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N.Poovarna vs R.Alagar Malaikannan on 25 February, 2019

1

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 25.02.2019

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

TR.C.M.P(MD)No.25 of 2019
and
C.M.P(MD)No.646 of 2019

N.Poovarna … Petitioner/
Respondent

Vs.

R.Alagar Malaikannan … Respondent/
Petitioner

PRAYER:- Transfer Civil Miscellaneous Petition filed under Section 24 of
the Civil Procedure Code, 1908, praying to withdraw the divorce petition
filed in H.M.O.P.No.261 of 2017 pending before the Usilampatti Camp of
the Third Additional Subordinate Court, Madurai and transfer the same
to the Family Court at Madurai to try along with the Restitution of
Conjugal Rights Petition filed in H.M.O.P.No.339 of 2018 for common
trial.
For Petitioner :M/s.K.Abiya

For Respondent :Mr.D.Malaichamy

ORDER

This Transfer Civil Miscellaneous Petition has been filed by

the petitioner / wife seeking transfer of H.M.O.P.No.261 of 2017, from

the file of the Usilampatti Camp of the Third Additional Sub Court,

Madurai to the file of the Family Court, Madurai to try along with

H.M.O.P.No.339 of 2018 for common trial.

http://www.judis.nic.in
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2.It is stated in the petition that the marriage between the

petitioner and the respondent was solemnized on 22.08.2016. After

marriage, both of them lived happily for some time. Later, due to

misunderstanding, the respondent herein / husband of the petitioner has

filed H.M.O.P.No.261 of 2017 before the Usilampatti Camp of the Third

Additional Sub Court, Madurai, seeking divorce with the false

allegations. Subsequently, the respondent / wife filed H.M.O.P.No.339 of

2018 before the Family Court, Madurai for restitution of conjugal rights.

The grievance of the petitioner is that since the issue involved in both

the cases interrelated to each other, both the cases have to be tried

together and therefore, she requested to transfer the petition filed by

the respondent / husband in H.M.O.P.No.261 of 2017 to the file of the

Family Court, Madurai and to direct the Family Court Judge, Madurai to

try H.M.O.P.No.261 of 2017 along with H.M.O.P.No.339 of 2018, which is

pending on his file.

3.The learned counsel for the petitioner reiterated the averments

made in the petition. He would further submit that the respondent /

husband being a resident of Usilampatti has filed the above divorce

petition at Usilampatti Camp of the Third Additional Subordinate Court,

Madurai and now he is in abroad. The petitioner is residing at Chennai,

along with her aged parents. Since in Usilampatti Camp Court,

cases are conducted once in a week, there is no progress in H.M.O.P.No.

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261 of 2017. Since the petitioner / wife filed H.M.O.P.No.339 of 2018 on

the file of the Family Court, Madurai and the issue involved in both the

cases interrelated to each other, both the cases have to be tried

together and therefore, she requested to transfer H.M.O.P.No.261 of

2017 to the file of the Family Court, Madurai and to direct the Family

Court Judge, Madurai to try H.M.O.P.No.261 of 2017 along with

H.M.O.P.No.339 of 2018, which is pending on his file.

4.The learned Counsel for the respondent would vehemently

oppose to the grant of relief. Relying upon the order of this Court dated

20.12.2016 made in Tr.C.M.P.No.476 of 2016 [R.Logeswari v. K.Arul

Jothi], he would submit that the burden is on the person seeking a

transfer to prove the Court that if the proceedings are not transferred,

then she would suffer irreparable injustice on the merits of the case.

Even with respect to personal life it is for the petitioner/wife to prove

the risk of loss of job, health or safety issues. Even then, it should be

established that such risks are irreparable in terms of monetary terms

and other factors. Not only the woman has the burden of proof of her

inconvenience, but also has the burden of proving that the

respondent/husband would not be put to such prejudices. Unless the

double burden is discharged, the wife/ petitioner cannot succeed in

getting a transfer. Therefore, he would submit that if at all the

petitioner / wife is aggrieved, she shall seek transfer of the case to

Chennai and not to Madurai. Thus, he prayed to dismiss the petition.

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5.The learned counsel for the petitioner / wife would submit that

since the Usilampatti Camp of the Third Additional Sub Court, Madurai is

a Camp Court and the cases are conducted once in a week, there is no

progress in the case. Since the petition in H.M.O.P.No.339 of 2018 filed

by the petitioner / wife is pending before the Family Court, Madurai and

the respondent / husband is in abroad, it will be convenient for both the

petitioner / wife and the respondent / husband to attend the hearing of

the cases in the Family Court, Madurai.

6.Heard the learned counsel for the petitioner and the learned

counsel for the respondent and perused the materials available on

record.

7.The petitioner filed H.M.O.P.No.339 of 2018 for restitution of

conjugal rights before the Family Court, Madurai. The respondent filed

H.M.O.P.No.261 of 2017 seeking divorce on the file of the Usilampatti

Camp of Third Additional Sub Court, Madurai. As rightly stated by the

learned counsel for the petitioner, the issue involved in both the cases

are interrelated to each other and therefore, the same should be tried

together. The joint trial would not only save the valuable time of the

parties, but also the Court. It is seen that the petitioner / wife is

residing and working at Chennai and the respondent / husband is

working in abroad. Learned counsel for the petitioner / wife would state

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that it will be convenient for both the petitioner / wife and the

respondent / husband to attend the hearing of the cases in the Family

Court, Madurai. Since the Usilampatti Camp of the Third Additional Sub

Court, Madurai, is a Camp Court and the cases are conducted once in a

week, the apprehension of the petitioner / wife that the case may not be

proceeded expeditiously, is a reasonable one. The Hon’ble Supreme

Court in the judgment reported in 2008 (9)SCC 353 (Arti Rani @

Pinki Devi and another Vs. Dharmendra Kumar Gupta), has held

that convenience of woman is to be taken into consideration first at the

time of considering transfer application. In view of the above, I am

inclined to allow this petition and to transfer H.M.O.P.No.261 of 2017 to

the file of the Family Court, Madurai for joint trial with H.M.O.P.No.339 of

2018.

8.Accordingly, this Transfer Civil Miscellaneous Petition is allowed

with the following direction:

i)The learned Third Additional Subordinate Judge,
Madurai (Usilampatti Camp) is directed to transmit the
entire records in H.M.O.P.No.261 of 2017 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 Judge, Family Court, Madurai, after
obtaining the records on transfer, is directed to tag
H.M.O.P.No.261 of 2017 along with H.M.O.P.No.339 of
2018 which is pending on his file, conduct joint trial and

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J.NISHA BANU,J.

smn

dispose of the same on merits and in accordance with
law, preferably within a period of six months from the
date of receipt of records relating to H.M.O.P.No.261 of
2017.

No costs. Consequently, connected miscellaneous petition is closed.

25.02.2019
Index :Yes/No
Internet:Yes/No
smn

To

1.The Judge,
Family Court, Madurai.

2.The Third Additional Subordinate Judge,
Madurai (Usilampatti Camp).

ORDER MADE IN
TR.C.M.P(MD)No.25 of 2019
and
C.M.P(MD)No.646 of 2019

http://www.judis.nic.in

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