IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.12.2010
CORAM
The Hon'ble Mr.Justice R.S.Ramanathan
Tr.C.M.P.No.559 of 2010
and
M.P.Nos.1 & 2 of 2010
M.Keerthanadevi ... Petitioner
Vs.
P.T.Thaneshwaran ... Respondent
Transfer Miscellaneous Petition filed under Section 24 of the Code of Civil Procedure with a prayer to withdraw the petition in H.M.O.P.No.117 of 2009 from the file of the Learned Subordinate Judge, Karur, and to transfer the same to the file of the Family Court, Coimbatore, for being tried along with H.M.O.P.No.98 of 2010.
For Petitioner : Mr.M.Praveen Kumar
For Respondent : Mr.S.Doraisami
O R D E R
The petitioner/wife filed the transfer petition to transfer the case in H.M.O.P.No.117 of 2009 filed by the respondent/husband on the file of the
Subordinate Court, Karur, to the Family Court, Coimbatore, to be tried along with H.M.O.P.No.98 of 2010, filed by her for restitution of conjugal rights.
2. It is stated by the petitioner/wife that she is having a twins aged three years and she finds it difficult to attend the Court at Karur, and she also filed petition in H.M.O.P.No.98 of 2010, for restitution of conjugal rights. Therefore, both the cases may be tried by the Family Court, Coimbatore.
3. The respondent/husband filed a counter and contended that he filed petition in H.M.O.P.No.117 of 2010 for divorce and thereafter only the petitioner/wife filed petition in H.M.O.P.No.98 of 2010, before the Family Court, Coimbatore, and as per Section 21(A) of the Hindu Marriage Act, 1955 ( hereinafter referred to as the said ‘Act’) the latter case must be transferred to the Court where the former case is pending. Therefore, the case filed by the petitioner/wife in H.M.O.P.No.98 of 2010, has to be transferred to the Subordinate Court, Karur. The learned counsel also relied upon the judgment reported in A.I.R. (2008) Rajasthan 111 in the matter of ( Prakash Vs. Kavita ) in support of his contention.
4. On the other hand, the learned counsel appearing for the petitioner submitted that Section 21(A) of the said Act will not have any application to the facts of the present case on hand, as the above Section could be invoked only when the applications are filed under Section 10 and 13 of the said Act and in this case, the wife has filed the petition under Section 9 of the said Act and the respondent/husband has filed the petition under Section 13 of the said Act. He further submitted that eventhough Section 21(A) of the said Act, provides for transfer of the latter case to the Court where the former case is pending, the power of this Court under Section 24 of the Code of Civil Procedure, cannot be curtailed by the provisions of the Section 21(A) and this Court has got power to transfer the case to any Court and Section 21(A) will not restrict the power of this Court. In support of his contention, the learned counsel relied upon the judgments reported in (2006) IV M.L.J. 45 in the matter of ( Usha @ Ramalakshmi Vs. P.Shanmugam), and (2004) A.I.H.C. 4155 in the matter of (Baby Chitra Vs. K.Radhakrishnan)
5. It is submitted that the respondent/husband filed the petition in H.M.O.P.No.117 of 2010, on the file of the Subordinate Court, Karur, and thereafter only the petitioner/wife filed the petition in H.M.O.P.No.98 of 2010. Therefore, as per Section 21(A) of the said Act, the latter case has to be transferred to the Court where the former case is pending. Though, Section 21(A) of the said Act, says that only when the petitions are filed under Section 10 and 13 of the said Act, the latter case should be transferred to the Court, where the former case is pending, in my opinion the principle laid down in Section 21(A) of the said Act, can be invoked in all matrimonial proceedings, irrespective of the grounds on which the petitions were filed and therefore, when one party filed a petition for restitution of conjugal rights and another party filed a petition seeking for divorce, Section 21 (A) of the said Act can be invoked to transfer the latter case where the former case is pending.
6. Nevertheless, the provisions of Section 21(A) of the said Act, is subject to the power of this Court under Section 24 of Code of Civil Procedure. This has been clearly laid down by this Court in a judgment
reported in (2006) IV M.L.J. 45 (supra), wherein, this Court has held that the power of transfer of the High Court under Section 24 of Code of Civil Procedure cannot be whittled down or taken away by any provision of the said Act. Further, the Hon’ble Supreme Court has held that in matrimonial matters, the convenience of the wife has to be taken into consideration, while ordering transfer. In this case, it is submitted by the learned counsel appearing for the petitioner that the wife is having twins aged three years and she finds it hard to attend the Court at Karur.
7. Considering the fact that the petitioner is a wife and she is having twins aged three years, I am inclined to allow the case now pending on the file of the Subordinate Court, Karur, in H.M.O.P.No.117 of 2010, to be transferred to the Family Court, Coimbatore, to be tried along with H.M.O.P.No.98 of 2010. The learned Subordinate Judge, Karur, is directed to send the papers to the Family Court, Coimbatore, within a period of 15 days from the date of receipt of a copy of this order.
R.S.Ramanathan. J.
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8. In the result, this Transfer Civil Miscellaneous Petition is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.
03.12.2010
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Index : yes/no
Internet : yes/no
To
1. The Subordinate Judge, Chennais
2. The Subordinate Judge, Trichy.
Tr.C.M.P.No.559 of 2010