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Shantha Meena Bharathi v. K.A.V.Vetrivel - Crl.O.P.(MD).No.4654 of 2004  RD-TN 177 (12 January 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE G.RAJASURIA
Crl.O.P.(MD).No.4654 of 2004
Crl.M.P.(MD)No.1656 of 2004
Shantha Meena Bharathi ... Petitioner Vs.
K.A.V.Vetrivel ... Respondent Prayer
Petition filed under Section 407(1) of the Code of Criminal Procedure, to withdraw the case in M.C.No.9 of 2003 pending on the file of the learned Judicial Magistrate No.2, Virudhunagar and to transfer to the Court of learned Magistrate No.2, Kovilpatti.
For Petitioner ... Mr.S.Pon Senthil Kumaran
For Respondent ... No appearance
This Criminal Original Petition has been filed by the Petitioner to withdraw the case in M.C.No.9 of 2003 pending on the file of the learned Judicial Magistrate No.2, Virudhunagar and to transfer to the Court of learned Magistrate No.2, Kovilpatti.
2. A re'sume' of facts absolutely necessary for the disposal of this Criminal Original Petition as stood exposited from the affidavit of the Petitioner would run thus:
The Petitioner filed M.C.No.9 of 2003 under Section 125 of Code of Criminal Procedure on the file of the learned Judicial Magistrate No.2, Virudhunagar as against her husband Vetrivel seeking maintenance. At the time of filing of the said M.C.No.9 of 2003, she stayed at No.2/1, Kasturibai road, Virudhunagar, since she did not have had enough means to maintain herself and continue to stay at Virudhunagar, she was constrained to vacate her residence from Virudhunagar to Ettayapuram. She is not having enough money to go to Virudhunagar Court and pursue her petition. When she went to Virudhunagar on 04.11.2004 to attend the hearing, the Respondent intimidated her with dire consequences and compelled her to withdraw M.C.No.9 of 2003. Hence, the petition.
3. Interim Stay was granted by this Court and it is pending. Despite, service of notice in person on 22.02.2005, the Respondent has not chosen to appear through any counsel and there is nothing on record to show that at least the Respondent made his appearance before this Court. Even though, the stay petition was listed thrice and heard by this Court, yet there is no reference relating to the appearance of the Respondent at all. This matter has been pending for a long time, nevertheless it is relating to a maintenance case. Even today, the Respondent is not present. Inasmuch as, this matter is relating to maintenance and the Petitioner without any remedy is waiting ever since 2004 and that we are in 2007, I am of the view that this matter could be taken up for final disposal and accordingly, it is being disposed of and the point involved in this case also is not so serious.
4. The point for consideration is as to whether there is any justification in the prayer of the Petitioner to get M.C.No.9 of 2003 transferred to the file of the Judicial Magistrate No.2, Kovilpatti from the file of the Judicial Magistrate No.2, Virudhunagar?
5. It is a trait proposition of law that the seeker of maintenance, so to say, the wife has got the right to file maintenance application in the place where she resides, de hors other criteria to locate the jurisdiction relating to the matter. While holding so, I am fully aware of the fact that the Petitioner cannot file a petition in one Court and voluntarily go and reside in some other place and seek to get the case transferred.
6. Here, in the affidavit, the Petitioner/wife clearly and categorically highlighted as to how at the time of filing the Petition, she was able to adjust herself to live in a house at Virudhunagar and that she could not continue to stay there without any means. She also highlighted that owing to her impecunious and lack of financial wherewithal to live at Virudhunagar, she was constrained to go to her uncle's house at Ettayapuram.
7. It is therefore clear that it is not a case of the Petitioner at her whims and fancies so as to cause harassment to her husband/respondent moved from one place to another and seeks for transfer of the case. The Respondent is stated to be working in the Post Office at Virudhunagar as Assistant. Hence, by transferring the case in M.C.No.9 of 2003 from Virudhunagar to the file of the Judicial Magistrate No.2, Kovilpatti, within whose jurisdiction the Petitioner resides, the Respondent would not be put to any serious inconvenience. But, on the other hand, if no transfer is ordered, the Petitioner who is the seeker of maintenance would be virtually incapacitated from pursuing her petition in claiming maintenance. The point is decided accordingly.
8. Hence, in this view of the matter, this Criminal Original Petition is allowed ordering the transfer of M.C.No.9 of 2003 from the file of the learned Judicial Magistrate No.2, Virudhunagar to the file of the learned Judicial Magistrate No.2, Kovilpatti and the transferee court shall issue fresh notice to the Respondent/husband in M.C.No.9 of 2003 and thereafter proceed with the matter as per law. Consequently, connected Crl.M.P.(MD).No.1656 of 2004 is also closed.
1. The Judicial Magistrate No.2,
2. The Judicial Magistrate No.2,
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