IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.12.2008 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL Tr.C.M.P. No.182 of 2008 and M.P.No.1 of 2008 R. Meenakshi .. Petitioner Versus K. Raja @ Sundaresasarma also known as K. Sundararajan .. Respondent The Transfer Civil Revision Petition has been filed under Section 24 of Civil Procedure Code praying to withdraw and transfer HMOP.No.583 of 2008 on the file of I Additional Judge, Family Court, Chennai to Family Court, Hosur. For Petitioner : M/s. V.Chandrakanthan For Respondents : Mrs. Bala Natarajan ORDER
The petitioner/wife has projected this Transfer Civil Miscellaneous Petition praying for issuance of an order by this Court to transfer the matrimonial proceedings HMOP.No.583 of 2008 from the file of First Additional Judge, Family Court, Chennai, to the Family Court, Hosur.
2. The petitioner is the wife. The respondent is the husband. The petitioner’s marriage with the respondent has taken place on 29.10.2007 at Ramakrishna Thirumana Mandapam, Chennai-33, according to Hindu Rites and Customs. Admittedly, the respondent/ husband has filed HMOP.No.583 of 2008 under Section 12(1)(a)(c) of Hindu Marriage Act, to dissolve the marriage and the same is now pending on the file of the First Additional Judge, Family Court, Chennai.
3. The learned counsel for the petitioner/wife submits that the petitioner/wife has no source of income and is depending on her father, who is a retired bank employee and the petitioner/wife finds it inconvenient to travel from Hosur to Chennai for the purpose of hearing of the case HMOP.No.583 of 2008 and because of her financial condition and considering her father’s age etc., she cannot afford to come to Chennai in connection with the hearing of the HMOP.No.583 of 2008 pending on the file of First Additional Judge, Family Court, Chennai, and if the said case is transferred from the file of First Additional Judge, Family Court, Chennai to the Family Court, Hosur, then the same will not cause any prejudice or hardship to the respondent/husband and therefore prays for allowing the Transfer Civil Miscellaneous Petition in the interest of justice.
4. Per contra, the learned counsel for the respondent/ husband submits that the petitioner/wife has been taken by her father on 01.11.2007 and from that time onwards, the respondent/husband has not seen the petitioner/wife and from the beginning the petitioner/wife has not behaved like a normal spouse and it appears that the petitioner/wife has been treated in an asylum at Bhagayam, Vellore and that the respondent/husband has been informed that the petitioner/wife has been treated in the year 1996 itself in CMC, vide ID card No.079962-M, UNTI-2, CMC and that the petitioner/wife is suffering from some illness and that too is before her marriage and that there is no Family Court at Hosur and if the condition for the petitioner/wife improves then the respondent/ husband is even prepared to take her and there has been no communication between the parties for a long time and that no case has been made out by the petitioner/wife to allow the Transfer Civil Miscellaneous Petition and further that the respondent/husband is prepared to bear her transportation charges from Hosur to Chennai even though he is not gainful employed and therefore prays for dismissal of the petition.
5. The learned counsel for the petitioner/wife cites a decision ‘Neelima Rani alias Neelima Rani Palakonda ..vs.. Srikanth’ reported in 2005 (12) SCC Page 387, wherein the Hon’ble Supreme Court has inter-alia held that ‘ the petitioner is a lady who is unemployed and has no source of income. She also has no other member to accompany her to Chennai. In an case the respondent has to come from UK to India and therefore it makes no difference to him whether he goes to Chennai or to Andhra Pradesh and resultantly has transferred the case O.P.No.844 of 2004 from the Family Court, Chennai, Tamil Nadu to the Court of Family Judge at Warangal District, Andhra Pradesh.
6. The learned counsel for the petitioner also relies on the decision of this Court ‘Subashini ..vs.. Sekar’ reported in ‘2004(3) CTC 580’ whereby, this Court observed that ‘ it is the convenience of the wife that must be given the atmost importance and resultantly allowed the transfer petition as prayed for by the wife’. He also presses into service the decision of ‘Smita Sinha ..vs.. Sujit Kumar’ reported in 2005(12) SCC 381 wherein the Hon’ble Supreme Court interalia observed that ‘ having regard to the fact that the wife has a small child of 1-1/2 years old who cannot be left alone at Delhi or taken to Gaya, case directed to be transferred to District Judge, Delhi.’
7. Yet another decision, “Rajani Kishore Pardeshi ..vs.. Kishor Babulal Pardeshi’ reported in 2005 (12) SCC 237 of Hon’ble Supreme Court has been relied on by the learned counsel for the petitioner/wife wherein it is held that ‘in such cases, convenience of wife to be preferred over that of the husband and accordingly the case has been directed to be transferred to Satna.’ He also draws the attention of this Court to the decision ‘ Sumita Singh ..vs.. Kumar Sanjay and another’ reported in AIR 2002 Supre Court 396, wherein Hon’ble Supreme Court has observed that ‘it is the husband’s suit against the wife. It is the wife’s convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute etc.,’.
8. It is pertinent to point out that when a Court of Law deals with the transfer Civil Miscellaneous Petition in matrimonial matters, it has to taken into account the convenience of parties in the case. Of course the convenience of wife will normally stand on a higher pedestal than that of the husband. However, ultimately, it is to be pointed out that justice has to be meted out to the parties.
9. As far as the present case is concerned, on the side of the respondent/husband, xerox copy of a discharge summary in respect of the revision petitioner/wife has been produced in the typed set of papers from ‘Athma – the mind Centre’ wherein it appears that the petitioner/wife has been diagonised as suffering from ‘Schizophrenia, drug induced Parkinsonism’ and that she has been advised for a regular follow up also.
10. It is not out of place to make a mention that when the matter has come up for hearing on 05.11.2008 before this Court, at that time, the learned counsel for the respondent/husband has informed this Court that the respondent/husband is willing to take the petitioner/wife provided there is an improvement in her health condition and that this Court has directed the petitioner/wife’s counsel to ascertain the status/position of the petitioner/wife in regard to her existing state of health and adjourned the matter by a week. Even today, the learned counsel for the petitioner/wife prays time to ascertain the existing state of health of the petitioner/wife. Inasmuch as the petitioner/wife is suffering from some kind of ailment as seen from the discharge summary issued by the ‘Athma – the mind centre’, which has been enclosed in the typed set of papers on the side of the respondent/husband and taking note of cumulative assessment of facts and circumstances of the case, this Court is of the considered view that at this juncture, it is not equitable for this Court to allow the petitioner/wife’s request for transferring the matrimonial proceedings HMOP.No.583 of 2008 pending on the file of the First Additional Judge, Family Court, Chennai to the Family Court, Hosur and the balance of convenience is not in her favour and in that view of the matter, this Court is not inclined to allow the transfer Civil Miscellaneous Petition in the interest of justice and resultantly dismissed the same without costs.
11. In the result, the Transfer Civil Miscellaneous Petition is dismissed without costs. However, liberty is given to the petitioner/wife to file necessary application before the First Additional Judge, Family Court, Chennai in HMOP.No.583 of 2008 and to seek exemption in regard to her personal appearance in the manner known to law and in the event of such an application being filed the First Additional Judge, Family Court, Chennai is directed to provide opportunity to the respondent/husband and to pass appropriate orders in accordance with law. Consequently, connected Miscellaneous Petition is closed. However, there will be no orders as to costs.
Index : Yes
1. I Additional Judge, Family Court, Chennai.
2. Family Court, Hosur.
Tr.C.M.P. No.182 of 2008
M.P.No.1 of 2008