Madras High Court
S.Helina vs M.Lokesh on 7 February, 2023
2023/MHC/486
Tr.CMP No.1267 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07-02-2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Tr.CMP No.1267 of 2022
And
CMP No.21494 of 2022
S.Helina .. Petitioner
vs.
M.Lokesh .. Respondent
PRAYER : This Transfer CMP is filed under Section 24 of the Civil
Procedure Code, to withdraw the case in HMOP No.242 of 2022 from the
file of the Family Court at Thanjavur and transfer the same to the file of the
Sub Court at Thiruvarur to try along with HMOP No.17 of 2022.
1/20
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Tr.CMP No.1267 of 2022
For Petitioner : Mr.S.Angamuthu
For Respondent : Mr.A.Balasingh Ramanujam
ORDER
The present Transfer Civil Miscellaneous Petition is filed to
withdraw the case in HMOP No.242 of 2022 from the file of the Family
Court at Thanjavur and transfer the same to the file of the Sub Court at
Thiruvarur to be tried along with HMOP No.17 of 2022.
2. The marriage between the petitioner-wife and the
respondent-husband was solemnised on 03.09.2021 as per Hindu Rites and
Customs. One female male child was born from and out of the wedlock
between the petitioner and the husband. Due to misunderstanding between
the petitioner and the respondent, they are now living separately. The child
is with the custody of the petitioner-wife.
3. The petitioner states that the respondent-husband filed
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Tr.CMP No.1267 of 2022
HMOP No.242 of 2022 for dissolution of marriage which is pending on the
file of the Family Court at Thanjavur. The petitioner filed HMOP No.17 of
2022 for restitution of conjugal rights on the file of the Sub Court at
Thiruvarur.
4. The learned counsel for the petitioner states that the
petitioner is unemployed and now residing with her parents at Thiruvarur
along with the female child. Thus she is not in a position to travel all along
from Thiruvarur to Thanjavur to contest the dissolution of marriage filed by
the respondent in HMOP No.242 of 2022, which is pending on the file of
the Family Court at Thanjavur.
5. The learned counsel for the respondent raised an objection by
stating that the petitioner and other family members are threatening the
respondent and his aged parents.
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6. The parties appearing to contest the case in matrimonial
disputes are expected to follow the procedures and avoid such
confrontations. They have to settle the dispute through conciliation or by
contesting the case before the Court concerned. Contrarily, they cannot
involve in illegal activities, which would cause further prejudice to the
interest of the parties and even the conciliation may not be possible in such
circumstances.
7. Since the respondent-father, who is the natural guardian, is
not paying even the Interim Maintenance to safeguard his own child and
now the petitioner is depending on her age-old parents even to feed her
child. In such circumstances, the Courts are expected to step in and protect
the livelihood of the minor child, which is the fundamental right ensured
under the Constitution.
8. Whenever, the life of minor child is in question, the Courts
are expected to protect the interest of the child and any non-protection in this
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Tr.CMP No.1267 of 2022
regard would have larger societal repercussions and the High Court, being
the Constitutional Court, is expected to grant Interim Maintenance in such
circumstances even in the absence of any formal application by any one of
the parties. If the High Court fails to grant Interim Maintenance in such
circumstances, where the minor child is to be maintained by an unemployed
mother, then the High Court is failing in its duty to protect the life of the
minor child under the Constitution of India.
9. Parents are duty bound to maintain their minor children. The
female child has to be taken care of by the father, who is the natural
guardian and an earning member. The petitioner-wife is unemployed and
therefore, the respondent-father has to maintain the child.
10. For grant of Interim Maintenance to the minor children, no
application is required. Even in the absence of any application, the Courts
are bound to consider grant of Interim Maintenance in the interest of the
minor children and to protect their livelihood, which is the Fundamental
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Right to life under Article 21 of the Constitution of India.
11. Remedy of maintenance is the measure of social justice as
envisaged under the Constitution to prevent the wife and the children from
falling into destitution and vagrancy. Preamble and Article 39 and 15(3) of
the Indian Constitution envisage social justice and positive State action for
empowerment of women and children.
12. An order of Interim Maintenance is conditional on
circumstance that the wife or husband, who makes a claim has no
independent income sufficient for her or his support. It is no answer to a
claim of maintenance that the wife is educated and could support herself.
The Court may take into consideration the status of the parties and the
capacity of the spouse to pay for her or his support. Maintenance is
dependent upon factual situations; the Court should mould the claim for
maintenance based on various factors brought before it. The Courts have
held that if the wife is earning, it cannot operate as a bar from being
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Tr.CMP No.1267 of 2022
awarded maintenance by the husband. The obligation of the husband to
provide maintenance stands on a higher pedestal than the wife.
