Madras High Court
R.Priya vs Thirunavukkarasu on 24 January, 2023
2023/MHC/352
Tr.C.M.P.No.1283 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.1283 of 2022
and
C.M.P.No.21630 of 2022
R.Priya ... Petitioner
Vs.
Thirunavukkarasu ... Respondent
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure Code,
to transfer the H.M.O.P.No.372 of 2021 from the Subordinate Judge's Court,
Kancheepuram to the files of the Subordinate Judge's Court, Tambaram.
For Petitioner : Mr.P.Syed Abdul Mashood
For Respondent : Mr.I.Rollence Samuel
ORDER
The petition for transfer is filed to transfer the H.M.O.P.No.372 of
2021 from the Subordinate Court, Kancheepuram to the file of the
Subordinate Court, Tambaram.
2. The marriage between the petitioner and the respondent was
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Tr.C.M.P.No.1283 of 2022
solemnised on 28.11.2018 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.372 of 2021 for dissolution of marriage on the
file of Subordinate Court, Kanchipuram.
3. The learned counsel for the petitioner states that the petitioner is
residing along with her aged parents at East Tambaram and she is employed.
Thus, she is not in a position to contest the case filed by the respondent for
Divorce in H.M.O.P.No.372 of 2021 on the file of the Subordinate Court,
Kanchipuram
4. The learned counsel for the respondent states that there is threat to
the respondent, if in the event of transferring the case to Tambaram. Mere
statement in this regard would be insufficient to consider the objections raised
by the respondent in the present case. Unsubstantiated allegations cannot be
considered for rejecting the Transfer Application filed by the petitioner / wife
to transfer the H.M.O.P.No.372 of 2021 filed by the respondent.
5. The principles regarding transfer petitions, more specifically in the
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Tr.C.M.P.No.1283 of 2022
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.
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
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Tr.C.M.P.No.1283 of 2022
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.
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
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Tr.C.M.P.No.1283 of 2022
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.
(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
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Tr.C.M.P.No.1283 of 2022
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-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.372 of
2021 pending on the file of the Subordinate Court, Kancheepuram stands
transferred to the Subordinate Court, Tambaram. The Subordinate Court,
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Tr.C.M.P.No.1283 of 2022
Kancheepuram is directed to transmit the case papers to the Subordinate
Court, Tambaram, 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 disposed of. However, there shall be no order as to costs.
Consequently, the connected Miscellaneous Petition is closed.
24.01.2023
skr/jeni
Index : Yes
Speaking order
Neutral Citation: Yes
To
1.The Judge,
Subordinate Court,
Kancheepuram.
2.The Judge,
Subordinate Court,
Tambaram.
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Tr.C.M.P.No.1283 of 2022
S.M.SUBRAMANIAM, J.
skr/jeni
Tr.C.M.P.No.1283 of 2022
24.01.2023
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