Madras High Court
K.Meenambigai vs Poovanandan on 14 November, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.11.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL Tr.C.M.P.No.24 of 2008 and M.P.No.1 of 2008 K.Meenambigai ... Petitioner Vs. Poovanandan ... Respondent Prayer: Petition filed under Section 24 of C.P.C., praying to withdraw the H.M.O.P.No.6 of 2006 on the file of the Sub Court, Tenkasi, and transfer to the file of 1st Additional Family Court at Chennai and to be heard along with M.C.No.583 of 2007. For Petitioner : Mr.G.Saravana Kumar For respondent : Mr.N.Vijay Baskar ORDER
The petitioner/wife has filed this Tr.C.M.P. under Section 24 of Civil Procedure Code before this Court praying for an order to withdraw the H.M.O.P.No.6 of 2006 pending on the file of Sub Court, Tenkasi and to transfer the same to the file of 1st Additional Family Court at Chennai and to be heard along with M.C.No.583 of 2007.
2.The petitioner/wife in her affidavit has stated that her marriage with the respondent/husband has been solemnized on 07.09.1990 at Oormelalagiyan village, Tenkasi Taluk as per Hindu Rites and Customs in the presence of elders of both the families and out of the wed lock they have two issues and that the respondent/ husband has come to the matrimonial home in April 2005 after consuming liquor and beat the petitioner demanding a dowry of Rs.2,00,000/- and further that the respondent/husband beat the petitioner/wife on 16.05.2005 at 11.00 p.m. and that an oral complaint has been given by the petitioner before the Panchayatdars and later, in 1998 the respondent/husband brought the petitioner and her child for medical check up in regard to venial decease because the respondent/husband has not been confident enough on his own self and later the petitioner has come to know that the respondent has illicit conduct with some ladies and used to come to the residence in drunken state etc.
3.The further stand of the petitioner/wife is that the respondent/husband has brought a girl by name Shanmugakani one fine morning and informed her that he has decided to marry the said girl as his second wife and insisted her to give consent to the divorce to which the petitioner has lodged a complaint and that on 28.06.2005 the petitioner has given a complaint before the Sankarankoil All Women Police Station and at that time, the respondent/husband has come to the police station and promised to the petitioner that he is ready to lead the matrimonial life peacefully and that on 01.07.2005 the respondent/husband has issued a legal notice to the petitioner for divorce and that a reply on 04.07.2005 has been issued by the petitioner and that the respondent/ husband has filed H.M.O.P.No.6 of 2006 on the file of Sub Court, Tenkasi and that the petitioner has filed a maintenance petition before the Sub Court, Tenkasi and the same has been withdrawn by the petitioner and that the petitioner is now residing at Chennai and that she is depending on her parents for her livelihood and that she requires to be escorted apart from that the distance from her residence at Chennai to the Sub Court, Tenkasi is about 600 kilometers and being unemployed and dependent on her parents, it is expensive for her to attend each and every hearing and therefore, prays for transferring the H.M.O.P.No.6 of 2006 pending on the file of Sub Court, Tenkasi to the Family Court, Chennai and to be heard along with M.C.No.583 of 2007.
4.In the counter the respondent/husband has denied the allegations that he has tortured the petitioner/wife regularly and demanded dowry and further denied that he has illicit conduct with some ladies etc. and that he has no attempt to marry one Shanmugakani as his second wife etc. and further that it is mentioned that the petitioner/wife on 28.06.2005 has lodged a complaint with All Women Police Station, Sankarankoil against him and his family members for which he has given a reply and then the petitioner/wife has been advised to lead a peaceful life with him and that he has made an arrangement for separate house to lead a matrimonial home and asked the petitioner to come and live with him but she has avoided him and his children and she only concentrate in her beauty parlour business and refuse to join with him and with his children and that he sent a legal notice to the petitioner on 01.07.2005 to which a reply has been sent by the petitioner on 04.07.2005 and in the first week of January 2006 he filed H.M.O.P.No.6 of 2006 before the Sub Court, Tenkasi and immediately the petitioner has filed M.C.No.4 of 2006 before the Judicial Magistrate Court at Sankarankoil claiming maintenance and that the petitioner/wife has given evidence in the maintenance case and since the petitioner/wife has not turned up for cross examination nor she appeared before the Judicial Magistrate Court at Sankarankoil, the maintenance case has been dismissed for default on 23.05.2006 itself.
