Banupriya vs Thavasi @ Thavasiyappan
2023 Latest Caselaw 1129 Mad

                                                                                Tr.C.M.P.No.1295 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.1295 of 2022
                                                            and
                                                   C.M.P.No.21972 of 2022

                     Banupriya                                                  ... Petitioner

                                                             vs

                     Thavasi @ Thavasiyappan                                    ... Respondent

                     Prayer: Transfer Civil Miscellaneous Petition is filed under Section 24 of
                     the Civil Procedure Code, to withdraw H.M.O.P.No.156 of 2022 on the file
                     of the Subordinate Court, Bavani, Erode District and transfer the same to the
                     Subordinate Court, Mettur, Salem District.
                                        For Petitioner   : Mr.T.Ganesan
                                        For Respondent   : Mr.S.Lakshmanasamy

                                                          ORDER

The Transfer Civil Miscellaneous Petition is filed to withdraw

H.M.O.P.No.156 of 2022 on the file of the Subordinate Court, Bavani,

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Erode District and transfer the same to the file of the Subordinate Court,

Mettur, Salem District.

2.The marriage between the petitioner and the respondent was

solemnized on 08.12.2008 as per the Hindu Rites and Customs. Three

female children were born from and out of the wedlock between the

petitioner and the respondent and all the minor children are living with 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 three minor children. Thus, the petitioner has filed a maintenance

petition in M.C.No.4 of 2020, which is now pending on the file of the

learned Judicial Magistrate No.1, Mettur. The respondent filed

H.M.O.P.No.156 of 2022 for Restitution of Conjugal Rights on the file of

the Sub Court, Bavani, Erode. Therefore, the petitioner is not in a position

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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:-

“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

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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 Satya Goel [(2000) 9 SCC 255], when the wife pleaded

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.1295 of 2022

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

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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 the case of the husband before the Court within whose jurisdiction she resides. The

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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.”

5.As far as the maintenance petition filed by the petitioner in

M.C.No.4 of 2020 is concerned, the learned Judicial Magistrate No.1,

Mettur is expected to consider for grant of interim maintenance in order to

protect the livelihood of the three minor children, 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.

6.In respect of the maintenance cases, the Court concerned cannot

grant unnecessary long adjournments so as to ensure that the interest of the

minor children are protected. When the father, who is the natural guardian

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left the children without any maintenance will undoubtedly cause not only

hardship but their livelihood is in peril. Thus, the Courts dealing with the

maintenance cases are expected to be sensitive so as to consider the interim

maintenance and thereafter, determine the final maintenance to be paid after

adjudication. However, in the present case, the maintenance case was filed

in the year 2020 and the same is pending for a period of about 2½ years and

thus, the learned Judicial Magistrate No.1, Mettur is directed to dispose of

the maintenance case as expeditiously as possible.

7.Considering the fact that the petitioner is maintaining her three

minor children with the support of her aged parents, H.M.O.P.No.156 of

2022 on the file of the Subordinate Court, Bavani, Erode District stands

transferred to the file of the Subordinate Court, Mettur, Salem District.

8.The Subordinate Court, Bavani, Erode 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.

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9.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 Subordinate Court, Bavani, Erode District.

2.The Subordinate Court, Mettur, Salem District.

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S.M.SUBRAMANIAM, J.

sp

Tr.C.M.P.No.1295 of 2022 and C.M.P.No.21972 of 2022

30.01.2023

https://www.mhc.tn.gov.in/judis