Iswarya v. P.Rangesh

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:- 14.08.2009CORAM:THE HONOURABLE MR. JUSTICE K.K.SASIDHARANTr.C.M.P. No.15 OF 2009& M.P.No.1 of 2009Iswarya .. Petitioner-Vs.-P.Rangesh .. RespondentPetition filed under Section 24 of the Code of CivilProcedure praying to withdraw H.M.O.P.No.189 of 2008 from thefile of Sub Court, Chengalpattu and transfer the same to thefile of the Principal Sub-Court, Mayiladuthurai to be triedalong with H.M.O.P.No.31 of 2008.For Petitioner : Mr.C.JagadishFor Respondents : Mr.K.HariharanO R D E R This is an application filed by the respondent inH.M.O.P.No.189 of 2008 on the file of Sub Court, Chengalpattuand the prayer is to withdraw the said proceedings for thepurpose of transfer to the Principal Sub-Court,Mayiladuthurai. BACKGROUND FACTS:-2. The marriage between the petitioner and the respondentwas solemnised on 31.8.2005 at Sirkali near Kumbakonam. Theywere blessed with a female child. The matrimonial life wascordial during the initial period. However trouble started onaccount of the involvement of the respondent's mother and itled to a quarrel between the petitioner and the respondent.Since the torture given to the petitioner by the respondent https://hcservices.ecourts.gov.in/hcservices/ and his parents were unbearable the petitioner preferred apolice complaint before All Women Police Station,Chengalpattu.3. Since the relationship between the parties gotstrained on account of several reasons, the petitioner filedan application for restitution of conjugal rights before theSub Court, Mayiladuthurai. The said petition was filed on20.2.2008. The respondent filed H.M.O.P.No.189 of 2008 beforethe Sub Court, Chengalpattu.4. While the proceedings were pending before therespective courts, the respondent filed an application beforethis court in Tr.C.M.P.No.299 of 2008. The prayer in thetransfer petition was to withdraw the proceedings from thefile of the Principal Subordinate Court, Mayiladuthurai and totransfer the same to the file of the Principal SubordinateCourt, Chengalpattu. The said application was resisted by thepetitioner. Though she also claimed in her counter that itwould be in the fitness of things to transfer the proceedingsin H.M.O.P.N.189 of 2008 to the file of the learnedSubordinate Judge, Mayiladuthurai, the learned Judgeconsidered the transfer petition only in the light of theprayer made therein and ultimately the petition was dismissedas per order dated 11.11.2008.5. Subsequently the present transfer petition has beenfiled by the wife to transfer the proceedings inH.M.O.P.No.189 of 2008 from the file of the Subordinate Judge,Chengalpattu to the Court of Subordinate Judge, Mayiladuthuraifor a joint disposal along with H.M.O.P.No.31 of 2008.6. In the affidavit filed in support of the applicationfor transfer it was the contention of the petitioner that sheis residing along with her family at Keelaichalai, which issaid to be a very small village near Sirkali. The petitionerhas no independent source of income and she is at the mercy ofher father, who is stated to be a pensioner. She has also tolook after her minor child also. The distance between Sirkaliand Chengalpattu is about 300 kms and in view of her poorfinancial condition, she was not in a position to meet herexpenses as well as to defray the expenses necessary for herattendance before the trial court. According to the petitionershe has to look after her aged mother as well as her minor https://hcservices.ecourts.gov.in/hcservices/ child and as such it would be impossible for her to prosecutethe proceedings in H.M.O.P.No.189 of 2008. Accordingly sheprayed for transfer of the proceedings.7. The respondent has filed his counter affidavit whereinhe has narrated the entire background facts. According to therespondent there was no necessity to transfer the proceedingsfrom the file of Sub Court, Chengalpattu as the petitionercould appear before the said Court without difficulties.According to the respondent the witnesses to prove his caseare all from Maraimalai nagar, which is about 10 kms away fromChengalpattu and as such it would be impossible for him toprove his case in the event of the matter being transferred tothe Court at Mayiladuthurai. The respondent further contendedthat in the earlier round of litigation between the partiesthis court found that a joint trial was not necessary and assuch the plea for transfer on account of joint trial has nomerit. The respondent also contested the claim of thepetitioner that she is not employed, as according to him sheis employed in a Primary school at Sirkali earning a sum ofRs.2,000/- per month. Accordingly the respondent prayed fordismissal of the transfer petition.DISPOSAL:-8. It is true that in the earlier transfer petition,while denying the claim for transfer made by the respondent,the petitioner has also requested transfer of the proceedingsto the Sub Court, Mayiladuthuri. However the court wasconcerned only with the prayer made by the respondent totransfer the proceedings in H.M.O.P.No.31 of 2008 from thePrincipal Sub Court Mayiladuthurai to the file of Sub Court,Chengalpattu. The prayer for transfer was negatived by thiscourt mainly on account of the difficulties faced by thepetitioner.9. The following observation as contained in the orderdated 11.11.2008 in Tr.C.M.P.No.299 of 2008 supports the claimmade by the revision petitioner in the present transferpetition. "Considering the rival contentions, inas much as the respondent/wife, her minordaughter and her widowed mother aredepending on the father's pension amountand since the respondent/wife or her https://hcservices.ecourts.gov.in/hcservices/ family cannot travel at Keelaichalai avery small village near Seerkali fromMayiladuthurai to Chengalpattu for thepurpose of hearing of H.M.O.P.No.189 of2008 filed by the petitioner/husbandpending on the file of Sub Court,Chengalpattu and moreover, for hearing ofthe case at Chengalpattu, she has tonecessarily come along with male help orsupport for every hearing of the case,the convenience of respondent/wife in thepresent case stands on a better footing,on an overall assessment of the factssituation of the case and preferring theconvenience of the respondent/wife, thisCourt dismisses the transfer CMP filed bythe petitioner/husband, in the interestof justice, leaving the parties to beartheir own costs." 