Jacob Kuruvila vs Merly Jacob

R. Basant, J.—Is a Christian husband in this State liable to maintain his wife? Can such obligation if any be enforced through the Family (Civil) Court? Does the dictum in Cheria Varkey v. Ouseph Thresia 1955 KLT 429 (F.B.) deserve reconsideration? These questions inter alia are raised by the learned Counsel Shri Philip Mathew forcefully in this appeal.

Rival contestants have come up before us with these appeals. Proceedings were initiated by the wife and minor child, aged 28 years and 7 years respectively on the date of the application, claiming return of money, ornaments and maintenance from their husband/father and his father. The parties are referred to in this judgment as the claimants and the respondents respectively.

The marriage between the spouses admittedly took place on 21.8.1994. This proceedings was initiated in 2001. It was initiated before the Sub Court, Thiruvalla and the same was later transferred to the Family Court, Thiruvalla after its constitution. During the pendency of the appeal, an ex parte decree for divorce was obtained by the respondent-husband.

The claimants asserted that an amount of Rs. 2 lakhs was handed over at the time of betrothal to the husband and his father. This was handed over as the monetary equivalent of the share of the claimant-wife in her parental property. At the time of marriage, she had ornaments weighing 40 sovereigns. The husband and his parents were settled at Bhopal. She was taken to Bhopal. She was permitted to wear four sovereigns of gold ornaments. The remaining 36 sovereigns of gold ornaments were retained by the husband and his father. She was unceremoniously sent back to her parental home and at that time she was wearing only four sovereigns of gold ornaments. The remaining 36 sovereigns of gold ornaments were allegedly retained by the husband. The claimants were not paid any maintenance by the respondent-husband. They claimed past and future maintenance from the husband/father.

The claim was resisted. The husband contended that only an amount of Rs. 25,000/- was paid as the share of parental property of the wife. He further contended that the ornaments were not retained by him as alleged. He disputed the claim for maintenance at the rate of Rs. 1500/- per mensem. He had a contention that the amount of Rs. 25,000/- paid as the parental share had been utilised and eaten up for celebration of the marriage. He disputed his liability to pay maintenance to the claimants. According to him, he, therefore, was not liable to return any amount or ornaments.

The parties went to trial on these contentions. The claimant-wife examined herself as PW1, her paternal uncle as PW2 and maternal uncle as PW3. On her side Ext.A1 wedding invitation was marked. On the side of the respondent-husband, he examined himself as RW1. Vicar of the church where the marriage was performed was examined as RW2. Exts.X1 to X3 were marked. Vicar was examined and these documents were marked only to show that Pasaram, a contribution in the parental property, was paid to the church. Reckoning the share of parental property to be 25,000/-, 7% of the said amount was paid as Pasaram. Exts.B1 to B10 were also marked on the side of the respondents.

The court below on an anxious consideration of all the relevant inputs came to the conclusion that only an amount of Rs. 25,000/- had been paid to the husband as the share in the parental property. The husband was directed to return that amount along with interest at 6% per annum. The court further found that 36 sovereigns of gold ornaments were retained by the husband. There was direction to return the said gold ornaments or Rs. 1,26,000/- which was held to be the monetary equivalent of the said gold ornaments. Past maintenance for a period of three years and future maintenance for the wife and child were ordered at the rate of Rs. 1500/- each per mensem. It was directed that future maintenance of the wife shall be payable only till the date of divorce. Divorce has been granted later as per order dated 15.10.2007.

Both parties have come up in appeal. The wife assails the impugned order to the extent that it does not direct return of the amount of Rs. 2 lakhs as claimed by her and directs return of only Rs. 25,000/-. The husband assails the impugned order in so far as it directs return of 36 sovereigns of gold ornaments. He also assails the direction to pay maintenance to the wife.

We have heard both counsel. The following points arise for determination.

1) Did the court below err in not directing return of the amount of Rs. 2 lakhs as claimed which was allegedly paid to him as share in parental property of the wife.

2) Whether the court below erred in directing return of 36 sovereigns of gold ornaments?

3) Whether the court below erred in directing payment of maintenance to the wife at the rate of Rs. 1500/- per mensem ?

(Ed. Note:- Paras. 10 to 15 omitted being appreciation of evidence).

We do note that the ornaments have not been returned yet. The wife has claimed monetary benefits equivalent to the gold ornaments only @ Rs. 3,500/- per sovereign. Only an amount of Rs. 1,26,000/- has been awarded. No interest has been awarded. No challenge is raised against that part of the impugned direction though an appeal has been filed. We are, in these circumstances, satisfied that the direction to return an amount of Rs. 1,26,000/- does not in any view of the matter warrant interference.

Point No. 3

The learned Counsel for the husband contends that a civil suit is not maintainable to enforce the claim for maintenance by a Christian wife against her husband. It is the contention of the learned Counsel for the husband that though he may be having a moral or ethical obligation, such right cannot be enforced through the civil courts.

What is the basis of this contention? The learned Counsel for the husband contends that either under statute or under custom, a Christian husband has no liability to maintain his wife. Less said about this contention, the better. We are unable to accept this contention. Vows taken at the time of a Christian marriage include the voluntary undertaking of the obligation by the husband to maintain his wife. The learned Counsel for the husband accepts that in Cheria Varkey v. Ouseph Thresia (supra), a* Full Bench of this Court has taken the view that a Christian husband in the State has the legal obligation to maintain his wife and that the said claim can be enforced through the civil courts. 2 subsequent decisions of the Division Bench in Chacko v. Annamma 1993 (1) KLT 675 Dr. Gladstone v. Geetha Gladstone 2002 (2) KLT 126 (C. No. 155) : 2002 (1) Kar LJ 788 have also accepted this proposition of law. Undaunted, the learned Counsel argues that these decisions deserve reconsideration.

