S. Helina vs M. Lokesh - 2023 Supreme(Mad) 354

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 354

IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
S. Helina - Petitioner
Versus
M. Lokesh - Respondent
Tr.CMP No.1267 of 2022 And CMP No.21494 of 2022
Decided On : 07-02-2023

Advocates Appeared:
For the Petitioner: Mr. S. Angamuthu.
For the Respondent: Mr. A. Balasingh Ramanujam.

Headnote:
Civil Procedure Code, 1908 - Section 24 - Constitution of India, 1950 - Article 21, 39 and 15(3) - Hindu Marriage Act, 1955 - Section 19, (iii)(a) - Transfer petition - Restitution of conjugal rights - Interim maintenance - Transfer Civil Miscellaneous Petition is filed to withdraw case in HMOP from file of Family Court at Thanjavur and transfer same to file of Sub Court at Thiruvarur - Held, Section 19 of 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 wife to file a petition or defending case of husband before Court within whose jurisdiction she resides - There must be a justifiable cause to select jurisdiction of Court where she resides - HMOP pending on file of Family Court stands transferred to file of Sub Court forthwith to be tried along with HMOP filed by petitioner for restitution of conjugal rights - Respondent-husband is directed to pay Interim Maintenance of Rs.10,000/ to petitioner to maintain minor female child - Petition allowed.

ORDER :

[PRAYER : This Transfer CMP is filed under Section 24 of the Civil Procedure Code, to withdraw the case in HMOP No.242 of 2022 from the file of the Family Court at Thanjavur and transfer the same to the file of the Sub Court at Thiruvarur to try along with HMOP No.17 of 2022.]

1. The present Transfer Civil Miscellaneous Petition is filed to withdraw the case in HMOP No.242 of 2022 from the file of the Family Court at Thanjavur and transfer the same to the file of the Sub Court at Thiruvarur to be tried along with HMOP No.17 of 2022.

2. The marriage between the petitioner-wife and the respondent-husband was solemnised on 03.09.2021 as per Hindu Rites and Customs. One female male child was born from and out of the wedlock between the petitioner and the husband. 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 petitioner states that the respondent-husband filed HMOP No.242 of 2022 for dissolution of marriage which is pending on the file of the Family Court at Thanjavur. The petitioner filed HMOP No.17 of 2022 for restitution of conjugal rights on the file of the Sub Court at Thiruvarur.

4. The learned counsel for the petitioner states that the petitioner is unemployed and now residing with her parents at Thiruvarur along with the female child. Thus she is not in a position to travel all along from Thiruvarur to Thanjavur to contest the dissolution of marriage filed by the respondent in HMOP No.242 of 2022, which is pending on the file of the Family Court at Thanjavur.

5. The learned counsel for the respondent raised an objection by stating that the petitioner and other family members are threatening the respondent and his aged parents.

6. The parties appearing to contest the case in matrimonial disputes are expected to follow the procedures and avoid such confrontations. They have to settle the dispute through conciliation or by contesting the case before the Court concerned. Contrarily, they cannot involve in illegal activities, which would cause further prejudice to the interest of the parties and even the conciliation may not be possible in such circumstances.

7. Since the respondent-father, who is the natural guardian, 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.

8. 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.

9. Parents are duty bound to maintain their minor children. The 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.

10. 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.

11. Remedy of maintenance is the measure of social justice as envisaged under the Constitution to prevent the wife and the children from falling into des