SEKAR REPORTER

Court News from Madras High Court

(5) In the event of any failure on the part of the respondent in paying the Interim Maintenance to the minor girl 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.                                 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. 22-12-2022 Speaking Order/Non-Speaking Order. Internet : Yes/No. Index: Yes/No. Svn S.M.SUBRAMANIAM, J. Svn To 1.The Sub Judge,    Sub Court,    Poonamallee. 2.The Judge,    Family Court,    Tiruchirappalli. Tr.CMP No.764 of 2022 22-12-2022

by ·

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22-12-2022

CORAM

THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

Tr.C.M.P.No.764 of 2022

and

C.M.P.No.13069 of 2022

 

 

P.Geetha                                                                                                                                                            ..          Petitioner

 

 

vs.

 

 

V.Kirubaharan                                                                                                                                .. Respondent

 

PRAYER : This Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the case in HMOP No.788 of 2021 from the file of  the Sub Court at Poonamallee and transfer the same to the file of the Family Court at Tiruchirappalli.

 

For Petitioner                          :  Ms.P.Anitha

 

For Respondent                                  :  Mr.S.Saravanakumar

 

 

O R D E R

 

 

The present Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP No.788 of 2021 from the file of  the Sub Court at Poonamallee and transfer the same to the file of the Family Court at Tiruchirappalli.

 

  1. The marriage between the petitioner and the respondent was solemnised on 12.02.2020 as per Hindu Rites and Customs. From and out of the wedlock between the petitioner and the respondent, one female child was born now 11 months old. The child is under the custody of the petitioner. Due to misunderstanding, both the petitioner and the respondent are living separately.

 

  1. The learned counsel for the petitioner states that the respondent filed HMOP No.788 of 2021 for dissolution of marriage before the Family Court at Poonamallee. The petitioner and her 11 months old male child are now residing along with her parents at Tiruchirappalli. Thus, she is not in a position to travel all along from Tiruchirappalli to Poonamallee and contest the dissolution of marriage filed by the respondent in HMOP No.788 of 2021 before the Sub Court at Poonamallee.

 

  1. The learned counsel for the petitioner brought to the notice of this Court that the respondent is not paying the Interim Maintenance even to the minor child and the petitioner is now residing along with her parents. The petitioner has to maintain her 11 months old female child.

 

  1. The learned counsel for the respondent raised an objection by stating that the petitioner is a Dentist and practicing and therefore, she is capable of contesting the HMOP No.788 of 2021 filed by the respondent before the Sub Court at Poonamallee.

 

  1. The learned counsel for the respondent, based on the instructions given by the respondent, made a submission that the respondent is ready and willing to pay the Interim Maintenance.

 

  1. This Court thought fit to direct the respondent to pay a sum of Rs.5,000/- towards Interim Maintenance to be paid to the petitioner for the purpose of maintenance of the minor child.

 

  1. The respondent, being the father, is responsible for the maintenance of the child. Thus he has to share the maintenance along with the petitioner for the livelihood of the child, which is now with the custody of the petitioner-wife. The Interim Maintenance of Rs.5,000/- per month is directed to be paid by the respondent to the petitioner on or before the 10th day of every calendar month, which is to be deposited in the Bank Account of the petitioner and the learned counsel for the petitioner undertakes that she will furnish the details of the petitioner-wife Bank Account Number to the learned counsel for the respondent, who in turn has to provide such information to the respondent-husband.
  2. The learned counsel for the petitioner brought to the notice of this Court that the respondent is not even paying any Interim Maintenance even to the minor girl child and that apart, he has filed the divorce petition before the Sub Court at Poonamallee to harass the petitioner.

 

  1. 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.

 

  1. 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 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 11 months old female child. Such an approach of the respondent, who is a Public Servant, at no circumstances, be encouraged by this Court.

 

  1. Parents are duty bound to maintain their minor children. The 11 months old female 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. In the present case, the transfer of the case is to be considered, since the petitioner is unemployed and taking care of 11 months old girl child and she is residing along with her parents at Tiruchirappalli. That being the case, the divorce case filed by the respondent is to be transferred to the place, where the petitioner resides.

 

  1. The learned counsel for the respondent made a submission that in the event of transferring the case, there will be a life threat to the respondent. The parties are expected to maintain decorum while attending and conducting the proceedings in the Court. The petitioner shall not indulge in any illegal activities during the course of matrimonial proceedings and they are bound to conduct the case by following the procedures as contemplated.

 

  1. 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.

  1. 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 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 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.”

(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.”

 

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

(1)  HMOP No.788 of 2021 pending on the file of the Sub Court at Poonamallee stands transferred to the file of the Family Court at Tiruchirappalli forthwith.

(2) The Sub Court at Poonamallee is directed to transmit the case papers to the Family Court at Tiruchirappalli, 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.5,000/- (Rupees Five Thousand) to the minor female child, who is now living with the petitioner-mother for the purpose of maintenance from December 2022 onwards. Till such time, the maintenance or otherwise is determined by the Competent Court for which the parties are at liberty to approach the Competent Court.

(4) The Interim Maintenance of a sum of Rs.5,000/- (Rupees Five Thousand) is to be paid on or before 10th day of every calendar month to the Bank Account of the petitioner-mother and the learned counsel for the petitioner undertakes that the Bank Account Number along with the details will be provided to the learned counsel for the respondent for informing the same 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 the Interim Maintenance to the minor girl 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.

 

  1.           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.

 

 

22-12-2022

Speaking Order/Non-Speaking Order.

Internet : Yes/No.

Index: Yes/No.

Svn

 

S.M.SUBRAMANIAM, J.

Svn

To

 

1.The Sub Judge,

Sub Court,

Poonamallee.

 

2.The Judge,

Family Court,

Tiruchirappalli.

Tr.CMP No.764 of 2022

 

 

 

 

 

 

 

 

 

 

 

 

 

22-12-2022

You may also like...