R. Usha vs R. Vasudevan

V. Kanagaraj, J.—This Transfer Civil Miscellaneous Petition has been filed by the Wife against her husband as the respondent praying to

withdraw H.M.O.P. No. 20 of 1997 pending on the file of the Court of Subordinate Judge, Panrutti and to transfer the same to the Court of

Subordinate Judge, Kanchipuram to be tried along with H.M.O.P. No. 9 of 1998. In the affidavit filed in support of the above Transfer Civil

Miscellaneous petition, the petitioner wife would submit that she is residing with her brother at Kanchipuram since she is parentless; that the

respondent treated her cruelly meting out physical and mental torture to her as a result of which from August, 1997, she was forced to live

separately, that she had also given birth to a male child on 3.9.1996 which is with her; that the respondent forged her signature and collected Rs. 1

lakh from the Bank; that she has filed H.M.O.P. No, 9 of 1998 on the file of the Court of Subordinate Judge, Kanchipuram in which the

respondent entered appearance and now the case is posted on 7.10.1998; that the respondent has also filed H.M.O.P. No. 20 of 1997 on the file

of the Court of Subordinate Judge, Panrutti and the said case has also been posted on 10.7.1998; that the respondent is cruel and is threatening

her with his henchmen and since she is facing danger to attend to the Court at Panrutti besides having child, who is two years old to be taken care

of, she would pray to withdraw H.M.O.P. No. 20 of 1997 pending on the file of the Court of Subordinate Judge from its file and transfer the same

to the Court of Subordinate Judge, Kanchipuram so as to be tried along with H.M.O.P. No. 9 of 1998 filed by her for dissolution of marriage in

the said Court.

When the above matter has been taken up for consideration, the learned counsel for the petitioner is present with no representation offered on

the part of the respondent. Therefore, this Court is left with no option but to decide the above Transfer Civil Miscellaneous Petition based on the

materials made available on record and upon hearing the learned counsel for the petitioner from which it comes to be known that the petitioner and

the respondent are wife and husband, their marriage having been solemnized at Tirumala Devasthana Kalyana Mandapam, Tirupathi on 13.3.1995

and for sometimes they were living together as a result of which a son was born on 3.9.1996.

On her part, the petitioner would come forward to allege that she was cruelly treated and tortured by the respondent as a result of which she

withdrew from the company of the respondent and started living with her brother along with her child, who brought her up since she was

parentless. On the part of the respondent, in the application filed in H.M.O.P. No. 20 of 1997 u/s 9 of the Hindu Marriage Act seeking restitution

of conjugal rights, wherein the petitioner herein is the respondent, he would allege that the petitioner was in the habit of withdrawing from his

company and leaving the marital home used to go to Kanchipuram, her mother''s place, along with her child and ultimately four months prior to

filing the said petition, she did so without any valid reason or cause never to come back again to resume her conjugal relations with him in spite of

his repeated attempts to get her back and since all his persuasions to make her come and live with him failed, he was forced to file the petition in

H.M.O.P. No. 20 of 1997 on the file of the court of Principal Subordinate Judge, Panrutti seeking the decree for restitution of conjugal rights.

Be that as it may. Now there are two petitions filed, one by the wife in H.M.O.P. No. 9 of 1998 on the file of the Court of Subordinate Judge,

Kanchipuram seeking dissolution of marriage held in between the petitioner and the respondent and the other by the husband in H.M.O.P. No. 20

of 1997 seeking restitution of conjugal rights which has been filed in the Court of Principal Subordinate Judge, Panrutti wherein the respondent

seems to ordinarily reside. In this scenario, the wife living at Kanchipuram has come forward to file the above Transfer Civil Miscellaneous Petition

seeking to withdraw H.M.O.P. No. 20 of 1997 filed by the respondent on the file of the Court of Subordinate Judge, Panrutti and to transfer the

same to the Court of Subordinate Judge, Kanchipuram so as to be tried along with H.M.O.P. No. 9 of 1998 on grounds such as that she

apprehends danger at the hands of the respondent, who is threatening to do harm not only to her but also to her brother, who is accompanying her

for the hearings in H.M.O.P. No. 20 of 1997 instituted by the husband at Panrutti. She would further allege that keeping a tender child it is

hazardous for her to go to Panrutti and appear for all the hearings and therefore would pray for the relief sought for.

In these circumstances, the only point for determination in whether the Transfer Civil Miscellaneous Petition filed by the petitioner wife, merits

consideration or not ?

As against the allegations of the petitioner for seeking transfer of the H.M.O.R No. 20 of 1997 filed by the husband on the file of the Court of

Subordinate Judge, Panrutti for restitution of conjugal rights to the Court of Subordinate Judge, Kanchipuram so as to be tried along with

H.M.O.P. No. 9 of 1998 is concerned there is nothing placed on record with allegations contra or with rebuttal of the petitioner''s allegations and

in spite of sufficient notice to the respondent no appearance is made on his part much less represented by his counsel as a result of which this Court

is left with no option but to believe the allegations of the petitioner to be true. Moreover, being a lady, keeping a tender child with her, to travel all

the distance from Kanchipuram to Panrutti without a male assistance is hazardous and risky since after the Court proceedings are over, at times

she will have to travel during nights. To avoid all these, it is desirable only to transfer the petition instituted by the husband at Panrutti for restitution

of conjugal rights to the Court of Subordinate Judge, Kanchipuram so as to be tried along with H.M.O.P. No. 9 of 1998.

The learned counsel for the petitioner would cite a judgment of the Apex Court delivered in Raj Laxmi v. Dilip Kumar Sharma reported in II

(2000) DMC 759, wherein in a similar set of facts, the Honourable Apex Court remarking that it will not be conducive for a lady to travel all the

distance from her place of present living to the place where the husband has instituted the suit for dissolution of the marriage, has ordered to

transfer of the said suit to the Court located in the place of living of the wife. Considering all the facts and circumstances of the case, this Court is of

the view that the possibilities and the balance of convenience are only in favour of the petitioner The point is thus answered in favour of the

petitioner.

In result, this Transfer Civil Miscellaneous Petition is allowed ordering to withdraw H.M.P.P. No. 20 of 1997 from the file of the Court of

Subordinate Judge, Panrutti and to transfer the same to the Court of Subordinate Judge, Kanchipuram to be tried alongwith H.M.O.P. No. 9 of

1998.

Consequently, C.M.P. No. 13975 of 1998 is closed.

However, in the circumstances of the case, there shall be no order as to costs.