Madras High Court
S.Jayashree vs T.Srikanth on 30 January, 2023
Tr.C.M.P.No.1306 of 2022
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.1306 of 2022
and
C.M.P.No.22043 of 2022
S.Jayashree ... Petitioner
vs
T.Srikanth ... Respondent
Prayer: Transfer Civil Miscellaneous Petition is filed under Section 24 of the Civil
Procedure Code, to withdraw H.M.O.P.No.91 of 2022 pending on the file of Sub
Court, Aruppukottai and transfer the same to Sub Court, Sathyamangalam.
For Petitioner : Mr.S.Parthasarathy
For Respondent : Mr.U.Kathiravan
ORDER
The Transfer Civil Miscellaneous Petition is filed to withdraw
H.M.O.P.No.91 of 2022 pending on the file of Sub Court, Aruppukottai and
transfer the same to the file of the Sub Court, Sathyamangalam.
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Tr.C.M.P.No.1306 of 2022
2.The marriage between the petitioner and the respondent was solemnized
on 18.11.2018 as per the Hindu Rites and Customs. One male child was born from
and out of the wedlock between the petitioner and the respondent and the child,
who is now 3 years old is with the custody of the petitioner/wife. Due to
misunderstanding, the petitioner and the respondent are living separately.
3.The learned counsel for the petitioner states that the petitioner/wife is
unemployed and residing along with her parents and she has to take care of her
minor child. Thus, the petitioner has filed a maintenance petition in M.C.No.6 of
2022, which is now pending on the file of the Judicial Magistrate Court,
Sathyamangalam. The respondent filed H.M.O.P.No.91 of 2022 for Divorce on the
file of the Sub Court, Aruppukottai. Therefore, the petitioner is not in a position to
spend, travel and contest the divorce case filed by the respondent/husband.
4.The learned counsel for the respondent raised objection stating that the
petitioner is capable of travelling and contesting the divorce case before the Sub
Court, Aruppukottai.
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Tr.C.M.P.No.1306 of 2022
5.Parents are duty bound to maintain their minor children. The minor child
has to be taken care of by the father, who is the natural guardian and an earning
member. The petitioner/wife is unemployed and therefore, the respondent/father
has to maintain the child.
6.Remedy of maintenance is the measure of social justice as envisaged under
the Constitution to prevent the wife and the children from falling into destitution
and vagrancy. Preamble and Article 39 and 15(3) of the Indian Constitution
envisage social justice and positive State action for empowerment of women and
children.
7.Court must act as a custodian of minor children, when such children are
neglected by either of the parents. When the mother of the child is unemployed and
living along with her parents mostly is the situation prevailing in our country.
Grandparents are burdened with the minor children and the fathers are attempting
to escape from the clutches of liability, which cannot be tolerated by the Courts.
The father being the natural guardian under the Guardian and Wards Act, is bound
to maintain his minor daughter or son by paying maintenance even in such
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Tr.C.M.P.No.1306 of 2022
circumstances, where there is a matrimonial dispute or dispute for visitation right.
Such rights are to be established considering various other facts and circumstances.
Whether the father or mother is entitled for a visitation is to be considered based
on the facts and circumstances of each case and not allowing the father or mother
to have visitation right will not be a ground to deny Interim Maintenance to the
minor child during the pendency of the matrimonial disputes.
8.In the present case, the transfer of the case is to be considered, since the
petitioner is unemployed and taking care of minor male child and she is residing
along with her parents at Sathyamangalam. That being the case, the divorce case
filed by the respondent is to be transferred to the place, where the petitioner
resides.
9.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
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Tr.C.M.P.No.1306 of 2022
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, 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
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Tr.C.M.P.No.1306 of 2022
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 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
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Tr.C.M.P.No.1306 of 2022
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 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
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Tr.C.M.P.No.1306 of 2022
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.”
10.As far as the maintenance petition filed by the petitioner in M.C.No.6 of
2022 is concerned, the Judicial Magistrate Court, Sathyamangalam is expected to
consider for grant of interim maintenance in order to protect the livelihood of the
minor child, which is the Fundamental Right to life under Article 21 of the
Constitution of India and take a decision without causing any undue delay. As far
as the final maintenance is concerned, the same may be determined after the
adjudication. Therefore, this Court directs the Judicial Magistrate Court,
Sathyamangalam to dispose of the maintenance case in M.C.No.6 of 2022 as
expeditiously as possible.
11.Accordingly, this Court is inclined to pass the following orders:
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Tr.C.M.P.No.1306 of 2022
(i) H.M.O.P.No.91 of 2022 on the file of the Sub
Court, Aruppukottai stands transferred to the file of the Sub
Court, Sathyamangalam.
(ii) The Sub Court, Aruppukottai is directed to
transmit the case papers within a period of two weeks from
the date of receipt of a copy of this order.
12.With these directions, this Transfer Civil Miscellaneous Petition stands
allowed. There will be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
30.01.2023
Index : Yes
Speaking order
Neutral Citation Case:Yes
sp
To
1.The Sub Court, Aruppukottai.
2.The Sub Court, Sathyamangalam.
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Tr.C.M.P.No.1306 of 2022
S.M.SUBRAMANIAM, J.
sp
Tr.C.M.P.No.1306 of 2022
and
C.M.P.No.22043 of 2022
30.01.2023
https://www.mhc.tn.gov.in/judis
