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Judgment
Honourable Mr. Justice T. Raja
The Transfer Civil Miscellaneous Petition is field to withdraw the HMOP. No. 117 of 2012, pending on the file of the Principal Subordinate
Court, Tenkasi and transfer the same to try simultaneously along with HMOP. No. 65 of 2011, pending on the file of the Subordinate Court,
Aruppukkottai. I have heard the submissions of the learned counsel appearing for the petitioner and gone through the papers available on record.
The learned counsel appearing for the petitioner submits that the respondent-Sai Subbulakshi @ Kayathri was given in marriage by her parents
to the petitioner on 19.02.2010 at Town Panchayat Community Welfare Hall, Melakaram. After the solemnisation of marriage, when the petitioner
approached the respondent for sexual intercourse, the respondent refused for the same. The petitioner, on seeing the conduct of the respondent,
shocked to know that the respondent was a lunatic and mentally ill, but, without disclosing the unsoundness existed during and prior to the
marriage, the parents of the respondent fraudulently arranged the marriage. Having suppressed the mental condition of the respondent when the
marriage was fraudulently arranged by her parents, the petitioner constrained to file H.M. O.P. No. 65 of 2011 on the file of the Subordinate
Court, Aruppukkottai under Sections 13(1)(ii) and 13(1)(iii) of the Hindu Marriage Act, seeking a decree of divorce for dissolving the marriage of
the petitioner with the respondent that took place on 19.02.2010.
The learned counsel appearing for the petitioner further submitted that knowing pretty well that the respondent/wife, who is a lunatic and
mentally ill, is not able to contest the legal proceedings, the petitioner filed an application in I.A. No. 65 of 2011 in H.M. O.P. No. 65 of 2011,
with a prayer to appoint Mr. S. Murugan, being the father of the respondent as her guardian. The learned Subordinate Judge, Aruppukkottai, on
seeing the bonafide of the application, allowed the said I.A., and thereupon the wife of the petitioner was represented by her father Mr. S.
Murugan.
Subsequently, the matter was posted on several occasions. The petitioner also filed his Proof Affidavit on 07.03.2012. Subsequently, when
none appears for the respondent, even after completion of service on her, the learned Trial Court posted the matter for cross-examination of the
petitioner/husband on 05.10.2012 and 12.10.2012. But, neither the respondent nor her counsel turned up for cross-examining the petitioner. The
respondent was called absent and set ex-parte. The learned Subordinate Judge, Aruppukkottai posted the matter ""for orders"" on 19.10.2012. On
19.10.2012, the respondent has filed a petition to set aside the exparte order passed in H.M. O.P. No. 65 of 2011 and the same was numbered
as I.A. No. 213 of 2012 and the matter was posted for notice of hearing and counter by 02.11.2012.
Without even appearing before the learned Subordinate Judge, Aruppukkottai, the respondent/wife filed H.M. O.P. No. 117 of 2012 on the file
of the Principal Subordinate Court, Tenkasi, seeking restitution of conjugal rights u/s 9 of the Hindu Marriage Act. On receipt of the summons from
the Principal Subordinate Court, Tenkasi in H.M. O.P. No. 117 of 2012, the petitioner has filed this Transfer Civil Miscellaneous Petition.
This Court, by an order dated 05.11.2012 directed to issue notice returnable by 19.11.2012 and permitted to take private notice also.
Accordingly, the notice through Court was served on the respondent on 09.11.2012 and the private notice was also served. The learned counsel
for the petitioner has also filed a proof of service.
Though the service is complete and the name of the respondent is printed in the cause list, none appears for the respondent. Under such
circumstances, this matter was taken up for final disposal.
The petitioner made allegations that the respondent was a lunatic and mentally ill, but, without disclosing the unsoundness existed during and
prior to the marriage, the parents of the respondent fraudulently arranged the marriage. Seeking a decree of divorce for dissolving the marriage
with the respondent that took place on 19.02.2010, the petitioner filed H.M. O.P. No. 65 of 2011 on the file of the Subordinate Court,
Aruppukkottai. The petitioner, knowing pretty well that the respondent/wife, who is a lunatic and mentally ill, is not able to contest the legal
proceedings, filed an application in I.A. No. 65 of 2011 in H.M. O.P. No. 65 of 2011, with a prayer to appoint Mr. S. Murugan, being the father
of the respondent as her guardian. The learned Subordinate Judge, Aruppukkottai, rightly allowed the said I.A., and thereupon the wife of the
petitioner was represented by her father Mr. S. Murugan. The petitioner also filed the Proof Affidavit on 07.03.2012. Thereafter, when the matter
was posted on 05.10.2012 and 12.10.2012, the respondent did not turn up for cross-examining the petitioner. On 12.10.2012, the respondent
was called absent and set ex-parte and matter was directed to be posted ""for orders"" on 19.10.2012. Though the respondent has filed a petition to
set aside the exparte order passed in H.M. O.P. No. 65 of 2011 and the same was numbered as I.A. No. 213 of 2012, no one appears for the
respondent before the Trial Court as well as before this Court. Admittedly, the respondent/wife has not filed any petition, seeking transfer of H.M.
O.P. No. 65 of 2011 to a place convenient to her. When the respondent/wife has to contest the two cases in two different places, this Court
deems fit and proper that both the matters could be tried simultaneously.
In the said circumstances, this Court, by looking at the conduct of the respondent in not contesting any of the proceedings, is inclined to transfer
H.M. O.P. No. 117 of 2012 from the file of the Principal T. RAJA, J. Subordinate Court, Tenkasi to the file of Subordinate Court, Aruppukkottai
to be tried along with H.M. O.P. No. 65 of 2011.
Accordingly, this Transfer Civil Miscellaneous Petition is allowed and the learned Principal Subordinate Judge, Tenkasi is directed to transfer the
H.M. O.P. No. 117 of 2012 forthwith to the file of Subordinate Court, Aruppukkottai to be tried along with H.M. O.P. No. 65 of 2011. The
learned Subordinate Judge, Aruppukkottai is directed to dispose of both H.M. O.P. Nos. 65 of 2011 and 117 of 2012 on merits and in
accordance with law.