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Karnataka High Court · body

2009 DIGILAW 962 (KAR)

K. Kumar v. Leena

2009-12-07

A.S.PACHHAPURE

body2009
Judgment :- A.S. Pachhapure, J. The unsuccessful defendant has approached this Court in appeal challenging the judgment and decree of maintenance granted by the Trial Court in favour of the respondents and confirmed in the appeal, by the lower Appellate Court. 2. The brief facts relevant for the purpose of this appeal are as under: The parties will be referred as per their rank in the Trial Court for the purpose of convenience. The respondents herein were the plaintiffs whereas the appellant is the defendant before the Trial Court. The first plaintiff and the defendant are Christians and were married on 27.4.1977 as per the custom of their community. They led a happy marital life for sometime and they have three issues. The Plaintiffs 2 and 3 are the son and daughter. Later, there were differences amongst each other. The defendant was addicted to bad habits and developed illicit relationship with other women. He started consuming liquor and was subjecting the first plaintiff to cruelty and harassment by assaulting her. On an occasion in the year 1990, the defendant caused assault on the first plaintiff and she sustained fracture of her hand and was treated in the hospital. To maintain good relationship with the defendant, she did not disclose about the assault. Afraid of the cruel conduct of the defendant, she left him and started residing separately with Plaintiffs 2 and 3. She was doing coolie work, but the earnings were not sufficient for the maintenance. She filed a petition in Crl. Misc.57/1999. The defendant gave an amount of Rs.3,000/- and assured to pay the same in future and therefore, she withdrew the petition, but later, the defendant is said to have discontinued the payment. Later, she filed this suit claiming maintenance on the ground that her husband, the defendant is a KEB employee getting salary of Rs.14,000/-p.m. He has the capacity to maintain the plaintiff and in the circumstances, she sought maintenance of Rs.4,000/-to herself and her children. 3. The defendant appeared, denied the allegations made and contended that Plaintiff No.1 has illicit relationship with her own brother and it is because of the said reason, she has been residing with him and has deserted him. 3. The defendant appeared, denied the allegations made and contended that Plaintiff No.1 has illicit relationship with her own brother and it is because of the said reason, she has been residing with him and has deserted him. He also contended that in the Christian community, the marriage is a contract and when there is a breach by the first plaintiff, the contract stand terminated and there is no liability on his part to pay any maintenance to the plaintiff. He also claims that there is no provision under any law applicable to the persons of Christian community to pay the maintenance and in the circumstances, sought for the dismissal of the suit. 4. The Trial Court has framed the following issues: 1. Whether the Plaintiffs prove that they have been refused and neglected by the defendant? 2. Whether they further prove that they are unable to maintain themselves? 3. Whether the Plaintiff further proves that the defendant has sufficient means to maintain them? 4. Whether the suit is not maintainable under law? 5. Whether the Plaintiffs are entitled for maintenance? 6. What order or Decree? Additional Issues: 1. Whether the Plaintiff’s make out a ‘Legal Right’ to claim maintenance. 2. Whether the 1st Plaintiff being a Christian wife entitled for maintenance? Thereafter, the wife was examined as PW.1 and in her evidence, got marked the documents Exs. P.1 to P.7. The husband examined himself as DW.1 and got marked the documents Exs. D.1 and D.2 The Trial Court on appreciation of the material on record, held that there was refusal and neglect on the part of the husband and despite the fact that there is no provision in law for Christian community to pay the maintenance, held that in common law, the plaintiffs can claim the maintenance and considering the salary of the defendant and the requirement of the Plaintiff Nos. 1 and 3, granted maintenance of Rs.1,500/- each to the wife and the 3rd plaintiff i.e., the daughter. Aggrieved by the Judgment and decree, the defendant approached the Court of the Civil Judge, Senior Division, in R.A. No.29/2001 and the Lower Appellate Court as well held that there is no illegality in the judgment and order of the Trial Court and confirmed the decree of grant of maintenance. Aggrieved by the concurrent findings the defendant has approached this Court in appeal. 5. Aggrieved by the concurrent findings the defendant has approached this Court in appeal. 5. At the time of admission, the following substantial question of law has been raised for consideration: “Whether the findings of the Courts below that the Civil Court had jurisdiction to entertain the suit for maintenance as the parties are Christians, even after holding that there is no provision under the Indian Christian Act, 1872 to seek maintenance is contrary to law?” 6. I have heard the learned Counsel for the appellants and also the respondent. 7. It is the contention of the learned Counsel that the appellants belong to Christian community and in any law, which is applicable to the Christians, including Indian Christian Act, 1872, there is no provision for the wife and children to claim maintenance and therefore, the Counsel submits that the judgment and decree of the Courts below are illegal and perverse. 8. Per contra, the learned Counsel for the respondent submits that in common law, the wife and children who are the dependents can claim the maintenance and that a suit for maintenance by a Christian wife and the children is not barred under the provisions of the Civil Procedure Code. He submits that there is no prohibition under any Act applicable to Christians to grant the maintenance and therefore, the maintenance can be claimed by the plaintiffs and hence, he submits that the Courts below on, appreciation of the material on record held that there was refusal and neglect on the part of the husband and in such circumstances granted the maintenance to the appellants and no grounds have been made out to call for any interference. 9. I have carefully scrutinised the material on record by way of the evidence of the parties and the documents admitted and as there is concurrent finding of fact about the refusal and neglect, I do not think that it is necessary for me to consider the said aspect, in view of the substantial question of law that was raised. However, it is relevant to note that the husband has made a defamatory allegation against his wife stating that she has illicit relationship with her own brother. Though the parties belong to Christian community, they are Indian Christians and the evidence reveals, they having adopted the Indian culture. However, it is relevant to note that the husband has made a defamatory allegation against his wife stating that she has illicit relationship with her own brother. Though the parties belong to Christian community, they are Indian Christians and the evidence reveals, they having adopted the Indian culture. The relationship of brother and sister is a pious relationship and unless there is clinching material on record, such an allegation would be an act of mental cruelty and except the interested version of the husband, there is no material on record and in this context, I do not think that there is any necessity for this Court to interfere with the concurrent findings of fact regarding the refusal and neglect. 10. The framers of the Constitution of India had in their mind in provide equality of status, social justice and therefore, the status and social justice have been incorporated in the preamble of the Constitution. By an amendment to the Constitution, the expression “Sovereign Socialist Secular Democratic Republic was introduced and the expression “Socialist State” means to eliminate inequality in income and status and standards of life. The commencing words of the Constitution represent “WE, THE PEOPLE OF INDIA,……….” Is only in the capital word and even while naming the highest authorities under the Constitution, the capital words are not used to indicate that the people of this Country are given more prominence than any Constitutional authorities functioning under the Constitution of India, and therefore the people of this country are entitled to the benefits provided in the Constitution. The provisions of the Constitution will have to be interpreted not in the background of the western culture, but will have to be interpreted in the context of ethics, moral values, happiness of one and all which culminated into the ethics, moral values, happiness of one and all which culminated into the composite culture that the people of this Country have inherited since the past. So, looking to the culture of this Country, ethics and moral values introduced therein impose an obligation on the husband to maintain his wife and children as they have to be kept in the same status as that of the husband. 11. So, looking to the culture of this Country, ethics and moral values introduced therein impose an obligation on the husband to maintain his wife and children as they have to be kept in the same status as that of the husband. 11. Though Article 15 of the Constitution provides Prohibition of discrimination on the grounds of religion, race, sex or place of birth, sub-clause (4) of the Article reads thus: “Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.” Therefore, the women have a right to elimination of gender-based discrimination particularly in respect of property so as to attain economic empowerment. 2. Law cannot be made to meet any sort of eventuality and in such circumstances, if the provisions of the Indian Christian Marriage Act, 1872 (hereinafter called as ‘the Act 1872’ for short) is perused, it provides the procedure regarding the performance of marriage, but at the same time does not contain any such provision as to the relief that has to be provided in case, if the wife and children are neglected by the husband. Even if the marriage under the Indian Christian Marriage Act, 1872 is a contract, when a breach occurs, there are certain obligations on the part of the spouses. If the facts are looked into in the context of the provisions of the Act 1872, there is no prohibition so far as the award of maintenance, in case, if the wife or children do not have their own economic provision or source of income for their survival. Thereby, under the provisions of Section 9 of CPC, all the civil suits can be tried by the Courts unless there is any specific bar. Section 9 reads as under. “Courts to try all civil suits unless barred The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” So, the Courts can try all the of civil nature excepting those suits of which the cognizance by the Courts is expressly or impliedly barred. Though the provisions of the Hindu Adoption and Maintenance Act, provides a remedy for maintenance to the neglected wife and children and a suit could be instituted under the said Act, the Act of 1872 does not bar the taking of cognizance of a suit for maintenance either expressly or impliedly. 13. It is not in dispute that the husband is a KEB employee and both the Courts have held that his salary is not less than Rs.14,000/- per month and it was he who was looking after his wife and children all along since from the commencement of the matrimonial relationship and hence in the absence of a separate source of income for the wife and children, there is an obligation on his part, when he committed the breach of his obligation to maintain him wife and children and the wife and children have a preexisting right to claim the maintenance from the husband or the father, as the case may be and that could be enforced by the Courts by entertaining a suit under the provisions of Section 9 of CPC. 14.Though Section 125 of Cr.P.C. provides a remedy to the wife to claim maintenance, it is for the wife or the child who is in distress and it is in these circumstances that a summary procedure was provided for the Courts to consider the great of maintenance under the said provision. While considering the maintenance under the Cr.P.C., the standard of life of a into consideration. It is the bare maintenance for the shelter, food, clothing and medical expenses which are generally considered under Section 125 Cr.P.C. When the wife and children have a remedy and a right under law to be maintained according to their standard of life, they cannot be compelled to approach the Court under Section 125 Cr.P.C. 15. As could be seen from the decision of the Apex Court reported in AIR 1993 SC 1014 (M.V. Elisabeth and Others Vs. Harwan Investment and Trading Private Limited,) in Para 87, the Apex Court observed as under: “87. The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercise by Courts empowered to exercise, it, It is absurd to confine that power to the provisions of imperial statutes of a bygone age. The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercise by Courts empowered to exercise, it, It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to Court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience.” So if the observations of the Apex Court is perused in the context of the facts on hand, though the provisions of the Act applicable to the persons belonging to Christian community are silent, so far as the grant of maintenance to the wife and children, the judicial intervention could be made as it is required under the circumstances and the Courts will have to strive to redress the grievance by adopting the principles of equity, natural justice and good conscience. So it is in the evidence that the wife has no source of income. So, also the daughter who is still a minor and though the law applicable to the persons belonging to Christian community does not provide a remedy, the right of the wife and children in common law could be enforced as there is no express or implied bar for instituting the suit for maintenance. 16. The High Court of Madras had an occasion to consider the question of maintenance by the wife of Christian community in the decision reported in AIR 1966 Madras 225 (Mrs. Stella Pakkiam and Others Vs. K.P.P. Rajiah Ratnam). It was held that the origin or marriage in Christian community lies in a contract, took into consideration the result of change in the status. It also considered the right of consortium to marriage, with the other and the consequent obligations arising therefrom between the spouses and the children. The High Court also took into consideration the observations in the book “Husband and wife” the 4th edition at Page 406, the author has observes. It also considered the right of consortium to marriage, with the other and the consequent obligations arising therefrom between the spouses and the children. The High Court also took into consideration the observations in the book “Husband and wife” the 4th edition at Page 406, the author has observes. “Consortium is a fundamental obligation of the marriage contract; consequently if a wife leaves her husband with neither his consent, nor conduct of his part justifying in law her living away from him, she will, although not guilty of adultery so long as she willfully and wrongfully remains absent from him, forfeit all claims upon him for support, because it is by her own action that she has deprived her husband of his opportunity of fulfilling his obligations of maintaining her in the house. The relationship of husband and wife, however continues in existence, and it is open to the wife at any time to return to her husband’s home and be received back therein and the husband will be compelled to receive her; if he refused he would be guilty of failing to maintain her i.e., his obligation to maintain her has merely been temporarily suspended during such period as she is wrongfully absent. ……….” So application the principles laid down by the Apex Court, the observations in the decision referred to supra of the High Court of Madras, when the husband discharged his duty to maintain his wife and children so long very were living with him and when due to his refusal and neglect, when they are away from him, the duty to maintain them continues as the relationship between the parties as husband and wife and children also continues. So the obligation that he performed while his wife and children were with him does not come to an end by his default, neglect or refusal and therefore, has a duty to maintain them, even when they left him due to his refusal and neglect. 17. The Courts below have held that the husband was getting salary of Rs.14.000/- and he was an employee of the KEB and except his mother, he does not have any other responsibilities except to maintain his wife and children. He has sufficient means and even as regards the quantum, both the Courts below have held that the wife and daughter are entitled to Rs.1,500/- each. He has sufficient means and even as regards the quantum, both the Courts below have held that the wife and daughter are entitled to Rs.1,500/- each. So taking into consideration these all circumstances, despite the fact that there is no provision applicable to Christians to award the maintenance, the wife and children have a right to seek the maintenance in common law and both the Courts below were justified in granting the maintenance to the plaintiffs. In that view of the matter, it is held that the Christian wife and children have a right to claim maintenance, despite the fact that there is no provision in the law applicable to Christians and hence, I proceed to pass the following: ORDER The appeal is dismissed with costs.