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2009 DIGILAW 1703 (MAD)

G. Saroja v. P. Jayavelu

2009-06-12

S.PALANIVELU

body2009
Judgment :- 1. The petitioner is wife of the respondent. Their marriage was solemnised on 3. 1993 in Nellorepet, Gudiyatham Taluk, Vellore Distirct. Due to misunderstandings between them, they got separated and both of them filed Petitions on matrimonial issues. The petitioner filed M.C. No.27 of 2008 on the file of the Judicial Magistrate, Gudiyatham, claiming maintenance from her husband. The maintenance was ordered at Rs.1,000/- p.m. payable by the respondent. That order was passed on 13. 2009 by the said Court. In the said case only chief-examination of P.W.1/petitioner was recorded and then the matter was posted for cross-examination of the petitioner. But the respondent has not come forward to cross-examined the petitioner though the Trial Court has given ample opportunities. Finally on 13. 2009, the Court below proceeded to dispose of the case by observing that the case was pending for more than five months and the respondent was not ready to cross-examination P.W1. from 11th month onwards and that the petitioner has stated that on her side there was no further evidence, hence it treated as no cross-examination and order was pronounced on merits as follows: "Respondent has to pay Rs.1,000/- per month to the petitioner as maintenance from the date of filing of the Petition every month before 5th." 2. The respondent filed H.M.O.P. No.200 of 2008 on the file the Subordinate Court, Poonamallee, for dissolution of marriage and the same is pending. This petitioner has filed the present Application for transferring the case to Sub-Court, Gudiyatham. 3. In the affidavit she has alleged that Poonamallee is 200 k.m. away from her native village and being a lady she has to seek assistance of her brother to go over to Poonamallee to defend the case, that the respondent threatened her on the very first hearing that she should accept his case for divorce otherwise she would face the consequences, that she has no relatives in Poonamallee to come and stay and conduct the proceedings, that she is under the care and custody of her brothers who are living separately and she is living with her aged mother, that she has no means of livelihood and unable to maintain herself. Due to financial constraint, it is very difficult in attending the Court, that the constant threat at the hands of the respondent while attending the Court made her to file this petition to transfer the case from Sub-Court, Poonamallee and no prejudice would be caused to the respondent if the case is transferred to the Sub-Court, Gudiyattam. 4. In the counter affidavit filed by the respondent inter alia it is stated that he was appointed as Casual Labourer on daily wages basis upto December 1993 and he was as such for more than 12 years. Then he filed W.P. No.19047 of 1994 which was allowed in his favour on 3. 2002 and on 16. 2002 after great difficulty he was appointed as Revenue Assistant at Avadi Municipal Office on 01.03.2006 as permanent staff, that he has not been confirmed as on date and hence he is unable to go and attend the Sub-Court Gudiyattam, that he has taken all the leave available for him for attending the maintenance case at Judicial Magistrate Court, Gudiyatham and he has no leave to go and attend the Sub-Court, Gudiyatham and if he is compelled to attend Sub-Court, Gudiyatham, definitely he will be terminated from his job and in this regard he has already been served with several memos from his superior authorities and his absence in the office has occurred only towards attendance in the maintenance case that if the matter is transferred as prayed for, he may loose the job and that the Petition may be dismissed. 5. It is not stated before the Court whether the respondent has taken any further proceedings on the orders passed by the Judicial Magistrate, Gudiyatham on 13. 2009. Both the parties have expressed their respective hardships. The comparitive hardships of the parties have to be weighed and the Court has to lean in favour of one party who is having more hardships. 2009. Both the parties have expressed their respective hardships. The comparitive hardships of the parties have to be weighed and the Court has to lean in favour of one party who is having more hardships. On one hand the petitioner states that she is unemployed who is under the custody of her brothers and mother and she has to take her brother to come to Court and on the other, the respondent would lament that with great difficulties he got employment in Avadi Municipality Office and on account of his absence he was served with several memos for disciplinary actions and the absence happened on account of his attending in maintenance case and if he was ordered to go to Gudiyatham for the matrimonial case there would be peril to his job. 6. In this context, the learned counsel for the petitioner relies upon decision of this Court in Subashini v. K. Sekar, 2004 (3) CTC 580 , in which it is observed that the convenience of wife must be looked into in the transfer of matrimonial cases. 7. The learned counsel for the respondent placed reliance upon a decision of the Supreme Court Rachita Dash v. Suresh Chandra Dash, 2003 (1) CTC 676, wherein Their Lordships have considered the comparitive hardships of the parties. In that case the wife is having two months baby and she had to travel 500 k.m. from Puri to attend the Court, filed Petition for transfer. The respondent/husband in his counter has stated that he is an employee in a Bank and the requirements of his duty do not permit him to take leave too often for the pursue of his case and that he would bear her travelling expenses and that the case has been transferred to a place between Raigarh and Puri. The Supreme Court transferred the case from I Additional District Court, Raigarh to the District Judge, Bhuvaneswar. 8. The Supreme Court transferred the case from I Additional District Court, Raigarh to the District Judge, Bhuvaneswar. 8. The learned counsel for the respondent also relies upon the Supreme Court decision in Anindita Das v. Srijit Das, 2006 (9) SCC 197 , wherein the Apex Court after referring to the earlier decisions of the Supreme Court on this point and concluded that it must be seen that at one stage the Supreme Court was showing leniency to ladies, since then it has been found that a large number of Transfer Petitions are filed by women taking advantage of the leniency shown by the Supreme Court, that except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for exemption and her Application will undoubtedly be considered on its merits and that there is no ground for transfer has been made out. The Supreme Court also directed the husband to pay all travel and stay expenses of the petitioner and her companion for each and every hearing when she is required to attend the Court at Delhi. 9. Following the view taken in the above said decisions, while the plight of the respondent is concerned, he has to be shown lenience. However, he would bear with the expenses for his wife to come to the Sub-Court, Poonamallee along with her companion. 10. In fine, the Transfer Civil Miscellaneous Petition is dismissed with an observation that the respondent shall bear the expenses of his wife and her companion for attending Sub-Court, Poonamallee for the matrimonial case in H.M.O.P. No.200 of 2008 for every hearing. Connected M.P. is also dismissed.