The Madras High Court in a transfer civil miscellaneous petition held that the fathers are duty bound to maintain minor children when there are matrimonial disputes between the spouses and that the denial of visitation rights is not an excuse.

A Single Bench of Justice S.M. Subramaniam stated –

“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.”

The Bench also said that when the livelihood, lifestyle, or education of the children are in question, then the Courts must act as a custodian of minor children and award Interim Maintenance to protect their interests.

The Court further said, “In many cases unemployed mothers are maintaining their minor child/children, causing burden to the age-old parents and such circumstances must be seriously considered by the Courts.”

Advocate P. Anitha appeared on behalf of the petitioner while Advocate S. Saravanakumar appeared for the respondent.

Brief Facts –

The marriage between the petitioner and the respondent was solemnised in the year 2020 as per Hindu Rites and Customs and out of their wedlock, one female child was born now 11 months old. The child was under the custody of the petitioner. Due to a misunderstanding, both the petitioner and the respondent were living separately. The respondent approached Family Court for dissolution of marriage. The petitioner was not in a position to travel and contest the dissolution of marriage filed by the respondent.

The counsel for the petitioner brought to the notice of the High Court that the respondent was not paying the Interim Maintenance even to the minor child due to which the petitioner was maintaining her child. On the other hand, the counsel for the respondent raised an objection by stating that the petitioner is a Dentist and practicing and therefore, she can contest the dissolution and that the respondent is ready and willing to pay the Interim Maintenance.

The High Court after hearing the contentions of both parties noted, “Parents are duty bound to maintain their minor children. The 11 months 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. 13. 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.”

The Court while referring to the Preamble and Articles 39 and 15(3) of the Indian Constitution observed that the 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.

The Court further issued the following directions:

“(1) HMOP No.788 of 2021 pending on the file of the Sub Court at Poonamallee stands transferred to the file of the Family Court at Tiruchirappalli forthwith.

(2) 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.”

The Court, therefore, held that the respondent shall pay the Interim Maintenance of Rs.5,000/- to the minor female child.

Accordingly, the Court allowed the petition.

Cause Title- P. Geetha v. V. Kirubaharan

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Madras High CourtJustice SM SubramaniamMaintenance

Swasti Chaturvedi