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Madras High CourtTR CMP/135/2020allowed

G.Remya v. G.Abilash

2021-02-18Honourable Mr Justice S.M. Subramaniam4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.02.2021

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM TR.C.M.P.NO.135 OF 2020 AND C.M.P.NO.4596 OF 2020 G.Remya .. Petitioner/Respondent vs.

G.Abilash .. Respondent/Petitioner Prayer :

Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the petition in H.M.O.P.No.255 of 2019 pending on the file of the Sub-Court, Poonamallee and transfer the same to the file of the II Additional Family Court, Chennai to try along with O.P.No.4981 of 2019 filed by the petitioner.

For Petitioner : Mr.B.Rathika For Respondent : No-appearance

O R D E R

The petition is filed to withdraw the petition in H.M.O.P.No.255 of 2019 pending on the file of the Sub-Court, Poonamallee and transfer the same to the file of the II Additional Family Court, Chennai to try along with O.P.No.4981 of 2019 filed by the petitioner.

2. The marriage between the petitioner and the respondent was solemnized on 22.11.2013 as per the Hindu Rites and Customs. On account of certain disputes, the petitioner and the respondent are living separately.

3. The learned counsel for the petitioner states that the respondent/husband filed H.M.O.P.No.255 of 2019 for dissolution of marriage and the petitioner also filed O.P.No.4981 of 2019 for divorce. In such circumstances, the petitioner filed the present petition to transfer the case filed by the respondent.

It is contended that the respondent is from Kollam and he filed a case before the Sub-Court, Poonamallee. The case filed by the petitioner is now pending before the II Additional Family Court, Chennai. Thus, in the interest of the parties, both the cases are to be tried together to avoid conflict in jugdments.

4. 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.''

5. In view of the facts and circumstances, the H.M.O.P.No.255 of 2019 pending on the file of the Sub-Court, Poonamallee stands transferred to the II Additional Family Court, Chennai.

6. Accordingly, this Transfer Civil Miscellaneous Petition No.135 of 2020 stands allowed and H.M.O.P.No.255 of 2019 pending on the file of the Sub-Court, Poonamallee is directed to be transferred to the II Additional Family Court, Chennai to be tried along with O.P.No.4981 of 2019. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar ssb To 1.

The Judge, Sub-Court, Poonamallee.

2.

The Judge, II Additional Family Court, Chennai.

+1cc to Mr.Kanimozhi Sundar, Advocate, S.R.No.9491 Tr.CMP.No.135 of 2020 VGII(CO) CS/07/04/2021