Madras High Court
A.Kalaivani vs N.Ratheesh on 5 January, 2023
Tr.C.M.P.No.1235 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.1235 of 2022
and
C.M.P.No.20961 of 2022
A.Kalaivani ... Petitioner
Vs.
N.Ratheesh ... Respondent
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw the HMOP No.110 of 2022, on the file of the
Subordinate Court, Sankari and transfer the same to the file of the
Subordinate Court, Rasipuram for the purpose of joint trial along with
petition in HMOP No.158 of 2022, on the file of the Subordinate Court,
Rasipuram by the learned Subordinate Judge, Rasipuram.
For Petitioner : Mr.P.Mathivanan
For Respondent : No appearance
Page 1 of 8
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1235 of 2022
ORDER
The petition for transfer is filed to withdraw and transfer the petition
bearing HMOP No.110 of 2022 from the file of the Subordinate Court,
Sankari, Salem District to be tried along with HMOP No.158 of 2022,
pending on the file of the Subordinate Court, Rasipuram, Namakkal
District.
2. The marriage between the petitioner and the respondent was
solemnised on 03.06.2020 as per the Hindu Rites and Customs. One male
child was born from and out of the wedlock between the petitioner and the
respondent, now aged about 1½ years. Due to misunderstanding, the
petitioner and the respondent are living separately. The petitioner/wife has
filed HMOP No.158 of 2022 on the file of the Subordinate Court,
Rasipuram, Namakkal District for Divorce and a Maintenance Case in
M.C.No.12 of 2022 on the file of the Judicial Magistrate Court, Rasipuram,
Namakkal District. Per contra, the respondent/husband filed HMOP No.110
of 2022 before the Subordinate Court, Sankari, Salem District for
Restitution of Conjugal Rights. The petitioner is unemployed and residing
along with her mother at Rasipuram, Namakkal District. She is depending
on her mother for her livelihood and has to take care of 1 ½ years old male
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1235 of 2022
child. Thus, the petitioner/wife is not in a position to spend, travel and
contest the case filed by the respondent/husband.
3. 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 reasons which prompted the
parliament to incorporate such a provision has
also to be taken note of. Sub Clause (iii-a) was
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1235 of 2022
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 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
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1235 of 2022
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, Allahabad. Considering the difficulties faced
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1235 of 2022
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 jurisdiction of the Court where she
resides.”
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1235 of 2022
4. Considering the facts and circumstances, the HMOP No.110 of
2022 pending on the file of the Subordinate Court, Sankari, Salem District
stands transferred to the Subordinate Court, Rasipuram, Namakkal District
to be tried along with HMOP No.158 of 2022. The Subordinate Court,
Sankari, Salem District is directed to transmit the case papers to the
Subordinate Court, Rasipuram, Namakkal District within a period of four
(4) weeks from the date of receipt of a copy of this order
5. With the abovesaid directions, the Transfer Civil Miscellaneous
Petition stands allowed. However, there shall be no order as to costs.
Consequently, the connected Miscellaneous Petition is closed.
05.01.2023
skr/kak
Index : Yes
Speaking order
Neutral Citation : Yes
To
1.The Judge,
Subordinate Court,
Sankari, Salem District.
2.The Judge,
Subordinate Court,
Rasipuram, Namakkal District.
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1235 of 2022
S.M.SUBRAMANIAM, J.
skr/kak
Tr.C.M.P.No.1235 of 2022
05.01.2023
https://www.mhc.tn.gov.in/judis
