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2000 DIGILAW 208 (MAD)

S. Subha alias Seethalakshmi v. Dr. S. Muthiah

2000-02-18

P.SATHASIVAM

body2000
Judgment : Wife has filed the above transfer petition. She is seeking an order to withdraw the proceedings now pending in H.M.O.P.No.113 of 1999 from the file of the II Additional Subordinate Judge, Tirunelveli filed by the respondent-husband and transfer the same to the file of Subordinate Judge, Tuticorin. .2. In the affidavit filed in support of the above transfer petition it is stated that the petitioner and the respondent were married on 23. 1992 at Tuticorin according to Hindu Rites and Customs. She filed the petition in H.M.O.P.No.45 of 1998 on the file of the Subordinate Judge, Tuticorin seeking a decree of restitution of conjugal rights and the same is pending. The respondent after entering appearance filed a counter even on 8. 1998. It is further stated that after knowing the petition for restitution of conjugal rights filed by the wife, the respondent chose to file a petition for divorce against her in H.M.O.P.No.113 of 1999 on 17. 1999 and the same is pending before the II Additional Subordinate Judge, Tirunelveli. Since the cause of action for filing both these petitions are inter-related, they may be heard together. The evidence both oral and documentary are to be recorded for both the cases are the same and the order to be pronounced in reach of the petitions will naturally depend upon the outcome of the result in the other proceedings. It is further stated that her petition for restitution of conjugal rights was filed in the middle of the year 1998 whereas the presentation of the petition for divorce was made after one year from the date of filing of her petition. Further, under Sec.21-A(2)(b), of Hindu Marriage Act, if the petitions are presented to the different District Courts, the petition presented, later shall be transferred to the District Court in which the earlier petition as presented and both the petitions shall be heard and disposed of together by the District Court in which the earlier petition was presented. With these averments, she prayed for transfer of H.M.O.P.No.113 of 1999 filed by the husband from the II Additional Sub Court, Tirunelveli to the Sub Court, Tuticorin. 3. The respondent-husband has filed a counter-affidavit disputing various averments made by the petitioner. It is stated that he is a Sidha Doctor in the Government service. With these averments, she prayed for transfer of H.M.O.P.No.113 of 1999 filed by the husband from the II Additional Sub Court, Tirunelveli to the Sub Court, Tuticorin. 3. The respondent-husband has filed a counter-affidavit disputing various averments made by the petitioner. It is stated that he is a Sidha Doctor in the Government service. She was not willing to lead a marital life with him at his working place and she was very adamant that she will live only with her parents at Tuticorin. In spite of his efforts and the intervention of the elders interested in the family welfare, she refused to come over to his working place to live with him. So he was constrained to file a petition on 12. 1995 for restitution of conjugal rights in H.M.O.P.No.36 of 1995 on the file of Subordinate Judge, Tirunelveli where they last resided together. The petitioner entered appearance in the said H.M.O.P.No.36 of 1995. She did not prosecute the petition properly. After several adjournments she wilfully abstained from the court and let the petition and in ex parte. Subsequently she filed a petition to set aside the ex parte decree. The said ex parte decree was set aside since he did not object to the petition. Even after that, the petitioner was not ready to put-forth her case. Again, the petitioner was set ex parte and an ex parte decree passed on 17. 1997. Thereafter, the petitioner filed a petition to set aside the ex parte decree with a delay excuse petition and the delay excuse petition in pending for disposal before the Additional Subordinate Judge, Tirunelveli. The above facts have been wilfully suppressed by the petitioner in this petitions. It is further stated that since the petitioner did not obey the decree of the Additional Subordinate Judge, Tirunelveli passed in H.M.O.P.No.36 of 1995 and she did not come to live with him at his working place in spite of his repeated requests, he was constrained to file a petition for the dissolution of marriage solemnised between him and the petitioner on 23. 1992 by a decree of divorce on the ground that there has been no restitution of conjugal rights between him and the petitioner for more than a statutory period after passing of the decree for restitution of conjugal rights. under Sec.13(1A)(ii) of Hindu Marriage Act, 1955 on the file of the Additional Subordinate Judge, Tirunelveli. 