Abiraj, (M/28) v. R.Monisha, (F/25)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.10.2016
CORAM
THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM Tr.C.M.P(MD)No.214 of 2016 and CMP(MD).No.3898 of 2016 Abiraj ... Petitioner Vs.
R. Monisha ... Respondent Transfer Civil Miscellaneous Petition is filed under Section 24 of Civil Procedure Code to withdraw the HMOP.No.46 of 2016 on the file of the Sub Court, Tambaram, Chennai to try along with HMOP.No.158 of 2015 on the file of the Sub Court, Dindigul. For Petitioner : Mr. V. Chandrapandi For Respondent : Mr. R. Sureshkumar O R D E R The Transfer Civil Miscellaneous Petition is filed to withdraw the HMOP.No.46 of 2016 on the file of the Sub Court, Tambaram, Chennai and to be tried along with HMOP.No.158 of 2015 on the file of the Sub Court, Dindigul.
2. The facts in nutshell, as pleaded by the counsel for the petitioner, is that the marriage between the petitioner and the respondent was solemnized on 15.02.2015, as per Hindu Rites and Customs. The petitioner stated in his affidavit that he is Post Graduate in Engineering and he was working at CTS, Chennai. Due to the strained relationship between the parties, the petitioner filed a divorce petition before the Sub Court, Dindgul in HMOP.No158 of 2015, to dissolve the marriage. Subsequently, the respondent also filed HMOP.No.46 of 2016 before the Sub Court, Tambaram, Chennai for declaration of marriage as null and void and also for permanent alumni of Rs.30,00,000/-. Both the cases are pending before the respective Courts. In such circumstances, the petitioner filed the present petition for transfer.
3. The counsel for the petitioner represented that the petitioner is not working in Chennai at present and he is unemployed. In respect of such contention no proof has been filed before this Court. Such an oral submission submitted by the parties without proper evidence cannot be considered by
this Court. Further, the petitioner is a Post Graduate in Engineering and he is working in a well known software company, this Court is unable to take the submission which is not supported by any proof to the same.
4. Per contra, the learned counsel for the respondent represented that the respondent is also working in Chennai and she is residing with her parents at Chennai. Therefore, it will not be convenient for the respondent to attend the Court at Dindigul and conduct the case effectively.
5.The principles regarding transfer petitions, more specifically in the matters of matrimonial cases are well settled through the decisions 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 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.''
6. In view of the ration laid down in the aforesaid Judgements and also considering the facts and circumstances of the case, this Court is of the opinion that the case for transfer deserves to be considered only on the side of the wife.
7. Considering the arguments of the learned counsel for the parties, this Court is of the opinion that the reason stated by the petitioner is not sufficient to transfer the case. Further, this Court feels that the petitioner has filed this petition with a view to harass the respondent / wife one way or other. This Court cannot encourage such attitude of the petitioner in filing a petition with an intention to protract the issue and harass the opposite party. Therefore, the petition is devoid of merits and the same is liable to be dismissed and accordingly, dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub Assistant Registrar To
1. The Subordinate Judge, Tambaram, Chennai.
2. The Subordinate Judge, Dindigul.
+1cc to Mr.R.Suresh Kumar, Advocate in SR No.62355 Tr.C.M.P(MD)No.214 of 2016 and CMP(MD).No.3898 of 2016 20.10.2016 anr/ck/23.12.2016/4p/4c