Dr. A. Sendhil Coumary vs Dr. P. Padmanathan

M. Jaichandren, J.—Heard the learned Counsel for the petitioner as well as the learned Counsel for the respondent.

This petition has been filed praying that this Court may be pleased to withdraw and transfer the petition in H.M.O.P. No. 49 of 2007, pending

before the Principal Sub-ordinate Court, Thanjavur, to the jurisdiction of the Family Court, either at Cuddalore or at Pondicherry.

The petitioner has stated that her marriage with the respondent was solemnized, on 16.09.2004, at Jeyaram Mahal, Pondicherry. It was an

arranged marriage, with the consent of the family members and other elders of both the families. The Seemantham had taken place, on

20.05.2005. Thereafter, the petitioner had gone to her parents house for delivery of the child. The respondent is practising as a Doctor in

Thanjavur.

The petitioner has further stated that she had been abused and ill-treated, both mentally and physically, by the respondent and his family

members. They had demanded Rs. 6,00,000/- for the opening of a clinic at Thanjavur. While so, the petitioner had given birth to a male child, on

04.12.2005. Even thereafter, the respondent was not interested in taking back the petitioner and her child. Instead the respondent and his family

members had threatened the petitioner to give her consent for divorce, by signing the necessary papers. Even though the petitioner had lodged a

complaint before the All Women Police Station, Pondicherry, she did not pursue the same with the intention of living with the respondent,

peacefully. However, the petitioner was thrown out of the house by the parents of the respondent. Thereafter, the petitioner has been living with

her parents. While so, the respondent had filed H.M.O.P. No. 49 of 2007, dated 28.02.2007, before the Principal Sub-ordinate Court,

Thanjavur, for the dissolution of the marriage which had been solemnized, on 16.09.2004.

The petitioner has further stated that she has been living along with her two year old male child. The health of the child has not been in a good

condition from the time of its birth. The petitioner has to travel for nearly 300 Kms to attend the Court proceedings, for every hearing in H.M.O.P.

No. 49 of 2007, pending on the file of the Principal Sub-ordinate Court, Thanjavur. Due to the financial constraints and the ill-health of her child,

the petitioner finds it extremely difficult to attend the Court hearings at Thanjavur. Since the respondent is practising as a Doctor in Thanjavur

Hospital and as he is earning substantial amounts of money, it would be easy for him to attend the hearings, if the said H.M.O.P. is transferred to

the concerned Court, either at Cuddalore or at Pondicherry. Since the petitioner has to travel to Thanjavur, along with her unwell child, it is

extremely difficult for her to attend the Court hearings at Thanjavur. In such circumstances, the petitioner has preferred this transfer petition before

this Court.

In the counter affidavit filed on behalf of the respondent, the averments and allegations made by the petitioner in the transfer petition has been

denied. It has been stated that after the marriage between the petitioner and the respondent was solemnized, on 16.09.2004, at Pondicherry, they

were living in Thanjavur, till their separation. It has been further stated that the respondent had filed H.M.O.P. No. 49 of 2007, before the

Principal Subordinate Court, Thanjavur, for the dissolution of the marriage, as he had suffered unbearable cruelty by the conduct and behaviour of

the petitioner. The petitioner and her family members had been treating the respondent and his family members with contempt and disrespect.

The petitioner had filed a false complaint before the Pondicherry All Women Police Station falsely alleging that the respondent and his family

members were demanding dowry from the petitioner and her parents. In fact, the petitioner had taken back all her articles and jewels from the

matrimonial house. The petitioner has also made several serious allegations against the respondent which are baseless and false.

It has been further stated that on receiving summons in H.M.O.P. No. 49 of 2007, in the month of February, 2007, the petitioner had entered

appearance through her counsel at Thanjavur and after taking several adjournments, the petitioner had filed her counter statement only in the month

of October, 2007. The conciliation attempted by the learned Principal Sub-ordinate Judge had failed. Thereafter, the matter was referred to the

Lok Adalat. Even after a few adjournments, there was no compromise in the matter. Hence, it was referred back to the Court and the matter was

taken up for trial. The respondent has filed a proof affidavit in lieu of his chief examination. The petitioner had avoided cross-examination by

seeking more than four adjournments, without sufficient reasons. Thereafter, in order to delay the matter further, she had filed the present petition in

the month of December, 2008. It has been filed only to delay the matter and to avoid the legal consequences. In spite of the petitioner attending the

Court proceedings for the past two years and having engaged a Counsel to defend her, without raising any objection and without expressing any

difficulty, she had raised various untenable grounds to scuttle the legal process by filing the present petition praying for the transfer of the case. The

trial is at the conclusive stage and the petitioner may be expected to attend the Court proceedings for not more than a couple of hearings to cross-

examine the respondent and for the cross-examination of the petitioner, if she chooses to examine herself as a witness.

