IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.10.2008
Coram
The Honourable Mr.Justice M.VENUGOPAL
Tr.C.M.P.No.152 of 2008 &
M.P.No.1 of 2008
A.Lavanya
... Petitioner
Vs.
K.Muthusamy
... Respondent
This transfer Civil Miscellaneous petition has been preferred under Section 24 of CPC to withdraw the proceedings in H.M.O.P.No.93 of 2007 on the file of the Subordinate Judge, Mettur and order for the transfer of the same to the file of the learned Family Court, Salem to be tried along with M.C.No.13 of 2008.
For Petitioner : Mr.Perumbulavil Radhakrishnan
For Respondent : Mr.D.K.Kumarasamy
O R D E R
The petitioner is the wife. The respondent is the husband. The respondent/husband has filed the H.M.O.P.No.93 of 2007 on the file of Subordinate Judge, Mettur, praying for a relief of divorce on the ground of cruelty under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 and the same is pending. The petitioner/wife has failed the maintenance case in M.C.No.13 of 2008 against the respondent/husband before the Family Court, Salem and the same is pending.
2.The grievance of the petitioner/wife is that she is unable to travel to Mettur to attend the hearing of the case in H.M.O.P.No.93 of 2007 filed by the husband and she fears that her husband and his men will endanger on her so as to affect her life permanently. It is also the stand of the petitioner that there is no one to accompany her, to travel to Mettur, for the purpose of attending the hearing in H.M.O.P.No.93 of 2007 on the file of the Sub Court, Mettur. Therefore, she has prayed for the transfer of H.M.O.P.No.93 of 2007 from the file of Subordinate Judge, Mettur to the file of Family Court, Mettur to be tried along with M.C.No.13 of 2008.
3. The respondent/husband has filed a detailed counter inter alia stating that he has been meted out wife cruelty by the petitioner/wife, while she was in matrimonial house and she has given a false complaint against his parents, brothers, sisters etc., for alleged offence under Section 498(a), 406, 306 and 294 (b) and 307 IPC and that he has been arrested by the police and remanded to judicial custody and therefore, the wife is responsible for the break down of matrimonial home etc., and resulting that he was forced to file the H.M.O.P.No.93 of 2007 on the file of Sub Court, Mettur seeking relief of divorce. He has further contended that the petitioner/wife has filed a petition claiming alimony of Rs.2,00,000/- per month and Rs.15,000/- towards litigation expenses and the same is pending. The petitioner/wife in order to harass him has filed M.C.No.13 of 2008 on the file of Family Court, Salem claiming maintenance of Rs.1,50,000/- per month and also a further sum of Rs.15,000/-per month towards maintenance of her daughter under Section 125 Cr.P.C. and that the petitioner/wife has number of friends and relatives at Salem Town and that he emerges that he may be manhandled by arrangement, if he comes to Salem and hence prays for dismissal of the transfer petition.
4.This Court has paid its anxious consideration to the contentions put forward by the learned counsel appearing on either sides. In the case of transfer petitions, the convenience of both the parties will have to be taken into account by the Court. However, the convenience of the wife/petitioner will stand on a better footing. As far as the present case is concerned, in the considered view of this Court, in as much as the petitioner has stated that she has no one to accompany her for the purpose of her travel to Mettur in connection with the hearing of the H.M.O.P.No.93 of 2007 on the file of the Subordinate Judge, Mettur and also bearing in mind an important fact that maintenance case in M.C.No.13 of 2008 has been filed by her on the file of Family Court, Salem, this Court opines that it is a fit case, for allowing the transfer application bearing in mind the convenience of the petitioner/wife. On the otherhand, the respondent/husband will not be prejudicial in any manner in the considered opinion of this Court. Resultantly, this Court allows the transfer petition in the interest of justice and orders for withdrawal of transfer of H.M.O.P.No.93 of 2007 from the file of Sub Court, Mettur to the file of Family Court, Salem. The Sub Judge, Mettur is directed to transmit the records in H.M.O.P.No.93 of 2007 from his file to the file of Family Court, Salem immediately on receipt of the copy of this order.
5.However, it is open to the respondent/husband to file necessary application before the Family Court, Salem seeking exemption of his appearance before that Court and in the event of such application being filed the Family Court, Salem is to decide the same on merits, uninfluenced by any of the observations made by this Court in this transfer petition. Further this Court directs the Family Court, Salem to dispose of the H.M.O.P.No.93 of 2007 and M.C.No.13 of 2008 and incidental pending interim applications there to if any, within a period of three months from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petition is also dismissed.
22.10.2008
Index : Yes/No
Internet: Yes/No
Smi
To
1.The Subordinate Judge, Mettur.
2.The Family Court, Salem.
M.VENUGOPAL,J.,
Smi
Tr.C.M.P.No.152 of 2008
22.10.2008