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2007 DIGILAW 212 (MAD)

Indumathi v. V. Krishnamurthy

2007-01-20

S.ASHOK KUMAR

body2007
Judgment :- This Transfer CMP has been filed by the wife to withdraw the HMOP No.146 of 2003 pending on the file of the Family Court, Pondicherry and transfer the same to the file of the Subordinate Court, Cuddalore. 2. In the affidavit filed in support of this petition, the petitioner/wife alleged that on the earlier occasion the husband filed HMOP No.146 of 1997 for divorce and the petitioner/wife also filed HMOP NO.78 of 1998 for restitution of conjugal rights. The petition filed by the husband for divorce was dismissed and the petition filed by the wife for restitution of conjugal rights was allowed. The appeals in CMA Nos:55 and 56 of 2001 filed by the husband against the said orders were also dismissed. The petitioner/wife also filed E.P., for payment of maintenance as per the decree. But the respondent/husband after a lapse of one year again filed the present HMOP.No.146 of 2003 on the file of the Family Court, Pondicherry for divorce on the same ground. The petitioner is defending the said OP as not maintainable. A Civil Revision Petition in CRP.No.2621 of 2003 filed by the wife was dismissed by this court with a direction to the learned Family Court Judge, Pondicherry to consider the plea of the petitioner as to the maintainability of the HMOP at the first instance. Thereafter the petitioner/wife filed I.A.No:358 of 2004 to decide the issue of maintainability as the preliminary issue. But the learned Family Court Judge without even directing the husband to file a counter, is insisting the petitioner/wife to go for counselling before the Conciliation Officer. But the petitioner/wife was not agreeable. While the matter stood thus, on 16. 2004, the petitioner/wife filed two applications for return of Sridhana properties and for enhancement of the maintenance. But the learned Family Court Judge without accepting one of the application filed for return of Sridhana properties, only forcing the petitioner/wife to get a consent divorce before the Conciliation Officer. 3. The petitioner/wife also alleges that the Presiding Officer is threatening her by saying that he had already recorded her adamant behaviour in the docket orders and compelled her to got for conciliation. The memo filed by the petitioner on 16. 2004 was rejected citing various reasons and according to the petitioner she was not even furnished with a copy of the orders. The memo filed by the petitioner on 16. 2004 was rejected citing various reasons and according to the petitioner she was not even furnished with a copy of the orders. Thus, according to the petitioner, it is abundantly clear that the Presiding Officer is taking sides with the respondent/husband to force her to accept for a consent divorce and the learned Presiding Officer is not following the directions of this court to decide the issue of maintainability of the HMOP. 4. According to the petitioner, even after filing of copy application, the certified copies of the orders passed in the memo dated 16. 2004 and the docket orders passed in the HMOP.No.146 of 2003 are not being furnished to her and this is only to prevent her from filing any CRP before this Court. 5. Admittedly as seen from the earlier proceedings, the petitioner/wife is entitled to raise the preliminary issue of maintainability of the present HMOP. The allegation in the affidavit is to the effect that the Presiding Officer of the Family Court is not taking up the said application and is only insisting the petitioner to go for a conciliation and get a consent divorce. But now the learned counsel for the petitioner submits that she is not pressing such ground as it does not persists since the Presiding Officer against whom such allegations were made has been transferred and she prayed for transfer of the HMOP on the ground of convenience of the parties. In support of her contention Learned counsel also placed reliance on the decision of the Supreme Court in Neelam Kanwar Vs. Devinder Singh Kanwar, reported in 2000 (10) SCC 589 wherein Their Lordships have held as follows:- "4...We are mindful of the fact that the petitioner is a lady and the first respondent is a male and therefore convenience-wise a transfer to the place where the lady is residing would be preferred by this Court, unless it is shown that there are special reasons not to do so. No such special reason is shown"... 6. In this case as well, there is no special reason shown in favour of the husband for not transferring the case to a court at Cuddalore. No such special reason is shown"... 6. In this case as well, there is no special reason shown in favour of the husband for not transferring the case to a court at Cuddalore. Moreover, the distance between Pondicherry and Cuddalore is only within 25 kilometers and I am of the view that considering the convenience of the wife, being a lady, the pending HMOP.No.146 of 2003 shall be withdrawn and transferred to the Subordinate Court, Cuddalore, as prayed for by the petitioner/wife. 7. In the result, this Tr.CMP is allowed and the HMOP.No.146 of 2003 pending on the file of the Family Court, Pondicherry is withdrawn and directed to be transferred to the file of the Subordinate Judge, Cuddalore, who shall take up the pending applications and HMOP and pass necessary orders on merits and in accordance with law. Consequently, connected CMP is closed. No costs.