5.The contention of the respondent/husband is that the petitioner/wife has not shown any interest to conduct the H.M.O.P.No.6 of 2006 filed by him and by suppressing the earlier proceedings the petitioner/wife without any proof to establish the jurisdiction has filed M.C.No.583 of 2007 before the 1st Additional Family Court, Chennai and the first hearing has been posted on 28.12.2007 and in the month of October 2007 itself the petitioner/wife has filed the transfer CMP before this Court praying to transfer the H.M.O.P.No.6 of 2006 and that the petitioner/wife has taken his younger second son without intimating him and to the earlier school and admitted in a school at Saligramam and that the petitioner/wife has started beauty parlour business in Saligramam with her friend and the same has been looked after by his wife's close friend who is now residing in Saligramam, Chennai and that the petitioner's gas bill is false and has been created for the purpose of filing the maintenance case etc. It is also the stand of the respondent/husband that the petitioner/wife has never shown her appearance before the 1st Additional Family Court at Chennai during the hearing dates on 11.4.2008, 11.06.2008, 05.08.2008 and 03.11.2008 in maintenance case No.583 of 2007 and that the parents of the petitioner/wife are not residing in Chennai and still they are residing in Sankarankoil and therefore, the transfer CMP is bereft of facts and the allegations are false.
6.This Court has heard the learned counsel appearing for respective parties and noticed their contentions.
7.It is to be noted that the power to transfer a case has to be exercised necessarily in respect of and with reference to individual cases. However, a court of law has to see that by transfer of the case a party is not prejudiced. However, an important consideration is that justice according to law is done. In aiming that objective, if the transfer of a case is an imminent need, then there is no hesitation on the part of a court of law to transfer the case if it is likely to cause some inconvenience to one of the parties. As a matter of fact, while exercising the power of transfer, the Court of law is to exercise the same with reasonableness and taking into consideration the interest of justice. Generally speaking, in matrimonial petitions, the convenience of the wife must be given a prime consideration. The vital consideration for exercising the power under Section 24 of Civil Procedure Code by a court of law is to meet the ends of justice. No doubt the court must find out whether a particular party has chosen a forum in utter disregard to the convenience of parties for some ulterior aim and in abuse of his/her position as an arbiter litus.
8.The learned counsel for the petitioner cites the decision in Archana Singh V. Surendra Bahadur Singh (2006) 2 SCC (Cri) 322 wherein the Hon'ble Supreme Court has inter alia held that 'it is impossible for the petitioner (wife) to undertake such a journey, and prosecute the matter at Baikunthpur, particularly in the difficult circumstances in which she finds herself and allowed the transfer application. He also relies on the CDJ Law Journal Maheswari V. M.Ramesh and another CDJ 2008 MHC 4694 wherein this Court has allowed the transfer CMP and directed the withdrawal of H.M.O.P.No.36 of 2008 pending on the file of Sub Court, Mettur to the Family Court, Salem where the F.C.O.P.No.90 of 2008 filed by the petitioner/wife is pending etc.
9.On a careful consideration of the respective contentions advanced on both sides, inasmuch as the respondent/husband as a van driver has met with an accident and has fixed a plate on his left hand and since he is said to be depending on his parents and father's pension amount, this Court is of the considered view that the respondent/husband is not in a better position to look after himself and in view of the fact that the petitioner/wife is said to be running a beauty parlour in Saligramam, Chennai with her friend and on the facts and overall assessment of the circumstances of the case, it is not desirable for this Court to allow the transfer CMP filed by the petitioner/wife and therefore, the said petition filed by the wife seeking transfer of H.M.O.P.No.6 of 2006 on the file of Sub Court, Tenkasi to the 1st Additional Family Court, Chennai fails and the same is hereby dismissed.
In fine, the Tr.C.M.P. is dismissed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is also dismissed.
sgl To
1.I Additional Family Court, Chennai.
2.The Subordinate Court, Tenkasi