Wednesday, July 17, 2013

".Therefore, it is clear that it is the convenience of the wife that must be given utmost importance..."! Case transferred as sought for by wie ! yep case transferred.. IF only convenience of wife is given utmost importance by top court of state, what about men ? what about equality? when will we clear the confusion that women are MORE EQUAL and protected when it comes to responsibilities, BUT absolutely equal when it comes to rights ??? wife seeks and gets transfer of case BECAUSE .... BECAUSE the family court wants her to attend on all dates, she cannot and so she wants it to be transferred to civil court in her home town !!!! IF family court process is SO cumbersome what about the 1000s of husbands who are attending family courts ???

"...Therefore, it is clear that it is the convenience of the wife that must be given utmost importance..."! Case transferred as sought for by wife ! yep case transferred.. 

IF only convenience of wife is given utmost importance by top court of state, what about men ? what about equality? when will we clear the confusion that women are MORE EQUAL and protected when it comes to responsibilities, BUT absolutely equal when it comes to rights ??? 

wife seeks and gets transfer of case BECAUSE .... BECAUSE the family court wants her to attend on all dates, she cannot and so she wants it to be transferred to civil court in her home town !!!! IF family court process is SO cumbersome what about the 1000s of husbands who are attending family courts ???

and the honourable HC quotes the Honourable supreme court ...."3. It is the husband's suit against the wife.  It is the wife's convenience that, therefore, must be looked at.  The circumstances indicated above are sufficient to make the transfer petition absolute."


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


Dated: 15/03/2010


CORAM

THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN


Tr.C.M.P.(MD)No.287 of 2009

and

M.P.(MD)No.1 2009


S.Sundari ... Petitioner


Vs


P.Sonaimuthu ... Respondent



Prayer


Petition filed under Section 24 of Civil Procedure Code to withdraw H.M.O.P.No.463 of 2009, on the file of the Family Court, Madurai and to transfer the same to the Sub Court, Devakottai and to try the same along with H.M.O.P.No.67 of 2009 pending on the file of the Sub Court, Devakottai.


!For Petitioner  ... Mr.Mahaboob Athiff

     for Mr.M.Ajmal Khan


^For Respondent  ... No appearance

* * * * *



:ORDER


This petition has been filed by the petitioner/wife to withdraw H.M.O.P.No.463 of 2009, on the file of the Family Court, Madurai and to transfer the same to the Sub Court, Devakottai and to try the same along with H.M.O.P.No.67 of 2009 pending on the file of the Sub Court, Devakottai.


2. The wife is the petitioner herein.  She filed H.M.O.P.No.67 of 2009 before the Sub Court, Devakottai seeking dissolution of the marriage.  The respondent herein filed H.M.O.P.No.463 of 2009, pending on the file of the Family Court, Madurai, seeking restitution of conjugal rights.  The petitioner herein seeks transfer of H.M.O.P.No.463 of 2009 pending on the file of the Family Court, Madurai to the Sub Court, Devakottai for joint trial of both cases.


3. No representation for the respondent on the last occasion and today also there is no representation and he has not filed counter refuting the allegations. The matter is taken up for final disposal.


4. The leaned Counsel for the petitioner submits that while the respondent/husband is employed at Madurai, the petitioner/wife is an unemployed person and she is living with her mother at Devakottai and her father is at Malaysia.  He further submits that the petitioner has a child aged about 1 1/2 years, born out of the wedlock with the respondent husband.  It is further submitted that since H.M.O.P.NO.463 of 2009 is pending on the file of the Family Court, Madurai, the presence of the wife is insisted before the Family Court, Madurai for every hearing.  It is therefore submitted that H.M.O.P.No.463 of 2009 may be transferred to the Sub Court, Devakottai.


5. The learned Counsel for the petitioner also submits that a significant amendment was made to Section 19 of the Hindu Marriage Act inserting Section 19(iii), facilitating the wife to file a petition under the Act where she resides.  The purpose of the Act is to have the proceeding conducted at the place of the wife.  The transfer application is only in accordance with Section 19(iii)a of the Act.


6. I find substantial force in the submission made by the learned Counsel for the petitioner.


7. The learned Counsel for the petitioner has also relied on a judgment of this Court in Usha @ Ramalakshmi and another Vs. P.Shanmugam reported in 2006(4) CTC 835.  In paragraph 17 of the said judgment, guidelines prescribed for transfer of matrimonial disputes in another case was quoted with approval. Paragraph 17 of the said judgment is extracted herein:


"17. In 2001 AIHC 1567, this Court while dealing with cases relating to matrimonial disputes, set out certain guidelines which would be useful in dealing with matters regarding transfer of divorce or maintenance petitions. The guidelines are extracted hereunder:


"(a) If the woman has the custody of any child, born out of wedlock less than five years of age;


(b) If anyone of the spouse suffers due to any physical disability; or any chronic illness as would render him or her difficult to travel which should be duly certified by a Surgeon/physician in Government Service;


(c) Where the respondent in Transfer Petition does not have objection to the transfer or where the respondent in the Transfer Petition also resides in the same place;


(d) Where the joint trial of proceedings pending in two places are sought for, it would be decided on the basis of the date of filing the petition and the petition filed subsequently will be transferred to the place where the earlier petition had been filed;


(e) Last place of residence should be a permanent place or if temporary, for an indefinite period of residence and not a place where the living was only casual or transitory;


(f) Where there is positive evidence such as police complaint, etc. at the husband's place, prima facie establishing that the wife had been subjected to physical torture or dowry harassment.


(g) If none of the aforementioned nor any other justifiable reason is available for transfer, then the person seeking transfer should be ready to pay the incidental expenses, like travelling expenses, for stay during the hearing to the other spouse, either a consolidated amount or fixed amount for each hearing should be paid during the previous hearing itself."


8. Further the learned Counsel for the petitioner relies on a judgment of this Court in Baby Chitra Vs K.Radhakrishnan reported in (2004)3 MLJ 380, wherein this Court held that the convenience of the wife must be given utmost importance.  The following passage from paragraph 4 of the judgment is extracted hereunder:


"Therefore, it is clear that it is the convenience of the wife that must be given the utmost importance."



9. The learned Counsel also relies on the judgment of the Honourable Apex Court in Sumita Singh Vs. Kumar Sanjay and another reported in AIR 2002 SUPREME COURT 396.  Paragraph 3 of the said judgment is extracted herein: 

"3. It is the husband's suit against the wife.  It is the wife's convenience that, therefore, must be looked at.  The circumstances indicated above are sufficient to make the transfer petition absolute."


10. In view of Section 19(iii)a of Hindu Marriage Act as well as categorical pronouncements of this Court and the Honourable Apex Court, I am of the view that the petition deserves to be allowed.


11. Accordingly, H.M.O.P.No.463 of 2009, pending on the file of the Family Court, Madurai is transferred to the Sub Court, Devakottai for conducting joint trial with H.M.O.P.No.67 of 2009 filed by the petitioner, pending before the Sub Court, Devakottai, in accordance with law. Consequently, the connected Miscellaneous Petition is closed. No costs.


ssl


To


1. The Family Court, Madurai.

2. The Sub Judge, Devakottai


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