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Dr.C.Kundhavai vs T.Adhikayan on 27 November, 2019

Tr.C.M.P.No.837 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.11.2019

CORAM

THE HON’BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

Tr.C.M.P.No.837 of 2019 and
C.M.P.No.23046 of 2019

Dr.C.Kundhavai … Petitioner

Vs.

T.Adhikayan … Respondent

Prayer:
Transfer Civil Miscellaneous Petition is filed under Section 24
Rule (1) (2) of Civil Procedure, to withdraw and transfer the
H.M.O.P.No.74 of 2019, pending on the file of learned Principal
Subordinate Judge, Kumbakonam to the Family Court, Chennai.

For Petitioner : Mr.Sunder Mohan

For Respondent : Mr.T.Saikrishnan

ORDER

The petitioner herein, who is the wife of the respondent, has filed

the present petition seeking to transfer H.M.O.P.No.74 of 2019 pending

on the file of learned Principal Subordinate Judge, Kumbakonam to the

Family Court, Chennai.

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Tr.C.M.P.No.837 of 2019

2. The case of the petitioner is that she got married to the

respondent on 30.11.2015 at Pon Tamil Thirumana Mandappam,

Mannai Road, Vilamal, Thiruvarur. After the marriage, both the parties

are staying at USA. The petitioner, being a Doctor has completed her

graduation in Chettinadu University and the parents of the petitioner are

medical practitioners, her father was formerly the Head of Department of

Surgery in Govt., Thiruvarur Medical College and Hospital, following his

retirement, now works as the Managing Director of VST Srishakthi

Hospital, Thiruvarur and her mother is currently designated as Joint

Director of Health service, Thiruvarur.

3. It is the further case of the petitioner that the respondent’s

parents had informed that their son, viz., the respondent has completed

his Engineering and was employed as a Development Manager in

Cummins Company at Indiana Polis, U.S., and was earning substantial

income and further assured that he will settle down in India within two

years. Thereafter, they had expressed their consent to the petitioner to

pursue her higher studies, during the time of finalisation of marriage and

the marriage was conducted in a grand manner. At the time of

marriage, her parents had provided 100 Sovereigns of gold jewellery,

silver articles etc., apart from gifting gold jewels to the respondent.

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Tr.C.M.P.No.837 of 2019

4. According to the petitioner, she had discharged all her duties as

a daughter-in-law and as a wife to the respondent to their utmost

satisfaction. The respondent had left the office where he claimed to

have been employed as Development Manager and he returned to

home stating that his services got ousted. The petitioner was conceived

in the month of March, 2016 and the respondent’s mother visited United

States during the month of June 2016. Thereafter, the respondent

started regularly teasing the petitioner and without any reason, became

violent at many times. Since the determination of sex in fetus is not

prohibited in USA and knowing that the petitioner is carrying a female

child, she was regularly subjected to ill-treatment, verbal and

psychological abuse. There was lot of difference of opinion arose

between the parties. Apart from that, the respondent’s family had

committed ill motive against the petitioner by withholding the original

passports, OCI documents and birth certificates of her child. Despite all

requests to the respondent’s parents to strengthen the relationship and

attempts to get the passports, the same did not yield any positive

results.

5. It is also the case of the petitioner that the respondent and his

parents have not visited the baby or the petitioner for almost 26 months.

The petitioner is currently pursuing her post graduation, which fact was
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Tr.C.M.P.No.837 of 2019

conveyed to the respondent’s parents in-person along with her parents.

Due to the lack of permanency in employment and place of residence,

the respondent could not provide a comfortable life to the petitioner.

Pursuant to the orders passed by the Madurai Bench of this Court in

Crl.O.P.No.4028 of 2019, the respondent with great reluctance has

arranged her daughter’s duplicate passport in United States by signing

the non applying parent form. The petitioner states that she will be

completing her post graduation by the end of the year 2021, with a view

to spoil her career, the respondent has filed a petition, viz.,

H.M.O.P.No.74 of 2019 before the learned Principal Subordinate Judge,

Kumbakonam for restitution of conjugal rights.

6. Also, the petitioner being a woman cannot travel a distance of

600 Kms up and down from Chennai to Kumbakonam with her child to

attend the hearing. Further, for each travel, a person from family has to

accompany her for the hearing, which is practically very difficult, hence

the said H.M.O.P. pending on the file of learned Principal Subordinate

Judge, Kumbakonam may be withdrawn and transferred to the file of

Family Court, Chennai.

