VARKEY Vs. THRESIA

JUDGEMENT

(1.) "The first defendant in O. S. No. 18 of 1123 on the file of the District Court of Parur against whom a decree for past and future maintenance has been passed in favour of his wife, the first plaintiff, and one of his daughters, the second plaintiff, appeals, and the main question for consideration is whether a Christian wife (Syrian Roman Catholic) is entitled to separate maintenance from her husband. So far as the decree granted to the daughter, second plaintiff, is concerned, learned counsel for her in this court does not support the decree of the court below in view of the decision of this court in 1952 K. L. T. 595. The question is important as affecting the entire community and the only precedent appears to be the one in 24 T. L. J. 281. We consider that the case is an important one and that there should be an authoritative decision of a Full bench of this court on the point. We, therefore, refer the case to a Full Bench for disposal. P. K. Subramonia Iyer, J. M. S. Menon, J. " The first plaintiff is the second wife of the first defendant. Second plaintiff and third defendant are their children. The second defendant is the son of the first defendant by his first wife. The first defendant and the first plaintiff were living in the house in plaint item No. 2 with their children. The first defendant had executed a will bequeathing this property to the plaintiffs and the third defendant. It was alleged in the plaint that at the instigation of the second defendant and acting under the influence of liquor the first defendant began to ill-treat the first plaintiff and that in Makaram 1120 he assaulted her and drove her away from the house. Soon afterwards, the third defendant also was sent away from the house and the house was dismantled by the first defendant. The plaintiffs and the third defendant went and lived in the first plaintiff's father's house and they were being maintained by her relations. Form the plaint schedule items which belong to the first defendant he is getting an annual income of not less than Rs. 1,000/ -. Plaintiffs are entitled to get at least Rs. 175/- per annum for their maintenance from the first defendant. Arrears of maintenance from Makaram 1120 and future maintenance at that rate were claimed in the suit. There was also a prayer to have the maintenance made a charge on the plaint schedule properties. It was further alleged in the plaint that Rs. 200/- and movables worth Rs. 447/- belonging to the first plaintiff were kept in the house in plaint item no. 2 and that they were misappropriated by defendants 1 and 2. The money and the value of the movables were claimed from defendants 1 and 2.

(2.) ALL the three defendants filed separate written statements in the case. The first defendant denied the allegation in the plaint that he ill-treated and assaulted the first plaintiff and drove her away from his house. He contended that the plaintiffs deserted him without any justifiable cause at the instigation of the first plaintiff's brother. The house in item No. 2 was not dismantled by him. It got dilapidated as it was left unoccupied. He was not bound to maintain the plaintiffs since they went away from his house without any valid reason and he is prepared to maintain them according to his means if they return and live with him. The income from the plaint schedule properties will not exceed Rs. 200/- a year and the claim for Rs. 175/- per annum as maintenance is, in any case, excessive. The allegation in the plaint that the first plaintiff had kept Rs. 200/- in the house in plaint item No. 2 was denied. The movables that belonged to the first plaintiff were taken away by her when she left the house. In the written statement filed by the second defendant he supported the first defendant and denied liability for any of the amounts claimed in the plaint. The third defendant supported the plaintiffs. She was married but is now a widow. She contended that she was entitled to get her Streedhanam charged on the plaint schedule properties. She had no objection to a decree being given to the plaintiffs for maintenance charged on the plaint schedule properties subject to her right to Streedhanam.

(3.) IT was not contended by the first defendant in his written statement that he was not bound to maintain his wife. His only contention was that the plaintiffs went away fro his house without any valid reason and that he was not liable to maintain them so long as they refused to live with him. This is what is stated in paragraph 12 of the written statement: Ground No. 6 in the memorandum of appeal relating to this point is to the following effect: "the lower court ought to have found that the personal law of the parties does not allow the wife to claim separate maintenance where she has refused to live with the husband". IT would appear from this that even at the time of filing the appeal the first defendant had no case that he is not bound to maintain his wife in any event and that his only contention was that he was not liable to maintain her so long as she refused to live with him. IT was only at the time of arguing the appeal that the appellant took up the position that according to the personal law of the parties the husband is not legally bound to maintain his wife.