INDUMATHI Vs. V KRISHNAMURTHY

JUDGEMENT

(1.) THIS Transfer CMP has been filed by the wife to withdraw the HMOP No. 146 of 2003 pending on the file of the Family Court, Pondicherry and transfer the same to the file of the Subordinate Court, Cuddalore.

(2.) IN the affidavit filed in support of this petition, the petitioner/wife alleged that on the earlier occasion the husband filed HMOP No. 146 of 1997 for divorce and the petitioner/wife also filed HMOP NO. 78 of 1998 for restitution of conjugal rights. The petition filed by the husband for divorce was dismissed and the petition filed by the wife for restitution of conjugal rights was allowed. The appeals in CMA Nos:55 and 56 of 2001 filed by the husband against the said orders were also dismissed. The petitioner/wife also filed E.P. , for payment of maintenance as per the decree. But the respondent/husband after a lapse of one year again filed the present hmop. No. 146 of 2003 on the file of the Family Court, Pondicherr y for divorce on the same ground. The petitioner is defending the said OP as not maintainable. A Civil Revision Petition in CRP. No. 2621 of 2003 filed by the wife was dismissed by this court with a direction to the learned Family Court judge, Pondicherry to consider the plea of the petitioner as to the maintainability of the HMOP at the first instance. Thereafter the petitioner/wife filed I. A. No:358 of 2004 to decide the issue of maintainability as the preliminary issue. But the learned family Court Judge without even directing the husband to file a counter, is insisting the petitioner/wife to go for counsellin g before the Conciliation Officer. But the petitioner/wife was not agreeable. While the matter stood thus, on 18. 6. 2004, the petitioner/wife filed two applications for return of Sridhana properties and for enhancement of the maintenance. But the learned Family Court Judge without accepting one of the application filed for return of Sridhana properties, only forcing the petitioner/wife to get a consent divorce before the Conciliation Officer.

(3.) ADMITTEDLY as seen from the earlier proceedings, the petitioner/wife is entitled to raise the preliminary issue of maintainability of the present HMO P. The allegation in the affidavit is to the effect that the Presiding Officer of the Family Court is not taking up the said application and is only insisting the petitioner to go for a conciliation and get a consent divorce. But now the learned counsel for the petitioner submits that she is not pressing such ground as it does not persists since the Presiding Officer against whom such allegations were made has been transferred and she prayed for transfer of the HMO P on the ground of convenience of the parties. In support of her contention Learned counsel also placed reliance on the decision of the Supreme Court in Neelam Kanwar Vs. Devinder Singh Kanwar , reported in 2000 (10) SC C 589 wherein Their Lordships have held as follows:- "4. . . We are mindful of the fact that the petitioner is a lady and the first respondent is a male and therefore convenience-wise a transfer to the place where the lady is residing would be preferred by this court, unless it is shown that there are special reasons not to do so. No such special reason is shown". . .