The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman…..

The Honbl. judge states : “…….    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. ………”

Nothing is stated about the pitiable status of elderly women. Nothing is stated about son’s fathers and mothers thrown on the streets ..

Strange ….

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 703 of 2009()

1. AGNES ALIAS KUNJUMOL, W/O.SEBASTIAN,
                        …  Petitioner
2. NAYANA (MINOR),D/O.AGNES ,

                          Vs

1. REGEENA THOMAS
                         …       Respondent

                  For Petitioner  :SMT.C.G.BINDU

                  For Respondent  :SRI.B.JAYASANKAR

The Hon’ble MR. Justice P.BHAVADASAN

 Dated :18/05/2010

 O R D E R
                           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 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 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 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 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 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.

    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 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 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 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 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 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 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 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 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
    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
    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
    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
    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.

    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.

    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 task of woman for a long time remained as to bear and rear the children and that task occupied the best years of her life. Earlier, the concept was, on marriage, all the goods and chattels and all her money automatically belong to her husband. Her wedding presents belong to her husband. If she left him even for a good cause, she has no right to any maintenance even out of her own funds.

    31. In Common Law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out.

    32. Probably, there was a time when the wives were treated as chattels. To put it in the words of Lord Denning, like a piece of furniture, the husband could bundle his furniture into streets, so he could his wife. All these have changed as time passed by and equitable principles came to be recognized. The law came to recognize that the wife had a right to stay in the matrimonial house and other matrimonial rights originating from her status.

    33. The Hindu Law has always recognized the independent status of a wife.     In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives.

    ‘The aged parents, a virtuous wife and infant child must be maintained even by doing a hundred misdeeds.’ (Manu).

    34. The Hindu Adoptions and Maintenance Act, 1956 provides for maintenance of the wife and also for a widow so long as she occupies the status of a wife. During divorce proceedings and thereafter, the issue is taken care of by the Hindu Marriage Act.

    35. In the case on hand, the counsel were unable to point out any statutory provisions regarding maintenance or the residential rights as far as the parties in this proceedings are concerned during the subsistence of the marriage.

    36. No civilized country could recognize a cynical disregard for marital status. It is by now well recognised     that the wife has a right to stay in the matrimonial house. The plight of the deserted wife has also improved by passage of time, recognizing her rights of maintenance and residence.

    37. It will be too cruel to say that because the husband of a woman is either incapacitated due to any reason or is no more, the lady should vacate the matrimonial house and should be rendered homeless. It is something which does not stand to reason. In the case on hand, it has come out in evidence that the other sons have been provided for.

    38. The intention of the defendant is very clear and that is to sell the house. It is true that for a while, some amounts were being paid to the plaintiffs. The defendant would say that the conduct of the members of the family of the plaintiff was so abhorrent that the payments being made to the plaintiffs were stopped. The result was that the first plaintiff has no means of income and she has to look after her daughter also.

 39. During the hearing of these appeals, though several suggestions were made, nothing worked out as the parties could not agree to any one of the suggestions.

 40. The law may be harsh. But, that does not mean that the plaintiffs should be thrown to the streets. The first plaintiff is residing in her matrimonial house and she is entitled to remain there. Even the defendant has no case that the plaintiff has the status of only a trespasser. The defendant, in fact, concedes that ever-since the first plaintiff was brought to the house of her husband after marriage, she has been residing there. Of course, legally, there may not be any enforcible right for the plaintiff except possibly under the Protection of Women from Domestic Violence Act. That also is subject to certain conditions.

 41.    Halsbury’s Statutes Volume 27 Fourth edition extensively deals with matrimonial laws in England. We find that there are several statutes, taking care of the various situations. Such statutes are conspicuously absent in India as far as Christians are concerned.

    42. The husband has a duty to provide his wife and children, with a roof over her head. The Law has gone to the extent of saying that the husband and wife have joint ownership over the matrimonial house. Protection is now given to battered wives also.

    43. When clear illegality is being committed and the courts have seized of the matter, it will be quite improper to nonsuit a person who has come for a relief on the ground that there is no rule to help him. It is here that there should be an attempt to redress a particular injustice by bold interpretation of the law.

    44. One of the main subject of debate, controversy and central issues in matrimonial matters is with reference to property.

