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2010 DIGILAW 196 (MAD)

Dr. B. Suchitra v. Dr. M. Jeyasimman

2010-01-20

M.JEYAPAUL

body2010
Judgment :- 1. The husband who file H.M.O.P. No. 236 of 2009 on the file of the Principal Sub-Court, Erode seeking restitution of conjugal rights has filed the Tr. C.M.P. Nos. 11,12 and 13 of 2010 seeking transfer of the cases in M.C. No. 97 of 2009, H.M.O.P. No. 588 of 2009 and G.W.O.P. No. 974 of 2009 pending on the file of the Family Court, Coimbatore to the file of Principal Sub-Court, Erode for disposal according to law. 2. The wife who has filed M.C. No. 97 of 2009 praying for maintenance, H.M.O.P. No. 588 of 2009 praying for judicial separation and G.W.O.P. No. 974 of 2009 praying to appoint her as Guardian for the minor child, filed Tr. C.M.P. No. 458 of 2009 seeking transfer of the case filed by her husband in H.M.O.P. No. 236 of 2009 pending on the file of Principal Sub-Court, Erode to the file of the Family Court, Coimbatore. 3. Thehusband has contended in Tr. C.M.P. No. 11, 12 and 13 of 2010 that treatment was given to the child afflicted with autism only at Erode during the happy married life spent by the husband and wife. Even after the wife started residing at Erode, the child had to be brought to Krithika Speech Centre at Erode twice a week for the purpose of giving speech therapy to the child. Therefore, the wife can come down along with the child afflicted with autism to Erode and join the husband or have a separate house at Erode for the welfare of the child. Since the health condition of the child has deteriorated, the husband seeks transfer of all the cases pending on the file of Family Court, Coimbatore to the file of the Principal Sub-Court Erode. 4. The Wife has contended that due to cruelty committed by the husband, she and her son have taken refuge in her maternal grandfather’s house at Coimbatore. It is submitted that it is well high impossible for the wife to attend the hearings before the Court at Erode. It is further contended that she cannot undertake her journey leaving her minor son in the lurch. 5. The learned counsel appearing for the wife would submit that the child aged about 8 Years afflicted with autism is taking special treatment at Coimbatore. It is further contended that she cannot undertake her journey leaving her minor son in the lurch. 5. The learned counsel appearing for the wife would submit that the child aged about 8 Years afflicted with autism is taking special treatment at Coimbatore. The wife is also residing in the house of her grandfather at coimbatore for the sake of the child, leaving her parental home at Tiruppur. It is his further submission that the wife has virtually left her job in order to take care of the child. It would be quite impossible for her to travel to Erode leaving behind the child afflicted with autism. Therefore, the learned counsel appearing for the wife would submit that a case filed by the husband for restitution of conjugal rights may be transferred to Coimbatore. 6. Per contra, the learned counsel appearing for the husband would submit that if the child is brought to Erode, specialized treatment could be given. For about five long years when the child was given had been living happily at Erode the child was given at most care and treatment at Erode. Now, the wife is residing in the house of her grandfather, even not in the house of her father at Tiruppur. It is further submitted that the husband is working as Medical Practitioner in Government Hospital at Erode. Considering the welfare of the child afflicted with autism, all the three cases pending on the file of Family Court, Coimbatore may be transferred to the file of the Principal Sub-Court, Erode. 7. There is no dispute to the fact that eight years old child born to the husband and wife who are now at loggerhead is afflicted with autism. There is also no dispute to the fact that the wife had left the parental house at Tiruppur and started living in Coimbatore in the house of her grandfather. The child is now in Coimbatore taking treatment over there. 8. The Court finds that the child aged 8 years afflicted with autism cannot be taken by the wife to Erode from Coimbatore for all the hearings. The grandfather who is reportedly aged about 90 years also cannot accompany the wife all the way to Erode for the purpose of attending the hearing of the case filed by the husband at Erode. The grandfather who is reportedly aged about 90 years also cannot accompany the wife all the way to Erode for the purpose of attending the hearing of the case filed by the husband at Erode. The child will have to be given at most care throughout the day on account of the ailment he is suffering from. Long duration separation of the mother from such child would definitely be a trauma for the chilled who would like to have the love and affection of the parents. As per the Amendment introduced to Section 19 of the Hindu Marriage Act, 1955 in the year 2003, the wife can maintain a matrimonial lis where she is actually residing on the date of presentation of Petition. 9. Thegrievance of the husband is that the child with ailment can be brought to Erode for special treatment, Such a plea before this Court has nothing to do with the transfer Petitions filed by the respective parties. If at all the father is aggrieved by the treatment given to his child, he has to approach the competent Court where matrimonial case is pending seeking proper relief. The employment of the husband in Government hospitals as a Doctor in Erode cannot be a sufficient reason for transfer, more especially in the face of the hardships that would be faced by the wife if the cases filed by her are transferred to Erode. 10. This Court of course has held in Sudha v. Vaidyanathan, 2001 AIHC 1567, that a different yardstick cannot be adopted while setting aside an Application for transfer on the sole basis of the sex of the parties concerned Having made such a general observation, this Court has held therein that the request of a woman having custody of a tender child aged below 5 years for transfer should be allowed. 11. Of course, the Transfer Petition is not decided by this Court based on the gender of the parties concerned. In the instant case, the child is aged about 8 years but the child is afflicted with autism. Such a child will have to be taken care of round the clock by the father or the mother as the case may be. In the instant case, the child is aged about 8 years but the child is afflicted with autism. Such a child will have to be taken care of round the clock by the father or the mother as the case may be. The mother is now taking care of the child at Coimbatore with the assistance of her grandfather aged about 90 years, It would be unfair and unjust to direct the wife taking care of such a child round the clock leaving her job, to go over to Erode covering about 100 k.m. to contest the case launched by her husband for restitution of conjugal rights. 12. In view of the above facts and circumstances, the Court finds that the wife has made out a case for transfer of the case filed by her husband at Erode to Coimbatore whereas the husband failed to convince the Court for transfer of the cases filed by the wife as against him at Coimbatore to the Court at Erode where the case filed by him is pending disposal. No prejudice will be caused to the husband if he travels about 100 k.m. to attend the cases launched by her wife who is living in Coimbatore taking care of a child afflicted with autism. 13. In the result, Tr. C.M.P. Nos. 11, 12 and 13 of 2010 stand dismissed and Tr. C.M.P. No. 458 of 2009 is allowed. As a consequence, the case in H.M.O.P. No. 236 of 2009 pending on the file of Principal Sub-Court, Erode stands withdrawn and transferred to the file of Family Court, Coimbatore to be tried along with H.M.O.P. No. 588 of 2009. There is no order as to cost Connected Miscellaneous Petition is closed. 14. Considering the nature of the case, the Family Court, Coimbatore is directed to dispose of the case in H.M.O.P. No. 236 of 2009 as expeditiously as possible.