- (1.) THE petitioner/husband has filed this transfer civil miscellaneous petition praying for an order from this Court to withdraw the H.M.O.P.No.31 of 2008 pending on the file of Principal Sub Judge, Mayiladuthurai and to transfer the same to the file of Principal Sub Court at Chengalpattu to try the same along with H.M.O.P.No.189 of 2008 pending on the file of Principal Sub Court at Chengalpattu.
(2.) THE petitioner/husband in his affidavit in Tr.C.M.P. has inter alia averred that 'his marriage with the respondent/wife has been solemnized on 31.08.2005 at Sundari Ammal Kalyana Mandapam at Sirkali, near Kumbakonam and that he is employed as an Assistant in Foxcon India Limited, a private company in Sriperumbudur near Poonamallee and daily he is travelling for about 100 kilometers from his house at Maraimalai Nagar to reach his company and that the respondent/wife is educated only up to school final and has not evinced any interest to lead a decent matrimonial life with him ever since the marriage and that the respondent/ wife exhibits absolute indifference in the matrimonial life and showed dislike and scant respect words him on many occasions and created a scene with impolite unparliamentary words and quarreled in open streets which has been a scene of occurrence in the public and further that the respondent/ wife went back to her mother's house under the pretext of studying and has completely avoided living with his family most of the time and there has been instances where and when the respondent has treated him with absolute cruelty both physical and mental and made his matrimonial life miserable etc. and that the female child by name minor Kavitha aged 1- years is born and on 29.12.2007 the respondent demonstrated that ultimate wish to break the marriage and the matrimonial life beyond any repair has given a false compliant on false and imaginary allegations before the All Women Police Station at Chengalpattu and himself, his father, mother and entire family has been dragged to the Police Station and anticipatory bail application Crl.M.P.No.1184 of 2008 has been filed before the Principal Sessions Judge at Chengalpattu and the police has informed that no case has been filed and hence, the said application has been closed and further that the respondent/wife filed M.C.No.4 of 2008 claiming maintenance under Section 125 of Cr.P.C. and that the respondent/wife filed another H.M.O.P.No.31 of 2008 before the Principal Sub Court, Mayiladuthurai praying for a relief of restitution of conjugal rights etc. The learned counsel for the petitioner/husband submits that the allegations and counter allegations made by the respective parties all pertained to their stay at Maraimalai Nagar house and that the witnesses who have seen the wife's behaviour are all near Maraimalai Nagar and they are the petitioner's neighbours and even the wife's relations who can speak to the instances are residing near Maraimalai Nagar and that the petitioner who is working at Sriperumbudur in a private company may not get leave to attend the hearing either at Seerkali or at Mayiladuthurai and that the respondent's brother Sateesh has man-handled the petitioner in his house and blocked his ATM card while he came for a quarrel with him in his house in the presence of the respondent/wife and when the petitioner has been went to Seerkali to attend the hearing in the matrimonial case the very same person came in a vehicle with some of his friends and made gestures and also started at a fearful manner and the respondent/wife poured hot water on the petitioner/husband's face for the sake asking for water and that he has been treated by the doctor at Maraimalai Nagar and therefore, if the witnesses are to be shifted and made to depose in a Court at Mayiladuthurai, it will be impossible for them to travel to Mayiladuthurai to give evidence on his side and on the very same allegations and counter allegations if the Court at Mayiladuthurai adjudicates upon the same set of instances and witnesses he will be handicapped to substantiate evidence at Mayiladuthurai etc. and therefore, on the ground of equity and on the basis of fair justice the petition H.M.O.P.No.31 of 2008 for restitution of conjugal rights has to be withdrawn and be transferred to the Principal Sub Court at Chengalpattu to be tried along with H.M.O.P.No.189 of 2008 but if H.M.O.P.No.189 of 2008 is transferred to the Sub Court at Mayiladuthurai, it will end up in failure of justice to the petitioner and therefore, prays for allowing the transfer petition. In the counter filed by the respondent/wife, it is among other things mentioned that the petitioner/husband is in the habit of beating her blue and black whenever his mother calls him in his mobile and that the petitioner is harassing her listening to whatever his mother is saying and that the petitioner's and his parents have been demanding dowry in the form of cash and jewels and that she has given a complaint in All Women Police Station, Chengalpattu and that her husband's mother was not ready to send her elder son to Erankulam to his family and due to that there has been a quarrel between the petitioner's mother and petitioner's brother and immediately she called the petitioner and informed him about the incident and quarrel and that her husband/petitioner got wild and started quarrel with her stating that water is not hot and started beating her with chapel and thrown her on the streets and started abusing and after beating, the husband took a photo in his camara on the mobile phone and said she look like a mental patient etc. and that her husband's divorce proceedings is nothing but a counter blast to her H.M.O.P.No.31 of 2008 and that her certificates are with her husband and that her family is financially weak and she is yet to finish her B.Com. Graduation and their survival is with her father's pension and she is living with her widowed mother and a minor daughter and that she cannot come to Chengalpattu and she is not safe and she has to bring her mother and minor child which will result in great hardship to her and her brother is afraid of her husband/ petitioner and she is alone with my family at Keelaichalai, a small village near Sirkali and it is difficult for her to travel from Sirkali to Chengalpattu, which is 300 kms away and the same is too expensive and she has to stay in her sister's house which will case inconvenience to them and in the interest of justice, the petition H.M.O.P.No.189 of 2008 for divorce filed by the husband in Chengalpattu Court may be transferred to Mayiladuthurai Sub Court where she has filed a petition H.M.O.P.No.31 of2008 for conjugal rights.
(3.) IN the reply affidavit filed by the petitioner/ husband it is among other things mentioned that the events like the respondent/wife handling the petitioner/husband and physically abusing him and the act of pouring water on his face and further the brandishing with chapel to beat him are all matters of evidence and witnesses at Maraimalai Nagar during the stay of the respective parties etc. and that his office insists that he has to go on medical leave if he goes on leave and if he goes one leave for attending the hearing at Seerkali or at Mayiladuthurai then he furnishes treatment certificates from doctor to be on medical leave and if the respondent/wife is to conduct the case at Chengalpattu that too for an eye wash case of restitution of conjugal rights, travel alone is to be considered for which he is willing to bear the expenses and the distance is only about 200 kilometers and in both the Sub Courts the party's presence is not necessary for every hearing and the respective counsel will take care of that party's case and therefore, the transfer of the case from Mayiladuthurai to Chengalpattu is only a fair, just and equitable one. The learned counsel for the respondent cites the decision in R. Usha V. R. Vasudevan (2002-1-L.W. 539) wherein this Court has held that 'being a lady with a tender child she would have to travel long distance and it is desirable to avoid risk and hazards in the travel and to allow the petition.' He also relies on the decision in Sumita Singh V. Kumar Sanjay (AIR 2002 SC 396) wherein the Honourable Supreme Court has held that 'it is convenience of wife that must therefore be looked at and that wife is working in Delhi and the suit filed by the husband at place far off from Delhi, the suit has been ordered to be transferred to Delhi.' Yet another decision of the Honourable Supreme Court in Rajani Kishor Pardeshi V. Kishor Babulal Pardeshi (2005) 12 SCC 237) has been relied by the learned counsel for the respondent to the effect that 'in respect of transfer of proceedings of a matrimonial dispute, convenience of the wife is to be preferred over the convenience of husband and accordingly, the case has been directed to be transferred to Satna.';