It has been stated that the petitioner is a well educated lady, who has the means to travel to Thanjavur and to engage a Counsel to defend

herself in H.M.O.P. No. 49 of 2007, pending on the file of the Principal Sub-ordinate Court, Thanjavur. The respondent has been prevented from

meeting his son who is under the care of the petitioner''s parents at Pondicherry. The petitioner''s father had worked as the Personal Assistant to

the former Chief Minister of Pondicherry and he is a highly influential person at Pondicherry. Therefore, the respondent is unable to meet his son to

show his love and affection towards him. Further, there is no need for the petitioner to attend each and every hearing of H.M.O.P. No. 49 of

2007, pending on the file of the Principal Sub-ordinate Court, Thanjavur, and it is not necessary for her to bring her son to Thanjavur during the

hearings.

The learned Counsel for the petitioner had relied on the following decisions in support of his contentions.

10.1. In Anuradha Dalal v. Rohit Dalal, (2001) 10 SCC 449 , wherein, the Supreme Court had allowed the transfer petition based on the consent

of the parties. The grounds on which the transfer of the case had been sought for were that the petitioner had to travel a distance of 300 Kms, for

nearly eight hours, to reach Jaipur from Bhiwani (Haryana). Since advocates were not permitted in the Family Court at Jaipur, the petitioner had to

attend on every date of hearing which was causing her great hardship. The respondent was not residing in Jaipur, but he was residing in a different

place for discharging his official duties. Therefore, it was contended by the petitioner that it would not cause any inconvenience to the respondent.

Since the learned Counsel appearing on behalf of the parties had agreed that instead of Bhiwani the case may be transferred to any Court in Delhi,

the transfer application was allowed transferring the case to the District Judge, Tis Hazari, Delhi.

10.2. The learned Counsel had also relied on the decision of the Supreme Court in Uma Parekh alias Uma Joshi Alias Pinku v. Ajeet Pareek Alias

Govind Pareek and Ors. reported in (2005) 9 SCC 600, wherein the transfer petition had been ordered holding that the petitioner had made out

sufficient grounds to justify the claim for the transfer.

10.3. In the case of Subashini v. K. Sekar reported in 2004 (3) CTC 580, this Court relying on the decision of the Supreme Court in Sumita Singh

Vs. Kumar Sanjay and Another, , had ordered the petition for transfer stating that it would be difficult for the petitioner wife, being a lady, to travel

from Chennai to Cuddalore, often, whenever the case gets posted, is not an easy task and due to the prevailing insecurity during her journey and

her staying at Cuddalore, overnight. Further, she was incapacitated to meet out the expenses for her travel.

10.4. Further, in P. Mahalakshmi v. M. Ravichandran reported in 2006 (4) CTC 248 , this Court had allowed the transfer petition, relying on the

decision of the Supreme Court, in Sumita Singh Vs. Kumar Sanjay and Another, , wherein it was decided that in a case of matrimonial

proceedings the convenience of the wife must be looked into, and the decision of this Court in Baby Chitra Vs. K. Radhakrishnan, , wherein it was

held that it is not fair on the part of the Court to order a lady to travel a long distance for appearing for each and every hearing and the feasibility is

only to have the case decided by a Court of her own place.

10.5. In Usha @ Ramalakshmi and Meenakshisundari Vs. P. Shanmugam, , a learned single Judge of this Court, relying on the various decisions

cited therein, had allowed the transfer petition pending on the file of the Family Court, Coimbatore, to the Sub-court, Tuticorin, and directed it to

dispose of the proceedings, within a period of three months from the date of the receipt of a copy of this order, taking note of the various factors

considered by the Courts of Law in their decisions and in view of the guidelines laid down in the decision of this Court reported in 2001 AIHC

1567.

11.0. Per contra, the learned Counsel appearing on behalf of the respondent had relied on the decision of the Supreme Court in Anindita Das v.

