Madras High Court

Eswari vs Sakthivel on 30 January, 2023

                                                                                 Tr.C.M.P.No.1330 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 30.01.2023

                                                        CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                               Tr.C.M.P.No.1330 of 2022
                                                         and
                                                C.M.P.No.22465 of 2022

                Eswari                                                    ... Petitioner

                                                        vs

                Sakthivel                                                 ... Respondent

                Prayer: Transfer Civil Miscellaneous Petition is filed under Section 24 of the Civil
                Procedure Code, to withdraw the O.P.No.390 of 2022 pending on the file of Sub
                Court at Alandur and transfer the same to any competent Court at Tenkasi.
                                  For Petitioner    : Mr.A.Sivaji
                                  For Respondent    : Mr.V.Ashokkumar

                                                        ORDER

The Transfer Civil Miscellaneous Petition is filed to withdraw the

O.P.No.390 of 2022 pending on the file of the Sub Court at Alandur and transfer

the same to the file of any competent Court at Tenkasi.

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2.The marriage between the petitioner and the respondent was solemnized

on 27.11.2006 as per the Hindu Rites and Customs. Two male children were born

from and out of the wedlock between the petitioner and the respondent and all the

minor children are living with the petitioner/wife. Due to misunderstanding, the

petitioner and the respondent are living separately.

3.The learned counsel for the petitioner states that the petitioner/wife is

unemployed and residing along with her parents and she has to take care of her

two minor children. Therefore, she is not in a position to spend, travel and contest

the divorce case filed by the respondent/husband.

4.Parents are duty bound to maintain their minor children. The two minor

children have 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 children.

5.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

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grant of Interim Maintenance in the interest of the minor children and to protect

their livelihood, which is the Fundamental Right to life under Article 21 of the

Constitution of India.

6.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.

7.Many citizen in our Great Nation on account of certain matrimonial issues,

never think of filing a formal petition for maintenance even to the minor children.

In such circumstances, Courts are expected to consider and grant Interim

Maintenance to protect the livelihood of the minor children during the pendency of

the matrimonial disputes between the husband and wife.

8.Court must act as a custodian of minor children, when such children are

neglected by either of the parents. When the mother of the child is unemployed and

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living along with her parents mostly is the situation prevailing in our country.

Grandparents are burdened with the minor children and the fathers are attempting

to escape from the clutches of liability, which cannot be tolerated by the Courts.

The father being the natural guardian under the Guardian and Wards Act, is bound

to maintain his minor daughter or son by paying maintenance even in such

circumstances, where there is a matrimonial dispute or dispute for visitation right.

Such rights are to be established considering various other facts and circumstances.

Whether the father or mother is entitled for a visitation is to be considered based

on the facts and circumstances of each case and not allowing the father or mother

to have visitation right will not be a ground to deny Interim Maintenance to the

minor child during the pendency of the matrimonial disputes.

9.In the present case, the transfer of the case is to be considered, since the

petitioner is unemployed and taking care of two minor male children and she is

residing along with her parents at Tenkasi. That being the case, the divorce case

filed by the respondent is to be transferred to the place, where the petitioner

resides.

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10.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 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.

(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

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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. 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 5 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,

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dated 03.03.2011, the Madurai Bench of Madras High Court,

wherein in paragraph-18, it has been observed as below:-

“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.”

11.Accordingly, this Court is inclined to pass the following orders: