Nivashini Mohan v. R.Nivendran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: .01.2009CORAMTHE HONOURABLE MR. JUSTICE M.VENUGOPALTr.C.M.P.No.361 of 2008Nivashini Mohan .. Petitioner/Respondent VersusR.Nivendran .. Respondent/PetitionerTransfer Civil Miscellaneous Petition is filed to withdraw andtransfer the H.M.O.P.No.311 of 2008 from the file of the IIAdditional Family Court, Chennai to the file of the Sub-Court,Chengalpattu to be tried along with H.M.O.P.No.201/2008. For Petitioner : Mr.T.R.Senthil Kumar For Respondent : Mr.Thomas T.Jacob ORDERThe petitioner/wife has filed this Transfer C.M.P.361/2008praying for issuance of an order by this Court, directing thetransfer of HMOP.311/2008 from the fire of the II Additional FamilyCourt, Chennai to the file of the Sub-Court, Chengalpattu to be triedalong with HMOP.201/2008.2.The petitioner/wife in her affidavit in the TransferPetition has averred that her marriage with the respondent/husbandhas taken place on 2.7.2006 according to Hindu Rites and Customs atVemubuli Amman Temple, Aminjikarai, Chennai, though the marriage hasbeen formally registered on 28.06.2006 and later by the threat andcompulsion of the respondent/husband registered the marriage at Sub-Registrar Office, Pammal on 26.09.2005 and because of the continuousharassment and demand of dowry by the respondent/husband and hisfamily members, she has faced cruelty and mental agony and that afterher marriage, within a short span of three months. She has beendriven out of the matrimonial house three times by the family membersof the respondent/husband and that she has been compelled to give upher job and that she has been threatened to abort even at the veryearly stage of her pregnancy and that she has been forced to locate arented house near her office at Perungudi on intimation to therespondent/husband, as per the advise of the Doctor and that sheshifted her residence on 1.12.2006 and that having waited for twomonths, she sent E-mails to the respondent/husband narrating all theill-treatments and cruelty meted out to her. The respondent/husbandfiled HMOP.352/2007 before the Principal Family Court, Chennai under https://hcservices.ecourts.gov.in/hcservices/ Section 9 of the Hindu Marriage Act alleging as if thepetitioner/wife has refused to join with him and on 18.4.2007, thesaid HMOP has been dismissed based on the endorsement made by theparties and the respondent/husband has come to Perungudi after threedays on 21.04.2007 and that during the said stay of therespondent/husband from 21.04.2007, he has threatened thepetitioner/wife to give consent for divorce or comply with the demandof his family members and after the birth of the male child, therespondent/husband with his family members identified a rented house,an unfinished one near his parents residence at Arumbakkam and thatshe has been asked to vacate the house at Perungudi on 31.07.2007 andthat the respondent/husband has brought her and the child to Vandalurat the residence of her parents etc.3.It is the further case of the petitioner/wife that she hasbeen required to come with the 40 days infant child to Arumbakkam on8.8.2007 to the newly rented house in the second floor at Arumbakkamand on believing the assurance of the respondent/husband, when shewent there on 8.8.2007, the respondent/husband has not taken care ofher and her child and used to go to his parents house even withoutproviding food etc and that the child's eyes were affected and thatthe respondent/husband sent her out from the matrimonial house on11.08.2007, on the ill advise of his family members.4.Eversince the time she has been driven out by her husband,she has been living at Vandalur with the help of her parents and thatshe made frequent efforts to contact the respondent/husband to takeclothes and medicines for the child etc and later she shifted herhouse to Tharamani near her office after intimating the same to therespondent/husband and she came to know that the respondent/husbandwas in abroad in U.S.A during that time. But her efforts to contacthim has ended in vain and later she gave a complaint before theProtection Officer, Teynampet, Chennai requesting for arranging areunion with the respondent/husband, but he participated in theenquiry on 31.1.2007, but failed to yield the advise of theProtection Officer and subsequently, she has been perforced to file acriminal complaint before the Chief