Madras High Court
Radhika vs S.Kesavan on 24 January, 2023
Tr.C.M.P.No.1320 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.1320 of 2022
and
C.M.P.No.22292 of 2022
Radhika ... Petitioner
Vs.
S.Kesavan ... Respondent
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw the HMOP No.300 of 2022 from the file of the Family
Court at Tiruvallur and to transfer the same to the Sub-Court at Alandur.
For Petitioner : Dr.R.Sampath Kumar
For Respondent : Mrs.S.Thamizharasi
Page 1 of 9
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Tr.C.M.P.No.1320 of 2022
ORDER
The marriage between the petitioner and the respondent was
solemnised on 11.07.2019 as per the Hindu rites and customs. Due to some
misunderstandings, the petitioner and the respondent are living separately. A
female child is born from and out of the wedlock of the petitioner and the
respondent, who is aged about two years old and is now living with the
petitioner/wife.
2.The learned counsel for the petitioner states that the respondent filed
HMOP No.300 of 2022 for divorce, on the file of the Family Court at
Tiruvallur. The petitioner is now residing at Kottivakkam where she also has
to take care of the minor child. Thus, she is not in a position to travel and
contest the divorce case filed by the respondent before the Family Court at
Tiruvallur.
3.The learned counsel for the respondent raised an objection by
stating that the petitioner earlier agreed for mutual divorce and the petition
under section 13(B) was filed. Thereafter she changed her position and
therefore, the respondent is forced to file another divorce petition before the
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Tr.C.M.P.No.1320 of 2022
Family Court at Tiruvallur. However, the Court is of the opinion that these
matrimonial issues need not be decided in the present transfer application.
The fact remains that the divorce case filed by the respondent is now
pending before the Family Court at Tiruvallur.
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:-
“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
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Tr.C.M.P.No.1320 of 2022
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 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
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Tr.C.M.P.No.1320 of 2022
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
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
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Tr.C.M.P.No.1320 of 2022
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 5 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
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Tr.C.M.P.No.1320 of 2022
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 HMOP No.300 of
2022, pending on the file of the Family Court at Tiruvallur, stands
transferred to the Sub-Court at Alandur. The Family Court at Tiruvallur, is
directed to transmit the case papers to the Sub-Court at Alandur, 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
Petition stands allowed. However, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
sha
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Tr.C.M.P.No.1320 of 2022
24.01.2023
Index : Yes
Speaking order
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Tr.C.M.P.No.1320 of 2022
S.M.SUBRAMANIAM, J.
sha
To
1. Family Court at Tiruvallur
2. Sub-Court at Alandur.
Tr.C.M.P.No.1320 of 2022
24.01.2023
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