Madras High Court
Y.Priyavadhana vs D.Yogeeswaran on 9 August, 2023
Tr.C.M.P.No.61 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
Tr.C.M.P.No.61 of 2023
and
C.M.P.No.1533 of 2023
Y.Priyavadhana .. Petitioner
Versus
D.Yogeeswaran .. Respondent
PRAYER : This Transfer Civil Miscellaneous Petition is filed under
Section 24 of the Civil Procedure Code, to withdraw H.M.O.P.No.156 of
2022 pending on the file of the learned Subordinate Judge at Tambaram
and to transfer and tie along with H.M.O.P.No.4753 of 2022 and
M.C.No.575 of 2022 before the II Additional Family Court at Chennai.
For Petitioner : Mr.K.Arunprasad
For Respondent : Mr.S.Vijayakumar
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1/8
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Tr.C.M.P.No.61 of 2023
ORDER
This Transfer Civil Miscellaneous Petition has been filed to
withdraw the case in H.M.O.P.No.156 of 2022 on the file of the learned
Subordinate Judge, Tambaram and to transfer the same to the file of the
learned II Additional Judge, Family Court, Chennai.
2. The marriage between the petitioner and the respondent was
solemnised on 03.06.2007 as per the Hindu Rites and Customs. Two
children were born from and out of the wedlock between the petitioner and
the respondent and now living with the petitioner. On account of
matrimonial home broke down, the petitioner and the respondent are
living separately. Now the petitioner is residing along with her parents and
she is unemployed. The respondent filed H.M.O.P.No.156 of 2022 for
dissolution of marriage before the learned Subordinate Judge, Tambaram.
3. 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:-
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Tr.C.M.P.No.61 of 2023
(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 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,
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Tr.C.M.P.No.61 of 2023
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 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
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Tr.C.M.P.No.61 of 2023
same has to be considered.
(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 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.C.M.P.No.61 of 2023
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 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.”
4. Considering the facts and circumstances, the H.M.O.P.No.156
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Tr.C.M.P.No.61 of 2023
of 2022 pending on the file of the Subordinate Court, Tambaram stands
transferred to the II Additional Family Court, Chennai forthwith. The
Subordinate Court, Tambaram is directed to transmit all the case papers to
the II Additional Family Court, Chennai within a period of four (4) weeks
from the date of receipt of a copy of this order and the maintenance case is
to be tried as expeditiously as possible.
5. 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.
09.08.2023
kv
Index: Yes/No
Speaking order/Non-speaking order
Neutral Citation: Yes/No
To
1. The Subordinate Court, Tambaram.
2. The II Additional Family Court, Chennai
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Tr.C.M.P.No.61 of 2023
V.BHAVANI SUBBAROYAN,J.
Kv
Tr.C.M.P.No.61 of 2023
09.08.2023
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