Madras High Court

Selvamageshwari vs Selvakumar on 6 January, 2023

    2023/MHC/84


                                                                            Tr.CMP No.1102 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 06-01-2023

                                                          CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                   Tr.CMP No.1102 of 2022
                                                           And
                                                    CMP No.18892 of 2022



                     Selvamageshwari                                        .. Petitioner

                                                            vs.


                     Selvakumar                                                .. Respondent

                     PRAYER : This Transfer CMP is filed under Section 24 of the Civil
                     Procedure Code, to withdraw the case in HMOP No.283 of 2022 from the
                     file of the Sub Court at Kancheepuram and transfer the same to the file of
                     the Family Court at Thoothukudi.


                                  For Petitioner            : Ms.S.Viji

                                  For Respondent             : No Appearance



                     1/10




https://www.mhc.tn.gov.in/judis
                                                                              Tr.CMP No.1102 of 2022



                                                        ORDER

The present Transfer Civil Miscellaneous Petition is filed to

withdraw the case in HMOP No.283 of 2022 from the file of the Sub Court

at Kancheepuram and transfer the same to the file of the Family Court at

Thoothukudi.

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

husband was solemnised on 20.11.2013 as per Hindu Rites and Customs.

Due to misunderstanding between the petitioner and the respondent, they

were living separately. One girl child was born on 13.08.2014 from and out

of the wedlock between the petitioner and the respondent. The minor girl

child is with the custody of the petitioner-wife.

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

and the minor girl child are now residing with parents of the petitioner at

Thoothukudi. The petitioner has to take care of her minor girl child. Thus

https://www.mhc.tn.gov.in/judis Tr.CMP No.1102 of 2022

she is not in a position to travel all along from Thoothukudi to

Kancheepuram to contest the restitution of conjugal rights filed by the

respondent in HMOP No.283 of 2022 pending on the file of the Sub Court

at Kancheepuram.

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

https://www.mhc.tn.gov.in/judis Tr.CMP No.1102 of 2022

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 as to enable the

women to approach the nearest jurisdictional court

https://www.mhc.tn.gov.in/judis Tr.CMP No.1102 of 2022

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.CMP No.1102 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

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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.”

(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

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

since the petitioner is taking care of minor girl child and she is residing

along with her parents at Thoothukudi. That being the case, the restitution

of conjugal rights filed by the respondent is to be transferred to the place,

where the petitioner now resides.

https://www.mhc.tn.gov.in/judis Tr.CMP No.1102 of 2022

6. In view of the facts and circumstances, this Court is inclined to

transfer HMOP No.283 of 2022 pending on the file of the Sub Court at

Kancheepuram to the file of the Family Court at Thoothukudi forthwith.

The Sub Court at Kancheepuram is directed to transmit the case papers to

the Family Court at Thoothukudi, within a period of four weeks from the

date of receipt of a copy of this order.

7. 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.

06-01-2023 Speaking Order/Non-Speaking Order. Neutral Citation : Yes/No.

Internet : Yes/No.