IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 Mat.Appeal.No. 56 of 2005(E) --------------------------- OP.191/2003 of FAMILY COURT, THIRUVALLA .................... APPELLANTS:RESPONDENTS ------------------------- 1. JACOB KURUVILA, CHENNANKARA, KODINJOOR VEEDU, NJALBHAGOM, KAVIYOOR VILLAGE, THIRUVALLA. 2. K.K.KURUVILA, DO. DO. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS:PETITIONERS --------------- 1. MERLY JACOB, AGED 28 YEARS, KALATHIL PARAMPIL HOUSE, VATTAPPALLI P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. 2. JACKSON, AGED 7 YEARS (MINOR), REPRESENTED BY HER MOTHER, FIRST RESPONDENT, S/O.JACOB KURUVILA, DO. DO. ADV. SRI.SIBY MATHEW FOR R1 & R2 SRI.A.A.MOHAMMED NAZIR FOR R1 & R2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2010, ALONG WITH MA NO.178 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal Nos.56 and 178 of 2005 ------------------------------------- Dated this the 6th day of January 2009 JUDGMENT 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 K.L.T.429) deserve reconsideration? These questions inter alia are raised by the learned counsel Shri Philip Mathew forcefully in this appeal. 2. 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 t he 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. 3. 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. Mat.Appeal Nos.56 and 178 of 2005 2 During the pendency of the appeal, an ex parte decree for divorce was obtained by the respondent-husband. 4. 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. 5. 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 Mat.Appeal Nos.56 and 178 of 2005 3 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. 6. 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. 7. 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 Mat.Appeal Nos.56 and 178 of 2005 4 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. 8. 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. 9. 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. Mat.Appeal Nos.56 and 178 of 2005 5 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 ? Point No.1 10. The dispute is about the precise quantum of amount paid as share in parental property at the time of marriage. The claimant-wife as PW1 and her paternal and maternal uncles as PWs.2 and 3 tendered oral evidence that what was paid was an amount of Rs.2 lakhs. This payment was allegedly made by the father of the wife in the presence of PWs.2 and 3 to the husband and his father. They did not have any documents to prove this payment. The husband accepted that an amount was paid and received as the share of the wife in her parental property. But according to him only Rs.25,000/- was paid. Thus the precise dispute between the parties was only about the actual amount that was paid as share in parental property. On the side of the wife, PWs.1 to 3 tendered evidence that it was an amount of Rs.2 lakhs. On the other side, the respondent-husband examined himself to show that it was only Rs.25,000/-. He heavily relied on the evidence of RW2, Vicar and Exts.X1 to X3 documents. Mat.Appeal Nos.56 and 178 of 2005 6 11. There is ample evidence to show that Pasaram to the church was paid by the husband on the assumption that only Rs.25,000/- was paid as the share of parental property. This is explained by the claimants with the theory that to reduce the contribution to the church, such incorrect statement was given by the husband and his relatives to the church. RW2,Vicar who was examined, could not deny the suggestion that parties do not faithfully show the actual amount that change hands at the time of marriage to avoid the liability to pay a higher amount of contribution to the church. It will be idle to assume that amounts would be shown correctly and with exactitude in the church documents. It is only reasonable to assume that the parties would act in such a manner as to reduce the liability to pay contribution to the church. In these circumstances, Exts.X1 to X3 cannot be reckoned as gospel truth to come to any specific finding on the quantum of amount that was actually paid. It will not be inapposite in this context to note that RW2 was not the Vicar who received the amounts and he was speaking only with reference to Exts.X1 to X3. 12. Totality of circumstances will have to be taken into consideration. The husband, his father and his brothers were all at Bhopal. Ext.A1 invitation for the wedding gives an inkling Mat.Appeal Nos.56 and 178 of 2005 7 into the financial status and position of the husband and his relatives. The father of the husband was an Executive Engineer in the Madhya Pradesh Electricity Board. Admittedly he and his sons were having several items of business. Ext.A1 clearly indicates that fact. In these circumstances adopting the yardstick of a prudent person which Section 3 of the Evidence Act mandates, it will be idle to assume that only an amount of Rs.25,000/- was paid as parental share of the property at the time of marriage. The husband is a graduate, it is further indicated from the evidence. The totality of circumstances suggest to us that a prudent person cannot swallow the version that only an amount of Rs.25,000/- was paid. We further note that when PW3 was examined, he had specifically asserted that an amount of Rs.2 lakhs had been paid. In the course of cross examination of PW3, we find no specific denial or dispute on the assertion on this aspect made by PW3. On broad probabilities as also on the basis of intrinsic evidence that is available, we are of the opinion that the case of the wife commends itself for acceptance in preference to that of the respondent-husband. 