IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.01.2009 CORAM THE HONOURABLE MR. JUSTICE M.VENUGOPAL Tr.C.M.P.No.361 of 2008 Nivashini Mohan .. Petitioner Versus R.Nivendran .. Respondent Transfer Civil Miscellaneous Petition is filed to withdraw and transfer the H.M.O.P.No.311 of 2008 from the file of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with H.M.O.P.No.201/2008. For Petitioner : Mr.T.R.Senthil Kumar For Respondent : Mr.Thomas T.Jacob ORDER
The petitioner/wife has filed this Transfer C.M.P.361/2008 praying for issuance of an order by this Court, directing the transfer of HMOP.311/2008 from the fire of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with HMOP.201/2008.
2. The petitioner/wife in her affidavit in the Transfer Petition has averred that her marriage with the respondent/husband has taken place on 2.7.2006 according to Hindu Rites and Customs at Vemubuli Amman Temple, Aminjikarai, Chennai, though the marriage has been formally registered on 28.06.2006 and later by the threat and compulsion of the respondent/husband registered the marriage at Sub-Registrar Office, Pammal on 26.09.2005 and because of the continuous harassment and demand of dowry by the respondent/husband and his family members, she has faced cruelty and mental agony and that after her marriage, within a short span of three months. She has been driven out of the matrimonial house three times by the family members of the respondent/husband and that she has been compelled to give up her job and that she has been threatened to abort even at the very early stage of her pregnancy and that she has been forced to locate a rented house near her office at Perungudi on intimation to the respondent/husband, as per the advise of the Doctor and that she shifted her residence on 1.12.2006 and that having waited for two months, she sent E-mails to the respondent/husband narrating all the ill-treatments and cruelty meted out to her. The respondent/husband filed HMOP.352/2007 before the Principal Family Court, Chennai under Section 9 of the Hindu Marriage Act alleging as if the petitioner/wife has refused to join with him and on 18.4.2007, the said HMOP has been dismissed based on the endorsement made by the parties and the respondent/husband has come to Perungudi after three days on 21.04.2007 and that during the said stay of the respondent/husband from 21.04.2007, he has threatened the petitioner/wife to give consent for divorce or comply with the demand of his family members and after the birth of the male child, the respondent/husband with his family members identified a rented house, an unfinished one near his parents residence at Arumbakkam and that she has been asked to vacate the house at Perungudi on 31.07.2007 and that the respondent/husband has brought her and the child to Vandalur at the residence of her parents etc.
3. It is the further case of the petitioner/wife that she has been required to come with the 40 days infant child to Arumbakkam on 8.8.2007 to the newly rented house in the second floor at Arumbakkam and on believing the assurance of the respondent/husband, when she went there on 8.8.2007, the respondent/husband has not taken care of her and her child and used to go to his parents house even without providing food etc and that the child's eyes were affected and that the respondent/husband sent her out from the matrimonial house on 11.08.2007, on the ill advise of his family members.
4. Eversince the time she has been driven out by her husband, she has been living at Vandalur with the help of her parents and that she made frequent efforts to contact the respondent/husband to take clothes and medicines for the child etc and later she shifted her house to Tharamani near her office after intimating the same to the respondent/husband and she came to know that the respondent/husband was in abroad in U.S.A during that time. But her efforts to contact him has ended in vain and later she gave a complaint before the Protection Officer, Teynampet, Chennai requesting for arranging a reunion with the respondent/husband, but he participated in the enquiry on 31.1.2007, but failed to yield the advise of the Protection Officer and subsequently, she has been perforced to file a criminal complaint before the Chief Metropolitan Magistrate Court, Egmore, Chennai and the same being forwarded to the Inspector of Police, W7-All Women Police Station, Anna Nagar, Chennai which culminated in filing of charge sheet in C.C.10989/2008 against the respondent and his family members and prior to that she has filed HMOP.201/2008 before the Sub-Court, Chengalpattu under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights and that the respondent has entered appearance through his counsel and later, she has been informed by her friend that a Paper Publication, dated 5.7.2008 has been effected by the respondent as a public notice for her appearance on 2.9.2008 in a case before the II Additional Family Court, Chennai in O.P.311/2008.
5. With this background, the learned counsel for the petitioner/wife submits that the petitioner/wife has to spend a minimum of 4 hours for her travel from Chengalpattu to the court at Chennai for her appearance and further that as per the Family Court proceedings, the personal appearance of the parties on the date of hearing is mandatory and as such, the wife may not be able to appear before the II Additional Family Court on every hearing date, since she has a child and living near Chengalpattu and therefore prays for allowing the Transfer Original Petition in the interest of justice.
