Madras High Court
S.Magesh vs Deepika on 10 January, 2023
2023/MHC/190
Tr.C.M.P.No.1006 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.1006 of 2022
and
C.M.P.No.17233 of 2022
S.Magesh ... Petitioner
Vs.
1.Deepika
2.Suguna ... Respondents
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw and transfer the petition in F.C.M.C.No.9 of 2022 from
the file of the Learned District Family Judge, Chengelpattu to the file of
Principal District Family Court Judge, Chennai or any competent Court to
try the same.
For Petitioner : No Appearance
For Respondents : Mr.S.Yudhish Padman
Page 1 of 9
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Tr.C.M.P.No.1006 of 2022
ORDER
The Transfer Petition was listed for final hearing on 08.12.2022, none
appeared for the petitioner and thus, the case was listed under the caption
“For Dismissal” on 12.12.2022. Again, when the matter was called on
20.12.2022, there was also no representation on behalf of the petitioner. In
order to give one more opportunity, this Court passed an order, directing the
Registry to list this matter once again under the caption “For Dismissal” on
22.12.2022. Even Today also i.e. on 10.01.2023, when the matter is taken
up for hearing, there is no representation on behalf of the petitioner. Thus,
this Court is inclined to pass final orders.
2. The petition for transfer is filed to withdraw and transfer the
petition in F.C.M.C.No.9 of 2022 from the file of the District Family Court,
Chengelpattu to the file of Principal District Family Court, Chennai.
3. The marriage between the petitioner and the respondent was
solemnised on 03.09.1998 as per Hindu Rites and Customs. On account of
misunderstanding, the husband and wife are living separately. The
respondent filed maintenance in F.C.M.C.No.9 of 2022 on the file of the
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Tr.C.M.P.No.1006 of 2022
Family Court, Chengalpet seeking maintenance for the wife and daughter.
The petitioner filed present transfer petitioner to transfer the maintenance
petition from Chengalpet to Chennai.
4. The place of the respondent are considered for the purpose of
adjudication of the maintenance case. The Court concerned has to consider
the grant of interim maintenance in such circumstances taking note of the
mitigating factors. If the 1st respondent wife is unemployed and the 2nd
respondent daughter is being maintained by without any source of income,
then the livelihood of the 2nd respondent is also to be protected by the Trial
Courts.
5. In such circumstances, Courts are bound to grant interim
maintenance to protect the livelihood of the minor children. In the present
case, the respondent had already filed a maintenance case, before the Family
Court at Chengalpet, which is pending. The reasons stated in the present
transfer case are neither candid nor convincing.
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Tr.C.M.P.No.1006 of 2022
6. 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
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Tr.C.M.P.No.1006 of 2022
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 that she was unable to bear the
traveling expenses and even to travel alone and
stay at Bombay, the Supreme Court ordered
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Tr.C.M.P.No.1006 of 2022
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 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
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Tr.C.M.P.No.1006 of 2022
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
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
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Tr.C.M.P.No.1006 of 2022
used to wreck vengeance on the husband. There
must be a justifiable cause to select the
jurisdiction of the Court where she resides.”
7. In view of the facts and circumstances, this Court do not find any
acceptable reasons for purpose of transferring the case. Consequently, the
Transfer Petition stands dismissed. However, there shall be no order as to
costs. Consequently, the connected Miscellaneous Petition is closed.
10.01.2023
Jeni
Index : Yes
Speaking order
To
1.The Judge,
Family Court,
Chengalpattu.
2.The Judge,
Family Court,
Chennai.
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Tr.C.M.P.No.1006 of 2022
S.M.SUBRAMANIAM, J.
Jeni
Tr.C.M.P.No.1006 of 2022
10.01.2023
https://www.mhc.tn.gov.in/judis