Metropolitan Magistrate Court,Egmore, Chennai and the same being forwarded to the Inspector ofPolice, W7-All Women Police Station, Anna Nagar, Chennai whichculminated in filing of charge sheet in C.C.10989/2008 against therespondent and his family members and prior to that she has filedHMOP.201/2008 before the Sub-Court, Chengalpattu under Section 9 ofthe Hindu Marriage Act praying for restitution of conjugal rights andthat the respondent has entered appearance through his counsel andlater, she has been informed by her friend that a Paper Publication,dated 5.7.2008 has been effected by the respondent as a public noticefor her appearance on 2.9.2008 in a case before the II AdditionalFamily Court, Chennai in O.P.311/2008.5.With this background, the learned counsel for thepetitioner/wife submits that the petitioner/wife has to spend aminimum of 4 hours for her travel from Chengalpattu to the court atChennai for her appearance and further that as per the Family Courtproceedings, the personal appearance of the parties on the date ofhearing is mandatory and as such, the wife may not be able to appearbefore the II Additional Family Court on every hearing date, since https://hcservices.ecourts.gov.in/hcservices/ she has a child and living near Chengalpattu and therefore prays forallowing the Transfer Original Petition in the interest of justice.6.The respondent/husband has filed a detailed counter interalia stating that he sent a mail on 16.01.2007, requesting thepetitioner/wife to sort out differences if any by going before themarital counselling. But the same has been shunted with retaliatorymails abusing him and his parents and that he filed O.P.352/2007before the Principal Family Court for restitution of conjugal rightsand after the disposal of the complaint, the petitioner/wife hasrefused to live in his house stating many allegations against hisparents and sister that they would be ill treating her etc. and whenthere were vast difference of opinion at the end of the counsellingboth have agreed to start a new life forgetting the past and alsowith an agreement to accept each others parents etc. and that becauseof the attitude of the petitioner/wife, the marriage has ultimatelybroken and that the petitioner/wife has filed a complaint under theDomestic Violence Act before the Protection Officer, Teynampet,Chennai against him, his parents, sister, uncle and aunt and he hasbeen in USA during this period and since he returned to Chennai, heinformed the Protection Officer who has taken part in the enquiry andlater he filed O.P.311/2008 on the file of the II Additional FamilyCourt, Chennai on 1.12.2008 and in the meanwhile, the petitioner/wifehas filed a false complaint before the learned Chief MetropolitanMagistrate, Egmore, Chennai under the Dowry Prohibition Act and theDomestic Violence Act and a First Information Report has beenregistered on the evening of 15.04.2008 and that his parents, sister,uncle and aunt have been taken into custody on 16.4.2008 earlymorning and that a charge sheet has been filed in C.C.10981/2008before the Chief Metropolitan Magistrate Court and that complaint hasbeen filed against the suspended Inspector of Police Mrs.Rajalakshmifor her partial attitude and non-investigation of the case as per theCriminal Procedure Code and the same is pending enquiry by theDirectorate of Prosecution.7.Continuing further, with a view to harass therespondent/husband and his family another case C.C.356/2008 has beenfiled before the Judicial Magistrate No.II, Chengalpattu by thepetitioner/wife in a different jurisdiction upon the same cause ofaction. When a complaint has been preferred to the ProtectionOfficer, Chennai under the same act is pending and that thepetitioner has subjected herself to the jurisdiction of Chennai inthe marital case earlier when she has been residing in a residenceoutside the jurisdiction of the Court and that she has also soughtthe relief before the Protection Officer, Chennai, when she has beenresiding outside the jurisdiction and in C.C.10981/2008 pendingbefore the Chief Metropolitan Magistrate Court, she has sought therelief, while she has been outside the jurisdiction and that therestitution of conjugal rights proceedings instituted in Chengalpattuand therefore, the respondent/husband prays for dismissing thetransfer petition.8.It is true that in transfer of matrimonial petitions,convenience of the wife