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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