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The Protection of Women from Domestic Violence Act, 2005
The Muslim Women (Protection of Rights on Divorce) Act, 1986
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Madras High Court
Mrs.Sheela @ Mahalakshmi vs Mr.D.Kirupakaran on 4 November, 2008
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.11.2008

CORAM:

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

Tr.C.M.P.No.311 of 2008 and
M.P.No.1 of 2008

Mrs.Sheela @ Mahalakshmi				... Petitioner
Vs.
Mr.D.Kirupakaran			... Respondent

Prayer: Petition filed under Section 24 of C.P.C., praying to withdraw the O.P.No.1242 of 2008 now pending on the file of the I Additional Family Court, Chennai and transfer it to Subordinate Court, Vellore.

		For Petitioner		: Mr.P.John
						  For M/s.T.S.Gopalan and Co.

		For respondent		: Mr.P.M.Bakthavatsalam

ORDER

The petitioner/wife has filed this Tr.C.M.P. under Section 24 of Civil Procedure Code before this Court praying for an order of withdrawal of O.P.No.1242 of 2008 pending on the file of I Additional Family Court, Chennai and to transfer the same to the Subordinate Court, Vellore.

2.In the affidavit filed in support of this transfer CMP petition, the petitioner/wife has averred that she was married to the respondent/husband on 17.06.2005 as per Hindu Caste and Customary Rights at Vellore and at the time of marriage, her parents presented her with hundred sovereigns worth of gold jewellery apart from silver articles and household articles and that the respondent/husband has been given a sum of Rs.2,00,000/- towards marriage expenses and that she lived with the respondent/husband in the matrimonial home at Chennai and when she has been living in Chennai, she has been ill treated by the respondent/husband and his mother etc. and that because of the ill treatment of the respondent/husband and his mother on the basis of their false notion that she has been insane and suffering from depression, she has been perforced to live her parents house forcibly and since the respondent/husband is not willing to live with her, she filed H.M.O.P.No.81 of 2006 on the file of Sub Judge, Vellore for restitution of conjugal rights and an exparte decree dated 24.09.2006 was passed and that the respondent/husband has not filed any application to set aside the said decree dated 24.09.2006 till date and since she is unable to sustain herself, she filed M.C.No.2 of 2007 before the Judicial Magistrate No.1, Vellore seeking maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005 and by an order dated 22.10.2007 the learned Judicial Magistrate No.1, Vellore is directed that she be paid the monthly maintenance of Rs.3,000/- and that the respondent/husband should set up a residence in a rented accommodation at Chennai for her and pay the monthly rent and that the police authorities living near the rented accommodation should also be in a position to provide security in case of necessity and that the monthly maintenance should be paid before the 10th of every month etc. and further that the respondent/husband has not set up a separate residence for her at Chennai and paid only a sum of Rs.3,000/- per month for the period from November 2007 to February 2008 and thereafter, he did not pay any amount.

3.The further case of the petitioner/wife is to the effect that the respondent/husband has filed O.P.No.1242 of 2008 before the Family Court at Chennai seeking for a decree of divorce and that the respondent/husband has adopted a novel method to drag her from Vellore for the purpose of litigation and that the respondent is serving as a lecturer in a College in Chennai and that the pendency of the proceedings of the Family Court in O.P.No.1242 of 2008 is nothing but a gross abuse of process of law and that she has no one to help her to come to Chennai for the purpose of attending the hearings and she is in indigent circumstances and that no prejudice will be caused to the respondent/husband if O.P.No.1242 of 2008 is transferred to the file of Sub Court at Vellore to be tried in accordance with law.

4.The stand of the respondent/husband in the counter is to the effect that after solemnization of marriage, the petitioner/wife never allowed him for consummation of marriage and that she is ill treated and harassed and she voluntarily deserted from his house without stating any reasonable cause for desertion on 26.6.2005 and further that she has deserted him with an intention to bring the co-habitation permanently to an end and that she has obtained an exparte order for restitution of conjugal rights and that she filed M.C.No.2 of 2007 on the file of learned Judicial Magistrate No.1, Vellore under Section 18 and 19 of the Protection of Women from Domestic Violence Act, 2005 and that he has paid Rs.3000/- per month as per order of the Magistrate Court dated 22.10.2007 by sending IOB D.D. No.819882 dated 05.01.2008 for Rs.6,000/- from December 2007 and January 2008 and further he has called upon his wife to send her SB account details for crediting in her accounts in regard to the sum of Rs.3,000/- per month and that she has not complied with his request and he has obtained information that she is working in a computer company at Vellore and earning sufficient salary to lead her life without any maintenance amount for which she has not filed any case for recovery of arrears of maintenance as per order passed earlier and that he tried his level best to pay the rent of Rs.2,500/- and an advance amount of Rs.25,000/- in obedience to the order passed to lead a matrimonial life at Chennai and that she is not ready and willing to come and stay at Chennai, as she is having her employment at Vellore in a leading computer company and instead of cooperating to lead a marriage, she used to continue to live at Vellore and as per the order passed by the learned Judicial Magistrate No.1, Vellore she has to come and lead a marital life at Chennai and she is not willing for restitution of conjugal rights and has projected this transfer petition and therefore, her intention is only malafide and hence, pray for dismissal of the petition.