    45. Normally, the disputes regarding the properties have to be resolved with reference to the ordinary law of property where marital break down or such other facts are totally irrelevant. But, it will do no violence to slightly distort the law of property to do justice in order to protect and safeguard the interest of the wife and the children born out of the marriage. Have a look at the plight of the first plaintiff herein, her position is precarious. She cannot look up to her husband for help. She had toiled for the family members of her husband and they had the benefit of her service and labour.

    46. There is, therefore, an obligation on the part of the family of Sebastian to provide for the maintenance of the plaintiffs. This obligation cannot be ignored. The result of dismissing the suit and allowing the counter claim filed by the defendant is that the plaintiff will be left homeless and will be thrown into the streets. Such a contingency has to be avoided.

    47. On the evidence on record, it appears that the defendant has two houses, one of which is rented out to third persons and out of which she earns an income. She has made it clear that her intention is to sell the plaint schedule property and for that purpose, the plaintiffs have to be evicted. She is not willing to provide any shelter for the plaintiffs. If, as a matter of fact, she was in need of funds, she could have got the rented house vacated and provided it to the plaintiffs to reside. But, she is not willing to adopt such a course. Therefore, the apprehension of the plaintiffs seems to be fully justified.

    48. A contention was raised that the first plaintiff was unconcerned about her husband and she is worried only about her own welfare. She was criticized as showing that she had the interest only to have her position secured. On the other hand, the mother-in-law, who is the defendant in the suit is concerned about her son and wants to raise funds to give to the Organization which is now taking care of her son. Therefore, there is no justice nor equity in favor of the first plaintiff.

    49. One cannot accept the said contention. Admittedly, the defendant had two houses. One of them is rented out and the other one is involved in this proceedings. The defendant is unable to provide any shelter to her daughter-in-law and her grand child. There is nothing to show that the sale of the property where the rented house is situated, would not fetch a handsome price. There is also nothing to hold that by sale of that house, the defendant is unlikely to get sufficient amount which will be sufficient for herself and to provide for her son. The defendant is adamant and stubborn that she is planning to sell only the property involved in this proceedings. Even as admitted by the defendant, the first plaintiff’s matrimonial house is the house involved in this proceedings.

    50. Can she be simply be thrown out of the house ? Is there not any security for her and her child ? If she is to be treated as a mere piece of furniture or a chattel,   as was done before, all because there is no statutory law ?

    51. Of course, S.125 Cr.P.C. And the provisions of the DV Act provides for certain measures, but they are totally inadequate.

    52. As already noticed, the Common Law on the principle of equity, justice and good conscience, does confer certain rights on women, like the first plaintiff. Though it is not possible to find any statutory liability in favour of the plaintiff, the law in this regard is slowly, but surely moving in that direction. The principle of ‘UBI JUS IBI IDEM REMEDIUM’ applies in this case.

    53. One has to notice that the first plaintiff has to bring up her daughter. She cannot claim maintenance from her husband as he is mentally sick and he has no means of income. She has rented out a portion of the matrimonial house and from the rent so received, she meets her and her child’s needs. The Indian Divorce Act which is applicable to Christians, deals with maintenance during the pendency of the proceedings as per the provisions of the Act and thereafter. If that be so, surely, there must be some right to get maintenance and residence during the subsistence of the marriage also.

    54. The word ‘maintenance’ has been held to be very comprehensive and takes within its fold, food, clothing, residence, education, medical maintenance and treatment. See Mangat Mal v. Punni Devi (1995) 6 SCC 88), Rajesh Burmann v. Mitul Chatterjee (AIR 2009 SC 651) & Komalam Amma v. Kumara Pillai Raghavan Pillai (AIR 2009 SC 636).

    55. In the decision reported in Rajesh Burmann v. Mitul Chatterjee (supra), it has been held that relief can be given also relying on the provisions of another statute.

    56. Almost a similar question came up for consideration in the Delhi High Court. The Delhi High Court in the decision reported in Taruna Batra v. S.R.Batra (AIR 2005 Delhi 270) held that the respondents therein cannot prevent the petitioner from entering the matrimonial house. The respondents had contended that the petitioner and her husband had occupied the premises on a lease and their occupation was permissive. That was not accepted.

