15 Dec 2022 5:16 AM GMT
Observing that the delay in disposal of the maintenance petitions infringes the fundamental right of the minor children, the Madras High Court has said that the family courts dealing with matrimonial matters must ensure that the interest of minor children is taken care of and their livelihood is protected by all possible means."In view of the fact that a large number of maintenance petitions...
Observing that the delay in disposal of the maintenance petitions infringes the fundamental right of the minor children, the Madras High Court has said that the family courts dealing with matrimonial matters must ensure that the interest of minor children is taken care of and their livelihood is protected by all possible means.
"In view of the fact that a large number of maintenance petitions are kept pending by the Courts across the State of Tamil Nadu and no final orders are passed, this Court is of the considered opinion that in such circumstances, the Fundamental Rights of the minor children are infringed on account of such pendencies for an indefinite period," said the court.
Justice SM Subramaniam took note of a submission that courts across Tamil Nadu are delaying the proceedings in maintenance petitions by not disposing the petitions or even granting interim maintenance.
"Apart from the spouse, the interest of the minor children are to be taken note of by the Courts, while considering the applications for grant of maintenance. On account of the matrimonial dispute between the husband and wife, the right of the child cannot be denied," said the court.
Justice Subramaniam stressed that courts must consider social implications of such cases and consider the interest and livelihood of the children. "...and in case the mother, who filed the maintenance petition is unemployed, then interim maintenance must be ordered to protect the livelihood of the child in the custody of the moth," the bench added.
The bench said that after ordering interim maintenance, the courts should ensure that the same is recovered punctually and strict action be taken against violators.
"There cannot be any compromise in the matter of protecting the livelihood of the children and the Courts are expected to show sensitivity in such issues, where the right of a children are infringed," it said.
The court observed that decent life is facet of Article 21 of the Constitution of India and that "life does not mean a mere animal life". The interest of the child is of paramount importance and must be protected by the courts whenever there is a case of neglect by parents, it added.
"In case of matrimonial dispute, anyone of the parent is neglecting the child and in such circumstances even in the absence of any formal petition, the Courts are bound to grant interim maintenance considering the factors stated above. The principles laid down by the Apex Court in the case Rajnesh Vs. Neha and another reported in [(2021) 2 SCC 324] is to be followed scrupulously for the purpose of grant of maintenance, whether interim or otherwise."
The observations were made by the court in its decision on a woman's petition seeking transfer of divorce petition from Salem to Hosur.
The petitioner, who was initially residing at Salem, had filed a divorce petition in the local Family Court. Thereafter, she shifted her residence to Hosur to be with her aged parents. It was submitted before the court that since she has to take care of her minor child, she cannot spend, travel and contest the case now pending before the Family Court at Salem.
Though the respondent objected to the transfer stating that the petitioner had not produced evidence to prove shifting of residence, the court said that without change in residence, the petitioner would not have filed the petition and thus an inference could be made in this regard.
Allowing the petition, the court directed Family Court, Salem is directed to transmit the case papers to the Sub-Court, Hosur.
Case Title: M Ramya v N Satish Kumar