13. Regarding maintenance for minor children, the living
expenses of the child would include expenses for food, clothing, residence,
medical expenses, education of children. Education expenses of the children
must be normally borne by the father. If the wife is working and earning
sufficiently, the expenses may be shared proportionately between the parties.
Serious disability or ill-health of a spouse, child/children from the
marriage/dependent relative who require constant care and recurrent
expenditure, would also be a relevant consideration while quantifying
maintenance.
14. Due to pressure on various aspects, the parties to the
matrimonial disputes are not even filing any formal application for grant of
Maintenance/Interim Maintenance even for the minor child/children. In such
circumstances, it is the bounden duty of the Court to ensure that the interest
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Tr.CMP No.1267 of 2022
of the minor child/children are protected by granting Interim Maintenance in
the absence of any formal application during the pendency of the
matrimonial disputes between the husband and the wife.
15. When the livelihood, lifestyle or education of the children
are in question, then the Courts must act as a custodian of minor
child/children and award Interim Maintenance to protect the interest of the
minor children. In many cases unemployed mothers are maintaining their
minor child/children, causing burden to the age-old parents and such
circumstances must be seriously considered by the Courts. Grandparents are
burdened with their minor children and the fathers of those minor children
are the earning members and escaping from the clutches of their liability,
which cannot be tolerated by the Courts. The responsibility of the father,
being primary in nature, fathers are duty bound to maintain the minor child/
children, when there is a matrimonial disputes between the spouses. Denial
of visitation right is not a ground to grant exemption from the payment of
maintenance. Visitation right is to be decided based on other facts and
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Tr.CMP No.1267 of 2022
circumstances, which is not connected with the grant of maintenance to the
minor child/children.
16. In the present case, the transfer of the case is to be
considered, since the petitioner is unemployed and taking care of the female
child and she is residing along with her parents at Thiruvarur. That being the
case, the divorce case filed by the respondent is to be transferred to the
place, where the petitioner resides.
17. The principles regarding transfer petitions, more specifically
in the matters of matrimonial cases, are well settled through the three
decisions of the High Court of Madras, in the following cases:-
(i) The Hon'ble Division Bench of the High Court of Madras in
W.A.No.1181 of 2009, dated 09.07.2010, wherein in paragraphs-21 and 22,
it has been observed as under:-
''21. The domicile or citizenship of the
opposite party is immaterial in a case like this. In
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case the marriage was solemnized under Hindu
Law marital relationship is governed by the
provisions of the Hindu Marriage Act. Therefore,
Section 19 has to be given a purposeful
interpretation. It is the residence of the wife, which
determines the question of jurisdiction, in case the
proceeding was initiated at the instance of the wife.
22. While considering a provision like
Section 19 (iii-a) of the Hindu Marriage Act, the
objects and reasons which prompted the
parliament to incorporate such a provision has also
to be taken note of. Sub Clause (iii-a) was inserted
in Section 19 with a specific purpose. Experience is
the best teacher. The Government found the
difficulties faced by women in the matter of
initiation of matrimonial proceedings. The report
submitted by the Law Commission as well as
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National Commission for Women, underlying the
need for such amendment so as to enable the
women to approach the nearest jurisdictional court
to redress their matrimonial grievances, were also
taken note of by the Government. Therefore such a
beneficial provision meant for the women of our
Country should be given a meaningful
interpretation by Courts.''
(ii) In yet another case in Tr.CMP.Nos.138 and 139 of 2006,
dated 30.08.2006, the High Court of Madras has considered the following
judgments of Hon'ble Supreme Court of India:-
''(1). In the case of Mona Aresh Goel vs.
Aresh Satya Goel [(2000) 9 SCC 255], when the
wife pleaded that she was unable to bear the
traveling expenses and even to travel alone and stay
at Bombay, the Supreme Court ordered transfer of
proceedings.
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(2) In the case of Geeta Heera vs. Harish
Chander Heera [(2000) 10 SCC 304], the Hon'ble
Supreme Court has held that where the petitioner's
wife has pleaded lack of money, the same has to be
considered.
(3) In the case of Lalita A.Ranga vs. Ajay
Champalal Ranga [(2000) 9 SCC 355], the wife
has filed a petition to transfer the proceedings
initiated by the husband for divorce, at Bombay. The
place of residence of the wife was at Jaipur,
Rajasthan. In that case, the petitioner is having a
small child and that she pleaded difficulty in going
all the way from Jaipur to Bombay to contest the
proceedings from time to time. Considering the
distance and the difficulties faced by the wife, the
Supreme Court has allowed the transfer petition.
