Judgment :- 1. Is a Christian daughter, still a Cinderella as regards her patrimony? is a larger question subjected to debate and discussion at various levels. Are not the provisions of the Christian Succession Act to the extent the daughters are given a disadvantageous deal, violative of Art.14 of the Constitution of India? is an issue which the Supreme Court is now in seisin of. (See the Hindustan Times dated 31-7-1983). The second appeal before me is a continuation of an attempt of a Christian girl to get back from her husband and her father-in-law what was given to her by her father by way of Sthreedhanam, more than fifteen years back. 2. The bridegroom's people, in accordance with the custom of the community, met in the house of the plaintiff on 18-1-1968. Persons present on the occasion included Rev. John Padiyara the priest of the parish and a lecturer in a College, examined as Pw.2, P. D. Raju and Gee Varghese Kochumman-the trustee and accountant respectively of the St. Mary's Church examined as pws. 3 and 4, and dw.3 a member of the bridegroom's party. According to the plaintiff, the Sthreedhanam was fixed in the sum of Rs. 8,001/-, and a sum of Rs. 5,001/- was given by the plaintiff's father to the defendants. Pasaram, the due of the Church in connection with the marriage of a girl in the parish, was paid on 10-2-1968 as evidenced by Ext XI. 3. The plaintiff and the 2nd defendant made their slow and graceful pace to the marriage altar on the 11th of February, 1968 with rosy hopes and great expectations. They took the marriage vow to live together in joy and in sorrow, in prosperity and in adversity and to be each other's companion till death parted them. The happy couple must have had due regard to the Biblical exhortations "to be fruitful and multiply" (Genesis 1:28). Plaintiff was big with a child by the end of the year. Little did she realise then that a seed of dissension too had already been sown. 4. It is her grievance that she was taken for her confinement to the paternal house on the 21st December, 1968, and that she was uncared for thereafter. In due time, she delivered a boy on the 25th February, 1969. 5. Even the arrival of the baby did not brighten up the domestic atmosphere. 4. It is her grievance that she was taken for her confinement to the paternal house on the 21st December, 1968, and that she was uncared for thereafter. In due time, she delivered a boy on the 25th February, 1969. 5. Even the arrival of the baby did not brighten up the domestic atmosphere. The wife, now a mother, and with a sickly father (a serious sickness, chronic tuberculosis, to which he ultimately succumbed in the course of this litigation) and myriad financial and other problems, became desperate. Her anguish and agony are reflected in a moving letter to her husband, Ext. B2 sent on 4-5-1969. Her own ailment which necessitated an operation, the domestic tragedy and financial strain, caused among other things by the fata; affliction on a yielding cow, and the absence of a response to her letter, are all indignantly indicated therein. A reference was made to the new born child, his quarrelsome character, his playful moods and his joyous laughter. The pressing necessities made her request the husband that some money should be sent, even by raising a loan. 6. There was however, only continued silence from the side of the husband. Perhaps the mental torment and domestic difficulties prompted her to write the letter Ext. B1 on 15-7-1969, written in a style reflective of her impatience and her anger. She posed a question: Whether it was the Sthreedhanam issue that separated them? (About the exact content of this letter, more has to be said in the course of the later discussion). The further correspondence in the case appears to be a letter dated 3-2-1970 sent by the 2nd defendant to the plaintiff. This has been produced in this court along with CMP. No. 9643 of 1978 supported by an affidavit explaining reasons for its non-production earlier. By a separate order, I have allowed the petition ion, there not having been any tenable objection, I have allowed the petition. The affidavit discloses sufficient grounds for the reception of the letter in evidence in second appeal. It will be marked as Ext. Al. 7. The relationship between the parties naturally became strained, the attitude of the husband and wife having become rigid. The demand for the return of Sthreedhanam made by the plaintiff on 10-3-1970 was not readily responded to. The affidavit discloses sufficient grounds for the reception of the letter in evidence in second appeal. It will be marked as Ext. Al. 7. The relationship between the parties naturally became strained, the attitude of the husband and wife having become rigid. The demand for the return of Sthreedhanam made by the plaintiff on 10-3-1970 was not readily responded to. The petitioner sought relief through the intervention of the court, by filing O. P. No. 40 of 1974 for permitting her to sue as an indigent person. The suit was registered later as O. S. No. 81 of 1975. 