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2012 DIGILAW 1286 (MAD)

Archana Devi v. E. Sriram

2012-03-09

K.SUGUNA

body2012
ORDER 1. This Transfer C.M.P. is filed by one Archana Devi, wife of the respondent herein, seeking transfer of H.M.O.P. No. 407 of 2011 pending on the file of the Sub-Court, Tambaram to any Court at Madurai. 2. The petitioner has sought transfer of the above said H.M.O.P. on the ground that she cannot travel alone from Madurai to Chennai. Yet another ground taken by the petitioner for transfer is that she is compelled to give consent for divorce; therefore, she had filed a petition under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005, before the Judicial Magistrate Court No. II, Madurai; besides, since the petitioner had refused to give consent for divorce, as a counterblast, H.M.O.P. No. 407 of 2011 in filed by the respondent, before the Sub-Court, Tambaram; that apart, to attend the case, she cannot come alone to Chennai; consequently, she has filed this Transfer C.M.P. Based on these submissions, the learned counsel for the petitioner has sought transfer of H.M.O.P. No. 407 of 2011 on the file of the Sub-Court, Tambaram to any Court at Madurai. 3. On the other hand, according to the learned counsel for the respondent, even as on date, the petitioner is travelling from Madurai to Bangalore and she had also gone to the United States of America and in support of this contention, the learned counsel for the respondent has relied on the averment made in this regard in the counter affidavit filed by the respondent; under such circumstances, the stand of the petitioner that she cannot travel alone to Chennai, cannot be accepted. The learned counsel for the respondent has further submitted that the respondent unnecessarily harassed for no fault of him and also a false case has been foisted against him; hence, H.M.O.P. No. 407 should not be transferred. It is further, submission that the respondent is working on a monthly salary basis; in the event of the case being transferred to Madurai, he will not be in a position to attend every hearing of the case at Madurai. 4. Yet another stand taken by the learned counsel for the respondent is that the respondent is willing to bear all the expenses of the petitioner in connection with her attending each hearing of the case if the case is held at chennai. 4. Yet another stand taken by the learned counsel for the respondent is that the respondent is willing to bear all the expenses of the petitioner in connection with her attending each hearing of the case if the case is held at chennai. Besides, relying on the following judgments, the further stand of the learned counsel for the respondent is that even as per the orders of the Hon’ble Apex Court, leniency shown with regard to transfer of Family Court matters on the request of ladies is misused by them and based on their request alone, unless there exists a genuine ground, transfer should not be ordered. Gayatri Mohapatra v. Ashil Kumar Panda (2003) 11 SCC 731, (paragraph no. 4) “From the above allegations and counter-allegations, it is clear that the petitioner has travelled from one place to another and the ground that she will not be able to travel, cannot be a valid ground to seek transfer of the case. We, therefore, dismiss the transfer petition. No costs.” Teena Chhabra v. Manish Chhabra (2004) 13 SCC 411 , (paragraph nos. 1-3) “This petition seeking transfer of Petition No. 1689 of 2002, titled an Manish Chhabra v. Teena Chhabra (supra) pending in the family Court at Bandra, Mumbai, to the Court of District Judge, Chandigarh, is filed by the wife on the ground that she is totally dependent, on her parents and she has no source of income to travel to Bombay to attend the Court proceedings. 2. At the hearing, the learned counsel for the respondent husband submitted that the respondent is ready and willing to bear the expenses of the petitioner wife from Chandigarh to Bombay, whenever her presence is required at Bombay for the purpose of this, case, by second class train fare. 3. Having regard to the facts and circumstances of the case, we dismiss this transfer petition, subject to the condition that, the respondent will bear the travel expenses of the petitioner from Chandigarh to Bombay, whenever her presence is required at Bombay for the purpose of this case, by second class train fare and rupees five hundred towards incidental expenses for lodging and boarding.” M. Sivagami v. A. Raja (2005) 12 SCC 301 , (paragraph nos. 3 to 5) “3. 3 to 5) “3. Before us it appears that the grievance of the appellant is basically that she has to spend a huge amount of money for travelling by bus from Namakkal to Coimbatore covering the distance of 160 km. 4. In the circumstances, we dispose of the appeal by modifying the order of the High Court by directing the respondent husband to pay a sum of Rs. 5,000 by way of initial litigation costs to the appellant in order to cover the costs of her and her witnesses coming from Namakkal to Coimbatore and for other expenses related thereto. Such payment of Rs. 5,000 shall be made by the respondent, husband to the appellant wife by 1.3.2005. 