Madras High Court

S.Gomathie Priya vs E.Venkatesh Perumal on 30 January, 2023

    2023/MHC/441
                                                                                   Tr.C.M.P.No.1331 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.1331 of 2022
                                                             and
                                           C.M.P.Nos.22466, 22467 and 22470 of 2022


                     S.Gomathie Priya                                              ... Petitioner
                                                                Vs.


                     E.Venkatesh Perumal                                           ... Respondent



                     Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
                     Code, to withdraw the H.M.O.P.No.411 of 2022 pending on the file of the
                     Family Court, Tirunelveli and transfer the same to the Family Court at
                     Chennai.
                                        For Petitioner           : Mr.R.Prabakar

                                        For Respondent           : Mr.M.Sankar Ganesh

                                                            ORDER

The Civil Revision Petition is filed to withdraw the H.M.O.P.No.411

of 2022 pending on the file of the Family Court, Tirunelveli and transfer the

same to the Family Court at Chennai.

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2. The marriage between the petitioner and the respondent was

solemnized on 03.11.2006 as per Hindu Rites and Customs. Two children

were born from and out of the wedlock between the petitioner and the

respondent and the daughter namely minor Eshapurnikka is aged about 15

years and the son namely Eshwersaisriram is aged about 9 years. Both the

children are now living with the petitioner / mother at Chennai. Due to

misunderstanding and on account of certain disputes, the petitioner and the

respondent are living separately. The respondent filed H.M.O.P.No.411 of

2022 for Dissolution of Marriage, now pending on the file of the Family

Court at Tirunelveli. The petitioner / wife filed Maintenance Case in

M.C.No.8 of 2023, now pending on the file of the VII Additional Family

Court, Chennai.

3. The petitioner and the respondent along with their children were

residing in United Kingdom and the petitioner returned back to India along

with the family on 03.11.2022. The respondent / husband is now residing at

Tirunelveli, wherein he has filed Divorce Petition in H.M.O.P.No.411 of

2022 before the Family Court at Tirunelveli.

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4. The children are unable to secure admission in Schools at Chennai

on account of the fact that the original certificates are missing. In this regard,

the petitioner / wife filed a police complaint and during the relevant point of

time, she had given a complaint for man missing also, since the whereabouts

of the respondent / husband was not known. The Police found that the

allegations are relating to matrimonial dispute and no further action was

taken. However, FIR was registered in FIR No.612 dated 06.11.2022.

5. Today, both the petitioner and the respondent along with the minor

daughter are present before this Court.

6. Matrimonial dispute between the petitioner and the respondent are

to be adjudicated in the Divorce Petition filed by the respondent / husband.

However, this Court has to protect the interest of the children, as they have

discontinued their education and returned back to India. The minor daughter

is aged about 15 years and capable of understanding. She informed this

Court that she has to continue her studies with reference to the syllabus,

which she had studied in United Kingdom.

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7. Accordingly, Mr.Veeraraghavan, learned counsel voluntarily

assisted the Court for the purpose of securing school admission to the two

children and as per his information, the school namely Lalaji Memorial

Omega International School, Omega School Road, No.79, Pallavaram Road,

Kovur, Chennai has agreed to admit the children in their school and further

they have agreed that they need not produce all relevant certificates at

present and they will be allowed to continue their education with immediate

effect. The voluntary services rendered by Mr.Veeraraghavan, learned

counsel stands appreciated and placed on record.

8. In this regard, the respondent shall approach the Principal of the

School and admit the children and facilitate them to continue their education

without any gap. The respondent / husband is raising several allegations

against the petitioner / wife, which need not be adjudicated in the present

Transfer Petition, as those allegations are to be adjudicated with reference to

the evidences and other documents, if available in the Divorce Petition.

However, this Court has to protect the interest of the children, as the

petitioner / wife is unemployed and living separately at Chennai and two

grown up children are to be maintained.

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9. 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

Right to life under Article 21 of the Constitution of India.

10. 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.

11. 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

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brought before it. The Courts have held that if the wife is earning, it cannot

operate as a bar from being awarded maintenance by the husband. The

obligation of the husband to provide maintenance stands on a higher pedestal

than the wife.

12. 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.

13. 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

of the minor child/children are protected by granting Interim Maintenance in

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the absence of any formal application during the pendency of the

matrimonial disputes between the husband and the wife.

14. 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 those

minor children but the fathers of those minor children, who are the earning

members are 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 dispute between the spouses. Denial of visitation right

is not a ground to grant exemption from payment of maintenance. Visitation

right is to be decided based on other facts and circumstances, which is not

connected with the grant of maintenance to the minor child/children.

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15. In this regard, the respondent agreed to pay a sum of Rs.10,000/-

as monthly maintenance. However, this Court, considering the educational

and other living expenditures at Chennai, is inclined to fix a sum of

Rs.15,000/- as interim maintenance, which is to be paid by the respondent /

husband to the petitioner / wife for the purpose of protecting the educational

expenses and livelihood of the children, since they were brought up at

United Kingdom in a particular lifestyle. The respondent / husband is an

I.T. Professional and he also agreed to pay the said sum of Rs.15,000/-

per month towards interim maintenance. Regarding further claim of

compensation or maintenance by the petitioner, the issues are to be

adjudicated before the Competent Court and the parties can workout for

re-union also through conciliation proceedings.

16. The petitioner and the respondent are living together for the past

more than 15 years and they have to take care of two grown up children and

therefore, they may go for conciliation proceedings for the purpose of

re-union or otherwise.

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17. In respect of the missing original certificates of the children and

the petitioner / wife, the respondent / husband is duty bound to secure

duplicate certificates from the Competent Authorities / University / School

concerned and hand over the same to the petitioner / wife for the purpose of

producing the same before the school concerned and for the purpose of

securing employment to the petitioner / wife.

18. In this regard, the petitioner / wife agrees to co-operate and put her

signature in all necessary forms and wherever required. However, it is made

clear that the respondent / husband should make arrangements for securing

the duplicate certificate from the Competent Authority / University / School

concerned. If the presence of the petitioner / wife is required for securing

duplicate certificate in any of the University in Tamil Nadu, she will

co-operate for securing the duplicate certificates by appearing in person, if

asked by the Competent Authorities / University / School concerned.

19. 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:-

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(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 National Commission for Women, underlying the need for such amendment so as to enable the

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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 Ranga [(2000) 9 SCC 355], the wife has

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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 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.”

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(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:-

“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.”

20. Considering the facts and circumstances, this Court is inclined to

pass the following orders:-

(i) the H.M.O.P.No.411 of 2022, pending on the file of the Family Court

at Tirunelveli stands transferred to the VII Additional Family Court at

Chennai to be tried along with the Maintenance Case in M.C.No.8 of

2022;

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(ii) the respondent / husband is directed to pay the interim maintenance of

Rs.15,000/- per month with effect from January 2023 onwards and the

said amount is directed to be paid on or before 10 th day of every

English calendar month, either through RTGS in the bank account of

the petitioner / wife or through bank Demand Draft.

21. Apart from the interim maintenance of Rs.15,000/- per month, the

respondent / husband is directed to pay all the school fees directly to the

School administration or through the petitioner / wife, who in turn, shall

produce the receipt issued by the School authorities.

22. The interim maintenance and the payment of the school fees

granted by this Court is not a bar for the petitioner / wife to claim final

maintenance by initiating appropriate proceedings.

23. In the event of any failure on the part of the respondent / husband

in paying the interim maintenance as granted by this Court in the present

Transfer Petition, the petitioner / wife is at liberty to move contempt

proceedings before this Court.

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