must be given the prime importance. Theimportant principle for exercising of the powers under Section 24 ofthe C.P.C. is the convenience and inconvenience of the parties. The https://hcservices.ecourts.gov.in/hcservices/ question of expediency will depend upon the facts and circumstancesof each case. However, the paramount consideration for exercise ofthe power must be to meet the ends of justice. For the purpose oftransfer, the balance of convenience of the parties should beconsidered. Moreover, the petition under Section 24 of C.P.C. is notto be dealt with lightly and the transfer of a case from one court toanother should not be granted readily for any fancied notion of thepetitioning party. For the purpose of transfer, a court of law isrequired to find out whether a particular party has chosen a forum inutter disregard to the convenience of the parties for some ulteriorobject and in abuse of her position as a arbiter litus. The basicprinciple is for exercise of power under Section 24 of the CPC. isthe convenience and the inconvenience of the parties.9.The prayer of the petitioner/wife is that she was residingat Guduvancherry and OP.201/2008 is pending on the file of the Sub-Court, Chengalpattu and that her husband, namely, the respondent hasfiled O.P.311/2008 on the file of the II Additional Family Court,Chennai and that she has not been in a position to appear before theFamily Court, Chennai inasmuch as the Court at Chennai is very nearto her residence and that she has to spend a minimum of 4 hours fortravel from Chengalpattu to Chennai to appear before the IIAdditional Family Court, Chennai in connection with the hearing ofO.P.311/2008 and therefore, the application for transfer may beallowed by this Court to promote the substantial cause of justice.10.Admittedly, the respondent/husband is facing some casesC.C.356/2008 on the file of the Judicial Magistrate No.II,Chengalpattu, C.C.10981/2008 on the file of the Chief MetropolitanMagistrate Court, Chennai and in between the parties, matrimonialOriginal Petitions are pending. The fact that the petitioner/wifehas earlier subjected herself to the jurisdiction of Chennai in amatrimonial case, when she has been residing in a residence outsidethe Court jurisdiction cannot be disputed. Furthermore, she has alsosought the relief of Protection Officer in Chennai, while she hasbeen residing outside the jurisdiction. The case in C.C.10981/2008pending on the file of the Chief Metropolitan Magistrate Court hasbeen initiated, when the petitioner's residence has been outside thecourts jurisdiction. The petitioner/wife has also filed C.C.356/2008on the file of the Judicial Magistrate No.II, Chengalpattu under theprovisions of the Domestic Violence Act. One cannot brush aside animportant fact that the HMOP.201/2008 filed by the petitioner/wifebefore the Sub-Court, Chengalpattu is only after the filing of thetwo criminal cases.11.Be that as it may, on a careful consideration of therespective contentions, this Court is of the considered view that itis not possible for this court to allow the Transfer CivilMiscellaneous Petition inasmuch as the balance of convenience is notin favour of the petitioner and in that view of the matter, thepetition fails and the same is hereby dismissed. No costs. Howeverliberty is given to the petitioner/wife to file necessary applicationbefore the II Additional Family Court, Chennai, where O.P.311/2008 ispending and seek exemption of her personal appearance and on suchapplication is being filed by the petitioner/wife, the II AdditionalFamily Court, Chennai is directed to consider the same on merits, https://hcservices.ecourts.gov.in/hcservices/ after providing due opportunity to the respondent/husband to file hiscounter in the manner known to law. The II Additional Family Court,Chennai is directed to dispose of the HMOP.311/2008 within a periodof four months from the date of receipt of a copy of this Order.Moreover, the parties are directed to co-operate with the IIAdditional Family Court with regard to the completion of theproceedings.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsiTo1. The II Additional Family Judge, Chennai.2. The Section Officer, V.R.Section, High Court, Madras.3.The Subordinaste Judge, Chengalpattu1 CC To Mr.Thomas T.Jacob, Advocate, SR NO.29011 CC To Mr.T.R.Senthil Kumar, Advocate, SR NO.688 Tr.C.M.P.No.361 of 2008vsv(co)pmk/29.1.2009.