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2006 DIGILAW 2242 (MAD)

M. S. Gayathri v. S. Natarajan

2006-08-31

K.CHANDRU

body2006
Judgment : This transfer petition has been filed by the petitioner/wife seeking for transfer of H.M.O.P. No. 896 of 2005, filed by the respondent/husband on the file of the Principal Family Court, Chennai, to the Family Court at Pondicherry to be tried jointly with the petition filed by her in M.O.P. No. 120 of 2005 and M.C. No. 26 of 2005, which are pending on the file of the Court of Principal District Family Judge, Pondicherry. 2. H.M.O.P. No. 896 of 2005 is filed by the respondent/husband, who is also a medical practitioner residing at Chennai, for grant of decree of divorce under Section 13(l)(ia) of the Hindu Marriage Act and the petition was filed in April 2005. It was thereafter in July 2005, the petitioner/wife filed a petition under Section 9 of the Hindu Marriage Act in July 2005 before the Principal District Family Court, Pondicherry, for restitution of conjugal rights, which was taken on file in M.O.P. No. 120 of 2005 and she has also filed an application under Section 125 of the Code of Civil Procedure being M.C. No.26 of 2005 claiming maintenance for her from the respondent/husband. 3. Admittedly, these two petitions are filed at later point of time, viz., three months after the husband has filed the case. However, in the affidavit filed in support of the transfer petition, she has made all sorts of allegations against the respondent/husband, which need not be reproduced here. In paragraph 11 of the affidavit, she has stated that as she was preparing for the supplementary examination, she was not in a position to attend the Court proceedings in Chennai. She has also stated that her father is a businessman and her mother is a housewife and both of them cannot accompany her to the Court in Chennai. It was on these grounds, she sought for transfer of the proceedings pending on the file of the Principal Family Court, Chennai, to the Family Court at Pondicherry. 4. Opposing this petition, the respondent/husband filed a counter affidavit stating that the petitioner has filed the above petitions after his instituting the case at Chennai and, therefore, his case was filed at the earlier point of time. 4. Opposing this petition, the respondent/husband filed a counter affidavit stating that the petitioner has filed the above petitions after his instituting the case at Chennai and, therefore, his case was filed at the earlier point of time. He has also stated that the petitioner is a Doctor and she has got a car of her own and earlier, she stayed at Chennai only and if he goes to Pondicherry, he may be inflicted with physical harm. He has further stated that on earlier occasion, the petitioner had also given a Police complaint against him. 5. There is no quarrel that the proceedings cannot be conducted parallelly before two forums and all the cases instituted by the petitioner and the respondent in this regard must be tried by the same forum. It is also not in dispute that the Family Courts are in Chennai as well as in Pondicherry. The only question that arises is as to which is the forum best suited for trying the cases instituted by both the parties and where the balance of convenience requires, so that the cases may be transferred to that forum and the parties can have a joint trial of all the matters. 6. The learnedcounsel, Thiru. S. Thirumavalavan, appearing for the petitioner submits that the petitioner/wife cannot come to Chennai every time and though she is a Doctor, she is not doing any practice at the moment and that since both the cities have Family Courts, there will not be any difficulty for the respondent/husband to come to Pondicherry for attending the hearing. 7. However, Thiru P.V.S. Giridhar appearing for the respondent/husband strenuously contended that one should not show sympathy for wife on the ground that woman deserves sympathy and the matter should be proceeded in terms of legal issues, which are already settled. 8. 7. However, Thiru P.V.S. Giridhar appearing for the respondent/husband strenuously contended that one should not show sympathy for wife on the ground that woman deserves sympathy and the matter should be proceeded in terms of legal issues, which are already settled. 8. In support of his contention, the learned counsel relied upon the decision reported in Sudha v. Vaidyanathan 2000 (2) TLNJ 158, where this Court has given certain guidelines, which are as follows: “I feel that the following guidelines may be helpful in dealing with most of the applications seeking for transfer: (a) If the woman has the custody of any child, born out of wedlock, less than five years of age; (b) If any one of the spouse suffers due to any physical disability; or any chronic illness as would render him or her difficult to travel which should be duly certified by a Surgeon/physician in Government service; (c) Where the respondent in transfer petition does not have objection to the transfer or where the respondent in the transfer petition also resides in the same place; (d) Where the joint trial of proceedings pending in two places are sought for, it would be decided on the basis of the date of filing the petition and the petition filed subsequently will be transferred to the place where the earlier petition had been filed; (e) Last place of residence should be a permanent place or if temporary, for an indefinite period of residence and not a place where the living was only casual or transitory; (f) When there is positive evidence such as police, complaint, etc., at the husbands place, prima facie establishing that the wife had been subjected to physical torture or dowry harassment; (g) If none of the aforementioned nor any other justifiable reason is available for transfer, then the person seeking transfer should be ready to pay the incidental expenses, like travelling expenses, for stay during the hearing to the other spouse, either a consolidated amount or fixed amount for each hearing should be paid during the previous hearing itself”. 9. Therefore, it is the submission of the learned counsel for the respondent/husband that since the petitioner/wife filed her cases at a later point of time and there was also a complaint given to the police, the cases pending on the file of Family Court at Pondicherry have to be transferred to Chennai. 