BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/01/2009 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Tr.C.M.P.No.90 of 2008 Eswari .. Petitioner. Versus Kumar .. Respondent. Petition filed under Section 24 of the Civil Procedure Code seeking to withdraw the proceedings, pending in H.M.O.P.No.100 of 2007, on the file of the Family Court, Madurai and Transfer the same to the file of the Subordinate Court, Devakkottai to be tried along with H.M.O.P.No.38 of 2008 on its file. !For Petitioner ... Mr.R.Sundar Srinivasan ^For Respondent ... Mr.G.R.Swaminathan :ORDER
This petition has been filed praying that this Court may be pleased to
withdraw H.M.O.P.No.100 of 2007, on the file of the Family Court, Madurai and to
transfer the same to the file of the Subordinate Court, Devakkottai, to be tried
along with H.M.O.P.No.38 of 2008, pending on its file.
2. The petitioner has stated that the marriage was solemnized with
respondent, on 20.04.1992, as per the customs applicable to them, at P.Azhapuri,
Keelaseevalpatti near Karaikudi. Subsequent to the marriage, the petitioner and
the respondent were living together at Simmakkal, Madurai. Three female
children and one male child were born to the petitioner out of the wedlock with
the respondent.
3. It has been further stated that there was marital discord between the
petitioner and the respondent and therefore, she had filed a petition for
divorce, in H.M.O.P.No.38 of 2008, on the file of the Subordinate Court,
Devakkottai, which is close to Karaikudi, where the petitioner is residing.
However, the respondent had filed H.M.O.P. No.100 of 2007, on the file of the
Family Court, Madurai, for restitution of conjugal rights. The real intention
of the respondent is to harass the petitioner by making her travel to Madurai,
leaving her four children behind, to attend the hearings, in H.M.O.P. No.100 of
2007, on the file of the Family Court, Madurai. Unless the petition, in
H.M.O.P. No.100 of 2007, pending on the file of the Family Court, Madurai, is
transferred to the Subordinate Court, Devakkottai, to be tried along with
H.M.O.P.No.38 of 2008, it would cause great inconvenience and serious hardship
to the petitioner. The petitioner has also stated that the mother of the
petitioner had passed away and the only male assistance is the father, who is
more than 75 years old and all her four children are studying at Karaikudi.
Therefore, it would be extremely difficult to leave the children with her aged
father and travel to Madurai to attend the hearings, in H.M.O.P.No.100 of 2007.
Hence, she has preferred the present petition before this Court praying that
H.M.O.P. No.100 of 2007, pending on the file of the Family Court, Madurai, be
transferred to the Subordinate Court, Devakkottai, to be tried along with
H.M.O.P.No.38 of 2008.
4. In the counter affidavit filed on behalf of the respondent, it has been
stated that the marriage between the petitioner and the respondent had been
solemnized on 20.04.1992. Since then, they had been living together peacefully,
without any problems. From the year 2004, the petitioner had been going to her
parental home very often. Apart from that, she had also refused to return to
live with the respondent. In such circumstances, the respondent had filed
H.M.O.P. No.100 of 2007, for restitution of conjugal rights, before the Family
Court, Madurai. The petitioner has filed H.M.O.P. No.38 of 2008, before the
Subordinate Court, Devakkottai, seeking for divorce, as a counter blast. The
present petition has been filed by the petitioner with the mala fide intention
of harassing the respondent. The balance of convenience is in favour of
respondent as he is carrying on tyre business at Simmakkal, Madurai. Hence, it
is liable to be dismissed.
5. In view of the submissions made by the learned counsel appearing for
the petitioner, as well as the respondent and on a perusal of records available
and in view of the recent decision of the Supreme Court, in Purnima Sailani V.
Shailendra Sailani, (2009) 1 SCC, 656, this Court is of the considered view that
the petitioner has shown sufficient cause for transferring H.M.O.P.No.100 of
2007, pending on the file of the Family Court, Madurai, to the Subordinate
Court, Devakkottai, to be tried along with H.M.O.P.No.38 of 2008.
6. The balance of convenience is also in favour of the petitioner since
she has four young children and she has to travel to Madurai for every hearing
of the petition filed by the respondent, in H.M.O.P.No.100 of 2007. In such
circumstances, H.M.O.P. No.100 of 2007, pending on the file of the Family Court,
Madurai, is transferred to the Subordinate Court, Devakkottai, to be tried along
with H.M.O.P.No.38 of 2008. The Sub Judge, Devakkottai, is directed to hear and
dispose of both the petitions, on merits and in accordance with law, within a
period of six months from the date of receipt of a copy of this order.
srm
To
The Family Court, Madurai.
The Subordinate Court, Devakkottai.