Madras High Court
Tmt.K.Sumithra vs R.P.Duraibabu @Kannan on 5 January, 2023
Tr.C.M.P.No.1236 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.1236 of 2022
and
C.M.P.Nos.20993 and 20994 of 2022
Tmt.K.Sumithra ... Petitioner
Vs.
R.P.Duraibabu @Kannan ... Respondent
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure
Code to withdraw the FCOP No.57 of 2022 from the file of the Family
Court, Chengalpattu and to transfer the same to the VI Additional Family
Court, Chennai to try along with M.C.No.41 of 2020.
For Petitioner : Mr.S.Ravichandran
For Respondent : No appearance
Page 1 of 10
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
ORDER
The petition for transfer is filed to withdraw and transfer the petition
filed in FCOP No.57 of 2022 from the file of the Family Court,
Chengalpattu to the file of the VI Additional Family Court, Chennai, to be
tried along with M.C.No.41 of 2020, which is pending.
2. The marriage between the petitioner and the respondent was
solemnised on 25.04.2010 as per the Hindu Rites and Customs. One female
child was born from and out of the wedlock between the petitioner and the
respondent and now aged about 11 years. Due to misunderstanding, the
petitioner and the respondent are living separately. The respondent/husband
filed FCOP No.57 of 2022 before the Family Court, Chengalpattu for
Dissolution of Marriage. The petitioner/wife has filed a Maintenance Case
in M.C.No.41 of 2020 on the file of the VI Additional Family Court,
Chennai. The petitioner/wife is unemployed and now residing along with
her parents at Chennai and depending on them for her livelihood. Further,
she has to take care of the female child, who is school going. Thus, the
petitioner is not in a position to spend, travel and contest the case filed by
the respondent/husband.
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
3. This Court is of the considered opinion that the disputes are no way
connected with the maintenance of a minor child. Dispute between the
husband and wife is to be resolved in the manner known to law or they can
go for Conciliation for reunion or otherwise. However, the interest of the
minor child is of paramount importance and the Courts are bound to protect
the interest of the minor children at all circumstances.
4. In the present case, the 11 year old female child is being
maintained by the petitioner/wife. Contribution of the father is to be made
and in the present case, admittedly, the respondent-father is not paying any
maintenance, despite the fact that the Maintenance Case in M.C.No.41 of
2020 was already filed. The trial Court also failed to consider grant of
interim maintenance in such circumstances. Interim maintenance is to be
granted, considering the facts and circumstances of the case. If there is a
minor child and the child is to be maintained by the mother, then interim
maintenance is to be ordered by the Courts even if there is no application
from either of the parties or otherwise.
5. Maintenance being the livelihood of a child and Right to Life being
an integral part of Article 21 and a Fundamental Right, the Courts are bound
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
to interfere in such circumstances and ensure that the maintenance of the
children are protected at all circumstances even during the sustenance of the
Matrimonial dispute between the husband and wife. The agony of the child
and its mental condition during the period of dispute between father and
mother, all to be taken note of and the interim maintenance is to be ordered
by the Courts even if there is no application or otherwise.
6. The quantum of maintenance to be ordered is to be considered
based on the income status and lifestyle of the parties before the Court.
Remedy of maintenance is a measure of social justice and envisaged under
the Constitution to prevent the children from falling into destitution and
vagrancy. Preamble of the Constitution and Article 39 and 15 (3) of the
Indian Constitution envisage social justice and positive State action for
empowerment of women and children. Thus, maintenance being the
livelihood even in the absence of any petition by the parties, the Court must
order interim maintenance, taking note of the interest of the minor child and
in the present case, the child is aged about 11 years old and School going.
7. This being the endeavour of this Court to ensure interim
maintenance to be paid to the child for her maintenance, the actual
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
maintenance to be determined needs to be adjudicated by the competent
Court by affording opportunity to both the parties.
8. 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
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
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
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
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
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.
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
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
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:-
“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.”
9. Considering the facts and circumstances, the FCOP No.57 of 2022
pending on the file of the Family Court, Chengalpattu stands transferred to
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
the VI Additional Family Court, Chennai forthwith. The Family Court,
Chengalpattu is directed to transmit the case papers to the VI Additional
Family Court, Chennai to be tried along with M.C.No.41 of 2020 within a
period of four (4) weeks from the date of receipt of a copy of this order.
10. The VI Additional Family Court, Chennai is directed to consider
for grant of interim maintenance, without causing any undue delay.
11. With the abovesaid directions, the Transfer Civil Miscellaneous
Petition stands allowed. However, there shall be no order as to costs.
Consequently, the connected Miscellaneous Petitions are closed.
05.01.2023
skr/kak
Index : Yes
Speaking order
Neutral Citation : Yes
To
1.The Judge,
Family Court,
Chengalpattu.
2.The Judge,
VI Additional Family Court,
Chennai.
https://www.mhc.tn.gov.in/judis
Tr.C.M.P.No.1236 of 2022
S.M.SUBRAMANIAM, J.
skr/kak
Tr.C.M.P.No.1236 of 2022
05.01.2023
https://www.mhc.tn.gov.in/judis
