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2003 Supreme(Mad) 985
High Court of Kerala
THE HONOURABLE CHIEF JUSTICE MR. JAWAHAR LAL GUPTA, THE HONOURABLE MR. JUSTICE S. SANKARASUBBAN, THE HONOURABLE MR. JUSTICE K.A. MOHAMED SHAFI, THE HONOURABLE MR. JUSTICE M. RAMACHANDRAN & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH
Mathew Varghese
Versus
Rosamma Varghese
A.S.No.167 of 1992 and C.R.P. No.3287 of 2001
Decided on : 09-07-2003
Mr. K.B. Gangesh, Advocate for Appellant in A.S.No. 167/92; Mr. Roy Chacko, Advocate for Revision Petitioner in C.R.P.3287/01. Mr. O.V. Radhakrishnan, Advocate for Respondent Nos.1 to 3 in A.S.No. 167/92; M/s. K.M. Joseph, Thottathil, B. Radhakrishnan, V. Giri, Dr. Sebastian Ghampappilly and Sathyashree Priya as Amicus Curiae .
A Christian father is under a legal obligation to maintain his minor child, as recognized by the principles of justice, equity, and good conscience, the provisions of the Indian Divorce Act, the Travancore Special Marriage and Succession Act, the Kerala Children Act, and the United Nations Convention on the Rights of the Child.
Headnote:
Christian Father's Obligation to Maintain Minor Child - Subject to Act, Section Referred and Discussed by the Court - Key Legal Provisions, Interpretations, and Their Influence on the Court's Decision - Legal Framework Applied by the Court in Reaching Its Decision.
Fact of the Case:
A Christian father, Mr. Mathew Varghese, contested a suit filed by his wife, Ms. Rosamma, seeking maintenance for their minor son, Mathew alias Tishan. The trial court found the father liable to pay maintenance, but the High Court reversed this decision, relying on earlier precedents holding that a Christian father has no legal obligation to maintain his minor child. The matter was referred to a Full Bench of the High Court for reconsideration.
Finding of the Court:
The Full Bench overruled the earlier precedents and held that a Christian father is under a legal obligation to maintain his minor child. The court considered various arguments and authorities, including the principles of justice, equity, and good conscience, the provisions of the Indian Divorce Act, the Travancore Special Marriage and Succession Act, the Kerala Children Act, and the United Nations Convention on the Rights of the Child. The court also noted that the earlier precedents had been influenced by the English common law, which does not impose a legal obligation on fathers to maintain their illegitimate children.
Issues: 1. Whether a Christian father is under an obligation to maintain his minor child? 2. Whether the earlier precedents holding that a Christian father has no legal obligation to maintain his minor child are correct?
Ratio Decidendi: The court held that a Christian father is under a legal obligation to maintain his minor child based on the following reasoning: * The right to life guaranteed under Article 21 of the Indian Constitution includes the right to be maintained and the duty of the parent to do so. * The scriptures and statutes of various religions, including Christianity, recognize the right of the child to be maintained and the duty of the parent to provide maintenance. * The principles of justice, equity, and good conscience, as well as the provisions of the Indian Divorce Act, the Travancore Special Marriage and Succession Act, the Kerala Children Act, and the United Nations Convention on the Rights of the Child, all recognize the right of the child to be maintained and the duty of the parent to provide maintenance. * The earlier precedents holding that a Christian father has no legal obligation to maintain his minor child were based on the English common law, which does not impose a legal obligation on fathers to maintain their illegitimate children. However, the court found that these precedents were not in line with the principles of justice, equity, and good conscience, the provisions of the Indian statutes, and the international conventions.
Final Decision: The Full Bench of the High Court overruled the earlier precedents and held that a Christian father is under a legal obligation to maintain his minor child. The appeal and the revision petition were remanded for decision on merits.
Jawahar Lal Gupta, C.J.
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 Pillai’s 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. Thefacts 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. Ona 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.