(4) In a decision in Archana Singh vs.
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Surendra Bahadur Singh [(2005) 12 SCC 395],
the wife has sought for transfer of matrimonial
proceedings and a divorce petition has been filed by
the respondent's husband at Baikunthpur to be
transferred to Allahabad, where the petitioner's wife
was residing, on the ground that it would be difficult
for her to undertake such long distance journey,
particularly in circumstances, in which she finds that
the proceedings under Section 125 Cr.P.C. was
already pending before the Family Court, Allahabad.
Considering the difficulties faced by the wife and
also the long distance journey, the Honourable
Supreme Court was pleased to order transfer of the
proceedings to Allahabad.”
(iii) In a decision made in TR.CMP(MD)No.108 of 2010, dated
03.03.2011, the Madurai Bench of Madras High Court, wherein in
paragraph-18, it has been observed as below:-
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''18. It is true that section 19 of the Hindu
Marriage Act, has been amended by insertion of
proviso of (iii)(a) to section 19. Of Course, this
amended section 19(iii)(a) gives special preference to
the wife to file a petition or defending the case of the
husband before the Court within whose jurisdiction
she resides. The intention of the Legislator is to safe-
guard the interest and rights of the women, who are
being subjected to harassment and cruelty. But this
special preference conferred under section 19(iii)(a)
of the Hindu Marriage Act shall not be used to
wreck vengeance on the husband. There must be a
justifiable cause to select the jurisdiction of the Court
where she resides.''
18. It is needless to state that the petitioner is at liberty to file an
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Tr.CMP No.1267 of 2022
appropriate maintenance petition claiming maintenance for herself and to the
child and the final maintenance amount is to be determined after
adjudication by the Competent Court. However, the Interim Maintenance is
to be granted to protect and to meet out the basic needs of the minor child
and any delay in this regard would affect the very livelihood of the minor
child.
19. This Court asked the learned counsel for the respondent to
get instructions from the respondent-husband in respect of grant of Interim
Maintenance only to the minor child.
20. On instructions, the learned counsel for the respondent
made a submission that the respondent undertakes to pay a sum of
Rs.10,000/- towards Interim Maintenance to the minor child towards
expenses.
21. As far as the present Tr.CMP is concerned, the the
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petitioner is unemployed and is taking care of minor child and depending on
her age-old parents.
22. That being the factum, this Court is inclined to pass the
following orders:
(1) HMOP No.242 of 2022 pending on the file of the Family Court
at Thanjavur stands transferred to the file of the Sub Court at Thiruvarur
forthwith to be tried along with HMOP No.17 of 2022 filed by the petitioner
for restitution of conjugal rights.
(2) The Family Court at Thanjavur is directed to transmit the case
papers to the Sub Court at Thiruvarur, within a period of four weeks from
the date of receipt of a copy of this order.
(3) The respondent-husband is directed to pay the Interim
Maintenance of Rs.10,000/- (Rupees Ten Thousand only) to the petitioner to
maintain minor female child from February 2023 onwards.
(4) The Interim Maintenance of a sum of Rs.10,000/- (Rupees Ten
Thousand only) is to be paid on or before 10th day of every English calendar
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month to the Bank Account of the petitioner-mother and the learned counsel
for the petitioner undertakes that the Bank Account Number along with the
details will be provided to the learned counsel for the respondent for
informing the same to the respondent within a period of one week from
today. The mode of payment of Interim Maintenance by the respondent can
either by way of money transfer directly to the Bank Account of the
petitioner or by way of sending Demand Draft drawn in the name of the
petitioner.
(5) In the event of any failure on the part of the respondent in paying
the Interim Maintenance to the minor female child, the petitioner is at liberty
to move the contempt petition before this Court.
(6) The Interim Maintenance granted in the present Transfer Civil
Miscellaneous Petition is not a bar for the petitioner to claim further
maintenance in accordance with law.
23. With the abovesaid directions, the Transfer Civil
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Miscellaneous Petition stands allowed. However, there shall be no order as
to costs. Consequently, the connected miscellaneous petition is closed.
07-02-2023
Speaking Order/Non-Speaking Order.
Neutral Citation : Yes/No.
Internet : Yes/No.
Index: Yes/No.
Svn
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Tr.CMP No.1267 of 2022
To
1.The Judge,
Family Court,
Thanjavur.
2.The Sub Judge,
Sub Court,
Thiruvarur.
S.M.SUBRAMANIAM, J.
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Tr.CMP No.1267 of 2022
Svn
Tr.CMP No.1267 of 2022
07-02-2023
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