K.Poon Thamil v. P.Sankar Subbiah,

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

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM TR.CMP(MD)No.443 of 2016 and C.M.P(MD)No.8876 of 2016 K.Poon Thamil ... Petitioner vs.

P.Sankar Subbiah ... Respondent Petition filed under Section 24 of the Civil Procedure Code, to withdraw the case in H.M.O.P.No.59 of 2016 pending on the file of Court of the Sub Judge, Periyakulam, Theni District and transfer the same to Family Court, Srivilliputtur. For Petitioner : Mr.G.Marimuthu For Respondent : Mr.L.Shaji Chellan

O R D E R

The marriage between the petitioner and the respondent was solemnized on 25.05.2014 as per the Hindu rites and customs. Out of the wedlock, a female child was born on 04.03.2015. The petitioner states that the respondent and his family members demanded dowry. She filed a petition for restitution of conjugal rights in HMOP.No.29 of 2016 and also filed M.C.No.17 of 2016 for maintenance. She had not pressed the HMOP No.29 of 2016, based on the agreement for re-union. But the respondent without accepting the proposal for re-union, filed HMOP.No.59 of 2016, for divorce before the Sub Court, Periyakulam. 2.The contention of the petitioner is that she is living with her female child aged about 11⁄2 years at Srivilliputhur and is unable to travel to Periyakulam along with her child. Further, the subsequent HMOP.No.74 of 2016 filed by her for restitution of conjugal rights, is pending before the Family Court, Srivilliputhur.

3.The contention of the respondent is that he and his family members never demanded any dowry. Further, the petitioner had not informed the birth of the child to the respondent's family and the efforts taken for re-union went in vain. Therefore, the present petition is liable to be dismissed.

4.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 (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 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.

5.Considering the facts and circumstances of this case 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.59 of 2016 on the file of the Sub Court, Periyakulam, Theni, is ordered to be transferred to the Family Court, Srivilliputhur, forthwith. No costs. Consequently, C.M.P(MD)No.8876 of 2016 is closed.

Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1)The Judge, Sub Court, Periyakulam, Theni, 2)The Judge, Family Court, Srivilliputhur.

+1cc to Mr.G.Marimuthu, Advocate in SR No.63412 +1cc to Mr.L.Shaji Chellan, Advocate in SR No.63414 TR.CMP(MD)No.443 of 2016 25.10.2016 NBI ANR/EM-MPA/29.11.2016/2P/5C