Madras High Court
Nithyakalyani @ Meyammal @ Nithya vs Dass Prakash @ Shanmugaraja on 22 September, 2021
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :22.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
and
C.M.P.(MD)Nos.11395 of 2019, 359 and 6209 of 2020
Nithyakalyani @ Meyammal @ Nithya ... Petitioner
-vs-
1. Dass Prakash @ Shanmugaraja
2. The Manager
Sri Bhuvaneswari Locker House
Pon.Pudupatti
Ponnamaravathi Taluk,
Pudukottai District .....Respondents in
TR CMP(MD) No.289 of 2021
Dass Prakash @ Shanmugaraja
.....Respondent in
TR CMP(MD) No.489 of 2019
PRAYER in Tr.CMP(MD) No. 489 of 2019 : Transfer Civil Miscellaneous
Petition is filed under Section 24 of the Code of Civil Procedure, to withdraw the
petition for restitution of conjugal rights in HMOP No. 310 of 2019 on the file of
the Principal Sub Court, Pudukottai and to transfer the same to the file of the
1
https://www.mhc.tn.gov.in/judis/
Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
Family Court, Madurai to be heard along with divorce petition in HMOP No.729
of 2019.
PRAYER in Tr.CMP(MD) No. 289 of 2021: Transfer Civil Miscellaneous
Petition is filed under Section 24 of the Code of Civil Procedure, to withdraw the
suit in O.S.No.69 of 2021 on the file of the District Munsif cum Judicial
Magistrate, Thiruamayam and to transfer the same to the file of the Family Court,
Madurai to be heard along with the divorce petition in HMOP No. 729 of 2019.
In Tr CMP(MD) No.489 of 2019
For Petitioner : Mr.J.Barathan
For Respondent : Mr.S.M.Ananthamurugan
In Tr CMP(MD) No.289 of 2021
For Petitioner : Mr.J.Barathan
For R1 : Mr.R.Gandhi
For R2 : No appearance
COMMON O R D E R
By consent of both counsels, both the Transfer Miscellaneous petitions are taken up for final hearing.
2 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
2. Tr.CMP(MD) No. 489 of 2019 has been filed to withdraw the HMOP No. 310 of 2019 on the file of the Principal Sub Court, Pudukottai and transfer the same to the file of the Family Court, Madurai to be heard along with HMOP No. 729 of 2019. Tr.CMP(MD) No.289 of 2021 has been filed seeking to transfer O.S.No.69 of 2021 on the file of the District Munsif Court, Thirumayam to the file of the Family Court, Madurai to be tried along with HMOP No.729 of 2019
3. The learned counsel for the petitioner would submit that the marriage between the petitioner and the first respondent in Tr CMP(MD) No. 289 of 2021 was solemnized on 11.02.2008 at Chokkanathapuram, Sivagangai District. At the time of marriage the parents of the petitioner had presented 50 sovereigns of gold jewels, diamond necklace, one pair of diamond studs, one pair of diamond bangles, silver utensils and other seervarisai materials. Apart from that they have also presented Rs. 3.75 lakhs as dowry to the first respondent as per their customs and rites. Further the parents of the petitioner have also presented a diamond ring to the first respondent at the time of marriage. During marriage the first respondent/ husband was employed in SMR HR Technologies Sdn Bhd, Kulalumpur, Malaysia. After the marriage, matrimonial home was set up at 3 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021 Pon. Pudupatti. Three months after marriage the petitioner and the first respondent travelled to Malaysia and she delivered a baby girl on 02.04.2009 through caesarean and the child was names Kaniskha. The parents of the petitioner had presented 11 sovereigns of gold jewels, a pair of diamond studs and silver ornaments to the child Kaniskha. Thereafter on 15.02.2012, the petitioner delivered a baby boy through caesarean and named him as Muthukumaran. The parents of the petitioner had presented a pair of diamond studs, a pair of gold bangles, silver ornaments to the child. On further demand by the first respondent and on the instigation of the first respondent, the petitioner had paid a sum of Rs. 2 lakhs to the parents of the first respondent on 18.08.2016 and subsequently during the month of December 2017, the parents of the petitioner had paid a sum of Rs.2,97,000/- to the father of the first respondent through cheque. Whileso, there was a matrimonial discord, and since the first respondent made false allegations against the petitioner touching her character she got separated from the first respondent and she is presently living with her parents. She had filed divorce petition in HMOP No.729 of 2019 on the file of the Family Court, Madurai against the first respondent seeking dissolution of marriage on the ground of cruelty.
