The High Court allowed a transfer petition to move a divorce proceeding from Chennai to Erode. Citing the wife's residence and financial hardship, the court held that the jurisdictional court in Erode is appropriate under Section 19 of the Hindu Marriage Act.
Transfer of O.P.No.2766 of 2019 from Family Court, Chennai to Family Court, Erode.
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 : 02.03.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
TR.C.M.P.NO.56 OF 2021 AND C.M.P.NO.2072 OF 2021
Aiswarya
..Petitioner
Bharanidharan
vs. ..Respondent
PRAYER : Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the O.P.No.2766 of 2019 pending before the Hon'ble II Additional Principal Judge, Family Court, Chennai and transfer the same to the Family Court, Erode or any other court of competent jurisdiction.
For Petitioner : Mr.J.Ranjithkumar For Respondent : M/s.B.Kalarani
O R D E R
The petition for transfer is filed to transfer O.P.No.2766 of 2019 from the II Additional Principal Judge, Family Court, Chennai to the Family Court, Erode.
3 . The principles regarding transfer petitions, more specifically in the matters of matrimonial cases are well settled through the decisions 3 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.
(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.''
Sd/-
Assistant Registrar(CS VI)
//True Copy//
Sub Assistant Registrar
Kak
To
1.The II Additional Principal Judge,
Family Court, Chennai.
2.The Judge,
Family Court,
Erode.
Tr.CMP No.56 of 2021
SR II (CO)
KKV/19/03/2021
2 issues framed by the court
Whether a matrimonial proceeding filed by a husband in Chennai should be transferred to Erode where the wife resides.
Whether financial inability and distance justify transfer of matrimonial proceedings under Section 19 of the Hindu Marriage Act.
Colour shows how this judgement treated each authority
W.A.No.1181 of 2009Referred¶17
W.A.No.1181 of 2009
Mona Aresh Goel vs. Aresh Satya GoelReferred¶21
Mona Aresh Goel vs. Aresh Satya Goel
AIR 2000 SC 3512Referred¶21
AIR 2000 SC 3512 · Who else cites this
2000 (10) SCC 304Referred¶22
2000 (10) SCC 304 · Who else cites this
2000 (9) SCC 355Referred¶24
2000 (9) SCC 355 · Who else cites this
2005 (12) SCC 395Referred¶25
2005 (12) SCC 395 · Who else cites this
TR.CMP(MD)No.108 of 2010Referred¶26
TR.CMP(MD)No.108 of 2010
2 provisions across 2 enactments
Aiswarya
Bharanidharan
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
