Parents In Matrimonial Disputes Not Filing Applications For Minor Children's Maintenance, Duty Of Courts To Protect Their Interest: Madras High Court

While allowing a petition filed by a woman for transfer of a divorce petition from Poonamalle to Tiruchirappalli, the Madras High Court said parents are duty bound to maintain their minor children and in absence of a formal application, the courts also are bound to consider grant of interim maintenance to protect the interests of minor children.

Justice SM Subramaniam said though order of interim maintenance is conditional on the circumstances that the wife or husband, who makes the 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 said it has been 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, said the bench.

"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," said the court.

The court said due to "pressure on various aspects", the parties to the matrimonial disputes are not even filing any formal application for grant of Maintenance or Interim Maintenance even for the minor child or children.

"In such circumstances, it is the bounden duty of the Court to ensure that the interest of the minor child/children are protected by granting Interim Maintenance in the absence of any formal application during the pendency of the matrimonial disputes between the husband and the wife," said the court.

The court said in many cases unemployed mothers are maintaining their minor children, causing burden on her age-old parents.

"Grandparents are burdened with their minor children and the fathers of those minor children are the earning members and escaping from the clutches of their liability, which cannot be tolerated by the Courts. The responsibility of the father, being primary in nature, fathers are duty bound to maintain the minor child/ children, when there is a matrimonial disputes between the spouses," it added.

The court made the observations after the woman's counsel said her husband was not paying interim maintenance even for the minor child. The woman along with her 11-month-old child is living with her parents at present in Tiruchirappalli.

During the hearing, the husband's counsel submitted that he is willing to pay the interim maintenance for the minor child. It was also argued that the woman is a dentist and she can contest the case at Poonamallee.

However, he also submitted that since his wife is not allowing him to see the child, he will not be "in a position" to pay the interim maintenance. 

The court said the tenor "shows the attitude and conduct" of the man, who is none other than 11-month-old girl's father. Such an approach of the respondent, who is a Public Servant, at no circumstances, be encouraged by the court, it added.

"The respondent, being the father, is responsible for the maintenance of the child. Thus he has to share the maintenance along with the petitioner for the livelihood of the child, which is now with the custody of the petitioner-wife. The Interim Maintenance of Rs.5,000/- per month is directed to be paid by the respondent to the petitioner on or before the 10th day of every calendar month, which is to be deposited in the Bank Account of the petitioner," said the court.

The court further said that mere denial of visitation right could not be made a ground for exempting payment of maintenance as visitation rights are based on other facts and circumstances.

The responsibility of the father, being primary in nature, fathers are duty bound to maintain the minor child/ children, when there is a matrimonial disputes between the spouses. Denial of visitation right is not a ground to grant exemption from the payment of maintenance. Visitation right is to be decided based on other facts and circumstances, which is not connected with the grant of maintenance to the minor child/children. 

Observing that the woman is unemployed and taking care of an 11 months old girl child, the court said the divorce case filed by her husband is to be transferred to the place where she is currently residing.

"The Sub Court at Poonamallee is directed to transmit the case papers to the Family Court at Tiruchirappalli, within a period of four weeks from the date of receipt of a copy of this order," said the court, while allowing the petition.

Case Title: P Geetha v. V. Kirubaharan 

Citation: 2023 LiveLaw (Mad) 2 

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