The Madras High Court has affirmed that practical hardship faced by a nursing mother in attending proceedings far from her residence constitutes a compelling ground for transfer of matrimonial litigation. This ruling prioritizes substantive access to justice over procedural formalities, setting a clear precedent for future transfer petitions under Section 24 of the Code of Civil Procedure.
Background & Facts
The Dispute
The petitioner, a woman residing in Medavakkam, Chennai, filed a transfer petition seeking to move H.M.O.P. No.1226 of 2025 from the Family Court, Madurai, to the Family Court, Chennai. The case, initiated by the respondent-husband through his father acting as Power of Attorney holder, concerns matrimonial disputes. The petitioner is currently the primary caregiver of a female infant child and is nursing, making travel to Madurai - approximately 500 kilometers away - physically and logistically burdensome.
Procedural History
- 2025: H.M.O.P. No.1226 filed in Family Court, Madurai by respondent through Power of Attorney
- January 2026: Petitioner files Tr.CMP No.1176 of 2025 under Section 24 of the Code of Civil Procedure seeking transfer
- Same date: Simultaneously files CMP No.26503 of 2025 under Section 151 of the Code of Civil Procedure seeking interim stay
- 31 October 2025: Court grants interim stay on proceedings in Madurai
- 27 January 2026: Final hearing conducted; respondent absent
Relief Sought
The petitioner sought transfer of the matrimonial proceeding to Chennai to ensure her effective participation without undue hardship, and an interim stay on further proceedings in Madurai pending disposal of the transfer petition.
The Legal Issue
The central question was whether Section 24 of the Code of Civil Procedure permits transfer of a matrimonial suit when the petitioner, a nursing mother, faces severe practical hardship in attending proceedings at the original forum, while the respondent is residing abroad and litigating through a representative.
Arguments Presented
For the Petitioner
Ms. K. Sumathi, counsel for the petitioner, argued that the petitioner’s status as a nursing mother with an infant child creates a compelling necessity for proximity to her residence. She cited judicial precedents emphasizing that access to justice must be meaningful and not theoretical, particularly in family matters where physical presence impacts childcare and emotional well-being. She contended that the respondent’s use of a Power of Attorney negates any claim of prejudice from transfer, as he is not personally appearing.
For the Respondent
No appearance or submission was made by the respondent or his counsel. The Court proceeded ex parte, noting the absence of any counter-argument or evidence of prejudice to the respondent.
The Court's Analysis
The Court examined the purpose of Section 24, which empowers courts to transfer suits to ensure justice is not defeated by procedural inconvenience. It emphasized that in matrimonial disputes, the welfare of the child and the ability of the custodial parent to participate meaningfully are central considerations.
"In transfer petitions arising out of matrimonial proceedings, the Court has to consider the realities of travel and effective participation in proceedings."
The Court noted that the petitioner’s physical condition as a nursing mother renders long-distance travel not merely inconvenient but potentially detrimental to the child’s health and her own well-being. Conversely, the respondent, residing in Texas and litigating through a Power of Attorney, demonstrated no comparable hardship. The Court held that the balance of convenience clearly favored transfer.
It further observed that effective access to justice is not merely about venue but about the ability to engage meaningfully in litigation. Denying transfer would effectively silence the petitioner’s voice in her own case.
The Verdict
The petitioner succeeded. The Court held that Section 24 of the Code of Civil Procedure authorizes transfer when practical hardship undermines access to justice, particularly in cases involving custodial parents of infants. The suit was transferred to the Family Court, Chennai, and the interim stay was vacated.
What This Means For Similar Cases
Custodial Parents’ Hardship Overrides Territorial Formality
- Practitioners must now explicitly document the physical, emotional, and logistical burdens faced by custodial parents - especially nursing mothers - in opposing transfer
- Courts will prioritize the child’s welfare and the parent’s ability to attend hearings over rigid adherence to jurisdictional boundaries
- Affidavits from pediatricians or childcare providers supporting the necessity of proximity may now be critical evidence
Power of Attorney Use Weakens Respondent’s Opposition to Transfer
- When the respondent is abroad and represented by an attorney, claims of prejudice from transfer are significantly diminished
- Courts will view such representation as sufficient to protect the respondent’s interests, making transfer more likely
- Practitioners should not assume that absence of personal appearance by the respondent equates to lack of standing to oppose transfer
Interim Stay Is Not Automatic but Must Be Justified
- While interim stays under Section 151 are available, they are temporary and subject to final determination
- Courts will vacate stays upon granting transfer, as occurred here, to avoid procedural delay
- Applications for stay must be tied directly to the merits of the transfer petition, not filed as standalone delays