4 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
4. The learned counsel would further submit that entire jewels presented by the parents of the petitioner to her and her children at the time of birth are kept in the private locker No. 526 with the second respondent/Sri Bhvaneswari locker house. The original key of the locker is available with the petitioner. Meanwhile the petitioner came to understand that the parents of the first respondent were making arrangement to open the locker with duplicate key without her knowledge falsely making a plea that the the original key has been lost. The petitioner coming to know of that has also sent a letter dated 30.01.2019 to the second respondent not to open the locker without her presence. .Meanwhile the first respondent has also filed a suit in O.S.No.69 of 2021 on the file of the District Munsif cum Judicial Magistrate,Thirumayam seeking for mandatory injunction to direct the petitioner to open the locker No.526 with the original key available with the petitioner. Further the first respondent has also filed HMOP No.310 of 2019 on the file of the Principle Subordinate Court, Pudukottai seeking for restitution of conjugal rights. Meanwhile, since the first respondent is keeping custody of the children and not permitting the petitioner to visit the children the petitioner has filed GWOP No. 845 of 2019 seeking for permanent 5 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021 custody of the minor childrens namely Kanishka and Muthukumaran on the file of the Family Court, Madurai.
5.As on date GWOP No.845 of 2019 and HMOP No.729 of 2019 are pending on the file of the Family Court, Madurai. The suit in O.S.No. 69 of 2021 is pending on the file of the District Munsif cum Judicial Magistrate,Thirumayam and the HMOP No.310 of 2019 seeking for restitution of conjugal rights is pending on the file of the Principal Sub Court, Pudukottai.
6. The learned counsel for the petitioner would further submit that O.S. No. 69 of 2021 on the file of the District Munsif cum Judicial Magistrate,Thirumayam is a suit between the parties to marriage with respect to the properties namely the jewels. Both the proceedings are arising out of matrimonial dispute. O.S.No. 69 of 2021 is a suit between the parties to the marriage in respect of properties. As per explanation to Section 7(1)(c) of the Family Court Act, 1984 the Family Court will have jurisdiction to decide the suit or proceedings between the parties to a marriage with respect to the property of the parties. The learned counsel would further submit that in order to avoid conflicting decision and avoid 6 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021 multiplicity of proceedings and to have comprehensive trial and judgment it is necessary that all the cases have to be tried before the one and same Court and further since two cases are pending on the file of the Family Court, it would appropriate in the interest of justice that HMOP No. 310 of 2019 on the file of the Principal Subordinate Court, Pudukottai and O.S.No. 69 of 2021 pending on the file of the District Munsif cum Judicial Magistrate,Thirumayam have to be transferred to the file of the Family Court, Madurai for joint trial.
7. The learned counsel would further submit that in matter relating to Family issues, this Court as well as the Hon'ble Apex Court, has held that the convenience of the wife has to be taken into consideration and thereby he would pray that the direction may be issued to the concerned Court .
8. The learned counsel for the respondent in Tr CMP(MD) No.289 of 2021 would submit that if the suit in O.S.No. 69 of 2021 is transferred to the file of the Family Court , the petitioner will be loosing the chance of appeal. The learned counsel would further submit that the first respondent is pressing the petitioner to hand over the key to him, however she is admanat and refusing to appear before 7 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021 the Manager of the private locker house to open the locker and thereby warranting the respondent to file a suit. He would also submit that the first respondent is also having necessary proof to show that the jewels were purchased by him when the parties were in Malaysia.
