Tr.C.M.P.No.222 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :16.09.2019
CORAM
THE HONOURABLE Mrs.JUSTICE V. BHAVANI SUBBAROYAN
Tr. C.M.P. No.222 of 2019
and CMP No.6699 OF 2019
Gajalakshmi … Petitioner
-vs-
S. Gunasekar … Respondent
Prayer: Petition filed under Section 24(1) of C.P.C to withdraw the
divorce petition in OP No.1589 of 2010 pending on the file of Principal
Family Court and transfer the same to Family Court, Chengalpattu.
For Petitioner : Mr.P.M. Duraisamy
For Respondent : Mr.T. Sivagnana Sambandam
ORDER
Mrs.Gajalakshmi, W/o S. Gunasekar filed this petition seeking to
withdraw the divorce petition in OP No.1589 of 2010 pending on the
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file of Principal Family Court and transfer the same to Family Court,
Chengalpattu.
2. The case of the petitioner is that the petitioner and the
respondent got married on 13.06.2008 at Bakkiya Lakshmi Thirumana
Mandapam, Maduravoyal, Chennai – 600 095 as per Hindu Rites and
Customs and they were residing at Valavanur in Villupuram District
and out of wedlock, they are blessed with a male child by name Leo
Avinesh, who was born on 26.04.2009 and the boy is studying in
School at Chengalpattu. The respondent did not take care of the
petitioner and the child inspite of mediation being held by the relatives
during February-March 2010.
3. It is the further case of the petitioner that on the first
birthday celebration of the child, dispute arose due to consumption of
alcohol by one of the respondent’s brother and the respondent’s
brother abused the petitioner and her parents. Thereafter, the
respondent did not come forward to take both the petitioner and the
child to the matrimonial home.
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4. Meanwhile, the respondent/husband filed a divorce petition
in O.P.No.1589 of 2010 before Principal Family Court, Chennai and the
same is posted for cross examination of P.W.1. The petitioner/wife has
also filed a petition in M.C.No.17/2010 before the learned Chief Judicial
Magistrate, Chengalpattu for maintenance and by Order dated
11.09.2012, a sum of Rs.5,000/- was awarded to the petitioner/wife
and Rs.2,500/- to the child. Since Family Court is constituted at
Chengalpattu, the case in M.C.No.17 of 2010 was transferred from
Chief Judicial Magistrate, Chengalpattu to Family Court Chengalpattu
and Execution Petition in CMP No.3 of 2015 is pending at Family Court
at Chengalpattu.
5. It is the further case of the petitioner that the
respondent/husband is working as a Post Graduate Teacher in the
Government Higher Secondary School and there was an arrears of
maintenance to the tune of Rs.3,93,000/- as on 31.03.2019 and the
respondent has not chosen to pay the amount. Meanwhile, the
petitioner alleged that on 02.03.2019 the learned Judge, Family Court
observed that since there is no possibility of re-union, had suggested
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that the parties can file a petition for mutual consent. The
petitioner/wife informed that she is not ready for divorce and since the
learned Judge had suggested for mutual consent, the petitioner has
an apprehension that the learned Judge is so prejudiced and
pre-determined and she fears that she will not get any justice if the
case is conducted before the Principal Family Court, Chennai and also
stated that the maintenance case is also pending in CMP No.3/2015 in
M.C.No.17/2010 before the Family. Court, Chengalpattu. Since the
petitioner and the child are in the custody of her parents and the child
is attending the school at Chengalpattu, she finds it difficult to attend
the case in Chennai. Hence the divorce petition in OP No.1589 of 2010
pending before the Principal Family Court, Chennai may be transferred
to the Family Court, Chengalpattu and the convenience of the wife and
the child may be taken into consideration and if the case is not
transferred, the petitioner will be put to great injustice, irreparable loss
and mental agony. Hence the petitioner has filed the present petition,
seeking for the above relief.
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6. The respondent/husband has filed counter denying all the
allegations of the petitioner and submits that the respondent/husband
filed a petition for divorce on 07.05.2010 in O.P.No.1589 of 2010
before the Family Court, Chennai and he is attending the Court
regularly, but the petitioner/wife is not attending the Court regularly.
