Madras High Court
G.Hema vs K.Suresh on 30 January, 2023
Tr.C.M.P.No.1303 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.1303 of 2022
and
C.M.P.No.22037 of 2022
G.Hema ... Petitioner
vs
K.Suresh ... Respondent
Prayer: Transfer Civil Miscellaneous Petition is filed under Section 24 of the
Civil Procedure Code, to withdraw the case in H.M.O.P.No.02 of 2022
pending on the file of the learned Subordinate Judge at Attur and transfer the
same to the file of the learned Subordinate Judge at Rasipuram and try along
with H.M.O.P.No.09 of 2022 pending on the file of the learned Subordinate
Judge at Rasipuram.
For Petitioner : Mr.T.K.S.Gandhi
For Respondent : Mr.L.Mouli
ORDER
The Transfer Civil Miscellaneous Petition is filed to withdraw
H.M.O.P.No.2 of 2022 pending on the file of the learned Subordinate Judge
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
at Attur and transfer the same to the file of the learned Subordinate Judge at
Rasipuram to be tried along with H.M.O.P.No.9 of 2022.
2.The marriage between the petitioner and the respondent was
solemnized on 26.11.2020 as per the Hindu Rites and Customs. Due to
misunderstanding, the petitioner and the respondent are living separately. The
respondent has filed H.M.O.P.No.2 of 2022 on the file of learned Subordinate
Judge, Attur for Dissolution of Marriage and the petitioner has filed
H.M.O.P.No.9 of 2022 on the file of the learned Subordinate Judge,
Rasipuram for Restitution of Conjugal Rights.
3.The learned counsel for the petitioner states that though the
petitioner/wife is a practising lawyer, she is now residing along with her
parents and she has no independent sources of income, thus, depending on
her parents. Therefore, she is not in a position to spend, travel and contest the
divorce case filed by the respondent/husband in H.M.O.P.No.2 of 2022 on the
file of the learned Subordinate Judge, Attur.
4.The principles regarding transfer petitions, more specifically in the
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
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.
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
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
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
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
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
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,
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,
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
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 vengeance on the
husband. There must be a justifiable cause to select the
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
jurisdiction of the Court where she resides.”
5.Considering the facts and circumstances, H.M.O.P.No.2 of 2022 on
the file of the learned Subordinate Judge, Attur, Salem District stands
transferred to the file of the learned Subordinate Judge, Rasipuram,
Namakkal District to be tried along with H.M.O.P.No.9 of 2022.
6.The learned Subordinate Judge, Attur, Salem District 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
Index : Yes
Speaking order
Neutral Citation Case:Yes
sp
To
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
1. The Subordinate Judge, Attur, Salem District.
2. The Subordinate Judge, Rasipuram, Namakkal District.
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1303 of 2022
S.M.SUBRAMANIAM, J.
sp
Tr.C.M.P.No.1303 of 2022
and
C.M.P.No.22037 of 2022
30.01.2023
https://www.mhc.tn.gov.in/judis
