Allowed

P.Amsavalli v. U.K.Palanisami

Madras HC21 Dec 2022TR CMP/712/2022

Case brief

AI extract

What is this about?

The Court allowed a Transfer Civil Miscellaneous Petition to move a matrimonial dispute (HMOP No.92 of 2022) from the Sub Court at Coimbatore to the Sub Court at Bhavani, Erode. The transfer was ordered to accommodate the petitioner, who resided in Erode and faced travel difficulties, citing Section 19 of the Hindu Marriage Act.

What did the court decide?

HMOP No.92 of 2022 transferred from Sub Court, Coimbatore to Sub Court, Bhavani, Erode District.

P.Amsavalli Vs U.K.Palanisami — Matrimonial and Divorce | Madras HC (2022)

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Tr.CMP No.712 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 21-12-2022

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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.712 of 2022 and C.M.P.No.12124 of 2022

Mrs.P.Amsavalli

.. Petitioner

vs.

Mr.U.K.Palanisami .. Respondent

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PRAYER : This Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the case in HMOP No.92 of 2022 from the file of the Sub Court at Coimbatore and transfer the same to the file of the Sub Court at Bhavani, Erode District.

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For Petitioner : Ms.R.Anantha Lakshmi

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For Respondent : Mr.N.Chinna Raj

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https://www.mhc.tn.gov.in/judis

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O R D E R

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Tr.CMP No.712 of 2022

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The present Transfer Civil Miscellaneous Petition is filed to

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withdraw the case in HMOP No.92 of 2022 from the file of the Sub Court

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at Coimbatore and transfer the same to the file of the Sub Court at Bhavani,

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Erode District.

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The marriage between the petitioner and the respondent was solemnised on 10.03.1997 as per Hindu Rites and Customs. From and out of the wedlock between the petitioner and the respondent, two female children were born and they are major now. Both the major female children are studying in the College. Due to misunderstanding, both the petitioner and the respondent are living separately.

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The learned counsel for the petitioner states that the respondent filed HMOP No.92 of 2022 for dissolution of marriage before the Sub Court

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https://www.mhc.tn.gov.in/judis

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Tr.CMP No.712 of 2022

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at Coimbatore. The petitioner filed HMOP No.84 of 2022 before the Sub Court at Bhavani, Erode District for restitution of conjugal rights. The petitioner is unemployed and having the hearing ailment. The petitioner and her major female College going children are now residing along with her Aunt's house at Komarapalayam at Erode District. Thus, she is not in a position to travel all along from Komarapalayam at Erode District to Coimbatore and contest the dissolution of marriage filed by the respondent in HMOP No.92 of 2022 before the Sub Court at Coimbatore.

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The learned counsel for the respondent raised an objection by stating that the daughters are grown up and the petitioner is well within her capacity to travel and contest the divorce case filed by the respondent before the Sub Court at Coimbatore.

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The principles regarding transfer petitions, more specifically in

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the matters of matrimonial cases, are well settled through the three decisions of the High Court of Madras, in the following cases:-

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https://www.mhc.tn.gov.in/judis

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Tr.CMP No.712 of 2022

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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, wherein in paragraphs-21 and 22, it has been observed as under:-

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''21. The domicile or citizenship of the

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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

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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

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Tr.CMP No.712 of 2022

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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

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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 of Hon'ble Supreme Court of India:-

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''(1). In the case of Mona Aresh Goel vs.

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Tr.CMP No.712 of 2022

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Aresh Satya Goel [(2000) 9 SCC 255] , 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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(2) In the case of Geeta Heera vs. Harish Chander Heera [(2000) 10 SCC 304] , the Hon'ble 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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(3) In the case of Lalita A.Ranga vs. Ajay

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Champalal Ranga [( 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

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Tr.CMP No.712 of 2022

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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

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Supreme Court has allowed the transfer petition.

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Surendra Bahadur Singh [(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 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

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Tr.CMP No.712 of 2022

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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, wherein in paragraph-18, it has been 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 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

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Tr.CMP No.712 of 2022

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jurisdiction of the Court where she resides.''

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Considering the facts, it is preferable to transfer the case to the

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file of the Sub Court at Bhavani, Erode District for the convenience of the petitioner to contest the case in HMOP No.92 of 2022 pending on the file of the Sub Court at Coimbatore. Thus, this Court is inclined to consider the case of the petitioner. Accordingly, HMOP No.92 of 2022 pending on the file of the Sub Court at Coimbatore stands transferred to the file of the Sub Court at Bhavani, Erode District forthwith to be tried along with HMOP No.84 of 2022 filed by the petitioner for restitution of conjugal rights. The Sub Court at Coimbatore is directed to transmit the case papers to the Sub Court at Bhavani, Erode District, within a period of four weeks from the date of receipt of a copy of this order.

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