A.Jayanthi vs K.Shivaji
2023 Latest Caselaw 355 Mad

    2023/MHC/90


                                                                            Tr.CMP No.1249 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 06-01-2023

                                                          CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                                   Tr.CMP No.1249 of 2022
                                                           And
                                                    CMP No.21216 of 2022



                     A.Jayanthi                                             .. Petitioner

                                                            vs.


                     K.Shivaji                                               .. Respondent

                     PRAYER : This Transfer CMP is filed under Section 24 of the Civil
                     Procedure Code, to withdraw the case in FCOP No.242 of 2022 from the file
                     of the Family Court at Vellore and transfer the same to the file of the Sub
                     Court at Poonamallee.


                                  For Petitioner          : Mr.R.Sampath Kumar

                                  For Respondent             : Mr.D.Padmanabhan



                     1/20




https://www.mhc.tn.gov.in/judis
                                                                             Tr.CMP No.1249 of 2022



                                                       ORDER

The present Transfer Civil Miscellaneous Petition is filed to

withdraw the case in FCOP No.242 of 2022 from the file of the Family

Court at Vellore and transfer the same to the file of the Sub Court at

Poonamallee.

2. The marriage between the petitioner-wife and the

respondent-husband was solemnised on 16.09.20219 as per Hindu Rites and

Customs. From and out of the wedlock between the petitioner and the

respondent, a male child was born and now aged about 2 years. The minor

child is with the custody of the petitioner.

3. The respondent-husband filed FCOP No.242 of 2022 for

restitution of conjugal rights on the file of the Family Court at Vellore.

4. The learned counsel for the petitioner states that she filed

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divorce petition in HMOP No.935 of 2022 on the file of the Sub Court at

Poonamallee. The petitioner is unemployed and now both the petitioner as

well as the the 2 year old male child are residing along with parents of the

petitioner at Chennai. Thus the petitioner is depending on her parents even

for her livelihood as well as her 2 year old male child and she is not in a

position to travel all along from Chennai to Vellore to contest the restitution

of conjugal rights filed by the respondent in FCOP No.242 of 2022, which is

pending on the file of the Family Court at Vellore.

5. It is brought to the notice of this Court that the respondent-

husband 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.

6. Whenever, the life of minor child is in question, the Courts

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are expected to protect the interest of the child and any non-protection in this

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.

7. The learned counsel for the respondent objected the said

contention by stating that the respondent is willing to take care of the minor

child and the petitioner is not allowing the respondent to see the child and

therefore, he is not in a position to pay the Interim Maintenance.

8. The learned counsel for the respondent reiterated that unless

the petitioner permits the respondent to visit the child, he will not be in a

position to pay the Interim Maintenance. The tenor of the respondent

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expressed through the learned counsel for the respondent shows the attitude

and conduct of the respondent, who is none other than the father of the 2

year old male child. Such an approach of the respondent, at no

circumstances, be encouraged by this Court.

9. Parents are duty bound to maintain their minor children. The

2 year old male 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

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

11. Remedy of maintenance is the measure of social justice as

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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

awarded maintenance by the husband. The obligation of the husband to

provide maintenance stands on a higher pedestal than the wife.

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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

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.

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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

circumstances, which is not connected with the grant of maintenance to the

minor child/children.

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16. 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.

17. On getting instructions from the respondent-husband over

phone, the learned counsel for the respondent made a submission that the

respondent is ready and willing to pay Interim Maintenance of Rs.10,000/-

every month to the child towards expenses for the maintenance of the minor

male child and requested this Court that the respondent may be permitted to

see the child twice in a month.

18. In this regard, the learned counsel for the petitioner states

that the respondent may be permitted to visit the child in the Court premises.

But the learned counsel for the respondent objected the same that the

visitation of the child be any other place other than the Court premises.

19. The principles regarding transfer petitions, more specifically

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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

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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

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

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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 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,

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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.

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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:-

''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)

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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. It is needless to state that the petitioner is at liberty to file an

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.

21. As far as the present Transfer CMP is concerned, since the

petitioner is unemployed, depending on her parents and taking care of 2 year

old male child and she is residing along with her parents at Chennai. That

being the case, the case filed by the respondent is to be transferred to the

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place, where the petitioner resides.

22. That being the factum, this Court is inclined to pass the

following orders:

(1) FCOP No.242 of 2022 pending on the file of the Family Court at

Vellore stands transferred to the file of the Sub Court at Poonamallee (now

to be transferred to Sub Court at Ambattur, Thiruvallur District on account

of bifurcation of territorial jurisdiction) forthwith to be tried along with

HMOP No.935 of 2022 filed by the petitioner for divorce.

(2) The Family Court at Vellore is directed to transmit the case

papers to the Sub Court at Poonamallee (now to be transferred to Sub Court

at Ambattur, Thiruvallur District on account of bifurcation of territorial

jurisdiction), 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 male child from January 2023 onwards.

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(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 calendar month

to the by means of a Demand Draft drawn in the name of the petitioner and

the same shall be given to the respondent within a period of one week from

today.

(5) In the event of any failure on the part of the respondent in paying

Interim Maintenance to the minor male 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.

(7) Regarding visitation right of the respondent, the petitioner may

take the child to Sri Thiruvaleeswarar Temple (Shiva Temple) at Padi,

Chennai-600 050 during the second and fourth week of every month

preferably on Sunday and the respondent may be permitted to visit the child

between 4.00 P.M. to 6.00 P.M. on that day.

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23. With the abovesaid directions, the Transfer Civil

Miscellaneous Petition stands allowed. However, there shall be no order as

to costs. Consequently, the connected miscellaneous petition is closed.

06-01-2023 Speaking Order/Non-Speaking Order.

Neutral Citation : Yes/No.

Internet : Yes/No.

Index: Yes/No.

Svn

To

https://www.mhc.tn.gov.in/judis Tr.CMP No.1249 of 2022

1.The Judge, Family Court, Vellore.

2.The Judge, Sub Court, Poonamallee.

3.The Judge, Sub Court at Ambattur, Thiruvallur District.

https://www.mhc.tn.gov.in/judis Tr.CMP No.1249 of 2022

S.M.SUBRAMANIAM, J.

Svn

Tr.CMP No.1249 of 2022

06-01-2023

https://www.mhc.tn.gov.in/judis