IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 RSA.No. 703 of 2009(A) --------------------------------- [AS.NO.377/2006 OF II ADDL.DISTRICT COURT,ERNAKULAM, OS.NO.1097/2004 OF II ADDL.MUNSIFF'S COURT, ERNAKULAM] .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------------------ 1. AGNES ALIAS KUNJUMOL, W/O.SEBASTIAN, ARAKKAL HOUSE, DESHABHIMANI ROAD, KALOOR. 2. NAYANA (MINOR),D/O.AGNES , ARAKKAL HOUSE, DESHABHIMANI ROAD, KALOOR. REPRESENTED BY THE 1ST APPELLANT MOTHER AS GUARDIAN. BY ADVS. SMT.C.G.BINDU, SMT.C.G.AJITHA, SMT.D.SARITHA, SMT.M.K.RAJITHA. RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- REGEENA THOMAS, C/O. JOY ARAKKAL, WHITE HOUSE, VYLOPPILLY LANE, AZAD ROAD, KALOOR. BY ADV. SRI.B.JAYASANKAR. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2010, ALONG WITH R.S.A NO. 958 OF 2009, THE COURT ON 18/05/2010 DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. -------------------------------------------- RSA Nos.703 & 958 of 2009 -------------------------------------------- Dated 18th May 2010 Judgment In a legal battle between the daughter-in-law and the mother-in-law, the mother-in-law succeeded. The suit filed by the daughter-in-law was dismissed, which was confirmed by the lower Appellate Court. 2. The first plaintiff had married Sebastian, the youngest son of the defendant on 06.09.1998. Two children were born in the wed-lock. It is claimed by the first appellant that at the time of marriage, a sum of Rs.1,00,000/- was given by her family to the family of her husband. It is also stated in the plaint that her late father- in-law was the owner of 'Prakash Gold Covering shop' situated near the Girls' High School, Ernakulam. 3. The defendant is a retired Teacher. Apart from the first plaintiff's husband, the defendant has two other sons and daughters. Her eldest son is running a gold SA 703 & 958/09 2 covering business near Mathrubhoomi, Kaloor. It is claimed by the first plaintiff that her husband was having 75% share in the gold covering business and that all the properties standing in the name of the defendant were acquired by her husband in her name, utilising his funds. The first plaintiff's husband namely, Sebastian became mentally sick and the sickness aggravated to such a stage that he caused the death of one of their children. He was prosecuted for the offence under S.302 IPC, but was given the benefit of S.84 IPC. He is now undergoing treatment in a mental hospital. 4. The appellants have no other place to reside, except the plaint schedule premises. It is claimed by the first plaintiff that as per the understanding in the family, the plaint schedule property is to be given to her husband. The amount of Rs.1,00,000/- given by her family at the time of marriage was utilised for the maintenance of the said residential building. Initially, i.e, from 30.06.2003 to 30.11.2003, the respondent herein was providing SA 703 & 958/09 3 Rs.1,000/- to her and her son Thomas was giving Rs.2,000/- for a period of six months. But, after 30.11.2003, no amounts have been paid to her. 5. The first appellant was surprised to receive Ext.A20 letter, whereby she was asked to vacate from the plaint schedule premises. She replied that she will be rendered homeless, but the defendant and her family members were not willing to provide anything for her and her daughter. She realised that the family members of her husband were taking advantage of the situation and were trying to get rid of her. Apprehending forceful dispossession, the suit was laid. 6. The defendant resisted the suit. It was pointed out by her that the plaintiff was not entitled to any reliefs in the suit. She claimed that the plaint schedule property was purchased by utilising her own funds and disputed that it was purchased utilising the funds of her husband. She also denied receipt of any amount from the family of the first plaintiff at the time of marriage. Prakash Gold Covering SA 703 & 958/09 4 business run by her husband was not a family business and after his death, the shop ceased to function. The defendant would say that the first plaintiff was not concerned about her husband and she was only worried about her own welfare. Since the conduct and behaviour of the members of the family of the first plaintiff became unbearable, the defendant and her family members stopped paying any amount to the first plaintiff. It is claimed that the defendant had to make arrangements for the treatment of Sebastian and she needed money for the same. The plaintiff has no manner of right over the suit property. She also laid a counter claim seeking a mandatory injunction directing the plaintiff to vacate the premises. 7. The Trial Court raised necessary issues for consideration. The plaintiff examined herself as PW1 and Exts.A1 and A52 were marked. The defendant examined herself as DW1 and Exts.B1 and B2 were marked. On a consideration of the materials before it, the Trial Court SA 703 & 958/09 5 came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit and allowed the counter claim filed by the defendant. 8. The first plaintiff carried the matter in appeal as AS Nos.377/06 & 66/08. The Appellate Court, on a re- appreciation of the evidence on record, came to the conclusion that there were no grounds to interfere with the Judgment of the Trial Court and dismissed both the appeals. 9. RSA No.958/09 is directed against the Judgment in AS No.66/08 and RSA No.703/09 is directed against the Judgment in AS No.377/06. 