What is the reason? The learned Counsel contends that the decision of the Full Bench followed by the Division Benches were rendered at a time when there was a cap on the maximum amount that could have been directed to be paid u/s 125 Cr.P.C. and the corresponding predecessor provisions in Section 488 Cr.P.C. The counsel further submits that the Full Bench had not considered the play of these statutory stipulations in Cheria Varkey v. Ouseph Thresia. The learned Counsel further submits that the liability to pay maintenance is recognised by law in Section 125 Cr.P.C as also in the provisions of Protection of Women from Domestic Violence Act, 2005. The learned Counsel further contends that Section 7 of the Divorce Act, which now stands repealed, was available when the Full Bench delivered the judgment in Cheria Varkey v. Ouseph Thresia. That has subsequently been deleted by amendment. In these circumstances, the counsel contends that the decision in Cheria Varkey v. Ouseph Thresia deserves reconsideration.

We are unable to agree. A Christian husband on the basis of the vows taken at the time of marriage has the unavoidable obligation to maintain his wife. The vows of marriage, which he takes when he enters matrimony oblige him to feed her and clothe her even when he is hungry and naked. This liability founded on the vows of the marriage as also on the principles of justice, equity and good conscience can certainly be reckoned as a civil right/obligation which can be enforced u/s 9 of Code of Civil Procedure. We are not in any way persuaded to refer the matter to a Full Bench for fresh consideration. We must also note that a fuller Bench of five Judges of this Court in Mathew Varghese Vs. Rosamma Varghese, had occasion to consider the liability of a Christian father to maintain his minor son even in the absence of statutory provisions or custom. The principles relied on by the Full Bench, which led it to the conclusion that the Christian husband is liable to pay maintenance to his child even in the absence of statute or custom, apply with equal vigour and force in so far as the claim of the wife is concerned. So far as the claim of the wife is concerned, it is further fortified by the vows taken at the time of marriage. The counsel contends that there is no evidence to prove such vows of marriage. This Court will be absolutely justified in taking judicial notice of the fact that such vows must have been taken at the time of marriage. Even in the absence of such vows, on the principles accepted by the 5 Judge Bench in Mathew Varghese v. Rosamma Varghese, the claim of the wife form maintenance is absolutely well founded.

The learned Counsel contends that the parties are from Travancore and the principles of common law are not applicable to them. The Full Bench decision is founded on the principles of justice, equity and good conscience and we are of the opinion that it is applicable to anyone whether he be a citizen or of the former British India or not. The law declared that a Christian wife is entitled for maintenance from her husband is founded well on the principles of justice, equity and good conscience and in any view of the matter the former citizens of the erstwhile kingdom of Travancore cannot claim exemption from that principle. We find no reason or necessity to refer the question to the Full Bench for fresh consideration.

Counsel argues that Section 9 of the C.P.C. cannot come to the rescue of the wife as there is an implied bar. We are unable to agree. The right to maintenance of the wife is not created by the Code of Criminal Procedure or under the Domestic Violence Act. It is founded on the vows of marriage and the principles of justice, equity and good conscience. Such right is founded on and claimable under the principles recognised by the Fuller Bench of 5 Judges in Mathew Varghese (supra). The fact that a defaulter may be compelled to make such payments under threat of coercive processes leading to deprivation of liberty under the provisions of the Code of Criminal Procedure or under the Domestic Violence Act cannot definitely be reckoned as an implied bar u/s 9 of the Code of Civil Procedure.

The counsel then contends that the wife in this case was guilty of contumacious desertion. It is contended that, at any rate, the wife who had not abided by the matrimonial obligation to live with the husband should not have been granted maintenance by the court below. We have gone through the evidence adduced by the rival contestants. There is absolutely no satisfactory material for a court to come to a conclusion that the wife has been contumaciously responsible for the spouses not cohabiting. Allegations and counter allegations have been raised. The totality of circumstances convincingly persuades the court to hold that the wife is entitled for separate maintenance in the facts and circumstances of the case, We need advert only to one specific admitted fact to decipher the attitude of the husband. He admittedly had not gone to see his only child for years after they started separate residence. The child is now aged more than 10 years. Not a pie was paid for the maintenance of the child. He did not initiate any proceedings for restitution of conjugal rights. He claimed and obtained a decree for divorce during the pendency of this proceedings.

The learned Counsel then contends that the quantum of maintenance awarded to the wife is not justified. Admittedly the husband is an income tax assessee as is revealed from Exts.P6 and P7 returns/acknowledgments produced by him. We find absolutely no merit in the contention that the quantum of maintenance awarded (i.e. Rs. 1,500/- per mensem) is unjustified or excessive.

It follows from the above discussions that Mat. Appeal No. 178 of 2005 filed by the wife is entitled to be allowed and Mat. Appeal No. 56 of 2005 filed by the husband deserves to be dismissed.

In the result:

a) Mat. Appeal No. 56 of 2005 is dismissed with costs;

b) Mat. Appeal No. 178 of 2005 is allowed with costs. The impugned order is upheld in all other respects. But the direction to return amounts is modified. The 1st respondent/husband is directed to return the amount of Rs. 2 lakhs as claimed along with interest and cost as directed by the court below.