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High Court of Kerala
Jawahar Lal Gupta, S. Sankarasubban, K.A. Mohamed Shafi, M. Ramachandran, Kurian Joseph, JJ.
Mathew Varghese - Appellant
Versus
Rosamma Varghese & Ors - Respondent
A.S. No. 167 of 1992
Decided On : 09-07-2003
Code of Civil Procedure – Indian Divorce Act, 1869 – Section 41 to 44 – Hindu Adoptions and Maintenance Act, 1956 – Section 23(2) – Constitution of India – Article 21 – Travancore Special Marriage and Succession Act, 1119 – Matrimonial Cases Act, 1857 – National Assistance Act, 1948 – Obligation of Father Issue – Is a Christian father under an obligation to maintain his minor child – It was contended by the learned counsel that the obligation of a husband to maintain his wife or that of a father to maintain his child is only moral – It is not founded upon any provision of law – A moral obligation cannot be converted into a legal liability – Learned counsel maintained that in the absence of a positive provision in the Personal Law governing the Christians, the general principles of equity, justice and good conscience could not be invoked – The lacuna, if any, in Personal Law cannot be filled-up by the Courts – It was further contended that the Canon Law, applied by the Ecclesiastical Courts, could not be treated as the Personal Law governing the Christians in India – The provisions cannot be invoked or enforced by the Civil Courts – Held, it had undertaken to pass and enforce laws for the protection and maintenance of children – All the children had to be treated alike irrespective of the faith or religion professed by the parents – The question as posed at the outset is, thus, answered in the affirmative – It is held that a Christian father is under an obligation to maintain his minor son – The Appeal and the Revision petition are remanded for decision on merits – Court have pronounced the order of the Full Bench today – It has been held that a Christian father is under an obligation to maintain his minor child – Court have over-ruled the earlier Full Bench decision in The Commissioner of Income Tax, Kerala v. P.M. Paily Pillai, and the Division Bench judgment in Chacko Daniel v. Daniel Joshua, Mr. Roy Chacko submits that he may be granted leave to appeal to the Supreme Court – Learned counsel for the respondents have no objection – In view of the importance of the issue, the matter has been considered by a Full Bench of this Court – The case raises a substantial question of law – The leave as prayed for is granted – Order Accordingly
This decision articulates a profound interplay between morality and law, emphasizing that moral obligations, particularly a father's duty to maintain his minor child, must be elevated to enforceable legal liabilities, especially for Christian fathers in India.
Moral Duty as the Foundation: The judgment recognizes the parental obligation to care for children as a fundamental moral imperative, rooted in universal human values, scriptures across faiths, and societal norms. It describes this as a "divine sacredness" in parental care, essential for a child's well-being, and warns that neglecting it renders one "worse than an unbeliever" (!) (!) (!) (!) (!) . Morality commands care for the "helpless being" of one's own "flesh and blood," transcending religion or caste (!) (!) (!) .
From Imperfect Moral Obligation to Perfect Legal Duty: It rejects the outdated English common law notion of parental maintenance as a mere "imperfect obligation" (moral but unenforceable). Instead, it holds that morality cannot be dismissed as non-legal; courts must convert it into a "perfect duty" through enforcement, as "a right without a remedy" is untenable (!) (!) (!) (!) (!) . Equity, justice, and good conscience demand this, filling gaps in personal law (!) (!) .
Constitutional and Universal Mandate: Article 21's right to life (dignified existence, not mere survival) overrides any custom or personal law excusing neglect, making non-maintenance unconstitutional and immoral (!) (!) (!) (!) . International conventions reinforce this, obligating states to protect children irrespective of parents' faith (!) (!) .
Legislation and Morality Converge: Law and morality share the "same centre" (maximizing good), though law's scope is narrower. "Whatever is morally wrong should not be legally right," and laws ignoring morality cannot endure. Parental neglect is both immoral and illegal, akin to cruelty prohibited even to animals (!) (!) (!) .
