Madras High Court
G.Dipak vs P.Kaviyarasi on 24 January, 2023
Tr.C.M.P.No.1248 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.1248 of 2022
and
C.M.P.No.21203 of 2022
G.Dipak ... Petitioner
Vs.
P.Kaviyarasi ... Respondent
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
Code, to withdraw the HMOP No.560 of 2020 pending on the file of the
learned Sub Court at Poonamallee and transer to VIIth Additional Family
Court at Chennai.
For Petitioner : Mr.M.Murugesan
For Respondent : Mr.R.Venkataraman
Page 1 of 8
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Tr.C.M.P.No.1248 of 2022
ORDER
The marriage between the petitioner and the respondent was
solemnised on 13.12.2018 as per Hindu rites and customs. Due to some
misunderstanding, the petitioner and the respondent are living separately.
2.The petitioner filed HMOP No.560 of 2020 for dissolution of
marriage, now pending on the file of the Sub-Court Poonamallee. However,
the respondent wife filed HMOP No.2821 of 2020, under the provisions of
restitution of conjugal rights, on the file of VIIth Additional Family Court at
Chennai. To enable the parties to contest both the cases, the petitioner has
chosen to file the present transfer petition to transfer the case filed in HMOP
No.560 of 2020 to be tried along with the HMOP No.2821 of 2020, filed by
the respondent.
3.The respondent/wife is residing at Chennai and therefore, the
transfer of the case in the Family Court at Chennai is to the interest of the
respondent.
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Tr.C.M.P.No.1248 of 2022
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
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
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Tr.C.M.P.No.1248 of 2022
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
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
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Tr.C.M.P.No.1248 of 2022
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
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
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Tr.C.M.P.No.1248 of 2022
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-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.”
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Tr.C.M.P.No.1248 of 2022
5. Considering the facts and circumstances, the HMOP No.560 of
2020, pending on the file of the Sub Court at Poonamallee, stands
transferred to the VIIth Additional Familsy Court at Chennai. The Sub
Court at Poonamallee is directed to transmit the case papers to the VIIth
Additional Family Court at Chennai 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
24.01.2023
Index : Yes
Speaking order
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Tr.C.M.P.No.1248 of 2022
S.M.SUBRAMANIAM, J.
sha
To
1. Sub Court at Poonamallee.
2. VIIth Additional Family Court at Chennai.
Tr.C.M.P.No.1248 of 2022
24.01.2023
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