    57. The issue regarding maintenance and residence as far as Hindus and Muslims are concerned, is taken care of by the statutes. It is the Christians, who are left with no statutory remedy during the subsistence of the marriage. It is here that one has to highlight the need for a uniform civil code.

    58. As early as in 1985, the apex court had pointed out the need to have a uniform civil code and had called upon the Legislature to take necessary steps in that regard. In the decision reported in Mohammed Ahmed Khan v. Shah Bano Begum (1985(2) SCC 556), the apex court had observed as follows :

 “It is also a matter of regret that Article 44 of our
    Constitution has remained a dead letter. It provides that
    “The State shall endeavour to secure for the citizens a
    uniform civil code throughout the territory of India”.
    There is no evidence of any official activity for framing a
    common civil code for the country. A belief seems to
    have gained ground that it is for the Muslim community
    to take a lead in the matter of reforms of their personal
    law. A common Civil Code will help the cause of national
    integration by removing disparate loyalties to laws which
    have conflicting ideologies. Now community is likely to
    bell the cat by making gratuitous concessions on this
    issue. It is the State which is charged with the duty of
    securing a uniform civil code for the citizens of the
    country and unquestionably, it has the legislative
    competence to do so. A counsel in the case whispered,
    somewhat audibly, that legislative competence is one
    thing, the political courage to use that competence is
    quite another. We understand the difficulties involved in
    bringing persons of different faiths and persuasions on a
    common platform. But a beginning has to be made if the
    Constitution is to have any meaning. Inevitably, the role
    of the reformer has to be assumed by the courts
    because, it is beyond the endurance of sensitive minds
    to allow injustice to be suffered when it is so palpable.
    But piecement attempts of courts to bridge the gap
    between personal laws cannot take the place of a
    common Civil Code. Justice to all is a far more
    satisfactory way of dispensing justice than justice from
    case to case.”

    59. The issue was again highlighted in the decision in Sarla Mudgal v. Union of India (1995) 3 SCC 635), wherein it was observed as follows :

     “30. Coming back to the question ‘uniform
    civil code’, we may refer to the earlier judgments of this
    Court on the subject. A Constitution Bench of this Court,
    speaking through Chief Justice Y.V.Chandrachud in
    Mohd.Ahmed Khan v. Shah Bano Begum held as
    under (SCC pp.572-572 para 32).
    “It is also a matter of regret that Article 44 of our
    Constitution has remained a dead letter. It provides that
    “The State shall endeavour to secure for the citizens a
    uniform civil code throughout the territory of India”.
    There is no evidence of any official activity for framing a
    common civil code for the country. A belief seems to
    have gained ground that it is for the Muslim community
    to take a lead in the matter of reforms of their personal
    law. A common Civil Code will help the cause of national
    integration by removing disparate loyalties to laws which
    have conflicting ideologies. Now community is likely to
    bell the cat by making gratuitous concessions on this
    issue. It is the State which is charged with the duty of
    securing a uniform civil code for the citizens of the
    country and unquestionably, it has the legislative
    competence to do so. A counsel in the case whispered,
    somewhat audibly, that legislative competence is one
    thing, the political courage to use that competence is
    quite another. We understand the difficulties involved in
    bringing persons of different faiths and persuasions on a
    common platform. But a beginning has to be made if the
    Constitution is to have any meaning. Inevitably, the role
    of the reformer has to be assumed by the courts
    because, it is beyond the endurance of sensitive minds
    to allow injustice to be suffered when it is so palpable.
    But piecement attempts of courts to bridge the gap
    between personal laws cannot take the place of a
    common Civil Code. Justice to all is a far more
    satisfactory way of dispensing justice than justice from
    case to case.”

    31. In Jordan Diengdeh v. S.S.Chopra (1985) SCC 62),
    O.Chinnappa Reddy, J., speaking for the Court referred
    to the observations of Chandrachud, C.J. In Shah Bano
    Begum case and observed as under :

    “It was just the other day that a Constitution Bench
    of this Court had to emphasise the urgency of infusing
    the life into Article 44 of the Constitution which provides
    that :’The State shall endeavor to secure for the citizens
    a uniform civil code throughout the territory of India’. The
    present case is yet another which focusses on the
    immediate and compulsive need for a uniform civil code.
    The totally unsatisfactory state of affairs consequent on
    the lack of uniform civil code is exposed by the facts of
    the present case. Before mentioning the facts of the
    case, we might as well refer to the observations of
    Chandrachud, C.J., in the recent case decided by the
    Constitution Bench (Mohd. Ahmed Khan v. Shah Bano
    Begum).

