(Prayer in Tr.C.M.P.No.498 of 2004: Petition filed to withdraw the IDOP.No.34 of 2003 from the file of the Family Court, Madurai, Madurai District and transfer the same to the file of Subordinate Judge Court, Thoothukudi and District.

Prayer in Tr.C.M.P.No.627 of 2004: Petition filed to withdraw the suit in O.S.No.20 of 2004 from the file of the Family Court, Madurai, Madurai District and transfer the same to the file of Subordinate Judge Court, Thoothukudi, Thoothukudi District)

Common Order

The petitioner is the wife in the matrimonial proceedings in IDOP.No.34 of 2003 on the file of the Family Court, Madurai. Transfer CMP.No.498 of 2004 is for withdrawal of the said OP from the file of Family Court, Madurai to the file of Subordinate Court, Thoothukudi.

2.Pending the above OP, the respondent/husband filed O.S.No.20 of 2004, which relates to the properties of the spouse and claiming that such a suit would be covered by the extension to Section 7(1) of the Family Courts Act (in Short `the Act').

3. Transfer CMP.No.627 of 2004 was filed for transfer of O.S.No.20 of 2004 from the file of Family Court, Madurai to the file of Subordinate Judge, Thoothukudi.

4. The petitioner is the wife and she is residing in Thoothukudi. The proceedings are pending before the Family Court and she is required to be present for every date of hearing.

5. The learned counsel for the petitioner would submit that the petitioner has to travel a long distance from Thoothukudi to Madurai, which is extremely difficult for the petitioner. The learned counsel for the petitioner would further submit that O.S.No.20 of 2004 has been filed only to harass her. The claim made in the suit that the suit properties have been purchased in her name benami by the respondent, is devoid of merits.

6. The allegation of interference with the suit properties have also been made only to harass her. The learned counsel for the petitioner would also submit that her personal safety is at stake, since the respondent would not hesitate to engage persons to harm her when she attends the Court on the hearing date. She has a child of tender age and therefore, it is necessary to transfer the proceedings as prayed for.

7. At the time of making oral submission, the learned counsel for the petitioner submitted that the proceedings may be transferred to any District Judge. Reliance was placed on Sumita Singh Vs. Kumar Sanjay and another (AIR 2002 SC 396) wherein at paragraph-3 it is held thus:

3.It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute.

8. The learned counsel for the respondent would however submit that the transfer petitions as prayed for cannot be granted, since proceedings before the Family Court, especially a petition under the Indian Divorce Act must be heard by a District Judge and therefore, the transfer CMP, as prayed for cannot be ordered. It is further submitted that it is not correct to state that the son is of a tender age and cannot be left behind. According to the learned counsel, the son is actually in the custody of the respondent and has been educated by him. The minor is studying in Sri Sadhana Matriculation School. The learned counsel also submitted that the petitioner is quite affluent and will have no difficulty in travelling from Thoothukudi to Madurai and that in fact one of the petitioner's sister resides at Madurai and therefore, there will be absolutely no inconvenience caused to the petitioner for attending the hearing. The learned counsel submitted that proper directions may be given to the Family Court Judge to dispose of this matter in the forenoon session, so that the petitioner can return to her home town, if necessary. These submissions were made on facts.

9. Serious objections were raised on point of law to the transfer. Learned counsel for the respondent Thiru.S.S.Ramasubramaniam, Senior member o