5.The learned counsel for the petitioner submits that the respondent/husband has wilfully stayed away from proceedings of H.M.O.P.No.81 of 2006 on the file of Sub Judge, Vellore, filed by the petitioner/wife for restitution of conjugal rights and that in the said proceedings an exparte order of allowing the petition on 24.09.2006 has been passed by the learned Sub Judge, Vellore and the respondent/husband has not filed any application to set aside the said order passed in the aforesaid HMOP proceedings and further that the respondent/husband has not set up a separate residence for the petitioner/wife at Chennai and that the respondent/husband has paid only a sum of Rs.3,000/- per month for the period from November 2007 to February 2008 in regard to the wife's claim of maintenance and thereafter, he has not paid any amount and therefore, the respondent/husband has not followed the direction dated 22.10.2007 issued by the learned Judicial Magistrate No.1, Vellore in M.C.No.2 of 2007 filed by the petitioner/wife (claiming maintenance) as per the provisions of the Protection of Women from Domestic Violence Act, 2005 and the respondent/husband without providing a separate residence or paying maintenance to the petitioner/wife has adopted a novel method of dragging the petitioner/wife from Vellore for the purpose of litigation viz., O.P.No.1242 of 2008 filed before the Family Court at Chennai by the respondent/husband praying for a decree of divorce and further that the husband is working as a lecturer in a College in Chennai and the proceedings initiated before the Family Court is nothing but a ruse to make the petitioner/wife to undergo further ordeal and that the petitioner/wife has no one help her to come to Chennai and that she is in an indigent circumstances and therefore, prays for an order being issued by this Court to withdraw the O.P.No.1242 of 2008 filed by the respondent/husband on the file of I Additional Family Court, Chennai and transfer it to Sub Court, Vellore.

6.Per contra, the learned counsel for the respondent/husband submits that the petitioner/wife is guilty of wilfully living apart and neglecting the respondent/husband in discharge of her marital obligations and that the petitioner/wife has obtained an exparte order dated 14.09.2006 in H.M.O.P.No.81 of 2006 for restitution of conjugal rights in her favour from the Sub Court, Vellore and that in M.C.No.2 of 2007 on the file of learned Judicial Magistrate No.1, Vellore filed by the petitioner/wife, the respondent/husband has paid Rs.3,000/- per month by sending a D.D. dated 05.01.2008 for Rs.6,000/- towards maintenance from December 2007 and January 2008 and later, the respondent/husband has called upon the petitioner/wife to furnish her S.B. Account for crediting the monthly maintenance at the rate of Rs.3,000/- per month and that the same has not been complied with by the petitioner/wife and that the respondent/husband has made an endeavour to pay the rent of Rs.2,500/- and advance amount of Rs.25,000/- in obedience of the order passed by the learned Judicial Magistrate Court No.1, Vellore in M.C.No.2 of 2007 to lead a matrimonial life at Chennai and that the petitioner/wife is not ready and willing to come and stay at Chennai since she is employed at a Vellore leading computer company earning sufficient salary to lead her life without any maintenance from the respondent/husband and that the husband is working as a lecturer in Chennai college and therefore, he has filed a O.P.No.1242 of 2008 before the I Additional Family Court, Chennai on 16.04.2008 and therefore, prays for dismissing the transfer petition since the same suffers from lack of bonafide on the part of the petitioner/wife.

7.This Court has paid its anxious considerations to the arguments advanced on the side of respective parties and noticed their contentions.

8.Admittedly, in transfer CMP proceedings the convenience of parties will have to be looked into by a Court of law. Further, as a general rule, the Court of law ought not to interfere unless the expenses and decrees of the trial would be so great as to lead injustice or the proceedings has been instituted in a particular Court for the purpose of causing injustice. The petitioner/wife in transfer CMP affidavit has furnished her Vellore address. According to the learned counsel for the respondent/husband, the petitioner/wife has settled at Vellore. The learned counsel for the petitioner/wife in support of his contention that the petitioner finds it difficult to attend the hearings of O.P.No.1242 of 2008 before the Family Court at Chennai because of her indigent circumstances, cites the decision Seema V. Rakesh Kumar (2000) 9 SCC 271 at page 271 wherein the Hon'ble Supreme Court has inter alia observed that "having regard to the fact that, admittedly, she is not getting any maintenance from the husband, her financial difficulties are established and in the circumstances, we think that the transfer petition should be made absolute. Case No.1035 of 1999 pending in the Court of the Civil Judge, Senior Division, Ghaziabad, shall stand transferred to the Court of the Senior Judge, Jagadhri (Haryana)."

