Allowed

R.Mathavi, v. K.Rajapandiyan

Madras HC23 Nov 2016TR CMP(MD)/215/2016

Case brief

AI extract

What is this about?

The court allowed a transfer petition filed by an unemployed wife seeking to move her pending divorce case from Palani to Madurai. Relying on Section 19(iii)(a) of the Hindu Marriage Act and judicial precedents favoring women with financial difficulties, the judge ordered the transfer to be tried with a related matter filed by the petitioner.

What did the court decide?

Transfer of H.M.O.P.No.112 of 2015 from Sub Court, Palani to Family Court, Madurai to be tried along with H.M.O.P.No.148 of 2015.

R.Mathavi, Vs K.Rajapandiyan — Matrimonial and Divorce | Madras HC (2016)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 23.11.2016

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CORAM

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THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

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TR.C.M.P(MD)No.215 of 2016 and C.M.P(MD)No. 3904 of 2016

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R.Mathavi

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.. Petitioner/Respondent

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Vs.

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K.Rajapandiyan .. Respondent/Petitioner

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Prayer: Petition filed under Section 24 of Civil Procedure Code, to withdraw H.M.O.P.No.112 of 2015, on the file of the Sub Court, Palani and transfer the same to the file of the Family Court, Madurai and to be tried the same along with M.C.No.148 of 2015, filed by the petitioner.

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For Petitioner : Mr.D.Rajkumar

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ORDER

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The present petition is filed seeking to withdraw H.M.O.P.No.112 of 2015, on the file of the Sub Court, Palani and transfer the same to the Family Court, Madurai and to be tried the same along with M.C.No.148 of 2015, filed by the petitioner.

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2.The marriage between the petitioner and respondent was solemnized on 27.05.2011, as per Hindu Rites and Customs and due to the strained relationship between the parties, both are living separately and the petitioner filed the present petition seeking transfer of H.M.O.P.112 of 2015 filed by the respondent for divorce, which is pending before the Subordinate Court, Palani.

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3.The main contention of the learned counsel for the petitioner is that the petitioner is unemployed and living with her parents along with 4 years old child, namely Vishvath and since she is not having income of her own, she cannot defend the divorce case filed by the respondent before the Subordinate Court, Palani.

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Despite service notice on the respondent and his name is https://hcservices.ecourts.gov.in/hcservices/ also being printed in the cause list, there is no representation on behalf of the respondent either in person or through pleader

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and therefore, this Court is constrained to pass orders on merits.

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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:

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(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:-

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''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.

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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.''

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(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:-

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''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.

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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.

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In 2000 (9) SCC 355, the wife has filed a petition to transfer the proceedings initiated by the husband for https://hcservices.ecourts.gov.in/hcservices/ 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

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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.

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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.

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( 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:-

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''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.''

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6.In view of the above judgments, the place of the wife is preferable and in the present case, the circumstances narrated by the petitioner deserve consideration.

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7.Considering the facts and circumstances of the case, this Court is inclined to consider the case of the petitioner and accordingly, this transfer Civil Miscellaneous Petition is allowed and H.M.O.P.No.112 of 2015 pending before the Sub Court, Palani, is ordered to be transferred to the file of the Family Court, Madurai, forthwith, to be tried along with H.M.O.P.No.148 of 2015. No costs. Consequently, connected Miscellaneous petition is closed.

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Sd/Assistant Registrar(Writs)

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/True Copy/

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https://hcservices.ecourts.gov.in/hcservices/

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Sub Assistant Registrar

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