Madras High Court
Mrs.Seetha vs Babu on 6 December, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
Tr.CMP No.578 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06-12-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.578 of 2022
and
C.M.P.No.10138 of 2022
Mrs.Seetha .. Petitioner
vs.
Babu .. Respondent
PRAYER : This Transfer CMP is filed under Section 24 of the Civil
Procedure Code, to withdraw the case in HMOP No.93 of 2022 on the file of
the Sub Court, Katpadi and transfer the same to the file of Family Court,
Thiruvannamalai.
For Petitioner : Ms.V.Valarmathi
For Respondent : Mr.D.Thirumoorthy
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Tr.CMP No.578 of 2022
ORDER
The Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP No.93 of 2022 on the file of the Sub Court, Katpadi and transfer the same to the file of Family Court, Thiruvannamalai.
2. The marriage between the petitioner and the respondent was solemnised on 12.02.2016 as per Hindu Rites and Customs. One child was born from and out of the wedlock. Due to misunderstanding, the petitioner and the respondent are living separately.
3. The learned counsel for the petitioner states that the petitioner-
wife now living along with her parents and she is unemployed. The respondent-husband instituted a case in HMOP No.93 of 2022 for dissolution of marriage on the file of the Sub Court, Katpadi. Since the petitioner is the dependant of her parents, she is not in a position to contest the case filed by the respondent before the Sub Court at Katpadi.
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4. The learned counsel for the respondent made a submission that the child is under the custody of the parents of the respondent and the respondent is working at Bangalore and he is visiting the child under the custody of his parents, during the week end. Therefore, there may not be any difficulty for the petitioner to contest the case by attending the Court at Katpadi.
5. This Court is of the considered opinion that the child is studying at Katpadi and residing along with the parents of the respondent. The petitioner is unemployed and she is the dependant of her parents. Thus, the case is to be transferred to Thiruvannamalai. As far as the respondent is concerned, it makes no difference in respect of the Court at Katpadi or at Thiruvannamalai, as he is now working at Bangalore.
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6. 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 4/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.578 of 2022 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 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.'' 5/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.578 of 2022
(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 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 6/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.578 of 2022 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 7/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.578 of 2022 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 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 8/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.578 of 2022 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.''
7. Considering the facts and circumstances, this Court is inclined to consider the case of the petitioner. Accordingly, the HMOP No.93 of 2022 pending on the file of the Sub Court at Katpadi stands transferred to the Family Court at Thiruvannamalai forthwith. The Sub Court at Katpadi is directed to transmit the case papers to the Family Court at Thiruvannamalai, within a period of four weeks from the date of receipt of a copy of this order.
The Family Court at Thiruvannamalai is requested to dispose of the case as expeditiously as possible.
8. With the abovesaid directions and observations, the Transfer 9/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.578 of 2022 Civil Miscellaneous Petition stands allowed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
06-12-2022 Speaking Order/Non-Speaking Order.
Internet : Yes/No. Index: Yes/No. Svn To
1.The Sub Judge, Sub Court, 10/12 https://www.mhc.tn.gov.in/judis Tr.CMP No.578 of 2022 Katpadi
2.The Judge, Family Court, Thiruvannamalai.
S.M.SUBRAMANIAM, J.
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