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M. Viashnavi Vs. C. Sathish Kumar - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberTR.C.M.P (MD) No. 123 of 2016 & C.M.P (MD) No. 2094 of 2016
Judge
AppellantM. Viashnavi
RespondentC. Sathish Kumar
Excerpt:
hindu marriage act, 1955 section 19(iii)(a) civil procedure code, 1908 section 24 transfer of case petition is filed seeking to withdraw case from file of trial court and transfer same to jurisdiction court within which wife resides. court held amended section 19(iii)(a) of act gives special preference to wife to file a petition or defending case of husband before court within whose jurisdiction she resides intention of legislator is to safe-guard interest and rights of women, who are being subjected to harassment and cruelty petition allowed. (paras: 6, 7) case referred: air 2000 sc 3512 (1) (mona aresh goel vs. aresh satya goel) .....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. 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.....
Judgment:

(Prayer: Petition filed under Section 24 of Civil Procedure Code to withdraw the case in H.M.O.P.No.142 of 2015 on the file of the Subordinate Judge, Aruppukkottai and transfer the same to the file of the Subordinate Court, Theni for disposal of the same on merits and in accordance with law.)

Order:

S.M. Subramaniam, J.

1. The present petition is filed seeking to withdraw the case from the file of the Subordinate Court, Aruppukkottai in H.M.O.P.No.142 of 2015 and transfer the same to the file of the Subordinate Court, Theni.

2. The marriage between the petitioner and respondent was solemnized on 03.03.2014, as per the Hindu Rites and Customs.

3. The contention of the petitioner is that misunderstanding arose between them and she was forcibly made to leave the matrimonial home and now she is residing with her parents. The petitioner filed H.M.O.P.No.114 of 2015 before the Subordinate Court, Theni for restitution of conjugal rights and on receipt of notice, the respondent filed H.M.O.P.No.142 of 2015 before the Subordinate Court, Aruppukottai, for divorce. The petitioner contended that she is unemployed and living with her parents and not having any independent source of income and therefore, she is not in a position to spend and travel to contest the case for divorce filed by the respondent/husband before the Subordinate Court, Aruppukkottai. Further, the respondent is a Software Engineer at Bangalore and he is capable of coming over to Theni and contest the case filed by the petitioner for restitution of conjugal rights.

4. The learned counsel for the respondent opposes this petition by stating that the petitioner left the matrimonial home on her own volition and therefore, the petitioner is at fault and accordingly, the present petition deserves to be dismissed.

5. The respective counsels both for the petitioner and the respondent are heard.

6. 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:-

(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 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 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 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.

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

7. In view of the ration laid down in the aforesaid Judgements, this Court is of the opinion that the present case for transfer deserves to be considered and accordingly, this Transfer Civil Miscellaneous Petition is allowed and H.M.O.P.No.142 of 2015 pending before the Subordinate Court, Aruppukkottai, is ordered to be transferred to the file of the Subordinate Court, Theni forthwith, to be tried along with H.M.O.P.No.114 of 2015. No costs. Consequently, connected Miscellaneous petition is also closed.


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