BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03/03/2011

CORAM

THE HONOURABLE MR.JUSTICE T.MATHIVANAN

Tr.C.M.P.(MD)No.108 of 2010

Durga ... Petitioner Vs.

R.Mohan Ganesh ... Respondent This petition is filed under section 24 of the Civil Procedure Code, to withdraw the case in OP No.409 of 2009 from the file of the Principal Judge, Family Court, Chennai and to transfer the same to the file of the Family Court, Madurai, for disposal.

!For Petitioner ... Mr.J.Anandha Kumar

^For Respondent ... Mr.R.Rajaraman

:ORDER

Based on the proviso to section 24 of the Civil Procedure Code, this petition is filed by the petitioner to withdraw the case in O.P No.409 of 2009 from the file of the learned Principal Judge, Family Court, Chennai and to transfer to the file of Family Court, Madurai, for disposing the same in accordance with law.

2.The facts led the petitioner to come forward with this petition may be summarized as under:-

The respondent herein is none other than the husband of the petitioner and their marriage was solemnized on 02.03.2008 at Swarna Mahal, Madurai and thereafter, they started their matrimonial life at Chenai. It is alleged by the petitioner that from the inception of their marriage, she was ill-treated and inflicted tremendous mental and physical torture. The respondent always used to find fault with her without any reason whatsoever and as such, he had failed to discharge his duties of husband. On account of their wedding-lock, the petitioner had begotten a girl baby on 21.01.2009. Even after passing of the information, neither the respondent nor his family members chosen to come and see the petitioner and her girl baby. The petitioner and her girl baby at present are living with the petitioner's parents at Madurai. In the meantime, the respondent has filed a petition in O.P.No.409 of 2009 before the Principal Judge, Family Court, Chennai, for restitution of conjugal rights, which is posted for filing counter on the part of the petitioner. Since the petitioner and her daughter have been totally neglected by the respondent and he has also been behaving differently right from their marriage, the petitioner has been driven to live with her parents. Further, she finds it difficult to go to Chennai, as she is having her girl baby on her arm to attend each and every hearing of the above said case. In this circumstance, she has come forward with this petition for transfer of the case in O.P.No.409 of 2009 as aforesaid.

3.Heard both sides.

4.The learned counsel appearing for the petitioner has submitted that the daughter of the petitioner is aged about two years and for attending the case in O.P.No.409 of 2009, which is pending at Chennai, she has to travel all along from Madurai.

5.While advancing his arguments, he has also submitted that a special insertion has been introduced by the Parliament by section 4 of the amendment Act 15 of 2003 and thereby, the woman/wife has been given special preference for prosecuting/defending her case. Accordingly, she can sue or she can be sued before the Court in whose jurisdiction, she resides at the time of presenting the petition.

6.In support of his arguments, he has placed reliance upon the following two decisions:-

01.Dr.M.S.Gayathri vs. Dr.S.Natarajan, reported in (2006)4 MLJ 694; and

02.Usha @ Ramalakshmi and another vs. P.Shamugam, reported in 2006(4)CTC

835.

7.In the former case, the learned single Judge of this Court has observed that:-

"There cannot be any hard and fast rule in the matter of deciding the transfer applications. While the parties cannot be allowed to have their own course to defeat the ends of justice, yet, it is better for both the parties to have a convenient forum so that multiplicity of proceedings can receive attention by the same Court."

8.It has also been observed that:-

"It is not the case of the Court showing any sympathy to woman or wife in a matrimonial proceedings. The Parliament itself by its legislative wisdom has decided to show preference in the case of wife in choosing the place of forum to sue her husband....

It was with this view, preference is given to the women to choose their forum for presentation of the petitions and to institute an appropriate matrimonial proceedings so as to protect them."

