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Madras High CourtTR CMP(MD)/192/2016allowed

Sangeetha v. Saravana Kumar

2016-10-25Honourable Mr Justice S.M. Subramaniam3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.10.2016 CORAM :

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM TR.CMP(MD)No.192 of 2016 and C.M.P(MD)No.3440 of 2016 Sangeetha

...Petitioner

vs.

Saravana Kumar

...Respondent

Petition filed under Section 24 of the Civil Procedure Code, to pass an order of withdrawal of HMOP.No.67 of 2015 on the file of the learned Family Court, Sivagangai and the same may be transferred to the learned Sub Court, Paramakudi in Ramanathapuram District so as to try together along with the petition in HMOP.No.30 of 2016 on the file of the learned Sub Court, Paramakudi.

For Petitioner : Mr.R.Mugunthan For Respondent : Mr.P.Venkata Subramanian

ORDER

The marriage between the petitioner and the respondent was solemnized on 29.01.2012 as per the Hindu rites and customs. Out of the wedlock, a male child was born and now aged about 2 years. Due to the strained relationship between the parties, the respondent filed a divorce petition in HMOP.No.67 of 2015 before the Family Court, Sivagangai. The contention of the petitioner is that she was subjected to harassment and believing Astrology, the respondent driven out the petitioner and her minor son from the matrimonial home and now she is living with her parents at Paramakudi, Ramanathapuram District. Under such circumstances, the petitioner has filed D.V.No.4 of 2015 before the learned Judicial Magistrate, Paramakudi and also filed HMOP.No.30 of 2016 before the Sub Court, Paramakudi, for restitution of conjugal rights.

It is stated that the efforts taken by the elders for reunion went in vain and the petitioner has no independent sources of income to spend and defend the divorce petition filed by the respondent at Sivagangai along with her child. 2.The respondent contended that the allegations set out in this petition deserve no consideration and the petitioner is very well in a position to travel from Paramakudi to Sivagangai and the present petition is devoid of merits. Further, the respondent contended that the petitioner herself left the matrimonial home at her own volition and not at the instance of the respondent. Therefore, this petition is liable to be dismissed.

3.The principles with regard to transfer petitions, more specifically, in the matters of matrimonial cases, are in favour of women and the decisions of the High Court of Madras, in the following cases interpreting Section 19(iii)(a) of the Hindu Marriage Act, 1955, also confirm that position:- (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.

4.Considering the contentions and the rival contentions of the respective parties and in view of the above pronouncements, this Court is of the view that the case of the petitioner deserves to be considered. Accordingly, this Transfer Civil Miscellaneous Petition is allowed and HMOP.No.67 of 2015 on the file of the Family Court, Sivagangai, is ordered to be transferred to the Sub Court, Paramakudi, Ramanathapuram District, and the same shall be tried along with HMOP.No.30 of 2016, forthwith. No costs. Consequently, C.M.P(MD)No.3440 of 2016 is closed. Sd/- Assistant Registrar(CS-II) /True Copy/ Sub Assistant Registrar(CS) Madurai Bench of Madras High Court, Madurai-23.

To 1)The Judge, Family Court, Sivagangai.

2)The Subordinate Judge, Paramakudi.

+1cc to M/s.M.S.Jeyakarthick, Advocate in SR.64112 +1cc to M/s.P.Venkatasubramanian, Advocate in SR.64373 TR.CMP(MD)No.192 of 2016 25.10.2016 nbi PBK/KP 08/11/2016 ::3P-5C: