R.Kaniga vs M.Ram Kumar
2023 Latest Caselaw 1471 Mad

Citation : 2023 Latest Caselaw 1471 Mad
Judgement Date : 7 February, 2023

Madras High Court

R.Kaniga vs M.Ram Kumar on 7 February, 2023

    2023/MHC/500

                                                                                  Tr.C.M.P.No.1083 of 2022

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 07.02.2023

                                                             CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                  Tr.C.M.P.No.1083 of 2022
                                                            and
                                                   C.M.P.No.18589 of 2022

                     R.Kaniga                                                    ... Petitioner
                                                                Vs.
                     M.Ram Kumar                                                 ... Respondent


                     Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code, to withdraw and transfer the H.M.O.P.No.3403 of 2022 pending on
                     the file of the Hon'ble I Additional Judge, Family Court, Chennai to be heard
                     and disposed of by the Hon'ble Family Court, Coimbatore.


                                       For Petitioner            : Mr.A.Praveen Kumar

                                       For Respondent            : Mr.Thanu Madhan.N.S

                                                            ORDER

The petition for transfer is filed to withdraw and transfer the

H.M.O.P.No.3403 of 2022 pending on the file of the I Additional Judge,

Family Court, Chennai to the the Family Court, Coimbatore.

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2. The marriage between the petitioner and the respondent was

solemnised on 16.02.2017 as per the Hindu Rites and Customs. One female

child was born from and out of the wedlock between the petitioner and the

respondent. Due to misunderstanding the petitioner and the respondent are

living separately. The petitioner is unemployed and living along with her

parents for her livelihood. The respondent filed H.M.O.P.No.3403 of 2022

for Restitution of Conjugal Rights on the file of the I Additional Family

Court, Chennai.

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:-

(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,

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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, 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.”

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(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.

(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

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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 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:-

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“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.3403 of

2022 pending on the file of the I Additional Family Court, Chennai stands

transferred to the Family Court at Coimbatore. The I Additional Family

Court, Chennai is directed to transmit the case papers to the Family Court at

Coimbatore within a period of four weeks from the date of receipt of a copy

of this order.

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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.

07.02.2023 skr

Index : Yes Speaking order Neutral Citation : Yes