1992 by a decree of divorce on the ground that there has been no restitution of conjugal rights between him and the petitioner for more than a statutory period after passing of the decree for restitution of conjugal rights. under Sec.13(1A)(ii) of Hindu Marriage Act, 1955 on the file of the Additional Subordinate Judge, Tirunelveli. The petitioner entered appearance and filed a counter. Even in the conciliation and counseling conducted by the Additional Subordinate Judge, the petitioner refused to come and live with him. Meanwhile, the petitioner has filed O.P.No.45 of 1998 before the Sub Court, Tuticorin for the very same relief. The said petition is not maintainable. If the real intention of the petitioner is to come and live with him she would have approached the court either to record the full satisfaction of the decree or to execute the same. But she has filed the aforesaid H.M.O.P.No.45 of 1998 to drop on the proceedings and cause hardship to him at the cost of his youthful life. The provision mentioned in Sec.21A(2)(b) of Hindu Marriage Act is not applicable to the present case since his earlier petition H.M.O.P.No.36 of 1995 which was filed on 12. 1995 is pending before the Additional Sub Court, Tirunelveli for the disposal of the delay excuse petition filed by the petitioner. The petitioner has filed H.M.O.P.No.45 of 1998 before the Sub Court, Tuticorin only on 24. 1998 i.e., after 3 years. With these averments, he prayed for dismissal of the transfer petition. 4. In the light of the above pleadings, I have heard the learned counsel for the petitioner as well as respondent. .5. It is true that as per Sec.21-A(2)(b) of Hindu Marriage Act, if two petitions are presented to different District Courts, the petitioner presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District court in which the earlier petition was presented. By pointing out the said provision, learned counsel for the petitioner would contend that inasmuch as the petitioner has filed O.P.No.45 of 1998 on the file of the Subordinate Judge, Tuticorin seeking a decree for restitution of conjugal rights even in the year 1998, the subsequent petition H.M.O.P.No.113 of 1999 filed by the respondent-husband on 17. By pointing out the said provision, learned counsel for the petitioner would contend that inasmuch as the petitioner has filed O.P.No.45 of 1998 on the file of the Subordinate Judge, Tuticorin seeking a decree for restitution of conjugal rights even in the year 1998, the subsequent petition H.M.O.P.No.113 of 1999 filed by the respondent-husband on 17. 1999 before the Additional Sub Court, Tirunelveli has to be transferred to the Sub Court, Tuticorin. In the normal circumstance in view of Sec.21-A(2)(b) of the Hindu Marriage Act, O.P.No.113 of 1999 filed by the respondent-husband has to be transferred to the Sub Court, Tuticorin. However, the said general rule is not applicable to the facts of the case for the following reasons. 6. There is no dispute that the marriage between the petitioner and the respondent took place on 23. 1992 at Tuticorin. They lived together some time at Tuticorin as well as at Tirunelveli. The respondent-husband is a Sidha doctor in the Government service. It is the definite case of the respondent that the petitioner is not willing to lead a marital life with him at his working place and she was very adamant that she will live only with her parents at Tuticorin. It is also the definite case of the respondent that in spite of his efforts and the intervention of the elders interested in the family welfare, she refused to come over to his working place to live with him. So he was constrained to file H.M.O.P.No.36 of 1995 on the file of the Subordinate Judge, Tirunelveli for restitution of conjugal rights even on 12. 1995. Even though the petitioner herein entered appearance in the said petition, she did not prosecute the same and she was set ex parte. On the application made by the petitioner, the ex parte decree was set aside since the respondent did not object to the said petition. It is further seen that even after setting aside the first ex parte decree, on the second occasion, the petitioner was set ex parte and an ex parte decree was passed on 17. 1997. Again the petitioner has filed a petition to set aside the ex parte decree with a delay excuse petition and the delay excuse petition is pending for disposal before the Additional Sub Court, Tirunelveli. All these details have been mentioned in the counter-affidavit filed by the respondent. 