Kalavoor Chembazhi Govindan Nair vs Kunja Nayar and Others

Oldfield, J.—gree unreservedly with the conclusion of my learned brother in the judgment, which he is about to deliver, that a person

claiming, like the plaintiff, the appellant, separate maintenance must show some good cause for doing so and that a claim to menchilavu is on the

same footing as a claim to maintenance.

The more difficult question is whether the plaintiff''s desire to live with his wife (for that is all the real justification which he can allege for his

claim) is such good cause; and I have felt great doubt whether the reasoning by which corresponding claims by female members have been

countenanced in Maravadi v. Pamakkar 14 Ind. Cas. 383 ; 22 M.L.J. 309; Kunhi Amma v. Ammu Amma 16 Ind. Cas. 178 ; (1912) M.W.N.

1233 ; 24 M.L.J. 559 and Muthu Amma v. Vellathumkara Gopalan 16 Ind. Cas. 895 ; 36 M.P 593 ; 23 M.L.J. 496 ; 13 M.L.J. 120 should be

extended. For those decisions involve, with all due deference, a radical departure from the view taken by earlier authorities. They have, however,

been acquiesced in, so far as we have been shown, for over five years; they proceeded from learned Judges, whose competence in West Coast

Law commands respect; and their departure from or extension of recognized principles was deliberate. In these circumstances it seems to me that

the principle as regards females must be treated as established; and if it is so, there is no reason against applying it for the benefit also of male

members, since it has not been shown how any special consideration such as the right of the Tarwad to any services at their hands or otherwise to

their presence in it, as a condition of their right to maintenance, can be sustained against them.

I concur in allowing the appeal, reversing the decree of the District Judge and restoring that of the District Munsif. Each party will bear their own

costs throughout.

Seshagiri Aiyar, J.

This is a suit by a male member of a Malabar Tarwad for arrears of menchilavu from the Tarwad. The case, as it finally developed itself in the

Courts below, is that the plaintiff left the Tarwad house to help his wife to manage her Tarwad affairs and also because he did find it inconvenient

to live in the Tarwad house: I do not think the fact that the plaintiff wanted to assist his wife to manage her affairs is a good ground for leaving the

Tarwad. house; nor the allegation that the plaintiff found it more comfortable to live in his wife''s house a sufficient ground for claiming separate

maintenance. The cases discussed in Mararadi v. Pamakkar 14 Ind. Cas. 383 ; 11 M.L.T. 112 ; (1912) M.W.N. 109 ; 22 M.L.J. 309; Kunhi

Amma v. Ammu Amma 16 Ind. Cas. 178 ; 36 M.P 591 ; (1912) M.W.N. 1233 ; 24 M.L.J. 559 and Muthu Amma v. Vellathumkara Gopalan 16

Ind. Cas. 895 ; 23 M.L.J. 496 ; 13 M.L.J. 120 support the above proposition. I may say at once that I do not agree with Sadasiva Aiyar, J., in

Kozhipunath Kunnikrishna Menon Karnavan v. Kozhipurth Kunhikavamma 49 Ind. Cas. 471 ; 35 M.L.J. 565 ; (1918) M.W. N. 761 ; 24

M.L.T. 448 that the burdenof proving proper cause or the want of it is on the Karnavan. The Customary Law of Malabar, as enunciated in the

decisions of this Court, is that ordinarily every member of a Tarwad should live in the Tarwad house and should be maintained there by the

Karnavan. He may go out of the house for good and proper cause. The onus of proving that his departure is for such a cause is on the member

leaving the Tarwad house. This was laid down in Kunhi Amma V. Ammu Amma 16 Ind.Cas. 178 ; 36 M.K 591 ; (1912) M.W.N. 1233 ; 24

M.L.J. 559 to which Sadasiva Aiyar, J., was a party. Maravadi v. Pamakkar 14 Ind. Cas. 383 ; 36 M.p 203 ; 11 M.L.T. 112 ; (1912) M.W.N.

109 ; 22 M.L.J. 309 is also to the same effect. In Muthu Amma v. Vellathumkara Gopalan 16 Ind. Cas. 895 ; 36 M.p 593 ; 23 M.L.J. 496 ; 13

M.L.J. 120 Sadasiva Aiyar, J. did not start his present theory of burden of proof. I am therefore, unable to agree with the learned judge that

everything would be regarded as a proper cause which the Karnavan cannot show to be improper.

Now comes the important question whether a male member of a Tarwad leaving the Tarwad house solely for the purpose of living with his wife

is entitled to separate maintenance. Mr. Ananthakrishna Aiyar did not question the correctness of the rulings which laid down that a female member

leaving the Tarward house for the purpose of living with her husband would be entitled to separate maintenance: see the three cases reported in 36

Madras Series. Nor did he take exception to the principle that maintenance is given to a member of a Malabar Tarwad by reason of the

proprietary interest possessed by the member in the Tarwad property: see Ammini Ammal v. Padmanabha Menon 48 Ind. Cas. 104 ; 41 M.p

1075 ; 35 M.L.J. 509 ; 24 M.L.T. 498.

It is not denied that a male member of a Tarwad has a proprietary interest in the Tarwad property. Further in the case of a female member, the

customary law is that she should ordinarily reside in the Tarwad house and that the husband should visit her there. That being the normal state of

affairs in a Tarwad, the permanent residence of a husband in the wife''s ATarwad cannot be regarded as an improper act on his part. The law, as

we have construed, has made an inroad upon custom to this effect, namely, that a female member leaving the Tarwad house solely for the purpose

of living with her husband in his Tarwad in entitled to separate maintenance. I fail to see why the same reasoning is not applicable to the converse

case. I am almost inclined to regard the latter as an a fortiori case. But it is not necessary to go hat length. There are expressions in the judgments

of this Court which deduce the propriety of the cause from the ground that it is conducive to morality that the wife should be encouraged to live

with her husband. It would serve the cause of morality no less that the husband should be encouraged to make his permanent home with his wife in

her Tarwad. Therefore, I am of opinion that the present case in within the rule relating to the right of a female member making her home in her

husband''s Tarwad.

Mr. Ananthakrishna Aiyar''s complaint that we shall be disrupting the Tarwad if the plaintiff succeed, comes too late in the day. Disintegration

commenced long ago.

On one point I agree with his. Melchilavv is part of the maintenance. I do not think that there is any reason, as suggested by Mr. Madhavan

Nair, for placing it on a higher footing. I agree with the reasoning in Valia Konikkal Edom Kelu Achen v. Lakshmi Nethyer Ammal 2 M.H.C.R. 12

on this point.

I would, therefore, reverse the decree of the District judge and restore that of the District Munsif and I agree with the order as to costs made by

my learned brother.