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2022 DIGILAW 3968 (MAD)

P. Kalaivani v. K. P. Selvam

2022-12-21

S.M.SUBRAMANIAM

body2022
ORDER : The present Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP No.119 of 2022 from the file of the Sub Court at Cheyyar, Thiruvannamalai District and transfer the same to the file of the IV Additional Family Court at Chennai. 2. The marriage between the petitioner and the respondent was solemnised on 01.12.2009 as per Hindu Rites and Customs. From and out of the wedlock, two minor female children were born aged about 11 years and 7 years respectively. Both the minor female children were under the custody of the petitioner. Due to misunderstanding, both the petitioner and the respondent are living separately. 3. The respondent-husband appeared in person and made a submission that he is working as Assistant Engineer in the Tamil Nadu Electricity Board. 4. The submission of the learned counsel for the petitioner that the respondent is working at Chennai has not been disputed. 5. The respondent states that he is working as Assistant Engineer and now posted at Thermal Power Station at Attipattu nearby at Ennore. 6. It is not in dispute that a sum of Rs.15,000/- has already been awarded as maintenance as per the undertaking given by the respondent. Even the said amount has not been settled in entirety as of now. The dispute between the petitioner and the respondent is to be resolved in the HMOP already filed by the respondent for dissolution of marriage. However, the respondent has to maintain two minor daughters aged about 11 and 7 years respectively. Both the school going children are taken care of by the petitioner. The respondent is working as Assistant Engineer in the Tamil Nadu Electricity Board and therefore, he is bound to pay the maintenance punctually and promptly without any lapses. 7. The respondent, being a Government employee or Board employee, not maintaining his own minor children is a misconduct under the Conduct Rules applicable to the Tami Nadu Electricity Board. The matrimonial disputes are to be resolved between the parties. However, maintenance of minor children are of paramount importance and the Court has to interfere in such cases, where the husband is not paying the maintenance knowing the fact that the wife is unemployed. 8. The matrimonial disputes are to be resolved between the parties. However, maintenance of minor children are of paramount importance and the Court has to interfere in such cases, where the husband is not paying the maintenance knowing the fact that the wife is unemployed. 8. In the present case, the petitioner is unemployed and she is depending on her parents and the relatives and not in a position to maintain her minor daughters, who all are school going children. Thus the respondent has to pay the monthly maintenance of amount promptly and that apart, the respondent has already given an undertaking that he will pay the school fees to the children in connection with educational expenses. 9. The learned counsel for the respondent objected the said contention by stating that the respondent is willing to take care of the minor girl children and the petitioner is not allowing the respondent to see the minor girl children and therefore, he is not in a position to pay the Interim Maintenance. 10. 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 and 7 year old girl children respectively. Such an approach of the respondent, being a Public Servant, at no circumstances, be encouraged by this Court. 11. Parents are duty bound to maintain their minor children. The 11 and 7 year old girl children respectively have 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 11 and 7 year old girl children respectively. 12. For grant of Interim Maintenance to the 11 and 7 year old girl children respectively, 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. 13. 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. 13. 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. 14. Many citizen in our Great Nation on account of certain matrimonial issues, never think of filing a formal petition for maintenance even to the minor children. In such circumstances, Courts are expected to consider and grant Interim Maintenance to protect the livelihood of the minor children during the pendency of the matrimonial disputes between the husband and wife. 15. Court must act as a custodian of minor children, when such children are neglected by either of the parents. When the mother of the child is unemployed and living along with her parents mostly is the situation prevailing in our country. Grandparents are burdened with the minor children and the fathers are attempting to escape from the clutches of liability, which cannot be tolerated by the Courts. The father being the natural guardian under the Guardian and Wards Act, is bound to maintain his minor daughter or son by paying maintenance even in such circumstances, where there is a matrimonial dispute or for visitation right. Such rights are to be established considering various other facts and circumstances. Whether the father or mother is entitled for a visitation is to be considered based on the facts and circumstances of each case and not allowing the father or mother to have visitation right will not be a ground to deny Interim Maintenance to the minor child during the pendency of the matrimonial disputes. 16. In the present case, the transfer of the case is to be considered, since the petitioner is unemployed and taking care of 11 and 7 year old girl children respectively and she is residing along with her parents at Chennai. That being the case, the divorce case filed by the respondent is to be transferred to the place, where the petitioner resides. 17. That being the case, the divorce case filed by the respondent is to be transferred to the place, where the petitioner resides. 17. The learned counsel for the petitioner made a submission that she will advise the petitioner to allow the respondent for visitation right in respect of two minor daughters. 18. 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 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. 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. 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." 19. In view of the facts and circumstances, this Court is inclined to pass the following orders:- (1) HMOP 119 of 2022 pending on the file of the Sub Court at Cheyyar, Thiruvannamalai District stands transferred to the file of the IV Additional Family Court at Chennai to be tried along with MC No.660 of 2019. (2) The Sub Court at Cheyyar, Thiruvannamalai District is directed to transmit the case papers to the IV Additional Family Court at Chennai within a period of four weeks from the date of receipt of a copy of this order. (3) The respondent, as per his undertaking, is directed to pay the monthly maintenance of Rs.15,000/- and the school fees to the two minor girl children from December 2022 onwards. The monthly maintenance amount agreed by the respondent for a sum of Rs.15,000/-, which is directed to be paid on or before the 10th day of every calendar month without any default. (4) In the event of default in payment of monthly maintenance as agreed by the respondent, the petitioner is at liberty to file a complaint against the respondent before the Competent Authority of the Tamil Nadu Electricity Board. In the event of any such complaint from the wife of the respondent regarding non-payment of maintenance to his two minor girl children, then the Competent Authority of the Tamil Nadu Electricity Board is directed to initiate disciplinary proceedings against the respondent for the misconduct. 20. 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.