On 03.02.2016 an ex-parte order of divorce was granted to the
respondent/husband. The petitioner/wife filed an application to
condone the delay of 198 days in filing the petition to set aside the
ex-parte order and the application was allowed. Even after that the
petitioner/wife was not ready for cross examination of the
respondent/husband for about 4 to 5 months and she is simply
dragging on the matter. Since the petitioner/wife is not appearing on
several occasions, the matter is simply adjourned without cross
examining the respondent/husband, who is travelling from Tenkasi to
Chennai. Since the petitioner is not ready to cross examine the
respondent/husband, the matter is pending for 10 years the
respondent/husband finds it very difficult to undertake a long journey
for each hearing as he is a Teacher in a Government School. She is
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working as Teacher in a Government School and also suppressed the
fact that she is receiving the monthly maintenance from the
respondent/husband. The respondent also stated that the matter is
pending for 10 years, but the petitioner/wife has not chosen any
interest in conducting the case. He stated that the maintenance
amount has been attached from his salary and no arrears of
maintenance is pending. Therefore, he prayed for dismissal of the
petition.
7. The learned counsel for the petitioner/wife submits that
the petitioner/wife wanted to unite with the respondent/husband and
her parents also took steps for re-union, but on the other hand, the
respondent and his parents have not taken any initiative for any re-
union. The learned counsel further submits that the respondent is
adamant and is refusing to live with the petitioner/wife. The petitioner
is depending upon her parents and no material has been placed before
this Court by the learned counsel for the respondent that the
petitioner/wife is working as a Teacher in the Government School and
it is seen that the petitioner/wife filed a Maintenance Petition before
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the Court at Chengalpattu and since she has to take care of the child,
she could not travel from Chengalpattu to Chennai.
8. The learned counsel for the respondent/husband submitted
that in the petition filed by the petitioner, she has not stated any
inconvenience or difficulty but stated that due to compulsion made by
the learned Judge, she has averred all false allegations against the
learned Judge and no where in the petition she has stated that she is
having any hardship for travelling from Chengalpattu to Chennai. In
the petition, she has clearly stated that she is living with her parents.
If OP No.1589/2010 is transferred from Principal Family Court,
Chennai to Family Court, Chengalplattu, the respondent/husband will
be put to great hardship and mental agony.
9. Heard both sides and perused the materials available on
record.
10. It is seen from the petition to set aside the exparte order
that the petitioner/wife is not attending the Court regularly, but the
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respondent/husband finds it very difficult to travel from Tenkasi to
Chennai. Chengalpattu is situated between Tenkasi and Chennai.
Hence, instead of coming to Chennai, the respondent/husband can get
down at Chengalpattu and attend the Court. Moreover, the
maintenance case filed by the petitioner/wife in M.C.No.17/2010 is
also pending before the Family Court at Chengalpattu.
11. In view of the above, this Court is of the considered view
that the respondent/husband can attend the Court at Chengalpattu
instead of coming to Chennai and it will be proper for the parties to
conduct the trial on day-today basis within a period of three months
from the day the matter is re-numbered at Family Court,
Chengalpattu.
12. Accordingly, the Tr.C.M.P. is allowed and the O.P.No.1589
of 2010 pending on the file of Principal Family Court, Chennai is
withdrawn and the same is transferred to Family Court, Chengalpattu.
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13. The learned Judge, Principal Family Court, Chennai is
directed to send the entire records relating to OP No.1589 of 2010 to
the Family Court, Chengapattu forthwith and the learned Judge, Family
Court, Chengalpattu is directed to take up OP.1589 of 2010 and
dispose of the same within a period of three months from the day the
petition is re-numbered at Family Court, Chengalpattu in the manner
known to law. No costs. Consequently, connected Miscellaneous
Petition is closed.
16.09.2019
sr
Speaking Order/Non-Speaking Order
Index:yes/no
To
1.The Judge, Principal Family Court, Chennai
2.The Judge, Family Court, Chengalpattu
V. BHAVANI SUBBAROYAN,J.,
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sr
Tr.C.M.P.No.222 of 2019
16.09.2019
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