D.Mamtha vs P.Dinesh
2023 Latest Caselaw 1123 Mad

Citation : 2023 Latest Caselaw 1123 Mad
Judgement Date : 30 January, 2023

Madras High Court

D.Mamtha vs P.Dinesh on 30 January, 2023

                                                                                  Tr.C.M.P.No.1311 of 2022

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 30.01.2023

                                                           CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                   Tr.C.M.P.No.1311 of 2022
                                                             and
                                                    C.M.P.No.22093 of 2022

                     D.Mamtha                                                     ... Petitioner

                                                              vs
                     P.Dinesh                                                     ... Respondent

                     Prayer: Transfer Civil Miscellaneous Petition is filed under Section 24 of
                     the Civil Procedure Code, to withdraw the H.M.O.P.No.3539 of 2022 on the
                     file of the V Additional Family Court, Chennai and transfer the same to the
                     file of the Family Court, Vellore.
                                        For Petitioner    : Mr.S.Santhan
                                        For Respondent    : No appearance

                                                           ORDER

The Transfer Civil Miscellaneous Petition is filed to withdraw the

H.M.O.P.No.3539 of 2022 on the file of the V Additional Family Court,

Chennai and transfer the same to the file of the Family Court, Vellore.

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.1311 of 2022

2.The marriage between the petitioner and the respondent was

solemnized on 25.04.2021 as per the Hindu Rites and Customs. 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, therefore, she is not in a

position to spend, travel and contest the divorce case filed by the

respondent/husband.

4.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:-

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“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

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.1311 of 2022

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 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

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.1311 of 2022

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 journey, the Honourable Supreme Court was pleased to order transfer of the proceedings to Allahabad.”

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(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

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.1311 of 2022

resides.”

5.Considering the facts and circumstances, H.M.O.P.No.3539 of

2022 on the file of the V Additional Family Court, Chennai stands

transferred to the file of the Family Court, Vellore.

6.The V Additional Family Court, Chennai is directed to transmit the

case papers within a period of two weeks from the date of receipt of a copy

of this order.

7.With these directions, this Transfer Civil Miscellaneous Petition

stands allowed. Consequently, the connected miscellaneous petition is

closed. There will be no order as to costs.

30.01.2023