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1990 Supreme(Ori) 454
IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
MANIKYA DEVI - APPELLANT
Versus
PABITRA SWAISINGH - RESPONDENT
First Appeal No. 267 of 1986
Decided On : 03-01-1990
G. Panda and S. Panda, for the Appellant; Manoj Mishra, R.P. Mohapatra, B. Senapati, B. Rath and S.N. Mohapatra, for the Respondent
A Christian wife has a right to be maintained by her Christian husband, which is a part of the right and obligation of marriage, and that no custom is required to be pleaded or proved in support of the same.
Headnote:
MAINTENANCE - CHRISTIAN MARRIAGE - INDIAN CHRISTIAN MARRIAGE ACT, 1872 - SECTION 9 - MAINTENANCE RIGHT OF CHRISTIAN WIFE - CUSTOM NOT REQUIRED - MAINTENANCE CAN BE GRANTED BY CIVIL COURT - ARREAR MAINTENANCE NOT GRANTED IF CRIMINAL COURT ORDER EXISTS - PENDENTE LITE AND FUTURE MAINTENANCE GRANTED FROM DATE OF FILING SUIT.
Fact of the Case:
Plaintiff, a Christian woman, filed a suit for maintenance, both arrear and pendente lite, and for the return of ornaments and dowry. Defendant, also a Christian, denied the marriage and claimed that plaintiff was a concubine. Trial court dismissed the suit, holding that maintenance is a statutory right under the Indian Divorce Act and not a civil right enforceable independently.
Finding of the Court:
The court found that the plaintiff had converted to Christianity and that the parties were married under the Indian Christian Marriage Act, 1872. It held that a Christian wife has a right to be maintained by her Christian husband, which is a part of the right and obligation of marriage, and that no custom is required to be pleaded or proved in support of the same.
Issues: 1. Whether plaintiff converted to Christianity and adopted Christianity? 2. Whether parties were married? 3. Whether a Christian wife has a right to be maintained by her Christian husband? 4. Whether plaintiff is entitled to arrear and pendente lite maintenance?
Ratio Decidendi: 1. Conversion to Christianity was proved by the testimony of the Pastor of the Church who converted and accepted her as Christian. 2. Marriage was presumed from the entries in the Marriage Register and Certificate of marriage, which were statutory documents, and the corroborative fact that the parties were residing as husband and wife in defendant's house for a long time and were accepted as such by family members. 3. A Christian wife has a right to be maintained by her Christian husband, which is a part of the right and obligation of marriage. No custom is required to be pleaded or proved in support of the same. 4. Since plaintiff had obtained an order from Criminal Court, arrear maintenance was not granted. However, she was entitled to pendente lite and future maintenance from the date of filing of the suit.
Final Decision: First Appeal allowed in part with costs.
JUDGMENT :
S.C. Mohapatra, J. - Unsuccessful plaintiff is the appellant. Her suit is for maintenance both arrear, pendente lite and future and for return of the ornaments and dowry which has been dismissed.
Short case of the plaintiff is that she and defendant are Christians and they were married in the year 1974. As she protested against the illicit relationship of the defendant with another lady, defendant assaulted her and drove her away from his house. He has taken away the ornaments belonging to the plaintiff.
2. Case of the defendant is that there is no marriage as alleged and the allegation that he drove her away is not correct. Taking of dowry or taking away the ornaments is also denied. Defendant asserted that plaintiff was a coolie under him. She is Hindu. She, however, remained with defendant for a long time before going away from his house. Suit is challenged to be not maintainable in view of an order u/s 125, Cr.P.C. in favour of plaintiff and in view of the fact that conditions of permanent alimony under Indian Divorce Act are not satisfied.
3. Trial Court settled five issues. Plaintiff examined six witnesses and exhibited documents which were marked as Exts. 1 to 12 series. Defendant examined two witnesses and has proved 1.2 documents marked as Exts. A to L. Trial Court answered the issue relating to the relationship in favour of the plaintiff, but answered the issue relating maintainability of the suit in favour of the defendant. Other issues were not answered and the suit was dismissed. Hence this appeal.
4. Plaintiff's suit is a composite one for maintenance as well as for return of ornaments and dowry. Trial Court could not have dismissed the suit for return of ornaments and dowry. It ought to have answered the issue on the basis of evidence adduced. Accordingly, the judgment of the trial Court is vulnerable. However, evidence having been recorded, I considered all issues on merits.
5. There is no dispute that defendant is a Christian and plaintiff as a Hindu girl had continuous cohabitation with defendant residing in his house for a long period. Plaintiff's case is that during such continuance of relationship, she adopted Christianity and thereafter parties were married. Defendant has challenged both the facts. In case conversion to Christianity is disbelieved, marriage as Christian would also be found against the plaintiff and his case of marriage when fails, she will be a concubine. A discarded concubine has no civil right to be maintained by her paramour. Accordingly, suit to that extent must fail. Therefore, the first question to be considered is whether plaintiff converted and adopted Christianity ? PW 2 is the Pastor of the Church who converted and accepted her as Christian. Although some principles to be followed for conversion were cited, no material has been brought to record to prove that non-compliance of some such principles would vitiate the conversion. Accordingly, in the facts of this case, I have no hesitation to find that before the alleged marriage, plaintiff adopted Christianity.
6. Next important question is whether parties were married. Besides, plaintiff as PW 1 and her father as PW 5, a cousin of defendant as PW 6 speak about the marriage. Pastor of the Church (PW 2) who conducted the marriage has also asserted on oath that parties were married on 1-1-1974. PW 2 has been licensed u/s 9 of the Indian Christian Marriage Act, 1872 to grant certificates of marriage between Indian Christians. He has issued the marriage certificate making entries in the marriage register maintained under the Act. Marriage Register is a statutory document. Certificate is also a statutory document. Requirements of such entry and the certificate have been proved by PW 2. Accordingly, marriage is to be presumed to have been performed. It is a rebuttable presumption. However, effect of disbelieving being non-acceptance of relationship, Court would require strict proof from the person who rebuts the entry in the Registe
