JOY S O IMMATTY CHAKKUNNY Vs. USHA

JUDGEMENT

(1.) The concept of maintenance had a long travel, from the days when Sir Henry Mayne described Hindu marriage or 'relationship between a man and a woman with one end absolutely loose. This was to be abreast with the changing needs and situation. What was anachronistic became suitable to application of the demands of the changing needs. Maintenance for judicial purposes has its own pragmatics having relation to the need and necessity to make provisions for securing reasonable bio economic as well as bio cultural requirements for persons such as shelter, food, garment and health. The need to provide reliefs of maintenance emanate from social ethics and personal economics and this need is sought for both on the moral and secular grounds. Maintenance is a personal obligation and where there is estate, the rights in maintenance could be worked against the estate and there can be charge upon it. It is said in the context of the position of a woman that the social ethos is heavily overloaded against them on counts more than one. Courts have projected considerations relating to the legal right of maintenance, taking into consideration the above aspects, even to the extent of recognising the right of maintenance in regard to a woman whose marriage may not be perhaps legal according to law, but is well recognised by the members of the society as a relationship between a man and a woman, understood to have been a married couple. This was on the basis of a presumption creating a situation that if a man and a woman is understood and recognised as a married couple, this personal obligation on the basis of the above consideration is seen clearly by the Courts to recognise even the legal right of maintenance in favour of a relationship which may perhaps by not a legal marriage. This has been by resort to the provisions of presumptions under S.114 of the Indian Evidence Act, 1872.

(2.) The principles of Hindu Personal Law have developed in an evolutionary way out of the concern for all those subject to it so as to make a fair provision against destitution. The law of maintenance stems out of the secular desire to achieve the social objectives for making bare minimum provision to sustain the members of relative smaller social groups. Although not necessary these principles are referable to certain decisions Rajeshbai v. Shantabai 1981 Mh. L. J. 820 T. P. K. Nateshan v. Achiyayee AIR 1975 Mad. 202 Govindrao v. Anandiba 79 Bombay Law Reporter 73 which were considered and valued subsequently in the judgment in Vaijayantabai, W/o Keru Gatigarde v. Keru Anant Gangarde 1992 (J) Mh. L.J. 417 case, by one of us (myself). This is in regard to the proposition specified hereinbefore.

(3.) It is in the light of the above principles this appeal between the parties who are Christians, in a suit for maintenance, will have to be considered for decision. In this process, because the parties are Christians we will have to keep in mind that there is no specific statutory provision mandating Christians, a Christian father or a Christian husband to maintain his children and his wife. In this context, this Court Scariah Varghese v. Marykutty 1991 (2) KLT 71 , with advantage, observed that the matters not governed by a statute or where there is no accepted customary law, the Judge should be guided by that great principle of justice, equity and good conscience to the effect that with the Indian tradition a citizen is bound to maintain his children which is the tradition of the society in accordance with justice, equity and good conscience, irrespective of the position in English law which are peculiar to the said system.