ORDER
L. Narasimha Reddy, J.
1. The petitioner is the wife of the respondent. It is stated that the sister of the petitioner was married to the respondent, and on her death, the petitioner was given in second marriage to the respondent, in the year 1992. The respondentfiledH.M.O.P.No.324of 2004,in the Court of the Additional Senior Civil Judge, Guntur, under Section 13(1)
(iii-a) of the Hindu Marriage Act, 1955 (for short ‘the Act’), against the petitioner, seeking divorce. He pleaded that ever since his marriage with the petitioner, she was not co-operative, and she hardly lived with him, for a period of one year. It was alleged that the petitioner left the company of the respondent on 10-12-2000 and thereafter, she did not return. The respondent claimed that he is suffering from ailments like Diabetes and Lungs problem and is taking treatment.
2. The petitioner alleges that on account of the harassment caused to her by the respondent, she was forced to live at her mother’s house at Visakhapatnam, and she is living without any means. She contends that she is required to look after her old mother, who is aged about 71 years, and she is subjected to litigation at Vishakhapatnam, by her bother. She pleads that the respondent filed the O.P. at Guntur, only with a view to harass her and with an object of obtaining an ex parte decree, as she cannot attend the Court, due to lack of proper means and assistance.
3. The respondent filed a detailed counter affidavit together with a number of documents. He contends that the petitioner possesses considerable property and adequate means, as is evident from A-Schedule to O.S.No.422 of 2004, filed by the bother of the petitioner, in the Court of the VII Additional District Judge, Visakhapatnam. He urges that in the said Suit, filed for partition, it was alleged that the petitioner holds 10% of the property, which is valued at about Rs. 20,00,000/- On the second allegation of the petitioner, as to harassment, the respondent contends that it is, in fact, he, who was subjected to harassment, on account of the careless attitude of the petitioner, even while he was suffering from serious ill-health. He states that at a time, when he was suffering from serious ill-health and was not even in a position to move, and needed the assistance of the petitioner, she left him abruptly. He contends that in case, the request of the petitioner is acceded to, it would not be possible for him, to attend the Family Court at Vishakhapatnam.
4. The relationship between the petitioner and the respondent deteriorated and they are living separately from the year 2002. It is neither necessary nor permissible in this Tr.C.M.P. to express any opinion, upon the circumstances, that led to the present state of affairs.
5. The respondent filed the O.P. against the petitioner, seeking divorce, by pleading the grounds under Section 13(1)(ia) of the Act viz., that the petitioner deserted him. The petitioner seeks transfer of the said O.P. to the Family Court, Visakhapatnam, on two grounds viz., (i) she does not have the proper means to defend herself or to travel to Visakhapatnam (sic. Guntur), (ii) the respondent has filed the O.P. at Guntur, only with a view to harass her.
6. The allegation of the petitioner that she is residing with her old mother, who is aged about 70 years, is not in dispute. While contradicting the plea of the petitioner that she does not have the means, either to travel or to defend herself, it is sought to be contradicted by the respondent, by making a reference to O.S.No.422 of 2004, filed by the brother of the petitioner, in the Court of VII Additional District Judge, Visakhapatnam. The petitioner herein is shown as Defendant No. 3 in the array of 17 defendants therein. Except that the plaintiff and some of the defendants are stated to be entitled to various shares in the suit schedule property, it was not alleged that the petitioner is in possession of any property. B-Schedule to O.S.No.422 of 2004 comprises of various deposits, which were said to have been made by the common ancestor. Therefore, it cannot be said that the petitioner had any independent income of her own or sufficient means to defend herself.
7. However, it must be noted that mere lack of proper resources for a defendant by itself is not a ground to seek transfer of the suit, to a different Court. In respect of the proceedings under the Act, gravity of the matter, arising out of such situations, is adequately taken care of, by providing for payment of legal expenses, under Section 24 of the Act. If the only objection of the petitioner is about her lack of proper means, appropriate orders under Section 24 of the Act can take care of it. However, the matter has a further dimension.
8. The petitioner specifically pleaded that she has been subjected to harassment, while she was living with the respondent, and the object of filing the present O.P. by him, is only to further harass her. It is true that the respondent is aged about 60 years and he is said to be undergoing treatment for certain ailments. But, the plight of a woman, who is residing separately from her husband, for the past four years, in the context of attending a Court, situated about 300 K.Ms, away, can easily be imagined. She has no male member to accompany her. She is looking after her old mother, and her brother is not in good terms with her.
