is
evading to appear in the petitions filed by the petitioner before the Family
Court, Theni. He is not even providing any maintenance amount to the
petitioner. In any event, since two petitions are pending before different
Courts, in order to avoid conflict of decisions, the petitions may be heard
together and since the Family Court, Theni, is the superior Court, the petition
filed by the respondent before the Sub Court, Uthamapalaym, may be
transferred to the Family Court, Theni, for joint hearing.
4. Learned Counsel for the respondent submitted that the jurisdictions
of Family Court, Theni as well as Sub Court, Uthamapalayam are well within
the jurisdiction of Theni Judicial District. Therefore, as per Section 23 of the
Civil Procedure Code, the petitioner ought to have filed this application for
transfer before the District Court, Theni, but, instead, she has filed this
https://www.mhc.tn.gov.in/judis
TR.C.M.P(MD).No.424 of 2022
application before this Court. Therefore, this application is liable to be
dismissed as not maintainable. He has also relied upon the judgment of this
Court in Reshma Begam and Another v. Syed Nawab Jan and Others
[Tr.CMP(MD)No.458 of 2016, decided on 03.11.2016].
5. This Court considered the rival submissions made by the learned
Counsel on either side and perused the available materials.
6. The marriage between the petitioner and the respondent was
solemnized on 21.08.2020. With an allegation that the respondent has
deserted her, the petitioner has approached the Family Court, Theni, in the
year 2021 by filing a petition for restitution of conjugal rights in HMOP.No.
184 of 2021. She has also filed a petition in MC.No.21 of 2021 seeking
maintenance. It is the further contention of the petitioner that the respondent,
taking advantage of his nature of profession, is not appearing before the
Family Court, nor he is paying any maintenance amount to her. Without any
monetary support, she is suffering with his child.
https://www.mhc.tn.gov.in/judis
TR.C.M.P(MD).No.424 of 2022
7. 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. In the case of Rajani Kishor 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 convenience of the wife is
to be preferred over the convenience of the husband.
8. Though the learned Counsel for the respondent questioned the very
maintainability of this petition, this Court being satisfied with the reasons
stated in the affidavit filed in support of this petition and also taking into
account of the decisions referred to supra, is inclined to allow the present
petition, instead of diverting her to approach the District Court.
9. In the light of the above, this transfer civil miscellaneous petition
stands allowed. The proceedings in HMOP.No.20 of 2022 pending on the file
of the Sub Court, Uthamapalayam, is withdrawn and ordered to be transferred
to the file of the Family Court, Theni. The learned Judge, Sub Court,
https://www.mhc.tn.gov.in/judis
TR.C.M.P(MD).No.424 of 2022
Uthamapalayam, is directed to transmit the entire case records to the Family
Court, Theni, forthwith. The learned Judge, Family Court, Theni, shall hear
HMOP.No.184 of 2021 along with HMOP.No.20 of 2022 and shall dispose
of the same as expeditiously as possible. No costs. Consequently, connected
miscellaneous petition is closed.
Index : Yes / No 23.09.2022
Internet: Yes / No
gk
To
1. The Family Court,
Theni.
2. The Sub Court,
Uthamapalayam.
https://www.mhc.tn.gov.in/judis
TR.C.M.P(MD).No.424 of 2022
B.PUGALENDHI, J.
gk
TR.C.M.P(MD).No.424 of 2022
23.09.2022
https://www.mhc.tn.gov.in/judis
