BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.04.2019
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
TR.C.M.P(MD).No.130 of 2019
C.M.P(MD)No.2811 of 2019
K.Jeya … Petitioner/Respondent
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
For petitioner :Mr.V.P.Rajan
For respondent : No appearance
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
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,
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
“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
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.
1.The Principal District Judge,
Srivilliputhur, Virudhunagar District.
2.The Family Court Judge, Madurai.
TR. C.M.P(MD).No.130 of 2019