IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.12.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL Tr.C.M.P.No.342 of 2008 and M.P.No.1 of 2008 T.Usha Rani ... Petitioner Vs. G.Venkatesan ... Respondent Prayer: Petition filed under Section 24(1) of C.P.C., praying to withdraw the case H.M.O.P.No.31 of 2007 from the file of the Sub Judge at Mannargudi and transfer the same to the file of Family Court at Chengalpattu or to any other court having jurisdiction. For Petitioner : Mr.A.M.Packianathan Easter For Respondent : Mr.V.Bharathidasan ORDER
The petitioner/wife has filed this Tr.C.M.P. to pray for issuance of the order by this Court to withdraw H.M.O.P.No.31 of 2007 from the file of Sub Judge, Mannargudi and to transfer the same to the file of Family Court, Chengalpattu or to any other Court having jurisdiction.
2.The petitioner is the wife of the respondent. The marriage between the parties has taken place on 19.06.2003 at Vivekanandham – Krishnaveni Marriage Hall, Thiruthuraipoondi according to Hindu rituals. The petitioner /wife has averred in the transfer CMP inter alia stating that on 23.05.2007 the respondent/husband called her by phone from Thiruthuraipoondi and asked her parents and brother to come down and meet him and they forced them to stay there for 3 days and while her father, her brother visited all her husband’s relatives like sister, brother husband and his mother were assembled and waited for her relatives arrival and suddenly, they started quarrel with her father and brother and beaten them and her mother has been injured and she has been taken to the Hospital for treatment and the respondent/husband, fearing legal action on the side of petitioner, has filed a complaint in the police station and admitted himself in Government Hospital etc. and that on 02.07.2007 he has filed H.M.O.P.No.31 of 2007 on the file of Sub Judge at Mannargudi on the ground of cruelty giving the address at Trichirappalli and obtained an order of exparte divorce on 26.11.2007, which she has come to know of the same in January 2008 and she filed I.A.No.24 of 2008 and got the matter restored by means of an order dated 14.08.2008 and the main HMOP is posted to 02.09.2008 for filing her counter statement and that she dependent on her father and brother, who are working at Chennai and her mother is a patient and that she could not travel along with her mother and she has own fear to travel alone to her husband’s place and if H.M.O.P.No.31 of 2007 is transferred to the Family Court at Chengalpattu, then it will be quite convenient for her to attend the case and therefore, prays for allowing the transfer CMP in the interest of justice.
3.The respondent/husband has filed a detailed counter among other things mentioning that he has lodged a complaint before the Inspector of Police, Thiruthuraipoondi Police Station against his wife’s father and brother and that in Crime No.229 of 2007 a case has been registered by Thiruthuraipoondi Police Station and a final report has been filed on 30.05.2007 against three individuals and that the HMOP proceedings has been filed only based on mutual agreement entered into between the parties dated 26.05.2007 and after signed the agreement and agreed for mutual divorce, now the petitioner/wife is contested the same and that no part of the cause of action has arisen within the jurisdiction of Family Court at Chengalpattu and that he is working as Office Assistant in the Highways Department at Thiruvarur and that he is an Heart patient, suffering from congenital Heart disease and taking treatment at Thiruvaur and that he has been advised not to travel long distance and if the HMOP proceedings are transferred to the file of Family Court at Chengalpattu, then he will have to appear for every hearing in connection with the case and if the case is heard at Sub Court, Mannargudi then the petitioner/ wife need not appear for every hearing and therefore, prays for dismissal of the transfer CMP.
4.The learned counsel for the petitioner/wife submits that in view of the criminal case registered against the brother and father of the petitioner/wife by the Thiruthuraipoondi Police Station, it is not conducive for the petitioner to travel to Mannargudi where the H.M.O.P.31 of 2007 is pending at Sub Court and since the petitioner being a lady and depending on her father and brother, she cannot travel a long distance to attend every hearing at Mannargudi and therefore, prays for allowing the transfer application in the interest of justice.
5.Contending contra, the learned counsel for the respondent/husband submits that the respondent/husband is working as an Office Assistant, Highways Department and he being an Heart Patient, suffering from congenital Heart disease and taking treatment from the Heart Specialist at Thiruvarur, who has advised the respondent/husband not to travel long distances and since Thiruthuraipoondi is more than 300 kilometers from Chengalpattu, it is not equitable for this Court to allow the transfer CMP as prayed for by the wife in the petition.
6.To lend support of his contention that the respondent /husband is suffering from Heart disease, the learned counsel for the respondent/husband produced before this Court Echocardiogram report dated 10.09.2008 referred to by Dr.S.Ekanthalingam and on a perusal of the same, this Court is of the considered view that the respondent/husband has some Heart disease for which he is taking treatment etc. Further, in the said report, the Echocardiographic measurements of the respondent/husband has been given in comparison to the normal value one who possess. This report is questioned by the learned counsel for the petitioner/wife and according to the learned counsel for the petitioner/ wife, the said report has been produced to defeat the claim of the petitioner/wife in regard to the transfer CMP filed by her.
7.When a Court of law deals with an application for transfer under Section 24 of the Civil Procedure Code, it has to take note of the convenience of the parties. However, the interest of justice is paramount and in this regard, the convenience of wife will normal be a prime factor in allowing the transfer application. Before the Sub Court, Mannargudi where the H.M.O.P.No.31 of 2007 is pending, the parties need not appear for every hearing and their case/ interest can be taken note of by the counsels who appear for them. Whereas in Family Courts where matrimonial cases are pending, the presence of parties will be insisted generally. Even before the Family Court as per rules framed under the Family Courts Act, a concerned party can file a necessary application praying for exemption from personal appearance and the concerned Family Court is to pass orders on merits.
8.Be that as it may, as far as the present case is concerned, the respondent/husband is suffering from a congenital heart disease, as seen from the Echocardiogram report dated 10.09.2008 and therefore, healthwise he is not quite capable enough to travel more than 300 kilometers from his residential place at Thiruthuraipoondi and in that view of the matter, the balance of convenience is only in his favour and resultantly, the transfer CMP fails and the same is hereby dismissed in the interest of justice.
9.In the result, the Tr.C.M.P. is dismissed. Liberty is given to the petitioner/wife to file necessary application before the Sub Court, Mannargudi for seeking exemption from personal appearance when situation warrants and as and when application is filed by the petitioner/wife, the Sub Judge, Mannargudi is directed to deal with the same on merits taking a liberal view in the matter and in any event, the trial Court is directed to dispose of the main H.M.O.P.No.31 of 2007 within a period of four months from the date of receipt of copy of this order. The parties shall cooperate with the trial Court in regard to the completion of proceedings without protracting the matter any further. No costs. Consequently, connected miscellaneous petition is closed.
sgl
To
1.The Subordinate Judge, Mannargudi.
2.The Family Court,
Chengalpattu