10. The present dispute between the parties seems to be with regard to the right over the residential building. It is not in dispute that the first plaintiff in the suit was married to one of the sons of the defendant, namely, Sebastian. The materials on record show that the couple had two children. It appears, Sebastian, the husband of the SA 703 & 958/09 6 plaintiff developed mental illness and it is understood that he caused the death of one of the children for which he was prosecuted and found guilty, but was given the benefit of S.84 IPC and sent to the mental hospital. 11. The result of the above proceedings was that the first plaintiff was left with no home and she had to maintain her daughter. According to her, the plaint schedule property was to be given to her husband. She claimed that all the acquisitions in the name of the defendant were by utilising the funds of the husband of the defendant and the defendant was only a name lender. She also claimed that she had a right to reside in the building and that the defendant has no manner of right to evict her. Of course, she also laid a claim to the business of gold covering being carried out by the second son of the defendant. 12. Both the courts found that being a Christian, there is no 'tharawadu' for the family and the first plaintiff has no manner of right over the suit property. SA 703 & 958/09 7 13. It may be true that as a matter of right, she may not be able to claim her right over the suit property, since it stands in the name of the defendant. The defendant was employed and she had her own means of income. Her claim that it was utilising her funds that the properties were purchased, was accepted by both the courts. 14. Before going into the other aspects, one fact may be noticed. Both the courts have noticed that the plaint did not contain the schedule of the property and that is violative of Order VII Rule 3 CPC. That is one of the grounds found by the Courts below against the plaintiffs. Going through the records, it is seen that while the plaint did not contain the plaint schedule, the plaintiffs have filed a separate schedule of property regarding which relief was sought for. Therefore, technically speaking, it has to be taken that there cannot be any difficulty in the sense that the property with respect to which reliefs were sought for, could be identified though, in the strict sense, it violates SA 703 & 958/09 8 Order VII Rule 3 CPC. But, in the facts and circumstances of the case that omission need not entail dismissal of the suit. Procedural law is to be used to promote justice. However, one fails to understand why remedial measures were not taken by the plaintiff even after this defect was pointed out by the Trial Court as well as the First Appellate Court. 15. As far as the first plaintiff is concerned, it is indeed an unfortunate situation for her. There can be no dispute regarding the fact that she is entitled to maintenance from her husband. Her husband is alive, but, he is unable to provide funds for the sustenance of the plaintiffs. He has now, no means of income also. Their affairs will have to be safeguarded and they need protection. The lower Court observed that the first plaintiff was misguided about the nature of the right regarding the property and she had embarked on an adventurous pursuit. The Court below also found that the acquisition of properties was made by the defendant by utilising her own SA 703 & 958/09 9 funds and the plaintiffs can have no claim over it. 16. Strictly speaking, it could not be said that the findings of the Courts below are erroneous since the title of the property vests with the defendant. But, the fact remains that the plaintiffs need a shelter and an income to sustain themselves. 17. The first plaintiff was examined as PW1. The second plaintiff is her daughter. Her marriage was solemnized on 6.9.1998. Her husband's family was financially sound. PW1's family was not so fortunate. Her father-in-law is no more. It is claimed by PW1 that her husband had 75% share in the gold plating business managed by her father-in-law. According to her, the business is now being run by Thomas, another son of DW1. She resides in the 'tharawadu' home. She claimed that the tharawadu house and the property was orally given to her husband by DW1. She points out that the other two sons of DW1 had already been provided for. It is her claim that at the time of marriage, a sum of Rs.1 lakh was paid by SA 703 & 958/09 10 her family to her husband's family, which was utilised for carrying out the maintenance of the tharawadu house. She then speaks about the calamity that befell on her. She had to leave for her parental house. She says that for a short period from 30.06.2003 to 30.11.2003, a sum of Rs.1,000/- was being paid to her. She then received a notice Ext.A20. Since her parents could not afford to maintain PW1 and her daughter, the first plaintiff decided to reside in the matrimonial house. She had to face various difficulties there. She denied that she was aware of the mental status of her husband even before the marriage. 