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.
http://www.judis.nic.in
1/8
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.
http://www.judis.nic.in
2/8
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
http://www.judis.nic.in
3/8
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
http://www.judis.nic.in
4/8
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.
http://www.judis.nic.in
5/8
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
http://www.judis.nic.in
6/8
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
http://www.judis.nic.in
7/8
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
http://www.judis.nic.in
8/8