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2007 DIGILAW 593 (MAD)

Vijaya Lakshmi @ Sindhuja v. R. Suresh Kumar

2007-02-16

S.ASHOK KUMAR

body2007
Judgment :- This Transfer Civil Miscellaneous Petition has been filed to withdraw the O.P.No:277 of 2006 from the file of the II Additional Family Court, Chennai and transfer the same to the Subordinate Court, Dindigal. 2. According to the petitioner wife, because of the ill-treatment meted out to her by the respondent/husband and it is very unsafe to live along with him, she left the matrimonial home and began to live with her parents at Dindugal along with her twin children. The respondent/husband originally filed O.P.No.208 of 2005 for restitution of conjugal rights. At the same time, the respondent threatened her with dire consequences if she appears in the court and contest the case. Hence the said O.P.was ordered exparte. The petitioner thereafter filed O.P.No.41 of 2005 on the file of the Sub court Dindugal under Section 10 of the Hindu Marriage Act for granting judicial separation. But since she wanted to live with the respondent, she withdrawn the said O.P. But as a counterblast to her O.P., the respondent filed O.P.No.277 of 2006 before the II Additional Family Judge, Chennai for divorce. The first hearing of the case was posted on 3. 2006. Since already there was a threat from the respondent and also her children were having their annual examination on that day she could not appear and she sent her brother to explain the position. But the family court set her exparte. Thereafter she filed I.A.No.815 of 2006 to set aside the ex parte order and the same was ordered on 23. 2006 and again the O.P., was posted to 15. 2006. .3. It is now averred by the petitioner that she is afraid to attend the court at Chennai. She also finds it difficult to all the way come from Dindigul which is about 400 Kms from Chennai to attend the hearing. Further, being unemployed, she is unable to meet the expenses for travelling and staying at Chennai, apart from leaving the two children at Dindigal. Therefore, the petitioner prays that the O.P.filed by the respondent/husband before the Family Court shall be withdrawn and transferred to the Subordinate Court, Dindigal where the O.P., filed by her is pending. 4. Further, being unemployed, she is unable to meet the expenses for travelling and staying at Chennai, apart from leaving the two children at Dindigal. Therefore, the petitioner prays that the O.P.filed by the respondent/husband before the Family Court shall be withdrawn and transferred to the Subordinate Court, Dindigal where the O.P., filed by her is pending. 4. The respondent/husband filed a counter affidavit denying the allegation of cruelty and further contended that it is only the petitioner/wife extracting money from him for various reasons and she was diverting the same to her parents family and when questioned about the same, she left the matrimonial home. While strongly objecting the transfer of the case to Dindigul Court, the respondent states that since he is employed in the Secretariat, Chennai he has to take leave on every hearing if the case is transferred to Dindigul and he is ready to bear the travelling expenses for the petitioner to attend the proceedings before the Family Court at Chennai. 5. However, taking into consideration of the allegations made against the respondent/husband that he is threatening her to contest the case, and also the convenience of the wife, being a female to travel all the way from Dindugal to Chennai, I am of the considered opinion that it is just and necessary that the O.P.No:277 of 2006, which is only a counterblast petition to the petition filed under Section 10 of the Act by the wife at Dindugal, shall be transferred to the Subordinate Court, Dindugal. .6. For the legal proposition that in transfer of HMOP cases the convenience of the wife has to be taken into consideration, the decision of the Supreme Court in Neelam Kanwar Vs. Devinder Singh Kanwar, reported in 2000 (10) SCC 589 has been relied upon, 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"... 7. In this case as well, there is no special reason shown in favour of the husband for not transferring the case to the Court at Dindugal. No such special reason is shown"... 7. In this case as well, there is no special reason shown in favour of the husband for not transferring the case to the Court at Dindugal. Moreover, the distance between Chennai and Dindugal is nearly 400 kilometers and I am of the view that considering the convenience of the wife, being a lady, the pending OP.No.277 of 2006 shall be withdrawn from the file of the II Addl. Family Court, Chennai and transferred to the Subordinate Court, Dindugal, as prayed for by the petitioner/wife. 8. In the result, this Tr.CMP is allowed and the MOP.No.277 of 2006 pending on the file of the II Additional Family Court, Chennai is withdrawn and directed to be transferred to the file of the Subordinate Judge, Dindugal, who shall take up the same along with the petition filed by the petitioner/wife and pass necessary orders on merits and in accordance with law. No costs.