18. In the cross examination, she admitted that “Prakash Gold Covering' business was being run by her father-in-law. She clarified that when he fell sick, it was entrusted to Sebastian, her husband and thereafter, he was running the business. She was unable to give the details of the business now being run by another son of DW1. She was asked whether she was willing to take care of her husband and look after him. Her reply was that if the SA 703 & 958/09 11 doctor certifies, she is prepared to do so. A specific question w as put to her whether she had any objection in selling the property where she was residing to raise funds to entrust it to a voluntary organisation, which had undertaken the care of Sebastian. The reply given by her was that she should know what is the provision that is going to be made for her and her child. In the cross examination, she admitted that she had rented a room of the building in which she was residing. She clarified that the rent received therefrom was the sole means of income. To a specific question whether she was willing to give a consent letter to have Sebastian entrusted to a voluntary organisation, she replied that it depends upon what will be her and her daughter's fate. The Trial Court has noticed that at that point of time, PW1 had become very emotional. 19. One has also to refer to the letters written by Sebastian to the first plaintiff and her replies to those letters, which were marked as Exts.A22 to A35. Those letters would indicate that what the first plaintiff says about SA 703 & 958/09 12 the gold covering business is quite probable. In a few letters, her husband Sebastian asked her to manage the business till he returns, but there is no clear evidence as to what had happened to the business later. The letters would also indicate that Sebastian was involved in the gold plating business. 20. It has come out in evidence that the intention of the defendant is to sell the plaint schedule property. One may now, have a look at the evidence of the defendant. In the affidavit filed in chief, she says about her right over the property, its acquisition etc. She has, of course, denied receipt of Rs.1 lakh from the family of the first plaintiff at the time of marriage. The defendant admits that her late husband acquired properties in her name utilising his funds. The defendant was staying with Sebastian. But, later, she took shelter with her eldest son. It has also come out from her deposition that there is another house, which has been let out for a monthly rent of Rs.3,500-4,000/- which is in her name, but acquired, utilising the funds of her SA 703 & 958/09 13 husband. She asserts that even before the marriage, her youngest son Sebastian was mentally ill and this fact was known to the first plaintiff and the members of her family. She has also stated that she has not enquired as to how the plaintiffs are carrying on. She was unable to give the details of the plaint schedule property, which may be due to her advanced age. When a suggestion was made to her that if she wanted to raise funds for the treatment of her son Sebastian, she could sell the property, which has been let out to a third person, her answer was that she was not willing to do so because that was a means of income. 21. The main attack against the plaintiffs is that she was unconcerned about her husband and was more concerned about her own welfare. It was contended by the learned counsel for the respondent that the plaintiffs have no right over the suit property and they have to vacate the premises. 22. Legally, it may be true. But to say that the plaintiffs have no manner of right and she has to vacate the SA 703 & 958/09 14 house, is something which cannot be accepted. That a Christian woman is entitled to maintenance from her husband, is no longer res integra in view of the decision in Chacko v. Annamma (1993(1) KLT 675). It has come out from the evidence of DW1 that the other sons have already been provided their shares of properties, which were standing in the name of the defendant, acquired by utilising the funds of her late husband. This makes the claim made by the first plaintiff that the suit property was intended to be set apart to her husband, probable. Of course, she can lay no claim as such in the strict legal terms. 23. In such circumstances, is the Court totally helpless to come to the aid of persons like the first plaintiff? Is the court to simply dismiss their claims and leave them destitutes ? Cannot the courts find some methods to see that the interests of persons like the first plaintiff are safe guarded ? 24. In such cases, Courts in equity, good conscience and justice, may have to deviate from the strict SA 703 & 958/09 15 letter of the law. The courts may have to invoke the said principles, in order to render justice to the parties. In this context, it will be apposite to refer to the decision in Chacko v. Annamma (supra) wherein it is observed as follows : “7. Regarding the second question, viz., whether the plaintiff is entitled to maintenance, we felt that there is no much controversy about it before us, both in regard to the liability as well as the quantum. It has to be noted that as regards the quantum, it is purely a question of fact and we will not be justified in interfering with the quantum of maintenance by the appellate court. As regards the liability of a Christian husband to pay maintenance for his wife, the matter is not covered by any statutory provision. The parties are Christians. Where there is no statutory provision governing the matter, if equity and good conscience and the attendant circumstances would compel the husband to pay maintenance, we are of the opinion that the court is not powerless to decree maintenance. In cases where there is no statutory provision in regard to matters like this, it is always profitable to refer to the Common Law of England and the practices followed in India. English Courts SA 703 & 958/09 16 have relied on the principles of Common Law