TR. CMP. No. 783 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.11.2023

CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

TR. CMP. No. 783 of 2023

& CMP No. 18950 of 2023

Saravanaraj G

...Petitioner

Vs.

Aishhwarya Devi M

....Respondent

PRAYER : This Transfer Civil Miscellaneous Petition is filed under

Section 24 of CPC, to withdraw and transfer of HMOP No. 9 of 2022 from

the file of learned Subordinate Court, Kumbakonam, Thanjavur District, to

the file of Subordinate Court, Tambaram, Kanchipuram District.

For Petitioner : Mr.G.P.Saravanaraja

For Respondent : Mr.R.Sathyanarayanan

ORDER

This petition has been filed to withdraw and transfer of HMOP No. 9

of 2022 from the file of learned Subordinate Court, Kumbakonam,

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TR. CMP. No. 783 of 2023

Thanjavur District, to the file of Subordinate Court, Tambaram,

Kanchipuram District.

2. Both parties along with their counsel appeared before this Court

and heard the submissions made by the learned counsels for the petitioner

and the respondent.

3. Admittedly, both the petitioner and the respondent filed mutual

divorce petition in HMOP No. 678 of 2019, during the cooling off period

due to the absence of the petitioner the Court below dismissed the said

petition for default. Thereafter, the petitioner filed restoration petition, due

to lockdown, the petitioner not able to follow the petition. In the meantime,

the respondent filed HMOP No. 9 of 2022 before the Subordinate Court,

Kumbakonam. Now, the petitioner filed this petition to transfer HMOP No.

9 of 2022 from the file of learned Subordinate Court, Kumbakonam,

Thanjavur District, to the file of Subordinate Court, Tambaram,

Kanchipuram District.

4. The petitioner submits that initially he engaged the counsel,

subsequently, he himself appeared in person in all the cases filed by the

wife. According to him, he has spent more than 59 months by attending the

Court hearing due to that he lost his job, thereafter he met with a accident ,

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TR. CMP. No. 783 of 2023

hence stated that there is no possibility for reunion and their relationship

was already irretrievable break down.

5. Both the petitioner and the respondent appeared before this Court

and stated that there is no possibility for reunion and they want mutual

divorce. On seeing the fact, both parties already filed HMOP No. 678 of

2019 for mutual divorce and they are not ready to live together. Considering

the above, as well as the ratio laid down by the Hon'ble Supreme Court in

the case of Shilpa Sailesh vs. Varun Sreenivasan reported in [ (2023 SCC

online SC 544)] is extracted hereunder:-

50. In view of the aforesaid discussion, we decide this

reference by answering the questions framed in the following

manner:

(i) The scope and ambit of power and jurisdiction of this

Court under Article 142(1) of the Constitution of India.

This question as to the power and jurisdiction of this

Court under Article 142(1) of the Constitution of India is

answered in terms of paragraphs 8 to 13, inter alia, holding

that this Court can depart from the procedure as well as the

substantive laws, as long as the decision is exercised based

on considerations of fundamental general and specific

public policy. While deciding whether to exercise

discretion, this Court must consider the substantive

provisions as enacted and not ignore the same, albeit this

Court acts as a problem solver by balancing out equities

between the conflicting claims. This power is to be

exercised in a ‘cause or matter’.

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TR. CMP. No. 783 of 2023

(iii) Whether this Court can grant divorce in exercise of power

under Article 142(1) of the Constitution of India when there is

complete and irretrieva