Madras High Court
Tmt.G.Nirosha vs R.Prabhu on 23 January, 2023
2023/MHC/234
Tr.CMP No.775 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.775 of 2022
And
CMP No.13314 of 2022
Tmt.G.Nirosha .. Petitioner
vs.
R.Prabhu .. Respondent
PRAYER : This Transfer CMP is filed under Section 151 of the Civil
Procedure Code, to withdraw the case in FCOP No.178 of 2022 from the file
of the Family Court at Chengalpattu and transfer the same to the file of the
Sub Court at Katpadi, Vellore District.
For Petitioner : Mr.S.Ravichandran
For Respondent : No Appearance
1/10
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Tr.CMP No.775 of 2022
ORDER
The present Transfer Civil Miscellaneous Petition is filed to
withdraw the case in FCOP No.178 of 2022 from the file of the Family
Court at Chengalpattu and transfer the same to the file of the Sub Court at
Katpadi, Vellore District.
2. The marriage between the petitioner-wife and the respondent-
husband was solemnised on 22.02.2019 as per Hindu Rites and Customs.
Out of wedlock between the petitioner and the respondent, a 3 year old girl
child was born. 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 now she and her minor girl child are living along with
her parents at Katpadi, Vellore District. Both the petitioner and her minor
girl child are depending on her parents. Thus she is not in a position to travel
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Tr.CMP No.775 of 2022
all along from Katpadi, Vellore District to Chengalpattu to contest the case
filed by the respondent in FCOP No.178 of 2022 pending on the file of the
Family Court at Chengalpattu.
4. In the present case, the transfer of the case is to be considered,
since the petitioner is residing along with her parents at Katpadi, Vellore
District. That being the case, the case filed by the respondent in FCOP
No.178 of 2022 pending on the file of the Family Court at Chengalpattu 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:-
(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
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Tr.CMP No.775 of 2022
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
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Tr.CMP No.775 of 2022
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.
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
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Tr.CMP No.775 of 2022
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
distance and the difficulties faced by the wife, the
Supreme Court has allowed the transfer petition.
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Tr.CMP No.775 of 2022
(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
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Tr.CMP No.775 of 2022
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
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
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Tr.CMP No.775 of 2022
transfer FCOP No.178 of 2022 pending on the file of the Family Court at
Chengalpattu to the file of the Sub Court at Katpadi, Vellore District
forthwith. The Family Court at Chengalpattu is directed to transmit the case
papers to the Sub Court at Katpadi, Vellore District, 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.
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Tr.CMP No.775 of 2022
Svn
To
1.The Judge,
Family Court,
Chengalpattu.
2.The Sub Judge,
Sub Court at Katpadi,
Vellore District.
Tr.CMP No.775 of 2022
23-01-2023
https://www.mhc.tn.gov.in/judis
