Allowed

D.Panjavaranam v. K.Hemant Kumar

Madras HC6 Dec 2022TR CMP/29/2022

Case brief

AI extract

What is this about?

In a transfer petition, the wife sought to move matrimonial proceedings from Chennai to Palani, where she resides with her parents. Citing financial inability and childcare duties for a one-year-old child, the court allowed the transfer, recognizing hardships faced by women in distant litigation.

What did the court decide?

O.P.No.4964 of 2021 pending at I Additional Family Court, Chennai, stands transferred to Sub Court, Palani, Dindigul District within four weeks.

D.Panjavaranam Vs K.Hemant Kumar — Matrimonial and Divorce | Madras HC (2022)

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Tr.C.M.P. No.29 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.12.2022

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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.29 of 2022 and CMP No.765 of 2022

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D.Panchavarnam ... Petitioner

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Vs.

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K.Hemant Kumar ...Respondent

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PRAYER : Transfer Civil Miscellaneous Petition filed under Section 24 of

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CPC, to withdraw and transfer O.P.No.4964 of 2021 which is pending on the file of the I Additional Family Court at Chennai, Chennai District to be tried

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before the Sub Court, Palani, Dindigul District.

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For Petitioner : Mr.Mohammed Asan

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For Respondent : No such person

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O R D E R

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This transfer petition is filed to withdraw and transfer O.P.No.4964 of

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2021 from the file of the I Additional Family Court, Chennai to Sub Court, Palani, Dindigul District.

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2.The petitioner states that on account of certain misunderstanding, the

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respondent left the matrimonial home and the petitioner is now residing with her parents at Palani. The learned counsel for the petitioner states that the petitioner is unemployed and further not in a position to travel to Chennai and contest the case filed by the respondent. That apart, she has to maintain one year old girl child and she is now the dependent on her parents and for all these reasons, the petition is filed to transfer the O.P. filed by the respondent to the Court at Palani. The learned counsel for the petitioner further states that the respondent have filed the case at Chennai knowing the fact that the petitioner cannot contest the case at Chennai, since she has to maintain one year old girl child.

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3.In this regard, the Courts have already considered the issues as follows:

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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:

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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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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.--

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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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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 safe-guard the interest and rights of the women, who are being subjected to harassment and

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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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4.In view of the fact that the petitioner is residing along with her parents

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at Palani and looking after one year old girl child and unemployed, the petition deserves to be considered. Accordingly, O.P.No.4964 of 2021 pending on the file of the I Additional Family Court, Chennai stands transferred to the Sub Court, Palani, Dindigul District. The I Additional Family Court, Chennai is directed to transmit the case papers to the Sub Court, Palani, Dindigul District, within a period of four weeks from the date receipt of a copy of this order.

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5.Accordingly, this transfer petition stands allowed. No Costs. Consequently, connected miscellaneous petition is closed.

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06.12.2022

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Index : Yes/No Internet : Yes/No Speaking order : Yes /No ssr

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