Madras High Court
Sivasakthi @ Jeyashree vs G.Muthu on 23 August, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 04.06.2018
Pronounced on : 23.08.2018
Dated: 23.08.2018
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
Tr.C.M.P.(MD)Nos.192 of 2018 & 195 of 2018 and
CMP(MD)Nos.4589 & 4648 of 2018
Sivasakthi @ Jeyashree .. Petitioner in CRP(MD)No.195/2018
.. Respondent in CRP(MD)No.192/2018
-vs-
G.Muthu .. Respondent in CRP(MD)No.195/2018
.. Petitioner in CRP(MD)No.192/2018
PRAYER in Tr.CMP(MD)No.195 of 2018: Transfer Civil Miscellaneous Petition
filed under Section 24 of C.P.C., to withdraw the petition for restitution of
conjugal rights in HMOP.No.348 of 2018, on the file of the Family Court,
Madurai filed by the respondent and to transfer the same to the file of the
Family Court, Sivagangai to be tried along with the divorce petition in
HMOP.No.70 of 2018 filed by the petitioner.
PRAYER in Tr.CMP(MD)No.192 of 2018: Transfer Civil Miscellaneous Petition
filed under Section 24 of C.P.C., to withdraw the transfer the petition made
in HMOP.No.70 of 2018, on the file of the Family Court, Sivagangai and to be
tried along with HMOP.No.348 of 2018, on the file of the Family Court,
Madurai.
For Petitioner : Mr.T.R.Jeyapalam
for petitioner in Tr.CMP(MD)No.195/18 and
respondent in Tr.CMP(MD)No.192/18
For Respondent : Mr.P.M.Vishnuvarthanan
for petitioner in Tr.CMP(MD)No.192/18 and
respondent in Tr.CMP(MD)No.195/18
:COMMON ORDER
The respondent in HMOP.No.70 of 2018 on the file of the learned Family Court, Sivagangai, who is the petitioner in Tr.CMP(MD)No.192 of 2018 and the respondent, who is the petitioner in HMOP.No.348 of 2018 is the petitioner in Tr.CMP(MD)No.195 of 2018 filed before this Court for transferring the case filed by each of them to other Court.
2.The wife who is the petitioner in Tr.CMP(MD)No.195 of 2018 is stated before this Court that the marriage between the petitioner and the respondent who are the husband and wife was solemnized on 13.11.2015 at Meenakshi Amman Temple, Madurai. At the time of marriage, on behalf of wife, her parents were presented 30 sovereigns of gold jewels and also presented 6 sovereigns of gold jewels to the husband and also the wife's family has also presented seervarisai articles worth about Rs.2,00,000/-.
3.It is further case of the wife that even before the marriage both of them were fell in love, since the husband was worked as Conductor in a private bus and wife is a Post Graduate. The marriage of the petitioner and the respondent dated 13.11.2015 was registered before the Registrar of Marriages, Chokkikulam, Madurai and both of them were living in the joint family of the parents of the husband.
4.It is the case of the wife that the respondent and his parents slowly started their true colour and started to treat the petitioner with cruelty and to abuse and physically beat and torture her by stating that the wife has not brought enough dowry. The wife also stated that verbally threatened and physically harassed the petitioner to go to her parents house and bring more than 10 sovereigns of gold jewels and a two wheeler as dowry. The wife also further states that in the said circumstances, on 11.01.2016, the husband and his parents ousted the petitioner from the matrimonial house at about 8'O clock in the night threatening to murder the petitioner by pouring petrol and burning her. Therefore, the wife has came to her parents house on the said date himself and from that day onwards she is residing in her parents house till date. The wife also stated that the husband and her parents had caused unbearable physical and mental cruelty to the petitioner/wife. Therefore, there was no chance for re-union.
5.In the said circumstances, the wife has filed HMOP.No.70 of 2018 before the learned Family Court, Sivagangai on 27.03.2018 on the ground of cruelty and desertion under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 against the respondent and the first date of hearing in the divorce petition was posted on 25.04.2018 and the respondent/husband also appeared in divorce petition before the Family Court on that day and the matter was adjourned to 22.06.2018 and the learned Family Court Judge also referred the case for mediation. In the meantime, the husband has filed a petition for restitution of conjugal rights in HMOP.No.348 of 2018 under Section 9 of the Hindu Marriage Act, 1955 against the petitioner/wife before the learned Family Court, Madurai on 20.04.2018 and notice was also received by the petitioner/wife from the learned Family Court, Madurai for fixing the first hearing on 25.06.2018.
