Rakshana vs Shanmuga
2023 Latest Caselaw 792 Mad

Citation : 2023 Latest Caselaw 792 Mad
Judgement Date : 20 January, 2023

Madras High Court

Rakshana vs Shanmuga on 20 January, 2023

                                                                                   Tr.C.M.P.No.1280 of 2022

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 20.01.2023

                                                            CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                    Tr.C.M.P.No.1280 of 2022
                                                   and C.M.P.No.21575 of 2022

                     Rakshana                                                      ... Petitioner

                                                               Vs.

                     Shanmuga                                                      ... Respondent


                     Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code, to withdraw H.M.O.P.No.20 of 2022 on the file of Subordinate Court,
                     Denkanikottai and transfer the same to the file of Family Court, Salem.

                                  For Petitioner          : Mr.W.Camyles Gandhi
                                  For Respondent          : Mr.P.M.Jayachandran

                                                           ORDER

The petition for transfer is filed to withdraw H.M.O.P.No.20 of 2022

from the file of the Sub-Court, Denkanikottai and transfer the same to the

file of the Family Court at Salem.

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2. The marriage between the petitioner and the respondent was

solemnised on 23.06.2021 as per the Hindu Rites and Customs. Due to

misunderstanding, the petitioner and the respondent are living separately.

The respondent filed H.M.O.P.No.20 of 2022 on the file of the Sub-Court at

Denkanikottai, Krishnagiri District for dissolution of marriage.

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

is unemployed, residing along with her parents at Salem and she is not in a

position to travel and contest the case filed by the respondent and that apart,

she is undergoing medical treatment at Salem and therefore, the divorce

case filed by the respondent is to be transferred to Salem.

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:-

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“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 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

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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.

(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

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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 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

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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.”

5. Considering the facts and circumstances, the H.M.O.P.No.20 of

2022 pending on the file of the Subordinate Court at Denkanikottai stands

transferred to the Family Court at Salem forthwith. The Sub-Judge,

Denkanikottai, is directed to transmit the case papers to the Family Court at

Salem, within a period of four (4) weeks from the date of receipt of a copy

of this order.

6. With the abovesaid directions, the Transfer Civil Miscellaneous

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

Consequently, the connected Miscellaneous Petition is closed.

20.01.2023 Index : Yes Speaking order Jvm To

1.The Judge, Family Court, Salem.