Madras High Court

P.Navamani vs P.Iyyappan on 11 January, 2023

                                                                             Tr.CMP No.1189 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 11-01-2023

                                                          CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                   Tr.CMP No.1189 of 2022
                                                           And
                                                    CMP No.20310 of 2022



                     P.Navamani                                            .. Petitioner

                                                            vs.


                     P.Iyyappan                                             .. Respondent

                     PRAYER : This Transfer CMP is filed under Section 24 of the Civil
                     Procedure Code, to withdraw the case in HMOP No.639 of 2022 from the
                     file of the Sub Court at Alandur and transfer the same to the file of the Sub
                     Court at Nagapattinam.


                                  For Petitioner            : Mr.R.Vivek

                                  For Respondent             : Mr.S.R.Hemkumar



                     1/12




https://www.mhc.tn.gov.in/judis
                                                                              Tr.CMP No.1189 of 2022



                                                        ORDER

The present Transfer Civil Miscellaneous Petition is filed to

withdraw the case in HMOP No.639 of 2022 from the file of the Sub Court

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

Nagapattinam.

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

husband was solemnised on 25.01.2021 as per Hindu Rites and Customs.

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

petitioner now 11 months old and the husband and due to misunderstanding

the petitioner and the respondent are now living separately. The 11 months

old child is with 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 Nagapattinam along

with her 11 months old child. Thus she is not in a position to travel all along

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from Nagapattinam to Chennai to contest the restitution of conjugal rights

case filed by the respondent in HMOP No.639 of 2022 pending on the file

of the Sub Court at Alandur.

4. The learned counsel for the respondent made a submission that

the respondent is willing for re-union and he filed HMOP No.639 of 2022

for restitution of conjugal rights and the petitioner is not permitting the

respondent to visit the child.

5. In this regard, the learned counsel for the petitioner states that

the petitioner has no objection for visiting the child in a peaceful manner by

the respondent. Thus the petitioner may permit the respondent to visit the

child in a peaceful manner.

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

since the petitioner is unemployed and taking care of 11 months old male

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

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the case, the restitution of conjugal rights case filed by the respondent is to

be transferred to the place, where the petitioner now resides.

7. 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

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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

to redress their matrimonial grievances, were also

taken note of by the Government. Therefore such a

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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.

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(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

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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

amended section 19(iii)(a) gives special preference

to the wife to file a petition or defending the case of

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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.''

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

transfer HMOP No.639 of 2022 pending on the file of the Sub Court at

Alandur to the file of the Sub Court at Nagapattinam forthwith. The Sub

Court at Alandur directed to transmit the case papers to the Sub Court at

Nagapattinam, within a period of four weeks from the date of receipt of a

copy of this order.

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9. 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.

11-01-2023 Speaking Order/Non-Speaking Order. Neutral Citation : Yes/No.

Internet : Yes/No.

Index: Yes/No.

Svn

https://www.mhc.tn.gov.in/judis Tr.CMP No.1189 of 2022

1.The Sub Judge, Sub Court, Alandur.

2.The Sub Judge, Sub Court, Nagapattinam.

https://www.mhc.tn.gov.in/judis Tr.CMP No.1189 of 2022