This court transferred a divorce petition filed in Chennai to the Family Court at Thiruvannamalai. The transfer was allowed due to the petitioner's unemployment, residence with parents, and significant travel hardship in contesting the case.
O.P.No.4992 of 2019 transferred to Family Court at Tiruvannamalai; Chennai Court to transmit papers within four weeks.
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.
Tr.C.M.P.No.157 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.157 of 2022 and CMP Nos.3067 & 3068 of 2022
R.Bharathi ... Petitioner
Vs.
E.Rajeshkumar ...Respondent
PRAYER : Transfer Civil Miscellaneous Petition filed under Section 24 of
CPC, to withdraw the case in O.P.No.4992 of 2019 pending on the file of IVth Additional Family Court, Chennai and to transfer the case in O.P.No.4992 of
2019 to any of the competent Court at Thiruvannamalai.
For Petitioner : Mr.J.Pradeep For Respondent : No such Addressee
O R D E R
The respondent filed O.P.No.4992 of 2019 for dissolution of marriage
now pending before the IVth Additional Family Court at Chennai. The petitioner
is residing along with her parents and she is unemployed. More so, she is
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maintaining a new born child, born from and out of the wedlock between herself and the respondent.
2.The learned counsel for the petitioner states that the petitioner has to travel for about 500 Kms to contest the case filed by the respondent for divorce in Family Court at Chennai. Considering the hardship and the factual circumstances as narrated by the petitioner, this Court is inclined to consider the petition.
3.In this regard, the Courts have already considered the issues as follows:
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
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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
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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
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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
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wreck vengeance on the husband. There must be a justifiable cause to select the jurisdiction of the Court where she resides.”
4.In view of the facts and circumstances, O.P.No.4992 of 2019 pending
on the file of the IVth Additional Family Court, Chennai stands transferred to the Family Court at Tiruvannamalai. The IVth Additional Family Court, Chennai is directed to transmit the case papers to the Family Court at Tiruvannamalai, within a period of four weeks from the date receipt of a copy of this order.
5.Accordingly, this transfer petition stands allowed. No Costs.
Consequently, connected miscellaneous petitions are closed.
06.12.2022
Index : Yes Internet : Yes Speaking order : Yes ssr
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To
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S.M.SUBRAMANIAM., J
ssr
Tr.C.M.P.No.157 of 2022 and CMP Nos.3067 & 3068 of 2022
06.12.2022
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2 issues framed by the court
Whether the transfer of matrimonial proceedings from Chennai to Thiruvannamalai is justified considering the petitioner's residence, unemployment, and the distance to contest the case.
Whether the hardship faced by the wife in traveling 500 kms to contest divorce proceedings constitutes a justifiable cause for transfer under Section 19 of the Hindu Marriage Act.
Colour shows how this judgement treated each authority
W.A.No.1181 of 2009Referred¶25
TR.CMP.Nos.138 and 139 of 2006Referred¶36
Mona Aresh Goel vs. Aresh Satya GoelExplained¶37
AIR 2000 SC 3512 · Who else cites this
2000 (10) SCC 304Explained¶38
2000 (9) SCC 355Explained¶39
2005 (12) SCC 395Explained¶40
TR.CMP(MD)No.108 of 2010Explained¶46
R.Bharathi
E.Rajeshkumar
S.M.Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