5. It appears that, in the meanwhile, by reason of non-participation of the appellate wife, the Family Court had set down the matter for hearing ex parte for 1.3.2005. Having regard to the subsequent facts, that order is set aside and the Family Court, Coimbatore, will proceed with the matter by fixing fresh date for hearing after giving notice to the parties. It is made clear that the cost of Rs. 1,000 (sic 5,000) has been made on the basis of Rs. 500 per witness. In the event the appellant has to call for more witnesses the respondent husband shall pay the higher proportionate amount in addition to Rs. 5,000.” Anindita Das v. Srijit Das (2006) 9 SCC 197 : LNIND 2005 SC 652, (paragraph nos. 3 to 5) “3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then, it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this Court. On an average at least 10 to 15 transfer petitions are on board of each Court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. 4. This Court is now required to consider each petition on its merit. In this case, the ground taken by the wife is that she has a small child’ and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. 4. This Court is now required to consider each petition on its merit. In this case, the ground taken by the wife is that she has a small child’ and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the Court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met. 5. 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 merit. Hence, no ground for transfer has been made out..” 5. This Court has considered the above submissions of the learned counsel on either side. 6. As referred to above, transfer is sought by the petitioner on two grounds. The first ground is that she cannot travel alone from Madurai to Chennai. But, a specific plea has been raised in the counter affidavit that the petitioner is travelling from Madurai to Bangalore and to other places and she had also travelled to the United States of America and this is not denied by the petitioner by filing a reply affidavit. Consequently, based on the first ground, the petitioner is not entitled to the relief sought. 7. The second ground urged by the learned counsel for the petitioner is that since the petitioner had refused to give consent for divorce, she has been harassed, consequently, she had lodged a police complaint. Hereagain, there is no whisper in the particular paragraph to the effect that while attending the case, whether any threat has been made by the respondent herein and there is no whisper also in the affidavit to the effect that any risk is faced by her while attending the case. The allegation is that when she refused to give consent for divorce, as a counterblast, H.M.O.P. No. 407 of 2011 has been filed. The allegation is that when she refused to give consent for divorce, as a counterblast, H.M.O.P. No. 407 of 2011 has been filed. To the question as to whether based on this, one can infer risk, this Court has to give only a negative answer and when the petitioner is able to travel alone even to a foreign country, her stand that she cannot travel alone from Madurai to Chennai is totally un-acceptable. Apart from this, even according to the learned counsel for the petitioner, the petitioner is un-employed and now, the case is pending before the Sub-Court, Tambaram. If the case has to be transferred to Madurai, since this is a family issue, it has to be transferred to a Family Court at Madurai wherein the presence of the parties is required for each hearing and when the respondent is employed at Chennai, the stand of the respondent that attending every hearing of the case will have a consequence in his continuance of his job, has to be taken note of. Consequently, the relief sought, though it is only a transfer, cannot be granted. 8. However, since according to the learned counsel for the respondent, the respondent is willing to bear all the expenses of the petitioner, including travel and accommodation expenses even in a 3-star hotel, the respondent is directed to pay to the petitioner, all the expenses to be incurred by her for attending the case at Tambaram in the previous hearing itself and as far as the first hearing is concerned, the respondent has to pay to the petitioner, on the data of the said hearing. In the event of any default being committed by the respondent in this regard, the petitioner is at liberty to take appropriate steps as against the respondent. It is made clear that for every hearing, the respondent has to bear the petitioner’s entire expensess as agreed by the learned counsel for the respondent in the open Court and there should not be any deviation from this. Besides, the respondent must also file an affidavit of undertaking before the Sub-Court, Tambaram, that he will not threaten the petitioner, any way and in the event of any untoward happening, the petitioner is at liberty to approach the appropriate forum. With the above directions and observation, this Tr. C.M.P. is closed. No costs. Connected miscellaneous petition is closed. Petition dismissed.