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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 01.07.2019

CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR

T.R.C.M.P.(MD)No.188 of 2019
and
C.M.P.(MD)No.4401 of 2019

V.Sathiyavani … Petitioner
Vs.

G.M.Gopalakrishnan … Respondent

Prayer: Transfer Civil Miscellaneous Petition filed under Section 24
of C.P.C., to withdraw the case in G.W.O.P.No.39 of 2018 on the file
of Principal District Court, Virudhunagar at Srivilliputhur, and to
transfer the same to Principal District Court, Theni.

For Petitioner :Mr.R.Suriyanarayanan
For Respondent :Mr.S.Ramakrishnan
***

ORDER

This Transfer Petition is preferred by the wife, to withdraw

the case in in G.W.O.P.No.39 of 201 on the file of Principal District

Court, Virudhunagar at Srivilliputhur, and to transfer the same to

Principal District Court, Theni.

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2.The petitioner stated that the respondent is her husband

and the marriage between the petitioner and the respondent was

solemnized on 03.03.2014. She further stated that after few

months of marriage, the respondent/husband started teasing,

scolding and beating the petitioner at the instigation of his sister-in-

law. It is further stated that the wife had earlier filed H.M.O.P.No.

41 of 2018 before the Subordinate Court, Periyakulam for divorce

on the ground of cruelty and the said petition was allowed on

11.08.2018. It is also stated that the wife has filed M.C.No.19 of

2018 before the Judicial Magistrate Court, Periyakulam, for

maintenance and recovery of jewels and household articles.

3.It is further stated that the husband has filed a petition in

G.W.O.P.No.39 of 2018 before the Principal District Court,

Virudhunagar at Srivilliputhur, for custody of minor son by making

several allegations against the wife. Stating that the Court in which,

G.W.O.P.No.39 of 2018 is pending, namely, Principal District Court,

Virudhunagar at Srivilliputhur, is not a Court, in which, the petition

filed by the husband for custody of children can be maintained, the

present petition is filed.

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4.The learned Counsel for the respondent produced before

this Court the photograph to show that the petitioner is with

another man with garlands. This photograph produced by the

learned Counsel for the respondent to show that the petitioner/wife

has married again and living separately.

5.The learned Counsel for the petitioner submitted that the

photograph produced by the respondent is relating to an affair the

petitioner had earlier and that that the marriage between the

petitioner and respondent was solemnized after the

respondent/husband was informed about the previous incident.

6.The submission of the learned Counsel for the respondent

relying upon the photograph has no relevance or significance in the

present case. This Court is concerned about the jurisdiction, in

which, the petition is pending as on date. Section 9 of Guardian

and SectionWards Act, 1890 reads as follows:

“9 . 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.

If the application is with respect of the guardianship of
the property of the minor, it may be made either to the District
Court having jurisdiction in the place where the minor ordinarily
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resides or to a District Court having jurisdiction in the place where
he has property.

If an application with respect to the guardianship of the
property of a minor is made to a District Court other than that
having jurisdiction in the place where the minor ordinarily resides,
the Court may return the application if in its opinion the application
would be disposed of more justly on conveniently by any other
District Court having jurisdiction.”

7.From the reading of Section 9 of the Act, it is very clear

that an application for custody of minor would lie only before the

District Court, having jurisdiction in the place where the minor

ordinarily resides. In the present case, it is not in dispute that the

minor is living with the mother and it is a petition, has to be filed

only before the District Court, having jurisdiction over the place

where the minor ordinarily resides. It is not a case where, the

application is filed for guardianship of minor’s property. In such

circumstances, this Court is of the view that the petition itself is

maintainable only before the District Court at Theni District and the

petition for custody of minor child is not even maintainable before

the Principal District Court, Virudhunagar at Srivilliputhur.

8.As a result, this petition is allowed and the petition in

G.W.O.P.No.39 of 2018 on the file of Principal District Court,

Virudhunagar at Srivilliputhur, is withdrawn and the same is

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transferred to Principal District Court, Theni. The Principal District

Judge, Theni, is directed to dispose of the said petition within a

period of three months from the date of receipt of the records from

the Principal District Court, Virudhunagar at Srivilliputhur. The

Principal District Judge, Virudhunagar, is directed to transmit the

entire records to the Principal District Court, Theni, forthwith. No

costs. Consequently, connected miscellaneous petition is closed.

Index : Yes / No 01.07.2019
Internet : Yes / No

cmr

To

1.The Principal District Judge, Theni.

2.The Principal District Judge, Virudhunagar.

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S.S.SUNDAR, J.

cmr

T.R.C.M.P.(MD)No.188 of 2019

01.07.2019

http://www.judis.nic.in