B. Nalini vs N. Venkatesh

T. Mathivanan, J.—The petition is filed under the proviso to Section 24 of the Code of Civil Procedure. The Petitioner has approached this

Court by way of filing this petition to withdraw the case in H.M.O.P. No. 100 of 2010 from the file of the Subordinate Judge, Pollachi and transfer

the same to the Subordinate Judge or any other competent Court at Madurai for disposal.

The facts which are necessary for the disposal of this transfer petition may be summarized as follows:

The Petitioner is the wife of the Respondent and their marriage was solemnized at Coimbatore on 03.06.2007. Subsequently, their marriage was

also registered before the Registrar of Hindu Marriage, under serial No. 25/2007. Even from the day-one of their marriage, the Petitioner was ill-

treated with regard to the demand of dowry. She was even brutally attacked by the Respondent on the day of first night ceremony in connection

with dowry. The next day of their marriage the Petitioner''s father gave a sum of Rs. 15,00,000/-as dowry to the Respondent and thereafter she

was taken to U.S.A. However, the Respondent did not stop his ill-treatment and continued his harassment on the Petitioner and she had to even

suffer at the hands of her one in-laws. The Petitioner was seduced on all occasions and on the account of torture, she underwent miscarriage and

even the Respondent had also manipulated the medical records, as if the miscarriage was taken place not due to his attack.

Then on 07.02.2010, both the Petitioner and the Respondent came down to India as the Respondent had got employment at Hyderabad. He

wanted to marry her sister''s daughter one Kirthika. On the account of unbearable torture at the hands of the Respondent, the Petitioner had

lodged a complaint before the All Women Police Station, Tallakulam at Madurai on 11.02.2010. After knowing fully about the complaint, the

Respondent had issued a legal notice on 02.03.2010. The Petitioner apprehends threat at the hands of the Respondent, and now, she has to

depend upon her parents to maintain herself.

Under this circumstance, the Respondent happened to file a petition in H.M.O.P. No. 100 of 2010 for divorce under Hindu Marriage Act,

before the Subordinate Judge, Pollachi. Since, the Petitioner has been residing at Madurai, she find it difficult to go Pollachi to attend the Court for

each and every hearing with her meagre income and hence, she has come forward with this petition to withdraw the case in H.M.O.P. No. 100 of

2010, from the file of the Subordinate Judge, Pollachi and transfer to the file of any Subordinate Court or any other competent Court at Madurai

for disposal of the same in accordance with law.

This Court has heard both the learned Counsels.

The learned Counsel for the Petitioner has submitted that there is no chance of re-union for the Petitioner and the Respondent as she had

underwent severe and untold torture and harassment at the hands of the Respondent with regard to demand of dowry. On the other hand, the

learned Counsel for the Respondent, while advancing his argument, has submitted that no necessity arises for the transfer of the case in H.M.O.P.

No. 100 of 2010 from the file of the Subordinate Judge, Pollachi and that if at all this Court is inclined to transfer the case, that may be transferred

either to the file of the Subordinate Judge, Dindigul are to the file of the Subordinate Judge at Palani. He has also added that if the case is ordered

to be transferred to Madurai, it may not be possible for the Respondent to come to Madurai, as he apprehends threat at the hands of relatives of

the Petitioner.

After hearing the learned Counsels for both sides, the Petitioner, who was present in the Court Hall, had also made her personal representation

before this Court narrating the ordeal which she had experienced at the hands of the Respondent. She had also represented in the open Court that

she was forced to have unnatural sex with the Respondent and since she was not willing for that she was driven out from the matrimonial home and

she has also made it clear that she is not willing to re-union with the Respondent and that unless the case in H.M.O.P. No. 100 of 2010 is ordered

to be transferred from the file of the Subordinate Judge, Pollachi, she would be put into irreparable loss and hardships.

During the course of his arguments, the learned Counsel for the Petitioner, in support of his argument, has placed reliance upon a decision in Dr.

M.S. Gayathri v. Dr. S. Natarajan reported in (2006) 4 M.L.J. 694 and in this case, a learned single Judge of this Court has observed that:

There cannot be any hard and fast rule in the matter of deciding the transfer applications. While the parties cannot be allowed to have their own

course to defeat the ends of justice, yet, it is better for both the parties to have a convenient forum so that multiplicity of proceedings can receive

attention by the same Court.

It is also observed that:

By an amendment, Section 19(iii)(a) of the Hindu Marriage Act has been introduced by the parliament by Section 4 of Amendment Act 50 of

2003, which reads as follows:

In case the wife is the Petitioner, where she is residing on the date of presentation of the petition.

Besides, this Court has also observed that:

Any interpretation for the present should also have the intention of the legislature to be kept in mind and if the Parliament thinks that apart from the

traditional restrictions provided u/s 19(1) to 19(3), the wife must be given a special privilege of filing petition wherever she is residing on the date of

presentation of the petition, that may be taken note of by the Court while ordering the transfer petition. Therefore, it is not the case of the Court

showing any sympathy to woman or wife in a matrimonial proceedings. The Parliament itself by its legislative wisdom has decided to show

preference in the case of wife in choosing the place of forum to sue her husband. It was, on this basis, at many times, the traditional forum provided

u/s 19(1) to 19(3) are not available to the wife. Most of the times, marriages are performed in a religious place or in a Wedding Hall outside the

place where the parties reside and in the case of Respondent/husband, he may be having employment with frequent transfers and, therefore,

presenting the case at the place where the husband resides or last resided together may not be feasible in the present days where transfer is

incidental to employment. It was with this view, preference is given to the women to choose their forum for presentation of the petitions and to

institute an appropriate matrimonial proceedings so as to protectthem.

On coming to the instant case on hand, it is obvious to note that previously both the Petitioner and the Respondent, when they were living

together, were staying at United States of America and after coming down to India, now the Petitioner has been residing at Madurai and still the

Respondent has been staying at United States of America, despite the case in H.M.O.P. No. 100 of 2010 is pending on the file of the Subordinate

Judge, Pollachi. Only under this circumstance, the Petitioner has come forward with this petition seeking withdrawal of the above said case from

the file of the Subordinate Judge, Pollachi and to transfer the same to the file of any other Subordinate Judge at Madurai for getting fair justice.

Taking into consideration of the averments made in the affidavit filed in support of the petition as well as the personal representation made by the

Petitioner and having regard to the submissions made on behalf of both sides, this Court is of the view that the decision taken by the learned single

Judge of this Court in Dr. M.S. Gayathri''s case (as cited supra) can be followed.

Accordingly, this Court is of the opinion that H.M.O.P. No. 100 of 2010 may be ordered to be withdrawn from the file of the Subordinate

Judge, Pollachi and transferred to the file of the Principal Subordinate Judge at Madurai.

Accordingly, the petition is allowed. The case in H.M.O.P. No. 100 of 2010 is ordered to be withdrawn from the file of the Subordinate

Judge, Pollachi and transferred to the file of the Principal Subordinate Court, Madurai for disposal in accordance with law. The learned Principal

Subordinate Judge, Madurai is hereby directed to dispose of the case, after giving due opportunity to both parties, within the stipulated time of four

months from the date of receipt of a copy of this order without getting influenced on the observation made by this Court in this order.