Madras High CourtTR CMP(MD)/359/2015allowed

Sangeetha v. K.Sundar

2016-11-01Honourable Mr Justice S.M. Subramaniam3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.11.2016

CORAM

THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM Tr.C.M.P(MD)No.359 of 2015 and MP(MD).No.1 of 2015 Sangeetha ... Petitioner Vs.

K.Sundar ... Respondent Transfer Civil Miscellaneous Petition is filed under Section 24 of Civil Procedure Code to withdraw the case in HMOP.No.335 of 2013 on the file of the Sub Court, Trichy and transfer it to the Sub-Court, Theni, Theni District.

For Petitioner : Mr.S.Prabhu For respondent :No appearance

ORDER

The Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP.No.335 of 2013 on the file of the Sub Court, Trichy and transfer it to the Sub-Court, Theni, Theni District.

2. The marriage between the petitioner and the respondent was solemnized on 21.03.2010 at Madurai, as per Hindu Rites and Customs.

3.The contention of the petitioner is that due to ill-advice of the parents of the respondent, he started harassing and they have made dowry demand. Due to the harassment, the petitioner left the matrimonial home and now, living with her parents. The respondent is not maintaining the petitioner and consequently, she filed M.C.No.4 of 2014 for maintenance, which is pending before the District Munsif Court, Theni. In order to avoid the payment of maintenance, the respondent filed H.M.O.P.335 of 2013 for divorce, which is pending before the Sub-Court, Trichy. 4.The petitioner pleads that she has to travel about 170 kms from Aundipatti to Trichirapalli to defend the case filed by the respondent. This apart, she is residing in her parental home with the support of her parents.

5.Though notice was served to the respondent, he has neither appeared in person nor through the counsel.

5.Considering the facts and circumstances of the case and the decisions of the Honourable Division Bench of this Court, which are extracted below, (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 (iiia) 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 of the Hon'ble Supreme Court:- ''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 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.''

this Court is of the opinion that the claim of the petitioner can be considered and accordingly, Tr.C.M.P.(MD).No.359 of 2015 is allowed and H.M.O.P.No.335 of 2013, pending before the Sub-Court, Trichy District is ordered to be transferred to the Sub-Court, Theni, Theni District forthwith.

No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/ Assistant Registrar(Writs) /True Copy/ Sub Assistant Registrar.

1. The Subordinate Judge, Trichy District

2. The Subordinate Judge, Theni, Theni District. +1CC to M/S.S.Prabhu,Advocate, SR.No. 65039 Tr.C.M.P(MD)No.359 of 2015 and MP(MD).No.1 of 2015 01.11.2016 vs AM/MPA/22.11.2016/3P/4C