Madras High Court

S.Poongodi vs Selvakumar on 3 January, 2023

    2023/MHC/158



                                                                               Tr.C.M.P.No.492 of 2022

                                       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED:03.01.2023

                                                           CORAM :

                                       THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM

                                                     TR CMP No.492 of 2022
                                                   and C.M.P. No.8912 of 2022

                     S.Poongodi                                                          .. Petitioner

                                                                vs

                     Selvakumar                                                       .. Respondent


                                  Petition filed under Section 24 of Civil Procedure Code to

                     withdraw the proceedings in H.M.O.P.NO.219/2020 on the file of

                     the      learned Subordinate Judge at Sivakasi, Virudhunagar District

                     filed by the respondent for divorce and to transfer the same to the

                     learned Subordinate Judge at Thiruvottiyur, Thiruvallur District for

                     further proceedings.



                                  For Petitioner           :         Mr.M.Aaruseela Sudhakar

                                  For Respondent           :         Left

                                                               ORDER

1. The petition for transfer is filed to withdraw HMOP

No.219 of 2020 on the file of the Subordinate Judge at Sivakasi,

Virudhunagar District and transfer the same to the Subordinate https://www.mhc.tn.gov.in/judis

Tr.C.M.P.No.492 of 2022

Judge at Thiruvottiyur, Thiruvallur District.

2. The marriage between the petitioner and the

respondent was solemnised on 30.10.1998 as per the Hindu Rites

and Customs. Two children were born from the wedlock and both

are daughters. The first daughter has got married and living

separately. The second daughter is living with the petitioner. The

respondent / husband filed HMOP No.219 of 2020 on the file of

Sub-Court, Sivakasi, Virudhunagar District for dissolution of

marriage.

3. Learned counsel for the petitioner states that the

petitioner is unemployed and depending on her parents for her

livelihood. Therefore, she is not in a position to spend, travel and

contest the case filed by the respondent / husband in HMOP No.219

of 2020 on the file of Sub-Court, Sivakasi, Virudhunagar District.

The petitioner is now residing at Thiruvottiyur, Thiruvallur District

and thus the case has to be transferred for effective adjudication.

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

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Tr.C.M.P.No.492 of 2022

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 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

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Tr.C.M.P.No.492 of 2022

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 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

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Tr.C.M.P.No.492 of 2022

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 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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Tr.C.M.P.No.492 of 2022

(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 resides.”

5. Considering the facts and circumstances, the HMOP No.

219 of 2020 pending on the file of Sub-Court, Sivakasi,

Virudhunagar District has been transferred to Sub-Court,

Thiruvottiyur, Thiruvallur District forthwith. The Sub-Court,

Sivakasi is directed to transfer the case papers within a period of

four weeks from the date of receipt of a copy of this order. https://www.mhc.tn.gov.in/judis

Tr.C.M.P.No.492 of 2022

6. With the abovesaid directions, the Transfer Civil

Miscellaneous Petition stands allowed. However, there shall be no

order as to costs. Consequently, connected miscellaneous petition

is closed.

03.01.2023