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High Court of Karnataka
THE HONOURABLE MR. JUSTICE A.S. PACHHAPURE
K. Kumar
Versus
Leena & Another
R.S.A. No. 544 of 2004
Decided on : 07-12-2009
Under Section 9 of Civil P.C. Courts can try all the suits of civil nature excepting those suits of which the cognizance by the Courts is expressly or impliedly barred. Though the provisions of the Hindu Adoption and Maintenance Act, provides a remedy for maintenance to the neglected wife and children and a suit could be instituted under the said Act, (the Act of 1872) does not bar the taking of cognizance of a suit for maintenance either expressly or impliedly.
The husband is a KEB employee and both the Courts have held that his Salary is not less than Rs. 14,000/- per month and it was he who was looking after his wife and children all along since from the commencement of the matrimonial relationship and hence, in the absence of a separate source of income for the wife and children, there is an obligation on his part when he committed the breach of his obligation to maintain his wife and children and the wife and children have a pre-existing right to claim the maintenance from the husband or the father, as the case may be and that could be enforced by the Courts by entertaining a suit under the provisions of Section 9 of C.P.C.
Further, though Indian Christian Marriage Act is applicable to the person belonging to Christian community are silent, so far as the grant of maintenance to the wife and children, the judicial intervention could be made as it is required under the circumstances and the Courts will have to strive to redress the grievance by adopting the principles of equity, natural justice and good conscience.
A.S. Pachhapure, J.
The unsuccessful defendant has approached this Court in appeal challenging the judgment and decree of maintenance granted by the Trial Court in favour of the respondents and confirmed in the appeal, by the lower Appellate Court.
2. The brief facts relevant for the purpose of this appeal are as under:
The parties will be referred as per their rank in the Trial Court for the purpose of convenience.
The respondents herein were the plaintiffs whereas the appellant is the defendant before the Trial Court. The first plaintiff and the defendant are Christians and were married on 27.4.1977 as per the custom of their community. They led a happy marital life for sometime and they have three issues. The Plaintiffs 2 and 3 are the son and daughter. Later, there were differences amongst each other. The defendant was addicted to bad habits and developed illicit relationship with other women. He started consuming liquor and was subjecting the first plaintiff to cruelty and harassment by assaulting her. On an occasion in the year 1990, the defendant caused assault on the first plaintiff and she sustained fracture of her hand and was treated in the hospital. To maintain good relationship with the defendant, she did not disclose about the assault. Afraid of the cruel conduct of the defendant, she left him and started residing separately with Plaintiffs 2 and
3. She was doing coolie work, but the earnings were not sufficient for the maintenance. She filed a petition in Crl. Misc.57/1999. The defendant gave an amount of Rs.3,000/- and assured to pay the same in future and therefore, she withdrew the petition, but later, the defendant is said to have discontinued the payment.
Later, she filed this suit claiming maintenance on the ground that her husband, the defendant is a KEB employee getting salary of Rs.14,000/-p.m. He has the capacity to maintain the plaintiff and in the circumstances, she sought maintenance of Rs.4,000/-to herself and her children.
3. The defendant appeared, denied the allegations made and contended that Plaintiff No.1 has illicit relationship with her own brother and it is because of the said reason, she has been residing with him and has deserted him. He also contended that in the Christian community, the marriage is a contract and when there is a breach by the first plaintiff, the contract stand terminated and there is no liability on his part to pay any maintenance to the plaintiff. He also claims that there is no provision under any law applicable to the persons of Christian community to pay the maintenance and in the circumstances, sought for the dismissal of the suit.
4. The Trial Court has framed the following issues:
1. Whether the Plaintiffs prove that they have been refused and neglected by the defendant?
2. Whether they further prove that they are unable to maintain themselves?
3. Whether the Plaintiff further proves that the defendant has sufficient means to maintain them?
4. Whether the suit is not maintainable under law?
5. Whether the Plaintiffs are entitled for maintenance?
6. What order or Decree? Additional Issues:
1. Whether the Plaintiff’s make out a ‘Legal Right’ to claim maintenance.
2. Whether the 1st Plaintiff being a Christian wife entitled for maintenance?
Thereafter, the wife was examined as PW.1 and in her evidence, got marked the documents Exs. P.1 to P.7. The husband examined himself as DW.1 and got marked the documents Exs. D.1 and D.2 The Trial Court on appreciation of the material on record, held that there was refusal and neglect on the part of the husband and despite the fact that there is no provision in law for Christian community to pay the maintenance, held that in common law, the plaintiffs can claim the maintenance and considering the salary of the defendant and the requirement of the Plaintiff Nos. 1 and 3, granted maintenance of Rs.1,500/- each to the wife and the 3rd plaintiff i.e., the daughter. Aggrieved by the Judgment and decree, the defendant app
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