9. Therefore, it is the submission of the learned counsel for the respondent/husband that since the petitioner/wife filed her cases at a later point of time and there was also a complaint given to the police, the cases pending on the file of Family Court at Pondicherry have to be transferred to Chennai. However, the learned counsel for the respondent failed to see that these guidelines are only illustrative situations aimed at avoiding frivolous petitions as stated by the very same learned Judge in the judgment cited supra. It was also further stated in the very same decision that each case is likely to involve peculiar features which have to be duly considered even though one of the above conditions may exist. 10. In my considered opinion, there cannot be any hard and fast rule in the matter of deciding the transfer applications. While the parties cannot be allowed to have their own course to defeat the ends of justice, yet, it is better for both the parties to have a convenient forum so that the multiplicity of proceedings can receive attention by the same Court. 11. While the power to transfer the petition in certain cases is explained under Section 21-A of the Hindu Marriage Act, 1955, yet, the power of the Court not to transfer to convenient forum as provided under Section 24 C.P.C., is not excluded as per the decision of the Supreme Court in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry AIR 1981 SC 1143 : 1981 (2) SCC 646 . 12. In the above decision, the Supreme Court had an occasion to consider the effect of Section 21 A of the Hindu Marriage Act vis-a-vis provision of Section 21(3) C.P.C, where the Division Bench of the Bombay High Court held that the effect of Section 21-A of the Hindu Marriage Act, 1955 is that joint or consolidated hearing or trials of petitions other than those mentioned in that Section not being permissible, the powers under Sections 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that Section. 13. Repelling for that contention, the Supreme Court at page No. 1146 of the said decision held as follows: “Such a view in our opinion, is not correct. 13. Repelling for that contention, the Supreme Court at page No. 1146 of the said decision held as follows: “Such a view in our opinion, is not correct. As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof, Section 21 -A cannot be regarded as exhaustive for the marginal note clearly suggests that the Section deals with power to transfer petitions and direct their joint and consolidated trial,” in certain cases“. More-over, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husbands petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under Section 9 of the Act and the wifes petition for judicial separation against her husband on ground of cruelty under Section 10 of the Act in order to avoid conflicting decisions being rendered by two different Courts. In such a situation, resort will have to be had to the powers under Sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading Section 21 -A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided.” 14. Apart from this, by an amendment, Section 19(iii)(a) of the Hindu Marriage Act has been introduced by the Parliament by Section 4 of Amendment Act 50 of 2003, which reads as follows: “In case the wife is the petitioner, where she is residing on the date of presentation of the petition.” 15. Therefore, any interpretation for the present should also have the intention of the legislature, to be kept in mind and if the Parliament thinks that apart from the traditional restrictions provided under Section 19(1) to 19(3), the wife must be given a special privilege of filing petition wherever she is residing on the date of presentation of the petition, that may be taken note of by the Court while ordering the transfer petition. Therefore, it is not the case of the Court showing any sympathy to woman or wife in a matrimonial proceedings. The Parliament itself by its legislative wisdom has decided to show preference in the case of wife in choosing the place of forum to sue her husband. Therefore, it is not the case of the Court showing any sympathy to woman or wife in a matrimonial proceedings. The Parliament itself by its legislative wisdom has decided to show preference in the case of wife in choosing the place of forum to sue her husband. It was, on this basis, at many times, the traditional forums provided under Section 19(1) to 19(3) are not available to the wife. Most of the times, marriages are performed in a religious place or in a Wedding Hall outside the place where the parties reside and in the case of respondent/husband, he may be having employment with frequent transfers and, therefore, presenting the case at the place where the husband resides or last resided together may not be feasible in the present days where transfer is incidental to employment. It was with this view, preference is given to the women to choose their forum for presentation of the petitions and to institute an appropriate matrimonial proceedings so as to protect them. 16. There is no reason to disbelieve the grounds urged by the petitioner/wife that she will not have the benefit of her parents accompanying her in view of the averments made in her affidavit. In any event, if proper direction is given to the trial Court, which may try these cases together, to dispose of the same within a time frame, no party will be prejudiced and their valuable time also will be saved. 17. In the light of the above, it is hereby ordered that H.M.O.P. No. 896 of 2005, pending on the file of the Court of Principal Family Judge, Chennai, shall stand transferred to the Principal District Family Court, Pondicherry, to be tried along with M.O.P. No. 120 of 2005 and M.C. No. 26 of 2005. Since both the husband and wife are medical practitioners and they need not waste much time in attending the Court for a long time, it is hereby directed that the Principal District Family Judge, Pondicherry, shall take up these matters on priority basis and dispose of the same in accordance with law within a period of six months from this date. The learned Principal Family Judge, Chennai, is directed to send the records relating to H.M.O.P. No. 896 of 2005 within a period of one week from the date of receipt of a copy of this order to the Principal District Family Judge, Pondicherry. The Transfer C.M.P. is ordered accordingly. However, there will be no order as to costs. Consequently, C.M.P. No. 15034 of 2005 shall stand dismissed.