8. By a joint written statement, the defendants questioned the maintainability of the suit. A well-meant social legislation the Dowry Prohibition Act, 1961 was invoked in support of their plea, a plea which ultimately turned out to be an unholy one. Streedhanam is nothing but dowry; payment and receipt of dowry are statutorily prohibited acts, and S.23 of the Contract Act bars recovery of such illegal payments was the contention. On the factual aspects, they contended that the 2nd defendant did demand from the plaintiff's father Sthreedhanam of a sum of Rs. 5,001/-; there was, however, no payment, but only a promise to pay it, within an year; and the promise was honoured only in its breach. There was difference of opinion arising out of the above default, the plaintiff adopting an hostile attitude; she left the matrimonial home without the consent of the husband and chose not to return. The husband asserted that he had been always ready to maintain his wife and his son. 9. The controversy whether a suit of this nature is maintainable is now set at rest. In Thomas v. Sarakutty, 1975 KLT 386, Justice Khalid took the view that such a suit was barred. That view does not, any longer hold good, in the light of the Bench ruling reported in Mary v. Cherchi & Others, 1980 KLT. 353 (by Viswanatha Iyer and Narendran, JJ.), which overruled (1975 KLT 386). 10. The trial court on an appreciation of the evidence, upheld the plaintiff's claim and decreed the suit. The evidence of pw. 2, the lecturer-priest, pw. 3, the Church trustee who proved Ext. XI Church record evidencing payment of the Pasaram to the Church and pw. 4, a member of the Edavaka, found acceptance with the trial court. pw. 10. The trial court on an appreciation of the evidence, upheld the plaintiff's claim and decreed the suit. The evidence of pw. 2, the lecturer-priest, pw. 3, the Church trustee who proved Ext. XI Church record evidencing payment of the Pasaram to the Church and pw. 4, a member of the Edavaka, found acceptance with the trial court. pw. 3 pointed out that generally Pasaram is calculated at the rate of 5 per cent, of the Sthreedhanam paid. If therefore Rs. 5,001/- was the Sthreedhanam paid, the payment due to the Church will work out to Rs. 250/-. A sum of Rs. 254/- was thus accounted for by way of Pasaram and other dues. The presence of pw. 2 had been admitted by the 1st defendant who gave evidence as Dw.1. The 2nd defendant husband had only pleaded ignorance about it. According to him, he had returned home from Shoranur, where he was employed in the Railways, only three days prior to the marriage. Ext. BI letter of the plaintiff to her husband was relied upon by the defence as containing an admission on the part of the plaintiff about the non-payment of Sthreedhanam. The exact passage reads: "If Sthreedhanam is due to you that will be paid. But do not behave like this to roe and to my child on that count. I do not want anything of yours. You need only give the child born to you. It would be fortunate if you have no children. I have realised that your neglect of myself and my child is due to the non-payment of Sthreedhanam. I do know how you spend your salary. Don't harass this way a girl living elsewhere. Don't cheat. You will realise the consequences, in the end." The plaintiff, in the course of her evidence gave the explanation for such a statement in Ext. Bl. The non-payment of Sthreedhanam which is admitted therein, according to her, related to the balance payment of Rs. 3,000/-. That does not in any way lead to the inference that nothing was paid on the day the marriage was settled. If the explanation is acceptable, it is evident that there is no conflict between the case pleaded by her, her evidence and the statements in Ext. B1. The trial court observed: "The custom prevalent in the Christian community to. That does not in any way lead to the inference that nothing was paid on the day the marriage was settled. If the explanation is acceptable, it is evident that there is no conflict between the case pleaded by her, her evidence and the statements in Ext. B1. The trial court observed: "The custom prevalent in the Christian community to. demand and pay dowry is well-known, and the provisions contained in the Travancore Christian Succession Act as well as the enactments in the erstwhile Cochin State give statutory recognition and ample safeguard to the community. There is absolutely no reason why the priest should come and swear against the defendants I feel that Pw. 1 can be believed when she says that streedhanam referred to in Ext. B1 is the outstanding balance." 13. The lower appellate court, however, took a different view. According to that court, the explanation given by the plaintiff regarding Ext. B2 was a development of the case. The evidence of pws. 2 and 3 was examined to find out whether there was corroboration regarding the payment of a sum of Rs. 5001/-. The Court below observed that Pw.2 had, in his evidence, made only a general statement that "the records in the Church are only to evidence a streedhanam of Rs. 5001/-." The evidence of pw.3 the trustee of the Church was found to be insufficient to establish the plaintiff's claim, as he had stated that pasaram had to be paid to the Church irrespective of the actual payment of the Streedhanram. On the above promise, the court below came to the conclusion that Ext. XI, would only evidence a fixation of Streedhanam at Rs. 5001/-. 14. I have no hesitation to hold that the conclusion is totally unsustainable. The evidence of Pw.2 has been completely misread. Material portions of his evidence had been overlooked. 15. pw. 2 had categorically stated that the understanding arrived at on the day the marriage was fixed, was to the effect that a total sum of Rs. 8001/- had to be paid by way of streedhanam, and that a sum of Rs. 5,001/- out of the agreed amount had to be paid on the day when the marriage was settled. He stated that he was present in his capacity as priest. His further testimony reads: Was the amount promised to be paid on that day, paid? (Q) Rs. 5,001/- out of the agreed amount had to be paid on the day when the marriage was settled. He stated that he was present in his capacity as priest. His further testimony reads: Was the amount promised to be paid on that day, paid? (Q) Rs. 5001/- was paid on that day (A)." In cross-examination, in answer to a question whether he saw money with the plaintiff's father on that day, he stated that he saw a cover and that the cover was handed over by the plaintiff's father to the Ist defendant. The criticism of the court below that he did not peep into the cover and confirm that its contents were currency notes is unjustifiably far-fetched. The very next sentence in his testimony is: "Its contents must be money; it is not letter." And Pw. 2 is a person who has attended many such functions and competent to say what the real transaction was. The evidence of Pw. 3 has also been misread by the court below. The normal practice is to pay to the Church, pasaram dues at the fixed percentage on the streedhanam paid. An exceptional instance or out of ordinary possibility of payment of pasaram to Church without payment of streedhanam cannot destroy the plain effect of Ext. XI and the evidence of Pw. 3. 16. The trial court correctly felt the pulse and emotions of the community to which the parties belonged. The lower appellate court on the other hand, acted mechanically, in virtually disbelieving pw. 2, and giving a strained interpretation to the evidence of Pw. 3. As stated earlier, even the material portion of the evidence of pw. 2 had been overlooked. The conclusion is so perverse that it has to be interfered with even in the attenuated jurisdiction of the second appellate court. 17. The document Ext. Al would clearly establish an admission on the part of the 2nd defendant that he had received Sthreedhanam before the marriage. It will cut at the root of the defence case that no amount whatever had been paid, that there was only a promise to pay, and that the promise remained unfulfilled. Ext. Al addressed by the 2nd defendant to the plaintiff states, interalia: "We are prepared to return the money paid by you, if and when you inform us the time you require it. Ext. Al addressed by the 2nd defendant to the plaintiff states, interalia: "We are prepared to return the money paid by you, if and when you inform us the time you require it. If you break off this relation that will be a matter of great happiness"... (emphasis supplied) 18. Apart from the perverse appreciation of the evidence (and therefore an unjustified interference with the judgment of the trial court, which had opportunity to see the witnesses and assess the evidentiary value in a more advantageous situation), the principles of law which have a bearing on this question, also had been overlooked by the appellate court. 19. If only the legal background underlying the concept of Sthreedhanam as obtaining in this community had been properly appreciated, the learned judge would not have fallen into the error which he did in bis approach to the question, 20. Wayback in the year 1916, the general characteristics of Sthreedhanam had been lucidly given in Mathula Louis v. Eapen Rosa, 6 TLJ 464 (a case in which the court received assistance from such leading lights in the legal and social world, as Messrs E. J. John and M. Pathrose Mathai, Advocates). Para.5 and 6 of the aforesaid judgment may be usefully extracted in this connection: "It is well-known that among the Syrian Christians it is customary to settle at the time of the marriage the amount of the Stridhanam or the dowry to be paid to the bride from her own family. It has been repeatedly held by this court that the Stridhanam has to be looked upon as a substitute for the daughter's share in her father's property; Mathen Kuruvila v. Mathen Maria (17 TLR 46) The Stridhanam is usually paid by the bride's father or other head of her family. But, as happened in this case, the practice seems to be that the Stridhanam is handed over not to the bride herself but to her would be father-in-law or other head of the bridegroom's family. Though legally the bride is entitled to demand that her Stridhanam should be repaid to her, yet, under ordinary circumstances she never makes such a demand. Though legally the bride is entitled to demand that her Stridhanam should be repaid to her, yet, under ordinary circumstances she never makes such a demand. The general understanding seems to be that when the father-in-law divides his property among his children, or the latter divides among themselves the property of their deceased father, the amount of the Stridhanam brought by each daughter-in-law will be given due consideration in determining her husband's share and that the daughter-in-law also would agree to this course. It is only when the daughter-in-law feels or fancies that some gross injustice is done to her or to her husband that she conies forward with a demand for her Stridhanam. (For example in the present case it is said that the plaintiff's father-in-law has, by his will, bequeathed all his property to his second wife and his children by her to the prejudice of the plaintiff's husband who is one of the sons by the first wife) The correct view seems to be to regard the person who receives the dowry as a mere custodian with whom the Stridhanam is deposited on behalf of the bride. He is not burdened with the duty of utilising the same for any specific purpose or in any particular manner. Legally there is always the liability to have the Stridhanam handed over to, the woman herself if she desires, yet ordinarily the expectation is that the necessity for enforcing her claim will not arise. (emphasis supplied) It is not necessary to refer to the earlier decisions on Sthreedhanam, starting from Shayam Caspass Mvravas v. Therasia Gomez, 6 TLR 26, the various controversies being dealt with in Mathan Kuruvila v. Mathan Maria, 17 TLR 46, Thomman Varki v. Chakko Anna, 18 TLR 8, Ouseph Mathai v. Ouseph Kora, 22 TLR 205, Eayo Eli v. Mathai, 2 TLJ. 441. In 18 TLR 8 supra, the court observed: "Stridhanam, it is scarcely necessary to say, is a gift solely to the woman and hence the gift of property in lieu of money or her share in the family property is to her absolutely. Among the classic which the parties belong, Stridhanam-grant seems to be equivalent to the allotment of a share in the patrimony." in 17 TLR. Among the classic which the parties belong, Stridhanam-grant seems to be equivalent to the allotment of a share in the patrimony." in 17 TLR. 46 supra the court observed: "It is settled law among this community that the daughter gets Stridhanam in lieu of her share in her father's property." That case noted the confusion arising out of there being no settled personal law governing the succession and devolution of the properties among Syrian Christians in Travancore, the customary law being 'very vague and indefinite, each section, and, sometimes, each family claiming to have its own customary law administered'. The court observed: "Legislation would seem to be the only remedy for the removal of these difficulties, and the community would do well to agitate the matter." In 22 TLR. 205 supra a Full Bench of the Travancore High Court adverted to the fact that "the Current of rulings in this court has established beyond question that Stridhanam or dower, as it is called, is, among Syrian and Romo-Syriaci Christians, a substitute for a share of the patrimony." 21. The necessity for the legislation which was indicated in the above decision --17 TLR. 46 was apparently pursued, though slowly, and the Christian Succession Act became law in the year 1092,1916 A. D. In Eleesa v. Aeliya 1947 TLR. 285, there is a reference to the provisions of the original Bill and the changes they underwent when the law was ultimately enacted. The proposed original section in the Bill relating to the Stridhanam gave a share to the daughter even as S.16 did to the widow. But when the Bill passed into law, the section relating to the widow was left intact as it was, but the section relating to the daughter's share was amended so as to make it into a money claim and not a share in the estate. 