Practical Enforcement: Remedies exist via civil suits (CPC Sections 9, Order 32-A), Divorce Act provisions, and the parens patriae doctrine, where courts act as guardians. Fathers, as natural guardians, bear custodial rights tied to maintenance duties (!) (!) .
In essence, the decision mandates that law actively protect moral duties toward children, overruling prior views treating them as non-justiciable, to ensure no parent—Christian or otherwise—can evade responsibility (!) .
1. Is a Christian father under an obligation to maintain his minor child ? More than three decades back, a Full Bench of this Court had considered this question in The Commissioner of Income Tax, Kerala v. P.M. Paily Pillai , 1972 K.L.T. 24 (F.B.). Following an earlier decision of Division Bench in Chacko Daniel v. Daniel Joshua , 1952 K.L.T. 595, it was held that the duty of the father was an imperfect obligation. It was not an actionable wrong. Thus, it was concluded that there is no legal obligation on the part of the Christian father to maintain his minor child. Accordingly, the question was answered in the negative. The correctness of this view was questioned in these two cases. It was pointed out that discordant notes had been struck after the decision in Paily Pillais case . The issue was referred to a Full Bench. Initially, the matter was listed before a Bench of three Judges. However, in view of the fact that a Full Bench had already considered the matter, the case was placed before this Bench.
2. The facts may be briefly noticed.
3. On April 29, 1979, Ms. Rosamma and Mr. Mathew Varghese were married. After having stayed together for a few days, the wife had left for her place of work in Germany. The husband had visited Germany. On October 13, 1980, a son Mathew alias Tishan was prematurely delivered. In course of time, the relationship between the husband and wife had got strained. Even the paternity of the child appears to have become the cause of conflict between the parties.
4. In the year 1987, Mrs. Rosamma along with her minor son and father (who was described as the next friend of the minor) filed a suit against her husband, Mr. Mathew Varghese. She alleged that at the time of the settlement of marriage, an amount of Rs.25,000 had been paid to the defendant by way of Streedhan. Thereafter, at the marriage, ornaments worth Rs.25,000/- were also given. Subsequently, she had sent cheques for a total of Rs.35,757.81/- ps. to him for being kept in fixed deposit. The defendant had admitted vide his letter dated April 23, 1981 that he had kept Rs.29,399.81/- ps. in the bank and that it would be refunded on dissolution of the marriage. She further claimed that the defendant was bound to support and look after the needs of the minor son. Thus, she made a claim for a total sum of Rs.86,639.00/-. This included a sum of Rs.14,400/- on account of maintenance of the minor child for a period of 36 months preceding the filing of the suit.
5. The defendant contested the suit. It was inter alia alleged that the first plaintiff had illicit relations with many persons. She had not conceived the child from him. Thus, he was under no obligation, legal or moral, to maintain him. He prayed that the suit be dismissed.
6. On a consideration of the pleadings of the parties, the trial Court had framed the following issues:
1. Whether Rs.25,000/- was not received by defendant from 2nd plaintiff for 1st plaintiff?
2. Whether any amount was not transferred from the account of 1st plaintiff in the Bank to the name of defendant and kept by him and misappropriated by him, if so, what is the amount and whether defendant is not liable to return amount to defendant ?
3. Is defendant not liable to support the 3rd minor plaintiff. What is the amount of arrears of maintenance of 3rd plaintiff due to 1st plaintiff?
4. Whether 1st plaintiff is not entitled to get interest claimed at 12 per cent per annum ?
5. Is suit barred by limitation ?
6. Relief and Costs.
7. Issue Nos. 1, 2 and 5 were considered together. Issue No. 1 was found against the plaintiff. Issue Nos. 2 and 5 were decided in her favour. The claim for the amount of Rs.29,399 was held to be within limitation. She was held entitled to recover the amount. Similarly, even Issue No. 4 was decided in her favour. She was held entitled to get the amount of Rs.17,840/- by way of interest on the amount of Rs.29,399 for a period of five years.
8. Regarding Issue No. 3, which was crucial, it
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