ORDER :

[PRAYER : This Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the case in HMOP No.949 of 2021 from the file of the Family Court at Madurai and transfer the same to the file of the Family Court at Chennai.]

1. The present Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP No.949 of 2021 from the file of the Family Court at Madurai and transfer the same to the file of the Family Court at Chennai.

2. The marriage between the petitioner-wife and the respondent-husband was solemnised on 22.11.2019 as per Hindu Rites and Customs. One female male child was born from and out of the wedlock between the petitioner and the husband now aged 2-1/2 year. Due to misunderstanding between the petitioner and the respondent, they are now living separately. The child is with the custody of the petitioner-wife.

3. The respondent-husband filed HMOP No.949 of 2021 for dissolution of marriage which is pending on the file of the Family Court at Madurai.

4. The learned counsel for the petitioner states that the petitioner is unemployed and now residing with her parents at Chennai along with the 2-1/2 year old female child. Thus she is not in a position to travel all along from Chennai to Madurai to contest the dissolution of marriage filed by the respondent in HMOP No.949 of 2021, which is pending on the file of the Family Court at Madurai.

5. It is brought to the notice of this Court that the respondent-husband is working as Electrical Engineer in a foreign Commercial Shipping Company and he is not paying even the Interim Maintenance to safeguard his own child and now the petitioner is depending on her age-old parents even to feed her child. In such circumstances, the Courts are expected to step in and protect the livelihood of the minor child, which is the fundamental right ensured under the Constitution.

6. Whenever, the life of minor child is in question, the Courts are expected to protect the interest of the child and any non-protection in this regard would have larger societal repercussions and the High Court, being the Constitutional Court, is expected to grant Interim Maintenance in such circumstances even in the absence of any formal application by any one of the parties. If the High Court fails to grant Interim Maintenance in such circumstances, where the minor child is to be maintained by an unemployed mother, then the High Court is failing in its duty to protect the life of the minor child under the Constitution of India.

7. Parents are duty bound to maintain their minor children. The 2-1/2 year 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.

8. 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.

9. 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.

10. 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 i