9.In the latter decision, the wife filed a petition seeking maintenance from the husband before the Family Court, Coimbatore and the husband filed a petition for certain reliefs before the Family Court, Coimbatore. In that petition, the wife pleaded that distance between Tuticorin and Coimbatore is about 500 kms and that she could not undertake journey for every hearing with child of tender age and she had no means of livelihood and had no relatives in Coimbatore. Hence, she sought for transfer of the case as contemplated under section 24 of the Civil Procedure Code. The transfer petition was resisted on the ground that the Court in Tuticorin lacked territorial jurisdiction and was not competent to hear petitions filed by wife and husband. After hearing both sides, the learned single Judge of this Court had held that the Powers of High Court under section 24 could not be whittled down or taken away as matrimonial proceedings could be initiated before Family Court or Courts Subordinate to High Court as the case may be. Neither Hindu Marriage Act nor Family Court ousts provisions of Section 24 of Code of Civil Procedure and the competency of Court referred to in Sections 24 and 25 of Code of Civil Procedure does not relate to Territorial jurisdiction and acceptance of such interpretation would cripple power of High Court under Section 24 of Code of Civil Procedure, as far as matrimonial case are concerned.

10.It is also observed that"-

"After amendment of Hindu Marriage Act in 2003 under Section 19 of said Act, wife as petitioner could file Petition in Court within whose jurisdiction she resides at the time of filing of Petition."

11.Keeping in view of this fact, the learned Single Judge has rejected the contention of the husband and he has also followed the guidelines laid down in 2001 AIHC 1567 by this Court for transfer of the proceedings. Ultimately, the above said cases were ordered to be transferred to Sub Court, Tuticorin instead of transferring the case seeking maintenance to the file of learned Magistrate Court to avoid multiplicity of proceeds.

12.On the other hand, the learned counsel appearing for the respondent has contended that for the past two years, the respondent was not allowed to see his girl baby and that the respondent still wanted to live along with the petitioner and willing to bring up his child in a better level.

13.The learned counsel appearing for the respondent has also submitted that excepting the case in O.P.No.409 of 2009, which is pending before the Principal Judge, Family Court, Chennai, no other case is pending and if the petitioner is willing to join with the respondent, he is ready to take back her to the matrimonial home along with the child. He has also submitted that the petitioner has been acting to the wrong note of her parents and she never think about the welfare of the child as well her future.

14.He has also submitted that mediation was conducted two or three times for settling the dispute between the petitioner and the respondent amicably, but on account of adamant attitude of the petitioner, the mediations had become failed. He has also submitted that the amended section 19(iii)(a) of the Hindu Marriage Act, could not be misunderstood and also could not be used to wreck vengeance on the husband. If there are really justifiable grounds, then the wife could be allowed to defend or prosecute her husband before the Court in whose jurisdiction she is residing.

15.In the instant case on hand, the petitioner wanted to harass the respondent and therefore, for the past two years, the respondent has been undergoing untold miseries.

16.This Court has carefully considered the submissions made on behalf of both sides.

17.The respondent being the husband has filed the petition in O.P.No.409 of 2009 before the learned Principal Judge, Family Court, Chennai, for restitution of conjugal rights, but this petition has been resisted by the petitioner on various grounds. However, admittedly she is having a girl baby in her arm and hence, she finds it difficult to go to the Family Court, Chennai, to make her appearance in each and every hearings all along from Madurai.

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.

19.On coming to the instant case on hand, the petitioner is residing at Madurai and that is why, she opted to file this petition to transfer the case in O.P.No.409 of 2009. In matrimonial cases, as contemplated under section 24 of the Civil Procedure code, the general power of transfer and withdrawal conferred on this Court can very well be pressed into service and in such cases, filed by husband against wife, the convenience of the wife is relevant consideration as observed in Sunita Singh vs. Kumar Sanjay [AIR 2002 SC 396].

20.Keeping in view of the above facts, this Court is of considered view that the case in O.P.No.409 of 2009 may be ordered to be withdrawn from the file of the learned Principal Judge, Family Court, Chennai and transferred to the Family Court, Madurai, for disposing the same in accordance with law.

21.In the result, this petition is allowed. The case in O.P.No.409 of 2009 is ordered to be withdrawn from the file of the Principal Judge, Family Court, Chennai and transferred to the file of Family Court, Madurai. The learned Principal Judge, Family Court, Chennai, is directed to send the entire records relating to the above said case to the file of Family Court, Madurai, within a period of one week from the date of receipt of a copy of this order. After receiving the case records, the transferee Family Court, Madurai, is directed to dispose of the case, within the time frame of three months without any further delay.

22.With the above observations, this petition is allowed. No costs.

er

To,

1.The Additional District Judge,

Family Court,

Madurai.

2.The Principal Judge,