Allowed

C.Monicka v. Sudharsan

Madras HC3 Mar 2021TR CMP/65/2021

Case brief

AI extract

What is this about?

The High Court of Madras allowed a transfer petition to move a Family Court civil case from Chengalpattu to Chennai. Relying on the Indian wife's residence, unemployment, and child-care responsibilities, the court held that financial hardship justifies transferring to the nearer jurisdiction under Section 19(iv-a) of the Hindu Marriage Act.

What did the court decide?

F.C.O.P. No. 73 of 2018 transferred to Family Court, Chennai; Transfer Civil Miscellaneous Petition allowed; no order as to costs.

C.Monicka Vs Sudharsan — Writ and Judicial Review | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 03.03.2021

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CORAM

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THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

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TR.C.M.P.NO.65 OF 2021 AND CMP.No.22801 OF 2021 C.Monicka ..Petitioner Vs Sudharsan ..Respondent Petition filed under Section 24 of CPC to withdraw the FCOP No.73 of 2018 on the file of Family Court at Chengalpattu and transfer the same to the Family Court at Chennai. For Petitioner : Mr.M.Vinoth For Respondent : Left ORDER This petition is filed to transfer F.C.O.P.No. 73 of 2018 from the Family Court, Chengalpattu to the Family Court, Chennai. 2. The marriage between the petitioner and the respondent was solemnized on 02.02.2015 as per the Hindu Rites and Customs. On account of misunderstanding, the petitioner and the respondent are living separately. The petitioner raised many allegations against the respondent/husband and those allegations cannot be adjudicated in the present transfer petition. 3. As far as the transfer petition is concerned, the petitioner states that now she is residing with her brother and she is unemployed. She has to take care of the child born from and out of the wedlock between the petitioner and the respondent. In view of the fact that the petitioner is unemployed and has to take care of her child, she is not in a position to contest the case before the Family Court, Chengalpattu.

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

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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:-

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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 (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.''

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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:-

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

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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 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.

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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 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."

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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 safeguard 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

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

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husband. There must be a justifiable cause to select the jurisdiction of the Court where she resides.''

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In view of the facts and circumstances, F.C.O.P.No.73 of 2018 pending on the file of the Family Court, Chengalpattu stands transferred to the Family Court, Chennai.

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Accordingly, this Transfer Civil Miscellaneous Petition No.65 of 2021 stands allowed and F.C.O.P.No.73 of 2018 pending on the file of the Family Court, Chengalpattu, is directed to be transferred to the Family Court, Chennai. However, there shall be no order as to costs. Consequently, the connected C.M.P.No. 2280 of 2021 is closed.

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Sd/-
Assistant Registrar(CS IV)
//True Copy//
Sub Assistant Registrar
ssm
To
1. The Judge,
Family Court, Chengalpattu.
2. The Judge,
Family Court, Chennai.
+1cc to Mr.M.Vinoth, Advocate, S.R.No.13901
Tr.C.M.P.No.65 of 2021
AND
CMP.No.22801 OF 2021
AK-II(CO)
CS/24/03/2021

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

C.Monicka v. Sudharsan

Case brief

What is this about?

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C.Monicka v. Sudharsan

Case brief

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