9. Mr.S.M.Anandhamuragan appearing for the respondent in TRCMP(MD) No.489 of 2019 would submit that the petitioner has filed GWOP No.845 of 2019 the court has to take into consideration the convenience and welfare of the minor children and he would also object for the transfer of the same and he would submit that they are ready to bear the expenses.
10. In reply, Mr. Barathan the learned counsel for the petitioner would submit that it is not a case where there is dispute with regard to the identity of jewels. There is a dispute with regard to the ownership of the jewels and necessarily full fledged trial has to be conducted and the petitioner is prepared to prove her case by adducing evidence that the jewels which are there in the locker exclusively belongs to her having purchased by her parents. He would also submit that two cases are pending before the Family Court Madurai and 8 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021 necessarily the other two case have also to be transferred to the file of the Family Court Madurai. He would also submit that CRP(MD) No.641 of 2021 relating to custody of the children is also pending before this Court.
11. Heard the learned counsel appearing on either side and perused the materials available on record.
12. HMOP No.729 of 2019 filed by the petitioner/ wife seeking for divorce and GWOP No.845 of 2019 filed by the petitioner/wife for permanent custody of the children are pending on the file of the Family Court, Madurai. HMOP No. 310 of 2019 filed by the respondent/husband for restitution of conjugal rights is pending on the file of the Principal Sub Court, Pudukottai and O.S.No. 69 of 2021 filed by the respondent/husband for mandatory injunction is pending on the file of the learned District Munsif cum Judicial Magistrate, Thirumayam. All the cases are arising out of matrimonial dispute between the one and the same parties. Further as of now two cases among the four cases are pending on the file of the Family Court, Madurai. The dispute is regarding ownership of the properties between the parties to the marriage.
9 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
13. As per Explanation 7(1)(a)(c) of the Family Courts Act, 1984, the Family Courts will have jurisdiction to decide the suit or proceedings between the parties to marriage with respect to the properties of the parties.
14. It is useful to refer to Section 7(1)(a) Explanation C, which reads as follows "(1) Subject to the other provisions of this Act, a Family Court shall
(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation and ;
EXPLANATION : The suits and proceedings referred to in this sub section are suits and proceedings of the following nature, namely :-
(c) a suit or proceedings between the parties to a marriage with respect to the property of the parties or of either of them".
15. This Court is of the opinion that in order to avoid conflicting decisions and to avoid multiplicity of proceedings and to deliver comprehensive judgments all the cases have to tried together by one and the same Judge. 10 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
16. At this juncture the learned counsel for the petitioner would submit that a direction may be issued to the concerned Court to complete the trial within a specified time as may be fixed by this Court and the parties will co-operate for speedy disposal.
17. Considering the facts and circumstances of the case and also considering the submission made by the learned counsel appearing on either side., HMOP No. 310 of 2019 pending on the file of the Principal Sub Court, Pudukottai and O.S.No. 69 of 2021 pending on the file of the District Munsif cum Judicial Magistrate Court, Thirumayam is withdrawn and transferred to the file of the Family Court, Madurai. The Principal Sub Court, Pudukottai and the District Munsif cum Judicial Magistrate Court, Thirumayam is directed to transmit the papers to the file of Family Court,Madurai forthwith. The Family Court, Madurai directed to dispose of the transferred HMOP No. 310 of 2019 and O.S.No. 69 of 2021 along with HMOP No.729 of 2019 and GWOP NO.845 of 2019 within a period of nine months subject to further orders in CRP(MD) No. 641 of 2021.
11 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021
18. In the result, the Transfer Civil Miscellaneous Petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
22.09.2021
Internet : Yes / No
Index : Yes / No
aav
To:
1.The Family Court, Madurai
2.The Principal Sub Court, Pudukottai
3. The District Munsif cum Judicial Magistrate Court, Thirumayam 12 https://www.mhc.tn.gov.in/judis/ Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021 A.D.JAGADISH CHANDIRA, J.
aav Tr.C.M.P.(MD) Nos.489 of 2019 and 289 of 2021 and C.M.P.(MD)Nos.11395 of 2019, 359 and 6209 of 2020 22.09.2021 13 https://www.mhc.tn.gov.in/judis/