DANIEL Vs. JOSHUA

JUDGEMENT

(1.) This is a defendants appeal. His two minor children represented by their mother as next friend brought the action giving rise to this appeal for a declaration that he is liable to maintain them until each of them comes of age and for a decree directing payment of maintenance. In the plaint maintenance at the rate of Rs. 7 1/2 per month was claimed for each plaintiff. The District Munsiff of Pathanamthitta who tried the suit granted the declaration asked for and allowed maintenance at the rate of Rs. 5/- per month. The decision was given on 20.1.1950 and maintenance is made payable from 1.2.1950. The defendant seeks to challenge the correctness of the decree by way of this appeal.

(2.) The parties are Syrian Christians belonging to Travancore. The defendant entered into a marriage alliance with the next friend of the plaintiffs by a registered deed while his lawful wife was alive. It would appear that woman is still alive. The defendant admitted the paternity of the children and that he was not maintaining them. They were not living with him or under his protection. For some years now the parents had fallen out. The defendants answer to the suit was that he had no legal responsibility to maintain the plaintiffs and that the court could not give the declaration asked for or pass a decree for maintenance. The lower court made short work of his contention by stating that he (the defendant) is bound in law and in equity to maintain the minor plaintiffs as he has not made out any lawful grounds for not maintaining them. The judgment does not discuss the question or refer to any law or authorities in support of the proposition stated in such broad terms.

(3.) As the defendants lawfully wedded wife was alive when he entered into the so called second marriage with the plaintiffs mother, the relationship between the defendant and that woman was one of mere concubinage. The children born of that union are illegitimate. See Viswasam v. Anthoni Nadar 24 TLJ 405 (F.B.) and Mariam v. Varki 9 TLT 861. The personal law relating to Christians in Travancore does not make a father legally liable to maintain his children whether they be legitimate or illegitimate. A view similar to what the learned District Munsiff enunciated in this case is seen set out in a decision of the Calcutta High Court reported in Ghana Kanta Mohanta v. Gereli 1905 ILR 32 Cal. 479. That case related to a claim by an illegitimate child of a Hindu and we shall presently show that view has hardly any foundation. In Trevelayans Law Relating to Minors (Fifth Edition) it is stated at page 209 that in cases which are not governed by either the Hindu or the Mahomedan law, the English law would apparently be applicable. The learned author further states:-