The interpretation and application of Section 19(iii)(a) of the Hindu Marriage Act in transfer petitions for matrimonial cases.

ORDER :

PRAYER : This Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the case in HMOP No.53 of 2022 from the file of the Sub Court at Karur and transfer the same to the file of the Family Court at Erode.

The Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP No.53 of 2022 on the file of the Sub Court at Karur and transfer the same to the file of the Family Court at Erode.

2. The marriage between the petitioner and the respondent was solemnised on 24.03.2021 as per Hindu Rites and Customs. A female child was born from and out of the wedlock. Due to misunderstanding, the petitioner and the respondent are living separately.

3. The learned counsel for the petitioner states that the petitioner-wife and her female child aged about 6 years old are now residing along with her parents and she is unemployed. The respondent-husband instituted a case in HMOP No.53 of 2022 for dissolution of marriage on the file of the Sub Court at Karur. Since the petitioner is the dependant of her parents and she has to take care of her 6 years old female child, she is not in a position to travel all along from Erode to Karur and contest the case filed by the respondent before the Sub Court at Karur.

4. 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:-

(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:-

“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 of Hon’ble Supreme Court of India:-

“(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.

(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.

(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 proceedings from time to time. Considering the distance and the difficulties faced by the wife, the Supreme Court has allo