6.The wife also states that even before the first date of hearing for the petitioner's appearance in the petition in HMOP.No.348 of 2018 before the Family Court, Madurai on 25.06.2018 filed by the husband, the respondent/husband has approached this Court and filed a transfer petition in Tr.CMP(MD)No.192 of 2018, he had also filed Tr.C.M.P. on 15.05.2018 in the Vacation Court and the same was come up for hearing on 16.05.2018. Notice was ordered by this Court in the Tr.CMP(MD)No.192 of 2018 and the wife also received the private notice from the learned counsel for the respondent/husband.
7.The petitioner/wife further states that it is really unfortunate that when the divorce petition filed by the wife before the learned Family Court, Sivagangai, had been referred for mediation, the respondent/husband has filed the petition for restitution of conjugal rights before the learned Family Court, Madurai on 25.06.2018 with an oblique motive. It is made clear that even before the first date of hearing in the petition for restitution of conjugal rights before the learned Family Court, Madurai, the respondent/husband has filed the petition. Therefore, the respondent has filed the Tr.CMP(MD)No.192 of 2018 before this Court for transferring the case in HMOP.No.348 of 2018 on the file of the learned Family Court, Madurai filed by the respondent/husband and transfer the same to the learned Family Court, Sivagangai for joint trial of divorce petition in HMOP.No.70 of 2018 filed by the petitioner/wife.
8.It is the case of the respondent, who is the petitioner in Tr.CMP(MD)No.192 of 2018 that the marriage between the respondent/husband and petitioner/wife before the Meenakshi Amman Temple, Madurai on 13.11.2015, thereafter, the same was registered before the S.R.O. Chokkikulam and the same was registered in Doc.No.520/2015.
9.It is the further case of the respondent/husband that he received summons in HMOP.No.70 of 2018 filed by the respondent on 28.03.2018 and the husband was directed to appear for first hearing on 25.04.2018 and on 25.04.2018, when the husband went to appear before the Family Court, Sivagangai, the petitioner/wife's father and his son came in their motorcycle and threatened the petitioner and attempted to take away the husband to assault him, fortunately the respondent/husband escaped from the attempt and immediately lodged a complaint to the Superintendent of Police, Sivagangai on 25.04.2018, seeking for appropriate action and police protection. However, no action has been taken in this regard till date. Therefore, the husband has come forward with the petition in Tr.CMP(MD)No.192 of 2018 seeking to transfer the HMOP.No.70 of 2018 from the file of the learned Family Court, Sivagangai to the learned Family Court, Madurai for joint trial along with HMOP.No.348 of 2018 filed by the husband for restitution of conjugal rights.
10.I heard Mr.T.R.Jeyapalam, learned counsel for the petitioner in Tr.CMP(MD)No.195/2018 and respondent in Tr.CMP(MD)No.192/2018 and Mr.P.M.Vishnuvarthanan, learned counsel for the respondent in Tr.CMP(MD)No.195/2018 and petitioner in Tr.CMP(MD)No.192/218 and perused the entire materials available on record.
11.Admittedly, the marriage was took place at Meenakshi Amman Temple, Madurai on 13.11.2015 and the same was registered in S.R.O. Chokkikulam as Doc.No.520/2015 on the same day. It is the case of the wife is that due to the harassing and demanded more dowry from her and her parents and also acted against the interest of the wife by committed cruelty, she filed a divorce petition in HMOP.No.70 of 2018 before the learned Family Court, Sivagangai for divorce.
12.On receipt of the notice in the Tr.CMP(MD)No.195 of 2018, the husband has filed HMOP.No.348 of 2018 before the Family Court, Madurai for restitution of conjugal rights.
13.On receipt of the notice in the said O.P., the wife has filed Tr.CMP(MD)No.195 of 2018 seeking to transfer the HMOP.No.348 of 2018 filed from the learned Family Court, Madurai to the learned Family Court, Sivagangai for joint trial along with the HMOP.No.70 of 2018 filed by the wife for divorce.
