Allowed

M.Mahalakshmi v. M.Vijayakumar

Madras HC21 Dec 2022TR CMP/567/2022

Case brief

AI extract

What is this about?

In a matrimonial dispute where the respondent filed for dissolution of marriage, the petitioner, an unemployed mother, sought transfer of the case to her jurisdiction due to financial hardship. The High Court transferred the divorce petition to the Sub Court at Ponneri and directed thefather-maintenance of Rs.5,000/-monthly for the minor child despite the respondent's objection regarding lack of v

What did the court decide?

H.M.O.P.No.152 of 2021 transferred to Sub Court at Ponneri; respondent directed to pay interim maintenance of Rs.5,000/- monthly to the minor child.

M.Mahalakshmi Vs M.Vijayakumar — Matrimonial and Divorce | Madras HC (2022)

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Tr.C.M.P.No.567 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 21.12.2022

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CORAM

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THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

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Tr.C.M.P.No.567 of 2022

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and C.M.P.No.9934 of 2022

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M.Mahalakshmi ... Petitioner

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Vs. M.Vijayakumar ... Respondent

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Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdrawal of H.M.O.P.No.152 of 2021 on the file of the Family Court at Pudukkottai and transfer the same to the file of Sub Court at Ponneri.

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For Petitioner : Mr.B.Thiyagarajan For Respondent : Mr.B.Sundar

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

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Tr.C.M.P.No.567 of 2022

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O R D E R

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The transfer petition is filed to withdraw H.M.O.P.No.152 of 2021

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from the file of the Family Court at Pudukkottai and transfer the same to the file of Sub Court at Ponneri.

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The marriage between the petitioner and the respondent was solemnized on 26.05.2010 as per 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 10 years and school going. Due to some misunderstanding, the petitioner and the respondent are living separately.

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The learned counsel for the petitioner states that the petitioner is unemployed and now residing along with her parents. She has to take care of her 10 years old female child and spend for her education. The respondent is working as Village Administrative Officer (VAO) in the Revenue Department and earning substantial amount. The respondent filed H.M.O.P.No.152 of 2022 for Dissolution of Marriage on the file of the Family Court at Pudukottai. Therefore, the petitioner is not in a position to spend, travel and contest the case filed by the respondent.

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Tr.C.M.P.No.567 of 2022

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The learned counsel for the petitioner brought to the notice of this

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Court that the respondent is not even paying any Interim Maintenance even to the minor girl child, who is school going and that apart, he has filed the divorce petition before the Family Court at Pudukottai to harass the petitioner.

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The learned counsel for the respondent objected the said contention

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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.

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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 10 year old child. Such an approach of the respondent, who is a public servant at no circumstances be encouraged by this Court.

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Tr.C.M.P.No.567 of 2022

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Parents are duty bound to maintain their minor children. The 10 year

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old 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.

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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.

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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.

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Tr.C.M.P.No.567 of 2022

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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.

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Court must act as a custodian of minor children, when 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

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Tr.C.M.P.No.567 of 2022

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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.

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In the present case, the transfer of the case is to be considered, since the petitioner is unemployed and taking care of 10 year old girl child 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.

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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:-

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(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:-

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“ 21. The domicile or citizenship of the opposite party is immaterial in a case like this. In case the marriage was solemnized under Hindu

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Tr.C.M.P.No.567 of 2022

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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.

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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.”

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Tr.C.M.P.No.567 of 2022

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30.08.2006

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(ii) In yet another case in Tr.CMP.Nos.138 and 139 of 2006, dated

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30.08.2006 , the High Court of Madras has considered the following judgments of Hon'ble Supreme Court of India:-

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“(1) In the case of Mona Aresh Goel vs.

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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.

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(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.

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(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

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allowed the transfer petition.

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(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.”

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(iii) In a decision made in TR.CMP(MD)No.108 of 2010, dated

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03.03.2011 , the Madurai Bench of Madras High Court, wherein in paragraph-

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18, it has been observed as below:-

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“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

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

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(1) The H.M.O.P.No.152 of 2021 pending on the file of the Family Court at Pudukkottai stands transferred to the Sub Court at Ponneri, Tiruvallur District forthwith.

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(2)The Family Court at Pudukkottai is directed to transmit all the case papers to the Sub Court at Ponneri, Tiruvallur District within a period of two (2) weeks from the date of receipt of a copy of this order.

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(3)The respondent herein is directed to pay the Interim Maintenance of Rs.5,000/- (Rupees Five Thousand) to the minor girl child, who is now living with the petitioner /

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mother from January 2023 onwards.

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(4) The Interim Maintenance of a sum of Rs.5,000/- (Rupees Five Thousand) is to be paid on or before 10^th 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.

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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 submit a complaint to the District Collector concerned under whom the respondent is working as the Village Administrative Officer (VAO). In such circumstances, the District Collector concerned is bound to initiate appropriate Disciplinary Proceedings against the respondent for committing an act of misconduct under the Tamil Nadu Government Servants Conduct Rules.

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