ORDER :

Prayer: Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the I.D.O.P.No.520 of 2022 on the file of the Family Court at Salem and transfer the same to the Family Court at Thiruvannamalai.For Petitioner: Mr.K.V.Muthu Visakan

The petition for transfer is filed to withdraw the I.D.O.P.No.520 of 2022 on the file of the Family Court at Salem and transfer the same to the Family Court at Thiruvannamalai.

2. The marriage between the petitioner/wife and the respondent/husband was solemnised on 30.08.2018 as per the Christian Rites and Customs. One male child was born from and out of the wedlock between the petitioner and the respondent. Due to misunderstanding, the petitioner and the respondent are living separately. The respondent/husband filed I.D.O.P.No.520 of 2022 for Divorce, now pending on the file of the Family Court at Salem.

3. The learned counsel for the petitioner/wife states that the respondent/husband is working as a Teacher in Government School and not paying any maintenance even to the minor child. As far as the minor child is concerned, the father is the natural guardian as per the Guardians and Wards Act, 1980 and therefore, he is responsible for maintenance of the child. The livelihood of the child is to be protected by the Courts and when the mother of the child is unemployed, the duty costs upon the father to pay maintenance during the pendancy of the matrimonial disputes.

4. Even in the absence of any formal application, Courts are empowered to grant interim maintenance, in order to protect the livelihood of the child, which is a guarantee provided under Article 21 of the Constitution of India.

5. Right to live cannot be denied to the children and if it is denied or prejudiced, then the Courts being the custodian is empowered to step in and grant interim maintenance to the children even in the absence of any formal application. Thus, this Court is of the considered opinion that right of children, which is recognised worldwide is to be considered, whenever such circumstances are placed before the Courts.

6. 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.

7. 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.

8. 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.

9. 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