6. The respondent/husband has filed a detailed counter inter alia stating that he sent a mail on 16.01.2007, requesting the petitioner/wife to sort out differences if any by going before the marital counselling. But the same has been shunted with retaliatory mails abusing him and his parents and that he filed O.P.352/2007 before the Principal Family Court for restitution of conjugal rights and after the disposal of the complaint, the petitioner/wife has refused to live in his house stating many allegations against his parents and sister that they would be ill treating her etc. and when there were vast difference of opinion at the end of the counselling both have agreed to start a new life forgetting the past and also with an agreement to accept each others parents etc. and that because of the attitude of the petitioner/wife, the marriage has ultimately broken and that the petitioner/wife has filed a complaint under the Domestic Violence Act before the Protection Officer, Teynampet, Chennai against him, his parents, sister, uncle and aunt and he has been in USA during this period and since he returned to Chennai, he informed the Protection Officer who has taken part in the enquiry and later he filed O.P.311/2008 on the file of the II Additional Family Court, Chennai on 1.12.2008 and in the meanwhile, the petitioner/wife has filed a false complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai under the Dowry Prohibition Act and the Domestic Violence Act and a First Information Report has been registered on the evening of 15.04.2008 and that his parents, sister, uncle and aunt have been taken into custody on 16.4.2008 early morning and that a charge sheet has been filed in C.C.10981/2008 before the Chief Metropolitan Magistrate Court and that complaint has been filed against the suspended Inspector of Police Mrs.Rajalakshmi for her partial attitude and non-investigation of the case as per the Criminal Procedure Code and the same is pending enquiry by the Directorate of Prosecution.
7. Continuing further, with a view to harass the respondent/husband and his family another case C.C.356/2008 has been filed before the Judicial Magistrate No.II, Chengalpattu by the petitioner/wife in a different jurisdiction upon the same cause of action. When a complaint has been preferred to the Protection Officer, Chennai under the same act is pending and that the petitioner has subjected herself to the jurisdiction of Chennai in the marital case earlier when she has been residing in a residence outside the jurisdiction of the Court and that she has also sought the relief before the Protection Officer, Chennai, when she has been residing outside the jurisdiction and in C.C.10981/2008 pending before the Chief Metropolitan Magistrate Court, she has sought the relief, while she has been outside the jurisdiction and that the restitution of conjugal rights proceedings instituted in Chengalpattu and therefore, the respondent/husband prays for dismissing the transfer petition.
8. It is true that in transfer of matrimonial petitions, convenience of the wife must be given the prime importance. The important principle for exercising of the powers under Section 24 of the C.P.C. is the convenience and inconvenience of the parties. The question of expediency will depend upon the facts and circumstances of each case. However, the paramount consideration for exercise of the power must be to meet the ends of justice. For the purpose of transfer, the balance of convenience of the parties should be considered. Moreover, the petition under Section 24 of C.P.C. is not to be dealt with lightly and the transfer of a case from one court to another should not be granted readily for any fancied notion of the petitioning party. For the purpose of transfer, a court of law is required 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 her position as a arbiter litus. The basic principle is for exercise of power under Section 24 of the CPC. is the convenience and the inconvenience of the parties.
9. The prayer of the petitioner/wife is that she was residing at Guduvancherry and OP.201/2008 is pending on the file of the Sub-Court, Chengalpattu and that her husband, namely, the respondent has filed O.P.311/2008 on the file of the II Additional Family Court, Chennai and that she has not been in a position to appear before the Family Court, Chennai inasmuch as the Court at Chennai is very near to her residence and that she has to spend a minimum of 4 hours for travel from Chengalpattu to Chennai to appear before the II Additional Family Court, Chennai in connection with the hearing of O.P.311/2008 and therefore, the application for transfer may be allowed by this Court to promote the substantial cause of justice.
10. Admittedly, the respondent/husband is facing some cases C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu, C.C.10981/2008 on the file of the Chief Metropolitan Magistrate Court, Chennai and in between the parties, matrimonial Original Petitions are pending. The fact that the petitioner/wife has earlier subjected herself to the jurisdiction of Chennai in a matrimonial case, when she has been residing in a residence outside the Court jurisdiction cannot be disputed. Furthermore, she has also sought the relief of Protection Officer in Chennai, while she has been residing outside the jurisdiction. The case in C.C.10981/2008 pending on the file of the Chief Metropolitan Magistrate Court has been initiated, when the petitioner's residence has been outside the courts jurisdiction. The petitioner/wife has also filed C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu under the provisions of the Domestic Violence Act. One cannot brush aside an important fact that the HMOP.201/2008 filed by the petitioner/wife before the Sub-Court, Chengalpattu is only after the filing of the two criminal cases.
11. Be that as it may, on a careful consideration of the respective contentions, this Court is of the considered view that it is not possible for this court to allow the Transfer Civil Miscellaneous Petition inasmuch as the balance of convenience is M.VENUGOPAL, J.
tsi not in favour of the petitioner and in that view of the matter, the petition fails and the same is hereby dismissed. No costs. However liberty is given to the petitioner/wife to file necessary application before the II Additional Family Court, Chennai, where O.P.311/2008 is pending and seek exemption of her personal appearance and on such application is being filed by the petitioner/wife, the II Additional Family Court, Chennai is directed to consider the same on merits, after providing due opportunity to the respondent/husband to file his counter in the manner known to law. The II Additional Family Court, Chennai is directed to dispose of the HMOP.311/2008 within a period of four months from the date of receipt of a copy of this Order. Moreover, the parties are directed to co-operate with the II Additional Family Court with regard to the completion of the proceedings.
.01.2009 Index : Yes/No.
1. The II Additional Family Judge, Chennai.
2. The Section Officer, V.R.Section, High Court, Madras.
Tr.C.M.P.No.361 of 2008