9. In the context of choosing a Forum for initiating proceedings, the place of residence of the defendant or the respondent, as the case may be, assumes significance. Except in cases, which involve adjudication of property disputes, the emphasis under Sections 15 to 20 of C.P.C. is on the residence of the defendant. Section 19 of the Act indicates the place of solemnization of marriage, place of residence of respondent, and place, where the parties last resided together, are recognized, as factors, in choosing the Forum, in which the petitions under the Act have to be presented.
10. Having regard to the primacy accorded to women in the Indian Society, the emphasis by the Courts as well as the Legislature has been to lean, more towards women, in the matter of making relevant provisions or protection of personal rights. The various provisions enacted, in relation to succession, bear testimony to this. In the context of presentation of the petitions under the Act, the guiding factor is mostly, the place of residence of the respondent. This necessitated the women, claiming relief under the Act, to present the petitions before a Court, where the other spouse was residing. Naturally, the women petitioner would be exposed to gender based bias or harassment. To wriggle the women from such a situation, the Parliament stepped in and amended Section 19 of the Act by adding Clause (iii-a) in Sub-section (1) of that Section, which reads as under:
(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or.
11. It is apt to extract the relevant portion of the Statement of Objections and Reasons that prompted the said amendment, which reads as under:
However, these provisions are not considered adequate or fair as far the women are concerned. Under the existing provisions, a petition cannot be filed by the aggrieved wife to the District Court within the local limits of whose
ordinary jurisdiction she may be residing. In view thereof, the Government has decided to amend the provisions of these Acts so that the wife can also file petition in the District Court within local limits of whose jurisdiction she may be residing. The proposed amendments to Section 31 and 19 of the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 respectively are based on the recommendations of the Law Commission of India and the National Commission for Women.
It is evident that emphasis was to ensure that the women are enabled to prosecute the litigation at a place, where they reside. The fact that such a facility was extended to the women and not to the men, by adding Clause (iii-a) to Sub-section (1) of Section 19 of the Act, proceeds on the premises that a man has, any way, to file the petition in a Court, within whose jurisdiction his spouse’ reside. Though in not so many clear words, the intention is clearly discernible. The ultimate object appears to be to enable women to prosecute their remedies in the Courts, within whose jurisdiction they are living.
12. In the Judgment of the Supreme Court in Reena Bahri v. Ajay Bahri , it was held that even when the husband is prepared to meet the expenditure of the wife to defend herself, the application filed by the husband must be transferred to the Court, within whose jurisdiction the wife resides, in case, it is evident that there is none to accompany her, to the place, where the O.P. is initially filed by the husband. To the same effect, are the Judgments of the Supreme Court in Leena Mukherjee v. Rabi Shankar Mukherjee , and Amitha Shah v. Virendar Lal Shah .
13. The learned Counsel for the respondent relied upon a Judgment of this Court in
N. Kavitha v. N. Veeraiah . In that case, the facts that the wife left her husband and children; the husband alone was taking care of the children; and that the wife filed O.P. for restitution of conjugal rights, much after the husband filed that O.P. for divorce, were taken into account. Such a situation does not exist in this case.
14. In Aduru Sridevi @ Parvathi v. Aduru Ganesh I (2003) DMC 246, it was held by this Court that the fact that the wife does not have the means to travel from her place, by itself is not a ground to transfer the O.P. filed by the husband.
15. The Judgment of the Supreme Court in Neelam Kanwar v. Devinder Singh Kanwar , relied upon by the respondent, does not help him. On the other hand, the following observation of the Supreme Court negatives his contention.
we are mindful of the fact that the petitioner is a lady and the first respondent is a male and therefore
convenience wise a transfer to the place where the lady is residing would be preferred by this Court unless it is shown that there are special reasons not to do so. No such special reason is shown.
Same situation exists, in the instant case, and there is no reason why the request of the petitioner cannot be acceded to. The other decisions, relied upon by the learned Counsel for the respondent, are mostly in relation to the exercise of power, under Section 25 of the Civil Procedure Code, by the Supreme Court or touching on the general principles of transfer of proceedings from one Court to another.
16. This Court finds that the various observations made by the Supreme Court, directing transfer of petitions filed by husband to the place, where other spouse resides, and the recent amendment to Section 19 of the Act, add strength to the claim of the petitioner. The interest of the respondent can be taken care of, by directing that the Court, to which the OP. is transferred, shall not insist on the presence of the respondent, on every date of hearing, and if necessary, his statement shall be recorded through a Commissioner.
17. For the foregoing reasons, the Tr.C.M.P. is allowed andO.P.No.324 of 2004, on the file the learned Additional Senior Civil judge, Guntur, is transferred to the Family Court, Visakhapatnam. It is directed that the Family Court, Visakhapatnam, shall not insist on personal appearance of the respondent, except where, it is needed for the steps in conciliation. There shall be no order as to costs.