13. There is a contention that the father of the wife, who had actually paid the amount, has not been examined as a Mat.Appeal Nos.56 and 178 of 2005 8 witness. Much is attempted to be made out of this circumstance. The father of the wife is admittedly laid up. On that aspect, we find no dispute. Witnesses have made undisputed assertions to that effect. It will be interesting in this context to note that the very case of the claimant is that the 2nd respondent, the father of the husband, had counted and received the amount. The father of the respondent/husband is not examined at all. In any view of the matter, we are persuaded to agree with the learned counsel for the appellant/wife that the case of the claimants that an amount of Rs.2 lakhs was paid as share of parental property at the time of betrothal is eminently reasonable, more acceptable and is entitled to be preferred. Sitting as an appellate court, we find no reason for the court below not accepting assertions to that effect made by PWs 1 to 3. The oral evidence of RW1 and the entries in Exts.X1 to X3 should not have been preferred by the court below. In these circumstances, we answer point No.1 in favour of the claimants. Point No.2 14. PWs 1 to 3 asserted that the wife had 40 sovereigns of gold ornaments. She did not of course have any documents to prove that. It would be idle for a court adopting the yardstick of a prudent person to expect documentary evidence to show the Mat.Appeal Nos.56 and 178 of 2005 9 amount and ornaments handed over by the wife and her people to the husband at the time of marriage. Much is argued relying upon the circumstance that even wedding photos have not been produced. Wedding photos could have been produced by either and in the circumstances of the case we are not persuaded to agree that the omission on the part of the wife to produce marriage photos to show the nature of the ornaments that she had at the time of marriage can clinch the issue. The case of the husband with regard to these ornaments is also interesting. According to him he does not know what amount of ornaments his wife had at the time of marriage. He would conveniently assert that whatever ornaments she had, had all been taken away by her when she left the matrimonial home. This explanation offered by the husband is inherently and intrinsically unsatisfactory and suspicious. That also must tilt the scales in favour of the claimants when the court attempts to appreciate the contradictory assertions made by PWs 1 to 3 on the one hand and RW1 on the other. The counsel argues that the family of the wife did not have sufficient means to give 40 sovereigns of gold ornaments to her. When it comes to the marriage of the daughters, parents are not averse to the idea of begging, borrowing or stealing to ensure that their daughters are properly Mat.Appeal Nos.56 and 178 of 2005 10 married off. In these circumstances, the fact that the availability of the liquid cash or ornaments have not been satisfactorily established by the claimants is, according to us too unsatisfactory and meagre a reason to discard the evidence of PWs 1 to 3. 15. The court below had the opportunity to see the witnesses perform in the witness stand before it and appreciate their testimony. The discretion exercised by the court below to accept and act upon the oral evidence of PWs 1 to 3 that the wife had 40 sovereigns of gold ornaments at the time of marriage and returned only with 4 sovereigns of gold ornaments, does appear to us to be eminently reasonable, cogent and acceptable. At any rate, we are not persuaded to invoke our appellate jurisdiction under Section 19 of the Family Court's Act to interfere with that finding of fact which appears to us to be absolutely unassailable. Point No.2 is, in these circumstances, answered in favour of the claimants. 16. 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 Mat.Appeal Nos.56 and 178 of 2005 11 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 17. 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. 18. 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 Mat.Appeal Nos.56 and 178 of 2005 12 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 (1) KLJ 788] have also accepted this proposition of law. Undaunted, the learned counsel argues that these decisions deserve reconsideration. 19. 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 under Section 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 Mat.Appeal Nos.56 and 178 of 2005 13 the decision in Cheria Varkey v. Ouseph Thresia deserves reconsideration. 20. 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 under Section 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 v. Rosamma Varghese [2003(3) KLT 6] 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 Mat.Appeal Nos.56 and 178 of 2005 14 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 for maintenance is absolutely well founded. 21. 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. 22. 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 Mat.Appeal Nos.56 and 178 of 2005 15 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 under Section 9 of the Code of Civil Procedure. 23. 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 Mat.Appeal Nos.56 and 178 of 2005 16 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. 24. 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 (ie. Rs.1,500/- per mensem) is unjustified or excessive. 25. 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. 26. In the result: a) Mat.Appeal No.56 of 2005 is dismissed with costs; Mat.Appeal Nos.56 and 178 of 2005 17 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. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/