Madras High Court
S.Muthuselvi vs V.Muthuselvan on 23 January, 2023
2023/MHC/287
Tr.CMP No.1133 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23-01-2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.CMP No.1133 of 2022
And
CMP No.19276 of 2022
S.Muthuselvi .. Petitioner
vs.
V.Muthuselvan .. Respondent
PRAYER : This Transfer CMP is filed under Section 24 of the Civil
Procedure Code, to withdraw the case in HMOP No.4583 of 2022 from the
file of the VI Additional Family Court at Chennai and transfer the same to
the file of the Family Court at Coimbatore.
For Petitioner : Mr.Kingsly Solomon J
For Respondent : Mr.C.Lingam
1/10
https://www.mhc.tn.gov.in/judis
Tr.CMP No.1133 of 2022
ORDER
The present Transfer Civil Miscellaneous Petition is filed to
withdraw the case in HMOP No.4583 of 2022 from the file of the VI
Additional Family Court at Chennai and transfer the same to the file of the
Family Court at Coimbatore.
2. The marriage between the petitioner-wife and the respondent-
husband was solemnised on 23.02.2011 as per Hindu Rites and Customs.
Out of wedlock between the petitioner and the respondent, one male and one
female child were born to them now aged about 11 and 8 years respectively.
Due to misunderstanding the petitioner and the respondent are now living
separately.
3. The learned counsel for the petitioner states that the petitioner
is unemployed and she and her two minor children were under her custody.
Though the respondent is residing at Coimbatore and doing business there,
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Tr.CMP No.1133 of 2022
he falsely filed a divorce case before the VI Additional Family Court at
Chennai. Both the petitioner as well as her two minor children are living
with her parents at Coimbatore. Thus she is not in a position to travel all
along from Coimbatore to Chennai to contest the case filed by the
respondent in HMOP No.4583 of 2022 pending on the file of the VI
Additional Family Court at Chennai.
4. In the present case, the transfer of the case is to be considered,
since the petitioner and her two minor children are residing along with her
parents at Coimbatore. That being the case, the case filed by the respondent
in HMOP No.4583 of 2022 pending on the file of the VI Additional Family
Court at Chennai is to be transferred to the place, where the petitioner now
resides.
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:-
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Tr.CMP No.1133 of 2022
(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 also
to be taken note of. Sub Clause (iii-a) was inserted
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Tr.CMP No.1133 of 2022
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.
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Tr.CMP No.1133 of 2022
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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Tr.CMP No.1133 of 2022
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
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Tr.CMP No.1133 of 2022
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 used to wreck
vengeance on the husband. There must be a
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Tr.CMP No.1133 of 2022
justifiable cause to select the jurisdiction of the Court
where she resides.''
6. In view of the facts and circumstances, this Court is inclined
to transfer HMOP No.4583 of 2022 pending on the file of the VI Additional
Family Court at Chennai to the file of the Family Court at Coimbatore. The
VI Additional Family Court at Chennai is directed to transmit the case
papers to the Family Court at Coimbatore, 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.
23-01-2023
Speaking Order/Non-Speaking Order.
Neutral Citation : Yes/No.
Internet : Yes/No.
Index: Yes/No.
Svn
S.M.SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis
Tr.CMP No.1133 of 2022
Svn
To
1.The VI Additional Judge,
VI Additional Family Court,
Chennai.
2.The Judge,
Family Court,
Coimbatore.
Tr.CMP No.1133 of 2022
23-01-2023
https://www.mhc.tn.gov.in/judis