9.As far as the present case is concerned, the respondent has only paid a sum of Rs.3,000/- per month for the period from November 2007 to February 2008 towards maintenance and thereafter, he has not paid any amount to the petitioner/wife, as per the averment made in para 3 of the petition. Though the petitioner/ wife has averred in the transfer petition that she is in an indigent circumstances, but the respondent/husband has denied it and according to him, the petitioner/wife is working in a computer company at Vellore and earning sufficient salary to lead her life without any maintenance. At this stage, it is to be borne in mind that the order dated 22.10.2007 in M.C.No.2 of 2007 by the Judicial Magistrate No.1, Vellore ordered monthly maintenance of Rs.3,000/- to be paid by the respondent/husband and further that he should set up a residence in a rented accommodation at Chennai for his wife and paying the monthly rent and the police authorities living near the rented accommodation should also be provided security in case of necessity and that the said monthly maintenance should be paid before the 10th of every month has become final and conclusive. In regard to the fact that the respondent/husband has not paid the monthly maintenance amount and not adhering to the conditions imposed by the learned Judicial Magistrate No.1, Vellore in M.C.No.2 of 2007, it is open to the petitioner/wife to take further proceedings against the respondent/ husband in the manner known to law. As on date, the exparte order passed in H.M.O.P.No.81 of 2006 by the learned Sub Judge, Vellore stands and the same is not set aside.

10.As a matter of fact, the Court is to find out whether a particular party has chosen a forum in utter disregard to the convenience of the parties for some ulterior object and in abuse of his position as an arbiter litus. The cardinal principle for exercise of the powers for transfer by a Court of law is the convenience and inconvenience of the parties. The question of expediency would depend upon the facts and circumstances of each case but the paramount consideration for exercise of the power must be to meet the ends of justice. In the matter of transfer of the case from one Court to another, the main consideration is failure of justice and therefore, a case is to be made out that a party has a reasonable apprehension that justice will be denied to him. In transfer of matrimonial petitions, convenience of the wife must generally be given prime importance. No doubt, the power to transfer the case has to be exercised ordinarily in respect of and with reference to individual cases. Moreover, the Court has to see that by transfer of the case a party is not prejudiced. Thus, the paramount consideration is that the justice according to law is done. In achieving that object if the transfer of a case is an imperative one, then, there should be no hesitation to transfer the case if it is likely to cause some inconvenience to one of the parties. While exercising the power of transfer, the Court of law is to exercise with the same with reasonableness and bearing in mind the interest of justice.

11.Considering the rival contentions, in as much as the exparte order dated 24.09.2006 passed by the learned Sub Judge, Vellore in H.M.O.P.No.81 of 2006 in allowing the petition is not set aside and still subsists and in view of the fact that the respondent/husband has not adhered to the conditions imposed by the learned Judicial Magistrate No.1, Vellore in his order dated 22.10.2007 in M.C.No.2 of 2007 in regard to the payment of monthly maintenance of Rs.3,000/- to the petitioner/wife and since he has not set up a residence in a rented accommodation at Chennai to her etc. and in as much as the respondent/husband is working as lecturer in a Chennai College and since he has chosen the forum of Family Court at Chennai seeking the relief of divorce against the petitioner/wife in O.P.No.1242 of 2008 based on his mere convenience and since the petitioner/wife is said to be employed in a leading private computer company at Vellore, she cannot be construed as a person under indigent circumstances, this Court is of the considered view that filing of O.P.No.1242 of 2008 before the I Additional Family Court, Chennai cannot be construed to be a case of abuse of process of law and a valid ground to transfer the said OP proceedings from the file of I Additional Family Court, Chennai to the file of Sub Court, Vellore and in that view of the matter, the petition for transfer fails and the same is hereby dismissed in the interest of justice, leaving the parties to bear their own costs.

12.Liberty is given to the petitioner/wife to proceed against the respondent/husband for non-compliance of the conditional order including the one of taking coercive steps passed in M.C.No.2 of 2007 by the learned Judicial Magistrate No.1, Vellore in accordance with law and as per known procedures. The petitioner/wife shall file her counter to O.P.No.1242 of 2008 before the I Additional Family Court, Chennai within two weeks from today. It is open to the petitioner/ wife to file a necessary application seeking exemption from personal appearance before the Family Court, Chennai and thereafter, the I Additional Family Court, Chennai is directed to dispose of the said O.P. on merits and in accordance with law within a period of four months from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is closed.

04.11.2008 Index: Yes Internet: Yes sgl To

1.I Additional Family Court, Chennai.

2.The Subordinate Court, Vellore.

M.VENUGOPAL,J.

Sgl ORDER IN Tr.C.M.P.No.311 of 2008 04.11.2008