Madras High Court
M.Nivas vs Indumathi on 2 March, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
Tr.CMP(MD)Nos.375, 389 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Tr.CMP(MD)Nos.375, 389 of 2022
and
CMP(MD)Nos.6190, 6350 of 2022
M.Nivas : Petitioner in both petitions
Vs.
Indumathi : Respondent in both petitions
COMMON PRAYER: Civil Revision Petitions filed under Section 24 of the
Civil Procedure Code to withdraw HMOP.Nos.100 & 261 of 2021, respectively,
from the file of the Family Court, Sivagangai and transfer the same to the file of
the Principal Sub Court, Pudukottai.
For Petitioner : Mr.N.Baskaran
For Respondent : Mr.G.Prabhu Rajadurai
(In both petitions)
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Tr.CMP(MD)Nos.375, 389 of 2022
COMMON ORDER
The petitioner is the husband and the respondent is the wife. Their marriage was solemnized on 11.11.2018 and out of the wedlock, they are having a girl child. The relationship between the parties got strained and they are living separately. The husband has filed a petition in HMOP.No.6 of 2021 before the Principal Sub Court, Pudukottai, seeking divorce. The wife has filed a petition in HMOP.No.100 of 2021 before the Family Court, Sivagangai, seeking restitution of conjugal rights. The wife has also filed an application before this Court in Tr.CMP(MD)No.255 of 2021 to transfer the proceedings pending in HMOP.No.6 of 2021 from the file of the Principal Sub Court, Pudukottai to the file of the Family Court, Sivagangai. The said application was allowed by this Court by order dated 16.07.2021 and now the divorce petition is renumbered as HMOP.No.261 of 2021 and pending before the Family Court, Sivagangai.
2.In order to transfer the petitions filed for divorce and for restitution of conjugal rights from the file of the Family Court, Sivagangai to the file of the Principal Sub Court, Pudukottai, the petitioner has moved the present transfer civil miscellaneous petitions.
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3.Learned Counsel appearing for the petitioner / husband submitted that the respondent / wife is now staying at one of the houses of the petitioner at Pillamangalam, Thirumayam, Pudukottai and not at Sivagangai. Pending the HMOP proceedings, the respondent tried to trespass into the petitioner's father's house on 24.08.2021 and in this regard, a case in Crime No.430 of 2021 was registered before the Thirumayam Police Station. Yet another case in Crime No. 109 of 2022 was also registered for trespass. In any event, since both the petitioner and the respondent are now residing at Pudukottai, no prejudice would be caused by transferring the cases from Sivagangai to Pudukottai and therefore, the learned Counsel prayed for appropriate orders.
4.Learned Counsel appearing for the respondent / wife submitted that the respondent is suffering without any financial support, with her four year old daughter. Therefore, she moved an application for interim maintenance and the same is now pending before the Family Court, Sivagangai, wherein, the husband was directed to produce his income certificate. In order to avoid that application, the husband has moved the present petitions.
5.He further submitted that since the petitioner refused to provide maintenance and residence, the respondent along with her daughter have come 3/8 https://www.mhc.tn.gov.in/judis Tr.CMP(MD)Nos.375, 389 of 2022 down to Pillamangalam and are residing in a Thatched house, belonging to the petitioner, which is opposite to the petitioner's house, in order to establish her right of residence in the matrimonial home. She cannot live there for a long time, since it is not suitable for living and it cannot be presumed as that of a residence. Therefore, he prayed for dismissal.
6.This Court paid it's anxious consideration to the rival submissions and also perused the available materials.
7.The parties before this Court are husband and wife and both of them threw allegations and counter allegations as against each other. The husband has filed a petition for divorce and the wife has filed a petition for restitution of conjugal rights. The wife has already moved an application to transfer the divorce petition and this Court, considering that the convenience of the wife and more so of the child must be taken into account, allowed the application.
8.The husband has now filed these applications stating that the wife is residing at Pudukottai and since both the parties are residing at Pudukottai, he prayed for transferring the cases pending before the Family Court, Sivagangai to the file of the Sub Court, Pudukottai. It is the contention of the respondent / 4/8 https://www.mhc.tn.gov.in/judis Tr.CMP(MD)Nos.375, 389 of 2022 wife that since the husband refused to provide maintenance and residence, in order to establish her right of residence in the matrimonial home, she has come down to Pillamangalam, Pudukottai and residing at a Thatched House. It is her further contention that she cannot live in the Thatched House for a long time, as it is not suitable for living.
9.The Hon'ble Apex Court in the case of Amitha Shah vs. Virendar Lal Shah, reported in (2003) 10 SCC 609 has held that the convenience of the wife and more so of the child must be taken into account while deciding the petition for transfer. In the case of Rajani Kishor Paradeshi vs. Kishor Babulal Paradeshi reported in (2005) 12 SCC 237, the Hon'ble Apex Court has held that in such type of transfer petitions, the convenience of the wife is to be preferred over the convenience of the husband.
10.The respondent / wife took a specific stand that she is residing in her parental home and that she has temporarily came down to Pudukottai only to prove her right of residence in the matrimonial home. That, by itself, does not mean that she is a permanent resident of Pudukottai and this Court is not inclined to transfer the applications on this ground.
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11.It also appears that while transferring the divorce petition to the file of the Family Court, Sivagangai, this Court, in Tr.CMP(MD)No.255 of 2021, has directed to tag the divorce petition and restitution of conjugal rights petition together and further dispensed with the personal appearance of both parties before the Family Court, Sivagangai, excepting the dates on which their appearance is insisted upon by the Court.
Under such circumstances and also in view of the ratio laid down by the Hon'ble Supreme Court, this Court is not inclined to transfer the cases. Accordingly, both the transfer civil miscellaneous petitions stand dismissed. Considering the plight expressed by the respondent / wife, the Family Court, Sivagangai, is directed to dispose of the petition filed for interim maintenance in I.A.No.1 of 2022 in HMOP.No.261 of 2021, on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 02.03.2023
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https://www.mhc.tn.gov.in/judis
Tr.CMP(MD)Nos.375, 389 of 2022
To
1.The Judge,
Family Court,
Pudukottai.
2.The Principal Subordinate Judge,
Pudukottai.
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https://www.mhc.tn.gov.in/judis
Tr.CMP(MD)Nos.375, 389 of 2022
B.PUGALENDHI, J.
gk
Tr.CMP(MD)Nos.375, 389 of 2022
and
CMP(MD)Nos.6190, 6350 of 2022
02.03.2023
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