The special preference given to the wife under Section 19(iii)(a) of the Hindu Marriage Act in transfer petitions for matrimonial cases.

ORDER :

1. The Transfer Civil Miscellaneous Petition is filed to withdraw the HMOP No. 2325 of 2022 pending on the file of the I Additional Family Court at Chennai and transfer the same to the file of the Principal Sub Court at Mayiladuthurai.

2. The marriage between the petitioner and the respondent was solemnised on 26.10.2015 as per Hindu Rites and Customs. Due to misunderstanding, the petitioner and the respondent are living separately. A male child was born from and out of the wedlock.

3. The learned counsel for the petitioner states that the petitioner-wife is unemployed and now she and her male child are residing along with her parents. While-so, she cannot travel all along from Mayiladuthurai to Chennai for the purpose of contesting the divorce case filed by the respondent-husband in the I Additional Family Court at Chennai, as she has to take care of her minor male child aged about 3 years.

4. The respondent-husband filed HMOP No. 2325 of 2022 for dissolution of marriage before the I Additional Family Court at Chennai.

5. 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 allowed the transfer petition.

(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