Petitioner sought transfer of H.M.O.P.No.436 of 2020 from Family Court, Thiruchirapalli to Sub Court, Tambaram under Section 24 CPC, citing residence in Chennai and inability to travel due to pregnancy.
Transfer of H.M.O.P.No.436 of 2020 from Family Court, Thiruchirapalli to Sub Court, Tambaram.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.02.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.19 of 2021 and C.M.P.No.724 of 2021
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure Code to withdraw the H.M.O.P.No.436 of 2020, pending on the file of Learned Family Court, Thiruchirapalli and transfer the same to Sub Court, Tambaram.
For Petitioner : Mr.M.Sriram For Respondent : No appearance
The petition for transfer is filed to transfer H.M.O.P.No.436 of 2020 from Family Court, Thiruchirapalli to the Sub Court, Tambaram.
(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.
(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 5 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.''
directed to be transferred to the Sub Court, Tambaram. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
Kak
To
1.The Judge,
Family Court,
Thiruchirapalli.
2.The Judge,
Sub Court,
Tambaram.
Tr.CMP No.19 of 2021
UM(CO)
GN(23/02/2021)
3 issues framed by the court
Whether a Transfer Civil Miscellaneous Petition should be allowed to transfer matrimonial proceedings from Family Court, Thiruchirapalli to Sub Court, Tambaram considering the petitioner's residence a
Whether the principles of Section 19 of the Hindu Marriage Act regarding jurisdictional courts apply in cases where the petitioner resides in Chennai but the divorce petition was filed in Thiruchirapa
Whether the petitioner's inability to travel to Thiruchirapalli due to pregnancy and distance justifies the transfer of the proceedings.
Colour shows how this judgement treated each authority
W.A.No.1181 of 2009Referred¶12
TR.CMP.Nos.138 and 139 of 2006Referred¶16
Mona Aresh Goel vs. Aresh Satya GoelReferred¶17
Mona Aresh Goel vs. Aresh Satya Goel (AIR 2000 SC 3512) · Who else cites this
2000 (10) SCC 304Referred¶18
2000 (9) SCC 355Referred¶19
2005 (12) SCC 395Referred¶22
TR.CMP(MD)No.108 of 2010Referred¶23
2 provisions across 2 enactments
PETITIONER
RESPONDENT
S.M.SUBRAMANIAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S.M.SUBRAMANIAM
Parties & counsel
