Madras High Court

Mrs.K.Gayathri vs D.Karthik on 30 January, 2023

    2023/MHC/350


                                                                            Tr.CMP No.1182 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 30-01-2023

                                                          CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                   Tr.CMP No.1182 of 2022
                                                           And
                                                    CMP No.20226 of 2022



                     Mrs.K.Gayathri                                         .. Petitioner

                                                            vs.


                     D.Karthik                                                 .. Respondent

                     PRAYER : This Transfer CMP is filed under Section 24 of the Civil
                     Procedure Code, to withdraw the case in HMOP No.1986 of 2021 from the
                     file of the Sub Court at Alandur and transfer the same to the file of the Sub
                     Court at Gudiyatham.


                                  For Petitioner          : Mr.G.Balamanikandan

                                  For Respondent             : No Appearance



                     1/10




https://www.mhc.tn.gov.in/judis
                                                                               Tr.CMP No.1182 of 2022



                                                        ORDER

The present Transfer Civil Miscellaneous Petition is filed to

withdraw the case in HMOP No.1986 of 2021 from the file of the Sub

Court at Alandur and transfer the same to the file of the Sub Court at

Gudiyatham.

2. The marriage between the petitioner-wife and the respondent-

husband was solemnised on 30.04.2017 as per Hindu Rites and Customs. A

male child was born from and out of the wedlock between the petitioner and

the respondent now aged 4 years. Due to misunderstanding between the

petitioner and the respondent, they are now living separately. The 4 year old

male child is under the custody of the petitioner-wife.

3. The learned counsel for the petitioner states that the petitioner

is unemployed and now residing with her parents at Gudiyatham along with

her child. She has to take care of her child and is depending on her parents

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for her livelihood. Thus she is not in a position to travel all along from

Gudiyatham to Alandur to contest the dissolution of marriage case filed by

the respondent in HMOP No.1986 of 2021 pending on the file of the Sub

Court at Alandur.

4. In the present case, the transfer of the case is to be considered,

since the petitioner is unemployed and taking care of her 4 year old male

child and she is residing along with her parents at Gudiyatham. That being

the case, the dissolution of marriage case filed by the respondent in HMOP

No.1986 of 2021 pending on the file of the Sub Court at Alandur is to be

transferred to the place, where the petitioner now resides.

5. 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,

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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

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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

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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

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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 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-