Allowed

A.Shalini v. Sreenivasan

Madras HC20 Dec 2022TR CMP/87/2022

Case brief

AI extract

What is this about?

Petitioner sought to transfer Hindu Marriage Opposite Party (HMOP) No.33 of 2021, filed by the respondent against her, from Principal Sub Court, Virudhachalam to Sub Court, Alandur. Citing her poverty and the difficulty of contesting the divorce at a distant forum, the Court relied on settled precedents, specifically Section 19(iii-a) of the Hindu Marriage Act, to order the transfer, prioritizing

What did the court decide?

HMOP No.33 of 2021 pending at Principal Sub Court, Virudhachalam transferred to Sub Court, Alandur; case papers to be transmitted within four weeks.

A.Shalini Vs Sreenivasan — Matrimonial and Divorce | Madras HC (2022)

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Tr.C.M.P.No87 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 20.12.2022

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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.87 of 2022 and

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C.M.P.No.1695 of 2022

Mrs.A.Shalini

... Petitioner

Vs.

Mr.Sreenivasan

... Respondent

Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the HMOP No.33 of 2021 on the file of the Principal Sub Court, Virudhachalam and transferred to Sub Court, Alandur.

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For Petitioner : Mr.R.Bhagawat Krishna

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For Respondent : Not ready in notice

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O R D E R

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The petition for transfer is filed to withdraw the HMOP No.33 of 2021 on the file of the Principal Sub Court, Virudhachalam and transferred to Sub Court, Alandur.

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

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Tr.C.M.P.No87 of 2022

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The marriage between the petitioner and the respondent was solemnised on 11.11.2012 as per the Hindu Rites and Customs. Due to misunderstanding, the petitioner and the respondent are living separately. The respondent has filed HMOP No.33 of 2021 for dissolution of marriage on the file of the Principal Sub Court, Virudhachalam. The petitioner in her affidavit, has stated that she is a poor lady and she is not having any source of income. Thus, it would be difficult for her to spend, travel and contest the divorce petition in HMOP No.33 of 2021 filed by the respondent before the Principal Sub Court, Virudhachalam.

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The principles regarding transfer petitions, more specifically in 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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(i) The Hon'ble Division Bench of the High Court of Madras in

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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 opposite party is immaterial in a case like this. In case the marriage was solemnized under Hindu

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Tr.C.M.P.No87 of 2022

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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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Tr.C.M.P.No87 of 2022

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(ii) In yet another case in Tr.CMP.Nos.138 and 139 of 2006, dated

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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. 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 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 all the way from Jaipur to Bombay to contest the

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Tr.C.M.P.No87 of 2022

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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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(4) In a decision in Archana Singh vs. 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 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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Tr.C.M.P.No87 of 2022

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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 jurisdiction of the Court where she resides.”

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Considering the facts and circumstances, the HMOP No.33 of 2021

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pending on the file of the Principal Sub Court, Virudhachalam stands transferred to the Sub Court, Alandur. The Principal Sub Court, Virudhachalam is directed to transmit the case papers to the Sub Court, Alandur within a period of four (4) weeks from the date of receipt of a copy of this order.

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Tr.C.M.P.No87 of 2022

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5. With the abovesaid directions, the Transfer Civil Miscellaneous

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Petition stands allowed. However, there shall be no order as to costs.

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Consequently, the connected miscellaneous petition is closed.