IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.08.2020

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA

Tr.C.M.P.No.131 of 2020

K.Malarvizhi

.. Petitioner

Versus

A.Kandasamy

.. Respondent

Prayer: Petition has been filed under Section 24 of the Civil

Procedure Code praying to withdraw H.M.O.P.No.52 of 2015

pending on the file of learned Sub-Court, Sangakiri, and to

transfer the same to the file of learned Principal Family

Court, Chennai, to be tried along with H.M.O.P.No.3115 of

2015.

For Petitioner

: Mr.K.Vaidhyanathan

For Respondent

: K.Murali

O R D E R

Heard the parties through Video Conferencing due to

COVID-19 pandemic.

2.

Mrs.K.Malarvizhi/petitioner

herein,

wife

of

Mr.A.Kandasamy/respondent herein, has filed this Transfer

Civil Miscellaneous Petition seeking to transfer H.M.O.P.No.52

of 2015 from the file of learned Sub-Court, Sangakiri, to the

file of learned Principal Family Court, Chennai, to be tried

along with H.M.O.P.No.3115 of 2015 filed by the wife seeking

for divorce. The above said HMOP No.52 of 2015 was filed by

the respondent/husband seeking for restitution of conjugal

rights.

3. Learned counsel appearing for the petitioner/wife

submitted that the marriage between the petitioner and the

respondent was solemnized on 13.06.2002 at Sri Gurunandhasamy

Kovil, Salem, as per Hindu Rites and Customs. Out of the said

wedlock, they were blessed with three children, namely, two

daughters by name Bharkavi and Bhabitha, aged about 16 years

and 15 years, respectively and one male chile by name

DharshanRaj, aged about 7 years. Due to some difference of

opinion, they got separated in the year 2012 and subsequently,

the petitioner/wife filed H.M.O.P.No.3115 of 2015 on the file

https://hcservices.ecourts.gov.in/hcservices/

of learned Principal Family Court, Chennai, seeking for

divorce.

Whileso, the respondent/husband also filed

H.M.O.P.No.52 of 2015 on the file of learned Sub-Court,

Sankagiri, seeking for restitution of conjugal rights. It is

further submitted that since the petitioner/wife is residing

at Chennai, it is difficult for her to undertake long journey

from Chennai to Sankagiri, to attend each and every hearing

and therefore, the case filed by the husband may be

transferred to the file of learned Principal Family Court,

Chennai, to try along with H.M.O.P.No.3115 of 2015 filed by

the wife.

4. Opposing the above prayer, learned counsel appearing

for the respondent/husband submitted that this transfer

petition is not legally sustainable in law, since

H.M.O.P.No.52 of 2015 sought to be transferred in the present

transfer petition has already ended on 31.01.2018 in an

expartee decree for restitution conjugal rights and

thereafter, the petitioner/wife has not moved any application

for restoration of exparte decree. Denying such submission,

it is submitted by the learned counsel for the wife that the

wife has already filed restoration application and it is to be

taken on file.

5. This Court is of the view that even if he has filed an

application for restoration, unless it is restored to the file

of learned Sub-Court, Sankagiri, she cannot seek for transfer

of H.M.O.P.No.52 of 2015 as it was admittedly ended on

31.01.2018 in an exparte decree for restitution of conjugal

rights. It is submitted by learned counsel for the husband

that in the restoration application filed by the wife, no

notice is ordered till date. Secondly, three children are

under the custody of father/respondent herein and they are

attending the school at Salem. Therefore, this Court does not

find any balance of convenience in favour of wife and

accordingly, this Transfer Civil Miscellaneous Petition is

dismissed. Consequently, connected CMP.No.4506 of 2020 is

closed.

Sd/-

Assistant Registrar(CCC)

//True copy//

Sub Assistant Registrar

rkm

To

1.The Subordinate Judge,