    32. One wonders how long will it take for the
    Government of the day to implement the mandate of the
    Framers of the Constitution under Article3 44 of the
    Constitution of India. The traditional Hindu Law –
    personal law of the Hindus – – governing inheritance,
    succession and marriage was given a go-by as back as
    1955-56 by codifying the same. There is no justification
    whatsoever in delaying indefinitely the introduction of a
    uniform personal law in the country.

    33. Article 44 is based on the concept that there is no
    necessary connection between religion and personal law
    in a civilised society. Article 25 guarantees religious
    freedom whereas Article 44 seeks to divest religion from
    social relations and personal law. Marriage, succession
    and like matters of a secular character cannot be
    brought within the guarantee enshrined under Articles
    25, 26 and 27. The personal law of the Hindus, such as
    relating to marriage, succession and the like have all a
    sacrament origin, in the same manner as in the case of
    the Muslims or the Christians. The Hindus along with
    Sikhs, Buddhists and Jains have forsaken their
    sentiments in the cause of the national unity and
    integration, some other communities would not, though
    the Constitution enjoins the establishment of a common
    civil code for the whole of India.

    34. It has been judicially acclaimed in the United State of
    America that the practice of polygamy is injurious to
    public morals, even though some religions may make it
    obligatory or desirable for its followers. It can be
    superseded by the State just as it can prohibit human
    sacrifice or the practice of ‘Suttee’ in the interest of
    public order. Bigamous marriage has been made
    punishable amongst Christians by Act (XV of 1872),
    Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs
    and Jains by Act (XXV of 1955).

    35. Political history of India shows that during the
    Muslim regime, justice was administered by the Qazis
    who would obviously apply the Muslim scriptural law to
    Muslims, but there was no similar assurance so far
    litigations concerning Hindus were concerned. The
    system, more or less, continued during the time of the
    East India Company, until 1772, when Warran Hastings
    made regulations for the administration of civil justice for
    the native population, without discrimination between
    Hindus and Mahomedans. The 1772 Regulations
    followed by the Regulations of 1781 whereunder it was
    prescribed that either community was to be governed by
    its personal law in matters relating to inheritance,
    marriage, religious usage and institutions. So far as the
    criminal justice was concerned, the British gradually
    superseded the Muslim law in 1832 and criminal justice
    was governed by the English common law. Finally, the
    Indian Penal Code was enacted in 1860. This broad
    policy continued throughout the British regime until
    independence and the territory of India was partitioned
    by the British Rulers into two States on the basis of
    religion. Those who preferred to remain in India after the
    partition, fully knew that the Indian leaders did not
    believe in two-nation or three-nation theory and that in
    the Indian Republic there was to be only one nation –
    Indian nation – and no community could claim to remain
    a separate entity on the basis of religion. It would be
    necessary to emphasise that the respective personal
    laws were permitted by the British to govern the matters
    relating to inheritance, marriages etc., only under the
    Regulations of 1781 framed by Warren Hastings. The
    Legislation – not religion – being the authority under
    which personal law was permitted to operate and is
    continuing     to     operate,     the same    can     be
    superseded/supplemented by introducing a uniform civil
    code. In this view of the matter, no community can
    oppose the introduction of uniform civil code for all the
    citizens in the territory of India.

    36. The successive Governments till date have been
    wholly remiss in their duty of implementing the
    constitutional   mandate     under     Article  44  of   the
    Constitution of India.”

    60. There is a reference to this aspect in the decision reported in John Vallamattom v. Union of India (AIR 2003 SC 2902) wherein it was observed as follows :

    “42. Article 25 merely protects the freedom to
    practise rituals and ceremonies etc. which are only the
    integral part of the religion. Article 25 of the Constitution
    of India will, therefore, not have any application in the
    instant case.