Srijit Das reported in (2006) 9 SCC 197, wherein the Supreme Court had held that it is necessary to consider each petition on its merits and that

there cannot be any leniency shown merely for the reason that the petitioner is a woman. Thus, the transfer petition had been dismissed directing

the respondent to pay the expenses to the petitioner for her travel and stay, for attending the hearings before the concerned Court.

11.1. In another decision of the Supreme Court, in N.K. Nair and Anr. v. Kavanugal Aanattu Radhika reported in (2005) 13 SCC 439, the

Supreme Court had dismissed the transfer petition in view of the statement made in the counter affidavit that the suit is at its final stage and the

hearing may be concluded within one or two dates of hearing.

11.2. Further, in Teena Chhabra v. Manish Chhabra reported in (2004) 13 SCC 411, the transfer petition praying for the transfer of the case from

the Family Court, Bandra Mumbai to Chandigarh was sought for by the petitioner on the ground that the petitioner was totally dependent on her

parents and that she had no source of income to attend the proceedings at Mumbai. The said petition was dismissed, subject to the condition that

the respondent would bear the second class train fare and pay Rs. 500/- towards incidental expenses for lodging and boarding, whenever the

petitioner''s presence was required at Mumbai.

11.3. In the case of Sonal Nikhil Shah v. Nikhil Rasiklal Shah reported in (2005) 12 SCC 334, in view of the fact that the trial in the matrimonial

proceedings was at a concluding stage and only two remaining witnesses were to be examined and based on the submission of the learned Counsel

for the respondent that both the witnesses would be examined on the same day, the Supreme Court had disposed of the transfer petition directing

the respondent husband to pay Rs. 3,000/- towards petitioner wife''s travel expenses for each trip, provided the petitioner did not take any

adjournment in the matter.

11.4. In the case of Gayatri Mohapatra v. Ashit Kumar Panda reported in : (2003)11SCC731 , the Supreme Court had dismissed the transfer

petition on the ground that the petitioner has been travelling from one place to another, through out the country, in connection with her family

business. The ground raised by the petitioner that she will not be able to travel, cannot be considered to be a valid ground to seek for transfer of

her case.

In view of the averments made by the petitioner in the transfer petition and by the respondent in the counter affidavit and the submissions made

by the learned Counsels appearing on behalf of the petitioner, as well as the respondent and taking note of the decisions cited by them, it is clear

that the transfer petition is to be decided by the Courts of law based on the merits of each case, depending on its facts and circumstances.

The mere fact that the petitioner is a woman cannot be the sole criterion to allow the transfer petition. Various aspects of the matter have to be

weighed in their proper perspective before a decision is rendered in the transfer petition. Distance to be traveled by the petitioner, the expenses

involved and the inconvenience caused thereby, would certainly be some of the factors which would deserve serious consideration. However,

when the matrimonial proceedings are at a final stage and when it is stated that it would be finally over in a hearing or two, it may not be

appropriate for this Court to transfer the matter from one Court to another, at the request of the petitioner. Further, the petitioner may not be

required to attend each and every hearing in the matter, in person.

In the present case, the petitioner is a doctor, said to be practising at Pondicherry. Though it is stated that the petitioner has a young child to be

taken care of, nothing has been shown on behalf of the petitioner to substantiate her claim that the interest of the child would be jeopardized, if the

petitioner travels to Thanjavur to attend the hearings in H.M.O.P. No. 49 of 2007, pending on the file of the Principal Sub-ordinate Court,

Thanjavur. The child would be in the care of the parents of the petitioner during her short absence. Further, the matter has been pending for nearly

two years before the Principal Sub-ordinate Court, Thanjavur, and the petitioner had attended for a number of hearings, including the conciliation

proceedings and the Lok Adalat.

The learned Counsel for the respondent had also submitted that the respondent is a practicing doctor at Thanjavur. He is willing to pay a sum

of Rs. 3,000/- for the petitioner''s travel and stay, whenever she attends the hearings in the matrimonial proceedings, pending of the file of the

Principal Sub-ordinate Court, Thanjavur.

In such circumstances, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this Court to allow

the transfer petition, as prayed for by the petitioner. Hence, the transfer petition stands dismissed, with a direction to the Principal Subordinate

Court, Thanjavur, to dispose of H.M.O.P. No. 49 of 2007, pending on its file, on merits and in accordance with law, within a period of three

months from the date of receipt of a copy of this order. Consequently, connected M.P. is closed. No costs.