7. In contrary, a detailed counter affidavit has been filed by the

respondent stating that the petitioner has deserted the respondent on
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Tr.C.M.P.No.837 of 2019

08.01.2017, when she left the matrimonial home at USA without any

justifiable reason and as such, the petitioner was constrained to file the

H.M.O.P.No.74 of 2019. The petitioner had also given a false police

complaint on 11.03.2019 to the Kumbakonam [West] Police Station by

wielding the influence of her politically connected parents and powerful

lawyer uncle, on the basis of which, FIR in Crime No.71 of 2019 has

been registered by the police under Section 498A and others, as against

the respondent and his parents. Further, the petitioner approached the

Madurai Bench of this High Court by way of Crl.O.P.(MD) No.4028 of

2019 seeking anticipatory bail and the same was granted.

8. The counter of the respondent proceeds to state that the

petitioner seems to be interested only in harassing the petitioner by filing

petitions one after the other and initially, the petitioner lodged a police

complaint and harassed, now, she has filed the present transfer petition

without any reasonable grounds. Apart from that, the H.M.O.P.No.74 of

2019 has been filed before the Sub-Court at Kumbakonam wherein the

parties can be represented through their advocates and the presence of

the parties is not mandatory for every hearing. Therefore, the reasons

stated by the petitioner that she is not in a position to travel to

Kumbakonam or that she apprehends for her safety and that she could

not meet the travel expenses, are all totally false and frivolous.
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Tr.C.M.P.No.837 of 2019

9. It is further averred in the counter affidavit that the petitioner is

pursuing her post graduate studies in Ramachandra Medical University

and as such, she may not be in a position to skip the classes and be

present during every hearing in the event of the matter getting

transferred to the Family Court, Chennai. Further, she can conduct the

case at Kumbakonam with the comfort of engaging a counsel, which

action being performed by her. Without prejudice to the submissions,

averments and allegations made by the petitioner, which are totally false

and frivolous, the respondent is willing to bear the reasonable expenses

to travel by second A/C train to Thiruvarur, which is only 40 Kms from

Kumbakonam and the petitioner can stay at her comfort in her parents

home. There are no reasonable grounds made out for maintaining the

said transfer petition and further more, the said petition is not at all

maintainab and prays to dismiss the petition.

10. Heard the learned counsel on either side and perused the

documents placed on record.

11. On perusal of the materials available on record and after

hearing the learned counsel on either side, it is seen that the respondent

/ husband is residing in USA and the petitioner is pursuing her post

graduation at Ramachandra Medical University and will be completing

the same in the year 2021, hence it would be difficult for her to attend
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Tr.C.M.P.No.837 of 2019

the hearing. In view of the said averments, counter averments,

submissions made on either side and taking note of the fact that

whenever, the transfer application is filed in matrimonial disputes, the

convenience of the wife shall be given preference, as held by the

Hon’ble Supreme Court in the Judgments reported in 2008 (9) SCC 353

[Arti Rani @ Pinki Devi and another Vs. Dharmendra Kumar Gupta]

and AIR 2002 SC 396 [Sumita Singh Vs. Kumar Sanjay and

another], this Court is inclined to allow this petition seeking for transfer.

12. Accordingly, the H.M.O.P.No.74 of 2019 pending on the file of

learned Principal Subordinate Judge, Kumbakonam is withdrawn and

transferred to the Family Court, Chennai. The Registry of the

Principal Subordinate Court, Kumbakonam is directed to transmit the

entire case papers to the Family Court, Chennai within a period of four

weeks from the date of receipt of copy of this order.

With the above observation, the present Transfer Civil

Miscellaneous Petition is allowed. Consequently, connected

miscellaneous petition is closed. No costs.

27.11.2019

Index : yes/no;Internet : yes/no
ssd

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Tr.C.M.P.No.837 of 2019

V.BHAVANI SUBBAROYAN.J.,

ssd

To

1. The learned Principal Subordinate Judge,
Kumbakonam

2. The Family Court, Chennai.

Tr.C.M.P.No.837 of 2019 and
C.M.P.No.23046 of 2019

27.11.2019

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