    43. For the self-same reasons, Art.26 may also
    not have any application in the instant case.
    44. Before I part with the case, I would like to state that
    Art.44 provides that the State shall endeavour to secure
    for the citizens a uniform civil code throughout the
    territory of India. The aforesaid provision is based on the
    premise that there is no necessary connection between
    religious and personal law in a civilized society. Article
    25 of the Constitution confers freedom of conscience
    and free profession, practice and propagation of
    religion. The aforesaid two provisions viz. Arts.25 and
    44 show that the former guarantees religious freedom
    whereas the latter divests religion from social relations
    and personal law. It is no matter of doubt that marriage,
    succession and the like matters of a secular character
    cannot be brought within the guarantee enshrined under
    Arts.25 and 26 of the Constitution. Any legislation which
    brings succession and the like matters of secular
    character within the ambit of Arts.25 and 26 is a suspect
    legislation. Although it is doubtful whether the American
    doctrine of suspect legislation is followed in this country.
    In Smt. Sarla Mudgal, President, Kalyani and others v.
    Union of India and others (1995(3) SCC 635), it was
    held that marriage, succession and like matters of
    secular     character cannot be brought within the
    guarantee enshrined under Arts.25 and 26 of the
    Constitution. It is a matter of regret that Art.44 of the
    Constitution has not been given effect to. Parliament is
    still to step in for framing a common civil code in the
    country. A common civil code will help the cause of
    national integration by removing the contradictions
    based on ideologies.”

    61. This Court, while considering the plight of Muslim women under certain circumstances, in the decision reported in Kunhimohammed v. Ayishakutty (2010 (2) KHC 63) had occasion to observe as follows :

 “The impact of the constitutional fundamental right
    to equality under Article 14 and the fundamental right to
    life under Article 21 of the Constitution and the play of
    Article 13 have not been considered by the civil society
    in India, the Parliament of India or even the Courts in
    India. The stipulation in Muslim Law tolerating polygamy
    and the further stipulation enabling arbitrary unilateral
    pronouncement of talaq, which stipulations have been
    grossly misused by some unprincipled who have no
    commitment to the dynamism, liberalism and humanism
    underlying these stipulations in Muslim Law, have not
    been modified by the Parliament or subjected to judicial
    review under Article 13 of the Constitution so far. Most
    unfortunately, despite the mandate of Article 44 of the
    Constitution, Legislatures – Central and State, have not
    addressed themselves to the question. It is perhaps
    more unfortunate that the Courts have not so far tackled
    the bull by the horns and had not tested the
    constitutional validity of these stipulations which get the
    mandate for enforcement under the provisions in the
    Muslim Personal Law (Shariat) Application Act, 1937.
    Whether the stipulations of Muslim Personal Law
    tolerating polygamy and permitting arbitrary and
    unilateral termination of marriage by pronouncement of
    talaq   by   the   husband     offend   the   constitutional
    fundamental rights to equality and life under Articles 14
    and 21 of the female half of   Muslim population will
    certainly have to be considered by the constitutional
    Courts.”

Inspite of all these, the Legislature remains unconcerned and unfortunately, no progress whatsoever has   been made in this regard for obvious reasons. The apex Court has made it clear that Articles 25 and 26 are no impediments for promulgating a uniform civil code which is an absolute necessity. But, other considerations seem to deter the legislature from codifying the laws and having a uniform civil code.

    62.    The    next    question   that   arises   for consideration is, what relief could be granted to the plaintiffs. It is, indeed, a difficult question to answer. But, one may take the aid of the DV Act. In fact, S.26 of the DV Act enables this Court to take recourse to the provisions of the Domestic Violence Act.

    63. The evidence is to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforcible right in this regard. But, certainly, she has a right to reside in the matrimonial house.

    64. One has also to remember that her husband is mentally ill and one can easily understand the plight of the first plaintiff and her daughter.

    65. Accordingly, these Appeals are allowed and in the result, the Judgments and decrees of the Courts below are set aside and the suit is decreed as follows :

    66. There will be an order of permanent prohibitory injunction against the defendant or any one claiming under her from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.

    67.     The    counter   claim filed    by  the respondent/defendant is dismissed.

    68. The plaintiffs are entitled to their costs throughout.

       P.BHAVADASAN, JUDGE
sta
SA 703 & 958/09    46
SA 703 & 958/09    47

Source :
http://judis.nic.in/judis_kerala/qrydisp.aspx?filename=152289

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