Oviya v. Karthick

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.02.2021

CORAM

THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM Tr.C.M.P.No.35 of 2021 and C.M.P.No.1252 of 2021 Oviya ..Petitioner /Respondent Vs.

Karthick ..Respondent /Petitioner Prayer : Transfer Civil Miscellaneous Petition filed under Section 24 of Code of Civil Procedure praying to order to withdraw the H.M.O.P.No.62 of 2020 on the file of the Subordinate Court, Nagapattinam and transfer the same to Subordinate Court, Mannargudi.

For Petitioner : Swami Subramanian For Respondent : No appearance

J U D G M E N T

The petition for transfer is filed to transfer H.M.O.P.No.62 of 2020 from the Subordinate Court, Nagapattinam to the Subordinate Court, Mannargudi.

2. The marriage between the petitioner and the respondent was solemnized on 27.08.2017 as per the Hindu Rights and Customs. A male child born from and out the wedlock and now the petitioner and the respondent are living separately. The petitioner states that she is dependent on her parents and she has to take care of her 2 years old child. Thus, she is not in a position it contest the H.M.O.P.no.62 of 2020 pending on the file of Subordinate Court, Nagapattinam for Restitution of Conjugal Rights.

3. The principles regarding transfer petitions, more specifically in the matters of matrimonial cases are well settled through the decisions 3 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 has held as follows:- ''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 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.''

(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:- ''16.In AIR 2000 SC 3512 (1) (Mona Aresh Goel vs. Aresh Satya Goel), 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.

In 2000 (10) SCC 304, the Honourable Supreme Court has held that where the petitioner's wife has pleaded lack of money, the same has to be considered.

In 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.

In a decision reported in 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 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, has 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 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.''

4. In view of the facts and circumstances, the H.M.O.P.No.62 of 2020 pending on the file of the Subordinate Court, Nagapattinam, stands transferred to the Subordinate Court, Mannargudi.

5. Accordingly, this Transfer Civil Miscellaneous Petition No.35 of 2021 stands allowed and H.M.O.P.No.62 of 2020 pending on the file of the Subordinate Court, Nagapattinam, is directed to be transferred to the Subordinate Court, Mannargudi. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar Pns

To

1. The Subordinate Court, Nagapattinam.

2. The Subordinate Court, Mannargudi.

+1cc to Mr.Swami Subramanian, Advocate, S.R.No. 10033 Tr.C.M.P.No.35 of 2021 SR I(CO) GN(15/03/2021)