Madras High Court

Mrs.R.Pavithra vs Mr.J.Kotteswaran on 23 January, 2023

    2023/MHC/263


                                                                              Tr.CMP No.1119 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 23-01-2023

                                                           CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                   Tr.C.M.P.No.1119 of 2022
                                                             and
                                                    C.M.P.No.19043 of 2022



                     Mrs.R.Pavithra                                            .. Petitioner

                                                             vs.

                     Mr.J.Kotteswaran                                          .. Respondent




                     PRAYER : This Transfer CMP is filed under Section 24 of the Civil
                     Procedure Code, to withdraw the case in HMOP No.101 of 2021 from the
                     file of the Sub Court at Gudiyatham, Vellore District and transfer the same
                     to the file of the Family Court at Thiruvallur.
                                  For Petitioner           : Ms.L.Akalya Nathan

                                  For Respondent             : Mr.R.R.Selvakumar for
                                                                Mr.M.Marudhachalam


                     1/12




https://www.mhc.tn.gov.in/judis
                                                                           Tr.CMP No.1119 of 2022




                                                      ORDER

The present Transfer Civil Miscellaneous Petition has been filed

to withdraw the HMOP No.101 of 2021 from the file of the Sub Court at

Gudiyatham, Vellore District and transfer the same to the file of the Family

Court at Thiruvallur.

2. The marriage between the petitioner and the respondent was

solemnised on 03.06.2020 as per the Hindu Rites and Customs. Due to

misunderstanding, the petitioner and the respondent are now living

separately.

3. The respondent raised several allegations against the

petitioner. The respondent filed HMOP No.101 of 2021 for dissolution of

marriage now pending on the file of the Sub Court at Gudiyatham, Vellore

District.

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4. The learned counsel for the petitioner made a submission

that the respondent filed a complaint under the Domestic Violence Act,

which is now pending before the Judicial Magistrate at Thiruvallur.

5. It is contended that the petitioner was previously working in

CMC, Vellore and now she is not employed at CMC, Vellore and she is

staying along with her parents at Pattabiram.

6. The petitioner joined in Nursing Course in Meenakshi

College of Nursing, Maduravoyal, Chennai-95 and pursuing her education

by staying along with her parents at Pattabiram.

7. That being the case, she is not in a position to travel all along

from Pattabiram to Gudiyatham and contest the divorce case filed by the

respondent on the file of the Sub Court at Gudiyatham, Vellore District.

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8. The learned counsel for the petitioner raised an objection by

stating that the divorce petition was filed by the respondent on the ground of

adultery and the respondent has enclosed several photographs and other

details regarding the conversation of his wife.

9. However, this Court cannot adjudicate those documents and

the issues raised between the parties in the present Transfer Civil

Miscellaneous Petition. All those allegations are to be established before the

Competent Court, while adjudicating the matrimonial proceedings.

10. As far as the transfer is concerned, the place of wife is

preferable, more-so, the petitioner has now states that she is not employed as

admitted by the learned counsel for the petitioner and pursuing her

education at Meenakshi College of Nursing at Maduravoyal. Further, she is

depending on her parents and residing along with her parents at Pattabiram.

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11. 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.

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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

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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

https://www.mhc.tn.gov.in/judis Tr.CMP No.1119 of 2022

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 journey,

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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-

https://www.mhc.tn.gov.in/judis Tr.CMP No.1119 of 2022

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.''

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

transfer HMOP No.101 of 2021 pending on the file of the Sub Court at

Gudiyatham, Vellore District to the file of the Family Court at Thiruvallur

forthwith. The Sub Court at Gudiyatham, Vellore District is directed to