10. The order dated 11.11.2008 in Tr.C.M.P.No.299 of 2008has become final. There was a clear finding by this court thatthe petitioner is depending on her father for her maintenanceand considering her residence in a remote village nearSirkali, it would be impossible for her to appear before thecourt at Chengalpattu. This court also has given a factualfinding that the convenience of the revision petitioner standson a better footing. The said finding still holds good and assuch the respondent cannot be heard to say that the petitionerhas not made out a ground for transfer. A perusal of theorder of this court dated 11.11.2008 in Tr.C.M.P.No.299 of2008 in its entirety would clearly shows that this court wasnot considering the request to transfer the proceedings to thecourt at Chengalpattu at the instance of the respondent. 11. The only issue which was considered by this courtearlier was regarding the merits of the transfer petitionfiled by the respondent to transfer the proceedings from thecourt at Mayiladuthurai. Therefore it cannot be said that thetransfer petition filed by the revision petitioner to transferthe proceedings from the Sub court Chengalpattu to the SubCourt, Mayiladuthurai is not maintainable.12. This Court in SUDHA v. VAIDYANATHAN (2001 AIHC 1567),set out certain guidelines with respect to transfer ofmatrimonial proceedings. The guidelines would read thus:- https://hcservices.ecourts.gov.in/hcservices/ “(a)If the woman has the custodyof any child, born out of wedlock,less than five years of age,(b)If anyone of the spousesuffers due to any physicaldisability; or any chronic illness aswould render him or her difficult totravel which should be duly certifiedby a Surgeon/physician in GovernmentService. (c) Where the respondent inTransfer Petition does not haveobjection to the transfer or where therespondent in the Transfer Petitionalso resides in the same place;(d)Where the joint trial ofproceedings pending in two places aresought for, it would be decided on thebasis of the date of filing thepetition and the petition filedsubsequently will be transferred tothe place where the earlier petitionhad been filed; (e)Last place of residenceshould be a permanent place or iftemporary, for an indefinite period ofresidence and not a place where theliving was only casual or transitory.(f)Where there is positiveevidence such as police complaint,etc. at the husband’s place, primafacie establishing that the wife hadbeen subjected to physical torture ordowry harassment. (g)If none of theaforementioned nor any otherjustifiable reason is available fortransfer, then the person seeking https://hcservices.ecourts.gov.in/hcservices/ transfer should be ready to pay theincidental expenses, like travellingexpenses, for stay during the hearingto the other spouse, either aconsolidated amount or fixed amountfor each hearing should be paid duringthe previous hearing itself.”13. The proceedings initiated by the petitioner beforethe Sub Court, Mayiladuthurai was prior in point of time. Thepetitioner is having a minor child of about three years old tobe looked after by her. The petitioner is not gainfullyemployed so as to enable her to defray the expenses forattending the court at Chengalpattu. 14. While deciding an application for transfer, theparamount consideration would be the ends of justice and incase the Court is of the view that ends of justice would bemet only by transfer, the matter has to be transferred. It isnot the mere convenience of the parties alone which ismaterial. In case it is demonstrated that the trial in achosen forum would result in denial of justice to a party tothe proceeding, the same is a valid ground to order transferof proceedings. 15. Therefore on a careful consideration of the entirefactual matrix, I am of the view that the petitioner has madeout a case for transfer of the proceedings from the Sub Court,Chengalpattu. 16. The respondent was mainly concerned with hisdifficulties to examine Witnesses on his side as all hiswitnesses are stated to be residing near Chengalpattu. Therespondent also expressed his difficulty to appear before theCourt at Mayiladuthurai. The personal attendance of therespondent is not required for prosecuting the matter beforethe Sub court, Mayiladuthurai. Similarly it would enable himto file an application for examination of witnesses oncommission in case he finds it difficult to bring thewitnesses to the Court at Mayiladuthurai on account ofjustifiable reasons. Therefore the respondent is at liberty toapply before the learned Subordinate Judge, Mayiladuthurai todispense with his personal attendance as well as to examinethe witnesses on commission. https://hcservices.ecourts.gov.in/hcservices/

17. In the result, the proceedings in H.M.O.P.No.189 of2008 is withdrawn from the file of Sub Court, Chengalpattuand is transferred to the file of the Principal Sub-Court,Mayiladuthurai. 18. The transfer petition is allowed as indicated above.Consequently the connected MP is closed. No costs.Tr/Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Sub Court, Chengalpattu.2. The Principal Sub Court, Mayiladuthurai.PRE-DELIVERY ORDERIN ` TR.C.M.P.No.15 OF 2009 PUR(CO)EU 26.8.2009