Monday, May 27, 2013

498a wife gets case transferred to own place, even though hubby contends danger to his life and limb, and goons attacked him


Notes
  • marriage in 2004. they life in Chennai. A kid is born
  • After marriage hubby gets job in Dubai
  • Husband goes to Dubai, wife goes to HER parental home
  • Even though she is living in HER parental home, duty bound wife claims he has been subject to dowry demands by her IN LAWS !
  • wife files 498a
  • wife ALSO claims maintenance from hubby
  • hubby claims he was attacked by goons and neighbours saved his dad during that attack
  • wife gets case transferred to her place saying her mother is a cancer patient and they have have NO male members to accompany her during travel



BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 08/03/2013

CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN

TR.CMP.(MD).No.27 of 2012
&
M.P.(MD)No.1 of 2012

Yogashini              ...    Petitioner

Vs.

J.P.Sunil              ...       Respondent

PRAYER

Transfer Civil Miscellaneous Petition is filed under Section 24 of
C.P.C. to withdraw and transfer H.M.O.P.No.60 of 2011 from the file of Sub Court, Kuzhithurai to the file of Sub Court, Tirunelveli.

!For Petitioner ... Mr.M.Thirunavukkarasu
^For Respondent    ... Mr.K.Sreekumaran Nair
                           
*******

:ORDER           

        The short facts of the case are as follows:-

        The respondent herein / husband has filed H.M.O.P.No.60 of 2011, on the file of Sub Court, Kuzhithurai against the petitioner herein / wife, to dissolve the marriage, which had taken place on 22.03.2004. In the said case, notice has been served on the petitioner herein. Under the circumstances, the wife has filed the above Tr.C.M.P.No.27 of 2012, to withdraw and transfer the case in H.M.O.P.No.60 of 2011, from the file of Sub Court, Kuzhithurai to the file of Sub Court, Tirunelveli.

        2. The respondent has filed counter statement which has been attested by the Consulate General of India, Dubai and opposed the transfer petition.

        3. The learned counsel for the petitioner/wife has submitted that the marriage was solemnized between the spouses on 22.03.2004 at Marthandam Town, as per Hindu Customs and Rites. Immediately after marriage, both had led their marital life at Chennai in a rented house. Out of wedlock, the petitioner gave birth to a female child on 25.01.2005. Thereafter, the respondent herein /husband got an employment at Dubai. Hence, she was forced to shift her house from Chennai to Palayamkottai, wherein her parents were residing. The highly competent counsel for the petitioner/wife has submitted that the in-laws of the petitioner had demanded dowry for which they harassed her. Hence, the petitioner had levelled a criminal complaint against the respondent herein/husband and his parents and the case has also been registered against them. The petitioner's mother is a cancer patient. As such, the petitioner's presence is required to assist her. The petitioner has also filed a maintenance case in M.C.O.P.No.45 of 2011 before the Chief Judicial Magistrate, Tirunelveli. Under the circumstances, her husband has filed the above O.P. for nullifying the marriage. The learned counsel has further submitted that the respondent has so far not appeared in the maintenance case, since he is abroad. Now, the divorce petition is pending on the file of the Sub Court, Kuzhithurai, whereas, the petitioner is living at Palayamkottai along with her minor daughter and her sick mother and as such, she finds it difficult to attend the case at Kuzhithurai. Further, there  is no male member in her family to accompany her to attend the Court for each and every hearing. Hence, the transfer petition has been filed.

        4. The learned counsel for the respondent / husband has submitted that the petitioner herein had levelled a false complaint against him and his father, who was living at Tirunelveli. Some anti-social elements had visited the respondent's house located at Suchindrum and assaulted his father and at that time, the neighbours saved him. If the transfer petition is allowed and the case is proceeded with before the Sub Court, Tirunelvei, there is an imminent possibility of danger to the life of the respondent and his father. The highly competent counsel has pointed out the legal aspects stating that the marriage had taken place at Marthandam, which is under the jurisdiction of the Sub Court, Kuzhithurai, wherein the divorce petition is pending. It is stated that the respondent's salary is a sum of Rs.8,000/- in Indian money, but the petitioner has alleged that the respondent is earning Rs.40,000/- per month. The petitioner has filed the above transfer petition with an ulterior motive in order to harass the respondent herein. Hence, the learned counsel entreats the Court to dismiss the transfer petition.

        5. Per contra, the learned counsel for the petitioner / wife has submitted that the maintenance case is pending on the file of Chief Judicial Magistrate, Tirunelveli and maintenance has been claimed against the respondent herein. The respondent's presence is absolutely necessary before the Chief Judicial Magistrate, Tirunelveli for attending the said maintenance case. As such, if the transfer petition is allowed, the respondent / husband will not be prejudiced in any manner.

        6. On verifying the facts and circumstances of the case and arguments advanced by the highly competent counsels on either side, this Court is of the view that the petitioner has a seven year old female child and has also to look after her sick mother. Besides this, the maintenance case is also pending on the file of Chief Judicial Magistrate, Tirunelveli, which has also arisen on the same cause of action between the same parties. Therefore, this Court is inclined to allow the above transfer petition. This Court directs the learned Sub Judge, Kuzithurai, to transfer all case records in  H.M.O.P.No.60 of 2011, to the file of Sub Court, Tirunelveli. The learned Sub Judge, Tirunelveli, after receipt of the said case bundles, is directed to send notice to the parties as well as their learned counsel, and proceed with the case, on top-priority basis, on merits.

        7. In the result, the above transfer petition is allowed. Consequently
, connected miscellaneous petition is closed.

r n s

To
1. The Sub Court,
    Kuzhithurai.

2. The Sub Court,
    Tirunelveli.