Madras High Court
Mr.V.Senthil Murugan vs Mrs.Kamatchi on 1 February, 2023
Tr.C.M.P.No.76 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.76 of 2023
and
C.M.P.No.1770 of 2023
Mr.V.Senthil Murugan ... Petitioner
Vs.
Mrs.Kamatchi ... Respondent
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw the H.M.O.P.No.358 of 2022 on the file of the
Subordinate Court, Kancheepuram and transfer the H.M.O.P to the
Subordinate Court, Kallakurichi.
For Petitioner : Mr.A.Jinasenan
ORDER
The Transfer Petition is filed to transfer the H.M.O.P.No.358 of 2022,
pending on the file of the Sub Court, Kancheepuram to the Sub Court,
Kallakurichi.
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Tr.C.M.P.No.76 of 2023
2. The marriage between the petitioner and the respondent was
solemnized on 20.08.2012 at Kallakurichi as per Hindu Rites and Customs.
The Petitioner / husband states that a girl child was born from and out of the
wedlock between the petitioner and the respondent on March 2016. The
petitioner was working as a Sales Representative in Bajaj Two Wheelers and
now suffering from certain ailments
3. The learned counsel for the petitioner states that the respondent /
wife is now working at Sriperumbudur, Kancheepuram District and more so,
she is working as Record Clerk in the Sub Court. Since the petitioner is
suffering from serious ailments, he is unable to travel and contest the case
filed by the respondent / wife before the Sub Court, Kancheepuram.
4. The respondent / wife instituted Divorce proceedings in
H.M.O.P.No.358 of 2022 in Kancheepuram and therefore, this Court cannot
consider transferring the petition to Kallakurichi.
5. In respect of the ailments or otherwise, the petitioner is at liberty to
approach the Court concerned for appropriate relief. However, the
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Tr.C.M.P.No.76 of 2023
respondent / wife instituted the Divorce proceedings before the Sub Court,
Kancheepuram and thus, it cannot be transferred to the place in which the
petitioner / husband resides.
6. 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 question of jurisdiction, in
case the proceeding was initiated at the instance
of the wife.
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Tr.C.M.P.No.76 of 2023
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 of Hon'ble Supreme Court of India:-
“(1) In the case of Mona Aresh Goel vs. Aresh
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Tr.C.M.P.No.76 of 2023
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.
(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,
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Tr.C.M.P.No.76 of 2023
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 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 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
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Tr.C.M.P.No.76 of 2023
vengeance on the husband. There must be a justifiable
cause to select the jurisdiction of the Court where she
resides.”
7. In view of the fact that the respondent / wife instituted a Divorce
Petition before the Sub Court, Kancheepuram, this Court is not inclined to
consider the present Transfer Petition.
8. Accordingly, the Tranfer Petition in Tr.C.M.P.No.76 of 2023 is
devoid of merits and stands dismissed. No costs. Consequently, the
connected Miscellaneous Petition is closed.
01.02.2023
skr
Index : Yes
Speaking order
Neutral Citation : Yes
To
1.The Judge,
Subordinate Court,
Kallakurichi.
2.The Judge,
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Tr.C.M.P.No.76 of 2023
Subordinate Court,
Kancheepuram.
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Tr.C.M.P.No.76 of 2023
S.M.SUBRAMANIAM, J.
skr
Tr.C.M.P.No.76 of 2023
01.02.2023
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