1997. Again the petitioner has filed a petition to set aside the ex parte decree with a delay excuse petition and the delay excuse petition is pending for disposal before the Additional Sub Court, Tirunelveli. All these details have been mentioned in the counter-affidavit filed by the respondent. These material particulars have not been mentioned by the petitioner-wife in the present affidavit filed in support of the transfer petition. On the other hand, the present petition proceeds that because of the attitude of the respondent she constrained to file H.M.O.P.No.45 of 1998 before the Sub Court, Tuticorin for decree for restitution of conjugal rights, No doubt, only in the year 1999 i.e., on 17. 1999 the respondent has filed a petition for divorce in H.M.O.P.No.113 of 1999 that is subsequent to the filing of H.M.O.P.No.45 of 1998 by the wife. It is the definite case of the respondent that in spite of passing of decree in H.M.O.P.No.36 of 1995 on the file of Subordinate Judge, Tirunelveli the wife die not come and live with him at his working place. Hence, he was constrained to file a petition in H.M.O.P.No.113 of 1999 under Sec.13 (1A)(ii) of Hindu Marriage Act before the Sub Court, Tirunelveli for divorce. The various dates and events furnished by the respondent would clearly show that the petitioner. Wife has not approached this court with clean hands. It is seen that on 110. 1994 the respondent sent a notice through his advocate for restitution of conjugal rights. On 210. 1994 the petitioner received the said notice, but the neither replied nor obliged to join with the respondent, on 12. 1995 the respondent filed a petition in H.M.O.P.36 of 1995 before the Sub Court, Tirunelveli for restitution of conjugal rights. On 27. 1995 the petitioner entered appearance through her advocate in H.M.O.P.No.36 of 1995. On 3. 1996 she filed a counter in that petition. On 19. 1996 an ex parte decree was passed against her. She filed I.A.No.141 of 1996 to set aside the ex parte decree and the same was allowed on 1. 1997 since the respondent husband made an endorsement and reported no instruction. Again on 17. 1997 an ex parte decree was passed. against the petitioner in H.M.O.P.No.36 of 1995. On 29. 1997 the petitioner filed a petition to set aside the ex parte decree with a delay excuse petition in H.M.O.P.No.36 of 1995. 1997 since the respondent husband made an endorsement and reported no instruction. Again on 17. 1997 an ex parte decree was passed. against the petitioner in H.M.O.P.No.36 of 1995. On 29. 1997 the petitioner filed a petition to set aside the ex parte decree with a delay excuse petition in H.M.O.P.No.36 of 1995. The delay excuse petition is numbered as I.A.No.63 of 1998 and is pending for disposal. After filing a petition to set aside the ex parte decree passed in H.M.O.P.No.36 of 1995, the petitioner sent a notice through her advocate for restitution of conjugal rights. It is further seen that after filing of the petition to set aside the ex parte decree for restitution of conjugal rights passed in H.M.O.P.No.36 of 1995 and after sending a notice through her advocate, the petitioner filed a petition in H.M.O.P.No.45 of 1998 on the file of Subordinate Judge, Tuticorin on 24. 1998. The respondent sent a reply to the counsel for the petitioner through his advocate on 5. 1998. On 17. 1999 the respondent filed a petition for dissolution of marriage in H.M.O.P.No.113 of 1999 on the file of the Sub Judge, Tirunelveli. On 28. 1999 on the petitioner entered appearance in the said O.P. The above factual aspects coupled with the suppression of the earlier H.M.O.P.No.36 of 1995 filed by the respondent and the subsequent decree, I am of the view, that it is an exceptional case and the rule provided under Sec.21-A(2)(b) of the Hindu Marriage Act is not applicable and the petitioner is not entitled an order of transfer as claimed in this petition. The petitioner has suppressed the earlier petition H.M.O.P.36 of 1995 filed by the respondent even on 12. 1995 and the same is pending before the Additional Sub Court Tirunelveli with the delay excuse petition I.A.No.63 of 1998 filed by her. The petitioner has filed H.M.O.P.No.45 of 1998 on the file of Subordinate Judge, Tuticorin only on 24. 1998, i.e., after nearly 3 years. In view of the fact that the condition and procedure prescribed in Sec.21-A(2)(b) of the Hindu Marriage Act is not applicable to the facts of this case and the order under Sec.24 of the Code of Civil Procedure being a discretionary one, in view of the fact that the petitioner has suppressed the material facts, I am constrained to dismiss the transfer petition. Accordingly, Transfer C.M.P.No.19642 of 1999 is dismissed. Accordingly, Transfer C.M.P.No.19642 of 1999 is dismissed. No costs. Consequently, the stay petition C.M.P.No.19643 of 1999 is also dismissed.