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K.Jeya vs A.Moorthy @ Karudaya Moorthy on 29 April, 2019

1

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 29.04.2019

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

TR.C.M.P(MD).No.130 of 2019
and
C.M.P(MD)No.2811 of 2019

K.Jeya … Petitioner/Respondent
Vs.

A.Moorthy @ Karudaya Moorthy … Respondent/Petitioner
PRAYER:- Transfer Civil Miscellaneous Petition filed under Section 24 of
the Civil Procedure Code, 1908, praying to withdraw G.W.O.P.No.45 of
2018 pending on the file of the Principal District Court, Srivilliputhur,
Virudhunagar District and transfer the same to the file of the Family
Court, Madurai.
For petitioner :Mr.V.P.Rajan
For respondent : No appearance

ORDER

This Transfer Civil Miscellaneous Petition has been filed by the

petitioner / wife seeking transfer of G.W.O.P.No.45 of 2018 from the file

of the Principal District Court, Srivilliputhur to the file of the Family

Court, Madurai.

2. The learned counsel for the petitioner submitted that the

marriage between the petitioner and the respondent was solemnized on

30.11.2008. After marriage, both of them lived happily for some time

and they blessed with a male child in the year 2015. Thereafter, the

respondent and his family members, without any concrete reason,
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refused to take back the petitioner to the marital home and the

respondent failed to maintain the petitioner and her son. Therefore, the

petitioner filed H.M.O.P.No.905 of 2017 seeking divorce. The respondent

filed G.W.O.P.No.45 of 2018 before the District Court, Srivilliputhur

seeking custody of the child. The petitioner, thereafter, filed M.C.No.21

of 2019 seeking maintenance. He would further submit that the child is

in the custody of the petitioner and the same is accepted by the

respondent in the affidavit filed in support of GWOP. As per Section 9 of

the Guardian and SectionWards Act, 1890, the respondent ought to have filed

the GWOP before the Court having jurisdiction where the child resides.

The Court below, without considering the same, entertained the said

petition. He would further submit that as the petitioner is residing at

Madurai, along with her aged parents and she has to take care of her

child, it would be very difficult for her to travel about 80 kms. from

Madurai to Srivilliputhur, along with her child, for each and every

hearing. Thus, he prayed to allow this petition.

3. Though the Court notice has been served to the respondent and

his name is printed in the cause list, he did not appear either in person

or through any counsel.

4. Heard the learned counsel for the petitioner and perused the

materials available on record.

5. Section 9 of the Guardian and SectionWards Act, 1890 reads as

follows:

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“Court having jurisdiction to entertain
application.- (1) If the application is with respect to
the guardianship of the person of the minor, it shall
be made to the District Court having jurisdiction in
the place where the minor ordinarily resides.”

6. As per Section 9 of the Act, the convenience of the child is

paramount and therefore, the GWOP has to be filed only at the place

where the minor child resides. But, here, in this case, it is seen that the

GWOP was filed at the place where the father of the child resides.

Hence, I am inclined to allow this Transfer Civil Miscellaneous Petition.

Accordingly, this petition is allowed with the following directions:

i) The learned Principal District Judge, Srivilliputhur,
is directed to transmit the entire records in G.W.O.P.No.45
of 2018 to the file of the Family Court, Madurai, within a
period of two weeks from the date of receipt of copy of
this order.

ii) The learned Family Court Judge, Madurai, after
obtaining the records on transfer, is directed to dispose of
G.W.O.P.No.45 of 2018 on merits and in accordance with
law, as expeditiously as possible, preferably within a
period of six months from the date of receipt of records.

No costs. Consequently, connected miscellaneous petition is closed.

29.04.2019
Index :Yes/No
Internet:Yes/No
gcg

http://www.judis.nic.in
4

J.NISHA BANU,J.

gcg

To

1.The Principal District Judge,
Srivilliputhur, Virudhunagar District.

2.The Family Court Judge, Madurai.

TR. C.M.P(MD).No.130 of 2019

29.04.2019

http://www.judis.nic.in

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