Madras High Court

V.Vinay vs Mrs.R.Akshaya on 12 January, 2023

    2023/MHC/250
                                                                                   Tr.C.M.P.No.966 of 2022

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 12.01.2023

                                                            CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                  Tr.C.M.P.No.966 of 2022

                     V.Vinay                                                       ... Petitioner

                                                              Vs.

                     Mrs.R.Akshaya                                                 ... Respondent



                     Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code, to withdraw and transfer H.M.O.P.No.44 of 2022 pending on the file
                     of the Family Court, Dharmapuri to the Learned Principal Sub-Judge, Hosur
                     and hear along with H.M.O.P.No.72 of 2022 pending before the Principal
                     Sub-Judge, Hosur.


                                      For Petitioner            : Mr.M.D.Thirunavukkarasu

                                      For Respondent            : Mr.Syed Rayhan




                     Page 1 of 10

https://www.mhc.tn.gov.in/judis
                                                                                      Tr.C.M.P.No.966 of 2022


                                                            ORDER

The petition for transfer is filed to withdraw and transfer

H.M.O.P.No.44 of 2022 pending on the file of the Family Court,

Dharmapuri to the Principal Sub Court, Hosur and to be tried along with

H.M.O.P.No.72 of 2022 pending before the Principal Sub Court, Hosur.

2. The marriage between the petitioner and the respondent was

solemnised on 25.03.2021 as per the Hindu Rites and Customs. Due to

misunderstanding the petitioner and the respondent are living separately.

The petitioner filed H.M.O.P.No.72 of 2022 for Restitution of Conjugal

Rights now pending on the file of the Principal Sub Court, Hosur,

Krishnagiri District. However, the respondent wife filed H.M.O.P.No.44 of

2022 for Dissolution of Marriage pending on the file of the Family Court,

Dharmapuri.

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

working at Hosur and therefore, the divorce case filed by the respondent

wife is to be transferred to the Principal Sub Court at Hosur.

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.966 of 2022

4. Place of wife is to be considered for the purpose of transferring a

case. The respondent is native of Dharmapuri and her parents are also

residing at Dharmapuri. Though the petitioner states that the respondent is

working at Bangalore, she has already instituted a petition for divorce

before the Family Court at Dharmapuri. Since the respondent filed the

divorce petition before the Family court at Dharmapuri, the other case filed

by the petitioner is also to be tried along with the divorce case, which is

now pending before the Family Court at Dharmapuri.

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,

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,

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.966 of 2022

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 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.”

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.966 of 2022

(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.

(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

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.966 of 2022

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.”

(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

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.966 of 2022

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.”

6. Considering the facts and circumstances, the H.M.O.P.No.72 of

2022 pending on the file of the Principal Sub Court, Hosur, Krishnagiri

District stands transferred to the Family Court at Dharmapuri to be tired

along with H.M.O.P.No.44 of 2022. The Principal Sub Court, Hosur,

Krishnagiri District is directed to transmit the case papers to the Family

Court at Dharmapuri, within a period of four (4) weeks from the date of

receipt of a copy of this order.

https://www.mhc.tn.gov.in/judis Tr.C.M.P.No.966 of 2022

7. With the abovesaid directions, the Transfer Civil Miscellaneous

Petition stands disposed of. However, there shall be no order as to costs.

Consequently, the connected Miscellaneous Petition is closed.

12.01.2023 Jeni Index : Yes Speaking order