K. Sowmiya @ Sharmila v. V. Sathish @ Sathish Kumar
2007-02-26
S.ASHOK KUMAR
body2007
DigiLaw.ai
Judgment :- This Transfer Civil Miscellaneous Petition has been filed to withdraw the OP.No: 761 of 2005 pending on the file of the learned II Additional Judge, Family Court, Chennai, and transfer the same to the file of the learned Subordinate Judge at Arni. 2. The petitioner/wife in her affidavit alleged that she was sent out of matrimonial house by the respondent house and she is now residing at Arni with her mother. The respondent filed OP.No:761 of 2005 before the II Additional Judge, Family Court, Chennai seeking divorce, for which the petitioner filed a counter expressing her willingness to live with the respondent. She also filed a petition in FCOP No.52 of 2006 before the Sub Court, Arni seeking restitution of conjugal rights and the same is pending adjudication. The petitioner alleges that to attend the hearing in the Chennai Family Court, she has to leave the house in the odd hours namely at 3.00 a.m., in the morning apart from spending Rs.350/= per visit to Chennai from Arni. Therefore she prays for transfer of the case from Chennai to Arni for joint trial along with her petition for restitution of conjugal rights. 3. However, learned counsel for the respondent submits that the HMPOP filed by him before the II Additional Judge, Family Court, Chennai is posted for taking evidence and at this stage it cannot be transferred. 4. However, taking into consideration of the facts and circumstances of the case and also the difficulty of the petitioner, being a lady in attending the hearing of the case at Chennai by coming all the way from Arni by starting her journey in the early hours of the day, I am of the considered view that the HMOP filed by the respondent/husband has to be transferred to the Sub Court, Arni. 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.
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"... 5. In this case as well, there is no special reason shown in favour of the husband for not transferring the case to the Sub Court at Arni. Moreover, the distance between Chennai and Arni is within 100 kilometers which distance, the husband could easily travel, and I am of the view that considering the convenience of the wife, being a lady, the pending OP.No. 761 of 2005 shall be withdrawn from the file of the II Addl.Family Court, Chennai and transferred to the Subordinate Court, Arni, as prayed for by the petitioner/wife. 6. In the circumstance, this Tr.CMP is allowed directing the learned II Additional Judge, Family Court, Chennai, to withdraw and transfer the OP.No: 761 of 2005 pending on his file and transfer the same to the file of the learned Subordinate Judge at Arni. 7. Consequently, connected MP is closed. No costs.