22. The aforesaid legal background regarding the concept of Streedhanam would enable a proper appraisal of the testimony of the witnesses. The non-advertence to the back-drop of judicial decisions has landed the appellate court into a grievous error. If the social behaviour of the community as indicated above is duly reckoned, it would be evident that ordinarily the marriage would not have been fixed, unless at least a substantial part of Sthreedhanam had been paid at the time of or before marriage. If the social behaviour of the community as indicated above is duly reckoned, it would be evident that ordinarily the marriage would not have been fixed, unless at least a substantial part of Sthreedhanam had been paid at the time of or before marriage. Cash and marry is a well-known expression in the business circles. It may not be far wrong in assuming that, by and large, and ordinarily, 'cash and marry' had been the accepted practice, in this community. 23. Thus, viewed from every angle the judgment of the lower appellate court is liable to be set aside. 24. It is more than eight years' wait, since the plaintiff approached the court for relief, for the return of money belonging to her and paid to the defendants more than 15 years back. Many have been vicissitudes of the litigation. Apparently scared by the decision in 1975 KLT 386 supra, the plaintiff sought amendment of the plaint by substituting the word 'Sthreedhanam' by the word 'Avakasadanam'. To her, it had been almost a struggle between existence and extinction. She survives, though extremely exhausted. The depleted money value of the decree, after meeting the litigation expenses spanning a decade, and covering three courts, will virtually make her victory a barren one. 25. In advanced countries, legal thought has been bestowed on the question as to how full justice could be done to a party by counter-acting the high inflationary trend. Lord Denning, who was insistent on seeing 'a pound as a pound,' disregarded "alike the debasement of the currency by kings and rulers or the depreciation of it by the march of time or events." (See Tressder-Griffin v. Co-operative Insurance Society Ltd., (1956) 2 All ER 33. The decision contains much information on this legal aspect, starting from the Case of Mixed Money, (1605) 2 State Tr 113: 80 English Reports 507. The joint resolution of the Congress in the United States which declared 'gold clauses to be contrary to public policy', (the validity of which was upheld in 294 U. S.240 infra) and a like legislation, in Canada, under the Gold Clauses Act, 1937 and in France,. ever since the Franco-Prussion War have been referred to. According to Lord Denning, to hold Gold Clauses valid in England for internal payments, "would be opening a door through which lessors and mortgagees, debenture-holders and preference shareholders, and many others, may all pass". ever since the Franco-Prussion War have been referred to. According to Lord Denning, to hold Gold Clauses valid in England for internal payments, "would be opening a door through which lessors and mortgagees, debenture-holders and preference shareholders, and many others, may all pass". He gave expression to his views with an emotional overtone, when he said: "What then is to become of sterling? It would become a discredited currency unable to look its enemy inflation in the face. That should not be allowed to happen." On the construction of the relevant clause, Morris, Q. agreed with Denning Q. while Harman, L.J. dissented. 26. The disturbing aspects of high inflation rates had been discussed in other jurisdictions too. According to Ian F.G. Baxter, "in times of inflation, monetary obligations have a'congenital infirmity', which affects the payee in most cases", ('Congenital infirmity' is the term used by Chief Justice Hughes of the Supreme Court of the United States of America in Norman v. Baltimore and Ohio Railroad Co., ((1934) 294 US. 24C at 308). In the context of German inflation, the courts there had adopted the principle of revalorisation of debts. This was done by interpreting a provision of the Civil Code 'that the debtor must perform as good faith requires taking into account general usage.' Various devices like the 'gold clause', the 'modality clause', 'index clause' and 'commodity clause' have been innovated to offset the ill-effects of the inflationary trends, and to ensure that such effects are properly and justly distributed. (See the thought provoking article Depreciation of Money' by Ian F.G. Baxter in The Canadian Bar Review, 1974, Volume LII, page 577). 