Judicial Analysis Court Copy Headnote Facts Arguments Court observation

MADRAS HIGH COURT
S.M. Subramaniam, J.
M. Ramya – Petitioner
versus
N. Sathishkumar – Respondent
Tr.C.M.P.No.48 of 2022 and
C.M.P.No.1125 of 2022
Decided on 7.12.2022

Counsel for the Parties:
For the Petitioner:Ms. Pozhil Ilavenil and Mrs. V. Porkodi, Advocates
For the Respondent:Mr. H. Shabeer Ali and Mr. R. Krishna Prasad, Advocates, for M/s. Sarvabhauman Associates

IMPORTANT POINTS
(1) Transfer of matrimonial case – Intention of Legislator is to safeguard interest and rights of women who are being subjected to harassment and cruelty.
(2) Maintenance – If a prima facie case is made out for grant of maintenance, then even in absence of any formal petition, interim maintenance to be ordered by Courts considering status, life style and assets possessed by parties concerned.

Headnote:
(A) Hindu Marriage Act, 1955 – Section 19 (iii-a) – Transfer of matrimonial case – Amended Section 19(iii)(a) 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 – But this special preference conferred under Section 19(iii)(a) of Hindu Marriage Act shall not be used to wreak vengeance on husband – There must be a justifiable cause to select jurisdiction of Court where she resides. (Para 5)
(B) Hindu Marriage Act, 1955 – Section 25 – Criminal Procedure Code, 1973 – Section 125 – Constitution of India – Article 21 – Maintenance – State being protector of minor children in certain circumstances, social implications in this regard are to be considered by courts, while dealing with maintenance petition – If a prima facie case is made out for grant of maintenance, then even in absence of any formal petition, interim maintenance to be ordered by Courts considering status, life style and assets possessed by parties concerned – Decent life is facet of Article 21 of Constitution of India – Life does not mean a mere animal life and interest child is to be of paramount importance and to be protected by Courts, whenever parents neglect their children – In case of matrimonial dispute, if anyone of parent is neglecting child, in such circumstances even in absence of any formal petition, Courts are bound to grant interim maintenance – After granting interim maintenance or otherwise, Courts must ensure that maintenance amount is recovered punctually and in event of any failure, stern actions are to be initiated against violators – There cannot be any compromise in matter of protecting livelihood children and Courts are expected to show sensitivity in such issues, where right of children are infringed. (Paras 8, 9, 10 and 11)
Result: Transfer Civil Miscellaneous Petition allowed.

ORDER

The petition for transfer is filed to transfer the HMOP No.392 of 2017 on the file of the Family Court at Salem to Sub Court, Hosur.

2. The marriage between the petitioner and the respondent was solemnized on 06.04.2014 as per the Hindu Rites and Customs. A male child was born from and out of the wedlock between the petitioner and the respondent and now living with the petitioner. Due to misunderstanding, the petitioner and the respondent are living separately.

3. The learned counsel for the petitioner states that the petitioner was residing at Salem and at that point of time, she filed a divorce petition in HMOP No.392 of 2017 on the file of the Family Court at Salem. Thereafter, the petitioner joined with her aged parents at Hosur and she is unemployed. The petitioner has to take care of her minor child aged about 7 years and therefore, she cannot spend, travel and contest the case now pending before the Family Court at Salem.

4. The learned counsel for the respondent raised an objection by stating that the petitioner has not produced any document to establish that she has shifted her residence to Hosur. The present petition is to transfer the case from the Family Court, Salem to the Sub Court, Hosur and without any such shifting of residence, the petitioner would not have filed such a petition and an inference in this regard would be sufficient enough to consider the transfer petition in the present case. The petitioner has to take care of 7 years old child and therefore, the present petition is to be considered.

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

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