Madras High Court
R.Narmatha vs M.Manoj Kumar on 5 December, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
Tr.CMP No.791 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05-12-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.791 of 2022
and
C.M.P.No.13581 of 2022
R.Narmatha .. Petitioner
vs.
M.Manoj Kumar .. Respondent
PRAYER : This Transfer CMP is filed under Section 24 (I)(b)(ii) of the
Civil Procedure Code, to withdraw the case in HMOP No.389 of 2022 on
the of Sub Court at Poonamallee and transfer the same to any one of the
Family Court at Chennai.
For Petitioner : Mr.N.Kamaraj
For Respondent : Dr.R.Sampath Kumar
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Tr.CMP No.791 of 2022
ORDER
The Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP No.389 of 2022 on the file of the Sub Court at Poonamallee and transfer the same to any one of the Family Court at Chennai.
2. The petitioner-wife states that the respondent-husband filed HMOP No.389 of 2022 on the file of the Sub Court at Poonamallee to declare the marriage as null and void.
3. The allegations raised between the parties are to be adjudicated before the Trial Court with reference to the documents and evidences. As far as the transfer petition is concerned, the petitioner-wife is unemployed and now residing along with her parents at Thiru Vi Ka Nagar, Sembium, Perambur, Chennai-600 011. However, the respondent-husband instituted the HMOP on the file of the Sub Court at Poonamallee, Thiruvallur District.
4. The learned counsel for the petitioner states that the petitioner 2/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022 may not be in a position to effectively contest the case before the Court at Poonamallee and she is dependant of her parents. The learned counsel for the petitioner further states that the petitioner-wife filed MC No.584 of 2022, which is pending on the file of the V Additional Family Court at Chennai and if the above HMOP pending on the file of the Sub Court at Poonamallee is transferred to the file of V Additional Family Court at Chennai, it would be easier for her to contest both the cases.
5. 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 3/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022 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 of initiation of matrimonial proceedings. The report submitted by the Law Commission as well as National Commission for Women, underlying the 4/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022 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 5/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 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], 6/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022 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 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 7/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022 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 and also the fact that 8/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022 the petitioner-wife filed MC No.584 of 2022, which is pending on the file of the V Additional Family Court at Chennai and if the same is tried along with the HMOP No.389 of 2022 filed by the respondent-husband, pending on the file of the Sub Court at Poonamallee, Thiruvallur District, it would be much easier for the petitioner-wife to contest both the cases effectively. Hence, the HMOP No.389 of 2022 filed by the respondent-husband, pending on the file of the Sub Court at Poonamallee, Thiruvallur District stands transferred to the V Additional Family Court at Chennai to be tried along with the MC No.584 of 2022. The Sub Court at Poonamallee is directed to transmit the case papers to the V Additional Family Court, Chennai, within a period of four weeks from the date of receipt of a copy of this order. The V Additional Family Court, Chennai is requested to dispose of the same as expeditiously as possible.
7. With the abovesaid directions and observations, the present Transfer Civil Miscellaneous Petition stands allowed. However, there shall 9/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022 be no order as to costs. Consequently, the connected miscellaneous petition is closed.
05-12-2022 Speaking Order/Non-Speaking Order. Internet : Yes/No. Index: Yes/No. Svn To 10/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.791 of 2022
1.The Judge, Sub Court, Poonamallee.
2.The Judge, V Additional Family Court, Chennai.
S.M.SUBRAMANIAM, J.
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