27. There has been rethinking in England too, since the decision of Lord Denning, referred to supra. Browne Wilkinson, J. was of the view that the dictum of Denning, Q. was only obiter and did not constitute a binding precedent See Maltiservice Bookbinding v. Marden (1978) 2 All ER 489. At pages 496 and 497 the learned judge gave detailed reasons for not following the obiter dictum of Denning, Q. The learned judge, inter alia, referred to the Parliament itself authorising the linking of public service pensions to the cost of living and issue of savings bonds similarly linked. He observed: "It has been demonstrated to me that economists are not agreed that indexing has a deleterious effect in promoting inflation". He observed: "It has been demonstrated to me that economists are not agreed that indexing has a deleterious effect in promoting inflation". How an omission to ensure payment of the real value of the money would be. against public interest was also elucidated by the learned Judge. He pointed out that the assumption of Denning, Q. about the legislation in France was wrong. It appears that in France, shortly after 1956, the Gourde Cassation, reversed its policy and allowed index-linked obligations even in domestic contracts. Reference has been made also to the decision of the Australian court where index-linked obligations were held valid (Vide Stanwell Park Hotel Co. Ltd. v. Leslie, (1952) 85 CLR.189). 28. In this country also, cases raising such problems have surfaced. The plaintiff here has, however, not chosen to seek any such relief. I do not intend to set to sail my skaff of thought in unchartered waters, unaided by abler mariners. 29. It is cases like the present one, that may prompt a thinking about the essentiality of family courts. I gave expression to my views in Radhakumari v. K.M.K. Nair, 1982 KLT 417, on which there have been comments in legal journals. The Calcutta Weekly Notes, noted 'a refreshing experience' in the judgment, but indicated a different approach to family courts. (See 87 Calcutta Weekly Notes, Journal page cxi dated 20-6-1983). It is, however, the Parliament that has the final say in the matter. The present case would, perhaps, demonstrate how women in such conditions of distress could have hoped for more expeditious but less expensive relief, if only properly constituted family courts were available. 30. These sentiments are expressed by courts having regard to the importance of the marriage institution in a civilised society. It is comforting, in that context, to read the views expressed by the Court of Appeal in England in Richards v. Richards, (1983) 1 All ER. 1012, where Dillon, Q. observed: "Marriage is an institution which I personally regard as fundamental to the civilisation of our society, and of inestimable benefit to those who have the good fortune to be happily married. 1012, where Dillon, Q. observed: "Marriage is an institution which I personally regard as fundamental to the civilisation of our society, and of inestimable benefit to those who have the good fortune to be happily married. But it is an institution which depends on the continued co-operation of the spouses, and the mutual confidence and trust which is its greatest strength can be speedily destroyed by one spouse who becomes disenchanted with the other." The learned judge cautioned: "The grounds on which a marriage can be dissolved, are, of course, laid down by Parliament. None the less, in so far as family law is a matter for the courts, it is important that family law keeps abreast with the practicalities of the times and is not bound by rules which by common thinking might be regarded as anachronistic or unrealistic." Considerable literature is now available out of the study into the stresses and strains on married life in highly industrialised societies. According to Murray Strauss, family is "the most violent of all civilian institutions". (See her book'Wife Beating: How Common and Why'). Michael D. Freeman also has contributed his thoughts in the book 'The Phenomenon of Wife Battering and the Legal and Social Response in England'. 31. The second appeal relates to a case where the mutual confidence and trust between the husband and wife had been destroyed by the spouses getting disenchanted with each other; it also reflects the disturbing trends in the society. 32. In the light of the aforesaid discussion, the judgment of the lower appellate court has to be set aside, and the appeal has to be allowed. I do so. The decree of the trial court is accordingly restored. The appellant-plaintiff will, therefore, have: (a) A decree in terms of the one passed by the trial court, (b) Her costs throughout, limited however by the rules in that behalf, and (c) Judicial sympathy, unlimited, but without a monetary equivalent and therefore insufficient to meet the earthly needs of deserted wives and neglected children.