Madras High Court
S.Yuvarani vs E.Govindaraju on 25 January, 2023
2023/MHC/351
Tr.C.M.P.No.1205 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Tr.C.M.P.No.1205 of 2022
and
C.M.P.No.20755 of 2022
S.Yuvarani ... Petitioner
Vs.
E.Govindaraju ... Respondent
Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure Code,
to withdraw the H.M.O.P.No.892 of 2022 pending on the file of the
Additional Family Court, Coimbatore and to transfer the same to the
V Additional Family Court, Chennai to try along with M.C.No.533 of 2022.
For Petitioner : Mrs.M.Samantha
For Respondent : Mr.K.Prabhakaran
ORDER
The petition for transfer is filed to withdraw the H.M.O.P.No.892 of
2022 pending on the file of the Additional Family Court, Coimbatore and to
transfer the same to the V Additional Family Court, Chennai to be tried along
with M.C.No.533 of 2022.
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Tr.C.M.P.No.1205 of 2022
2. The marriage between the petitioner and the respondent was
solemnised on 05.09.2016 as per the Hindu Rites and Customs. A male child
was born from and out of the wedlock between the petitioner and the
respondent and now aged about 3 years.
3. The petitioner states that the respondent / husband has completed
Diploma Course in Automobile Engineering and was working as a Supervisor
in the Union Motors Private Limited, Ras-al-Khaimah, Dubai and was
earning approximately Rs.2,00,000/- per month during the relevant point of
time. However, the learned counsel for the respondent states that the
respondent is now at Coimbatore.
4. The learned counsel appearing on behalf of the petitioner states that
the petitioner is now residing along with her parents and her child is suffering
from Autism disorder. Thus, she has to spend towards medical expenses and
the respondent is not even meeting out the maintenance of the child and not
paying the medical expenditures.
5. The respondent filed H.M.O.P.No.892 of 2022 for Dissolution of
Marriage, which is now pending on the file of the Additional Family Court at
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Coimbatore. The Petitioner filed Maintenance Case in M.C.No.533 of 2022
seeking maintenance, which is now pending before the V Additional Family
Court at Chennai. Thus, the petitioner has chosen to file the present Transfer
Petition.
6. The learned counsel for the respondent made a submission that the
respondent is unemployed as of now. However, the statement is not
substantiated and more so, the respondent was working as a Supervisor in
Union Motors Private Limited, Ras-al-Khaimah, Dubai and was earning
approximately Rs.2,00,000/- (Two Lakh Rupees) per month. That being the
factum, which is not disputed by the respondent, the respondent is bound to
maintain the livelihood of the child and he is liable to meet out the medical
expenditures. The respondent being a father and natural guardian cannot be
allowed to evade from his responsibility of maintaining the minor child, since
the minor child has got the right to live, which is to be protected by the
Constitutional Courts under Article 21 of the Constitution of India.
7. The place of the petitioner / wife is considered for the purpose of
adjudication of the maintenance case. The Court concerned has to consider
the grant of interim maintenance in such circumstances taking note of the
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Tr.C.M.P.No.1205 of 2022
mitigating factors. If the petitioner / wife is unemployed and the child is being
maintained by her without any source of income, then the livelihood of the
child is also to be protected by the Trial Courts.
8. In such circumstances, Courts are bound to grant interim
maintenance to protect the livelihood of the minor children. In the present
case, the petitioner had already filed a maintenance case in M.C.No.533 of
2022, before the V Additional Family Court at Chennai, which is pending.
9. This Court is of an opinion that wherever the wife is unemployed
and has to maintain, the Court concerned is expected to grant interim
maintenance to protect the livelihood of the minor children, which is a basic
right under Article 21 of the Constitution of India.
10. 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
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
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Tr.C.M.P.No.1205 of 2022
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.
11. 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.
12. Remedy of maintenance is a social justice as envisaged under the
Constitution to prevent the child from falling into destitution or vagrant.
Therefore, even in the absence of application seeking maintenance, the Courts
are bound to consider the grant of interim maintenance whenever a child is
residing with the mother, who is not employed. Even in case, the mother is
employed, the father has to share the maintenance in respect of the minor.
Thus, the Family Courts or the Courts dealing with the matrimonial cases are
bound to consider the grant of interim maintenance even in the absence of any
application from the mother till such time the final maintenance is to be
determined after adjudication.
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Tr.C.M.P.No.1205 of 2022
13. In all such cases, the Courts are directed to look into the issues and
consider for grant of interim maintenance to protect the livelihood of the
children residing with the unemployed mother.
14. The learned counsel for the respondent, on instructions, made a
submission that the respondent is ready and willing to pay a sum of
Rs.6,000/- per month towards interim maintenance and the final maintenance
to be paid by the respondent to the minor child and the petitioner to be
determined in the Maintenance Case filed by the revision petitioner in
M.C.No.533 of 2022.
15. In view of the said undertaking, the respondent / husband is
directed to pay the interim maintenance of Rs.6,000/- per month on or before
10th day of every English calendar month to the petitioner, either through
RTGS to the account of the revision petitioner or by way of a Demand Draft.
In the event of failure in paying the interim maintenance as per the order of
this Court, the petitioner is at liberty to approach this Court for filing
Contempt Proceedings or otherwise.
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Tr.C.M.P.No.1205 of 2022
16. The petitioner is now residing at Chennai along with her parents
and taking treatment of three (3) year old child and thus, she is not in a
position to travel and contest the Divorce case filed by the respondent.
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
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
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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
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
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Tr.C.M.P.No.1205 of 2022
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, 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
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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:-
“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.”
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Tr.C.M.P.No.1205 of 2022
18. Considering the facts and circumstances, the H.M.O.P.No.892 of
2022, now pending on the file of the Additional Family Court, Coimbatore
stands transferred to the V Additional Family Court, Chennai to be tried along
with Maintenance Case in M.C.No.533 of 2022. The Additional Family
Court, Coimbatore is directed to transmit all the case papers to the the V
Additional Family Court, Chennai. The V Additional Family Court shall
dispose of the Maintenance Case without causing any undue delay.
19. With these directions, the Transfer Civil Miscellaneous Petition in
Tr.C.M.P.No.1205 of 2022 stands allowed. No costs. Consequently,
connected Miscellaneous Petition is closed.
25.01.2023
skr
Index : Yes
Speaking order
Neutral Citation: Yes
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Tr.C.M.P.No.1205 of 2022
To
1.The Judge,
Additional Family Court,
Coimbatore.
2.The Judge,
V Additional Family Court,
Chennai.
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Tr.C.M.P.No.1205 of 2022
S.M.SUBRAMANIAM, J.
skr
Tr.C.M.P.No.1205 of 2022
25.01.2023
https://www.mhc.tn.gov.in/judis