for the purpose of determining these kinds of questions, in the absence of a statutory provision. It is because the matters not governed by statute or customary law the principles of 'justice, equity and good conscience that should apply' and the principles of justice, equity and good conscience are supposed to be seen in the Common Law of England. Certainly, we are of definite opinion that the principles of justice, equity and good conscience that should be applied must be Indian and tuned and attuned with the high ideas and the great culture, tradition and heritage of India. It must harmonise the Indian Philosophy enshrined in our Constitution. It must consonate with the “Common Law” of India tuned to Indian conditions. Dicocting and distilling Indian precedents courts can and we would say that the court is obliged to evolve a common law of our own. In this process we can legitimately rely on English Common Law. We are attempting an Indian jurisprudential approach for determining what should be the principles of justice, equity and good conscience in the given circumstances in the light of the mandates of the Constitution and the principles followed and accepted in India in the matter in question. It is profitable to note the principles that have been followed in SA 703 & 958/09 17 England applying the English Common Law in order to ascertain the principle to be applied in this case. ................................................................................................ . 11. We feel that we are not bound to hold that a Christian husband has no legal liability to maintain the wife. Criminal Law of the country and the personal law of Indians of other community make it plainly clear that the husband has got a liability to maintain the wife in certain circumstances. This obligation created by the criminal law is certainly applicable to a Christian husband also. We do not want to elaborate this question any further. We are of the opinion that the husband is liable to pay maintenance if conditions which would compel the wife to live separately. In this case, there is no difficulty, on evidence, to hold that the wife has acquired an entitlement to live separately on account of the misconduct of the husband. The court below has found that the husband is liable to pay maintenance.” 25. A similar issue was considered in the decision reported in Joy v. Usha (ILR 1996(2) Kerala 580), wherein it was held as follows : “It is in the light of the above principles this appeal between the parties who are Christians, in a suit for SA 703 & 958/09 18 maintenance, will have to be considered for decision. In this process, because the parties are Christians, we will have to keep in mind that there is no specific statutory provision mandating Christians, a Christian father or a Christian husband to maintain his children and his wife. In this context, this court with advantage, observed that the matters not governed by a statute or where there is no accepted customary law, the Judge should be guided by that great principle of justice, equity and good conscience to the effect that with the Indian tradition, a citizen is bound to maintain his children which is the tradition of the society in accordance with justice, equity and good conscience, irrespective of the position in English law which are peculiar to the said system.” The issue was also considered in the decision reported in Jacob Kuruvila v. Merly Jacob (2010(1) KHC 573). The proceedings originated under S.125 of the Cr.P.C. And it was contended on behalf of one of the parties that the parties are Christians from Travancore and the principles of Common Law are not applicable to them. This Court refused to accept the above plea and held as follows : “The learned counsel contends that the parties are from Travancore and the principles of Common Law are SA 703 & 958/09 19 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 any one whether he be a citizen 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.” 26. It is well settled that from a valid marriage, there arises between the spouses, a bond which, by its own nature, is permanent and exclusive. Moreover, a Christian marriage is a sacrament, consecrated with the imposing of rights, liabilities and duties on each other. The couple get a new legal position from which flows, both rights and obligations, not only as between the parties to the marriage, but, with regard to the community. SA 703 & 958/09 20 27. The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role. As housemakers, women's contribution to the household economy has remained unremunerated and unaccounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S.125 Cr.PC. provides some relief to such women. But, such a state of affairs, is far from satisfactory. 28. Protection of Women from Domestic Violence Act (hereinafter referred to as the DV Act) also provides certain remedies to women. The Act, in fact provides for residential orders which ensure that the married woman has a residence to reside. SA 703 & 958/09 21 29. It was contended that unlike Hindus, Christians are not entitled to statutory maintenance except under S.125 Cr.P.C. Repelling the contentions, it was held in the decision cited above, that the principles of justice, equity and good conscience should be invoked in such cases, to grant maintenance to Christian women. As already noticed, now, some reliefs are available under the DV Act also. 30. It cannot be disputed that women are different from men. The principal