14.It is the case of the wife is that due to continuous harassment meeted out by her from the husband and his parents at Madurai, she left the matrimonial home at Madurai from the husband and at present she is living at Sivagangai along with her parents whereas her husband showing that on receipt of the notice in HMOP.No.70 of 2018 from the Court of learned Family Judge, Sivagangai and on the first hearing date the husband has received threat from the father of the wife as well as his son, therefore, he has also lodged a complaint before the Superintendent of Police, Sivagangai seeking for police protection. Therefore, he filed the present Tr.CMP(MD)No.192 of 2018 for seeking transfer of the HMOP.No.70 of 2018 filed by the wife before the learned Family Court, Sivagangai for divorce to the Family Court, Madurai for joint trial along with the HMOP.No.348 of 2018. The husband also stated that he is undertaking to pay the entire travel expenses to the wife for attending the case of the Family Court, Madurai from Sivagangai to Madurai. Both the husband and wife were thrown the allegations against each other. But both of them have forgotten the matrimonial life and infact the marriage was solemnized only at Meenakshi Amman Temple, Madurai which was also registered before the S.R.O. Chokkikulam, Madurai. Thus being the case, the jurisdiction Court of the husband is only at Madurai whereas from 11.01.2016 due to the continuous harassment and cruelty meeted out by the wife from the husband and his parents, she left the matrimonial home from the husband from Madurai to Sivagangai, where the wife's parents are residing. Therefore, it is the jurisdictional Court of wife is only lying at Family Court, Sivagangai. Therefore, she filed the HMOP.No.70 of 2018 for divorce against the husband.
15.During the course of arguments, both the counsels were appeared and if the Court is inclined to transfer the case, the learned counsel for the husband prayed this Court that both the case may be transferred to the middle of both the parties i.e. between the Sivagangai and Madurai. Both of them has produced google map which shows Sivagangai to Tirupattur which is 36.7 kms and running time is 40 minutes and Sivagangai to Ilayankudi which is 31.4 kms and running time is 39 minutes.
16.The Hon'ble Apex Court very categorically held in various cases as follows:
(i) AIR 2002 Supreme Court 396 (Sumita Singh v. Kumar Sanjay and another) in paragraph 2 and 3, it is held as follows:
?2.Learned counsel for the husband states that the wife is an educated woman who is doing very well and can, therefore, travel to Ara while the husband is unemployed.
3.It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute.?
(ii) (2008) 9 Supreme Court Cases 353 (Arti Rani Alias Pinki Devi and another v. Dharmendra Kumar Gupta) in paragraph 3, it is held as follows:
?3.Having heard the learned counsel for the parties and after considering the materials on record including the statements made in the application for transfer, we are of the view that since the petitioner is a lady having a minor male child, it would be difficult for her to attend the court at Palamu, Daltonganj which is within the State of Jharkhand and quite a distance from Patna where she is now residing with her child; we allow this application for transfer and the proceedings now pending being Matrimonial (TS) Case No.1 of 2006 in the Court of District Judge, Palamu at Daltonganj within the State of Jharkhand be transferred to the Family Court of Patna within the State of Bihar.?
in which the Hon'ble Supreme Court is considered the matrimonial cases should be transfer for the convenience of the wife.
17.Admittedly, the wife in this case is residing at Sivagangai with her parents, she filed the HMOP.No.70 of 2018 in the month of March 2018 against the husband for divorce whereas the husband after receiving the notice in the divorce petition in HMOP.No.70 of 2018 has filed HMOP.No.348 of 2018 before the learned Family Court, Madurai for restitution of conjugal rights.
18.It is the case of the husband is that when on first hearing date on 25.04.2018, the husband has meeted out threaten from the father of the wife as well as his son and therefore, he has also given police complaint to the Superintendent of Police, Sivagangai, but after giving complaint to the Superintendent of Police, the husband is not follow up the said complaint. But, he made allegations that there is the continuous threat from the wife's father and his son which is not at all acceptable one.
19.Therefore, in the interest of both parties, I am inclined to transfer both the cases either to Thirupathur or Ilayankudi. Therefore, in the interest of justice, I am inclined to pass the following orders:
(a) both the Tr.C.M.P.s are disposed of;
(b) the learned Family Court Judge, Sivagangai, is directed to transfer the HMOP.No.70 of 2018 to the file of the learned Sub-Court, Ilayankudi within a period of two weeks from the date of receipt of a copy of this order;
(c) the learned Family Court Judge, Madurai is directed to transfer the HMOP.No.348 of 2018 to the file of the learned Sub-Court, Ilayankudi within a period of two weeks from the date of receipt of a copy of this order;
(d) on receipt of the entire papers in both the cases, the learned Sub-
Judge, Ilayankudi is directed to dispose of both the HMOP within a period of four months from the date of receipt of a copy of this order. The appearance of both the parties are dispensed with except the hearings directed by the learned Sub-Judge, Ilayankudi;
(e) both the parties are hereby directed to give their fullest co- operation for early disposal of both the HMOPs. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Family Court Judge, Sivagangai.
2.The Family Court Judge, Madurai.
.