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TMI Blog1955 (3) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire community and the only precedent appears to be the one in - 'Thoma v. Rahel', 24 Trav. L.J. 281. (B). 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 plaintiff 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 def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to her right to streedhanam. 3. The main question that was considered by the court below was whether there was valid reason for the plaintiffs to leave the house of the first defendant and to claim separate maintenance from him. The court found that the first plaintiff was being ill-treated by the first defendant, that the plaintiffs were driven away from the house in plaint item No. 2, and that. Therefore, the plaintiffs were justified in refusing to live with the first defendant. It was accordingly held that the plaintiffs were entitled to claim separate maintenance from the first defendant. The income from the plaint schedule properties was found to be only ₹ 200/- a year and it was held that the first plaintiff was entitled to get maintenance at the rate of ₹ 100/-a year and the second plaintiff at the rate of ₹ 33 1/3 a year. A decree was given for arrears of maintenance at that rate from 15-10-1120 till 31-12-1124 and the first plaintiff was allowed to recover future maintenance at the rate of ₹ 100/- per year from 1-1-1125 till her death or re-marriage. Maintenance was not, however, made a charge on the plaint schedule proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t legally bound to maintain his wife. 6. There is no statute law in the State relating to the question. Of course, under the Code of Criminal Procedure, a wife, to whichever community she may belong, can apply to the Magistrate for an order for maintenance against her husband who, having sufficient means, neglects or refuses to maintain her. The provision in that Code compelling the husband to maintain his wife and children is intended to prevent vagrancy and it has nothing to do with the question whether under the personal law governing the parties the wife has a civil right to claim maintenance from her husband. The Travancore Christian Succession Act does not deal with the question. As to whether under the customary law governing the Christian community the husband is legally bound to maintain his wife was not considered by the court below. In the nature of the contention raised by the first defendant in the case, there was no occasion for the court to go into that question. It is a matter of common knowledge that suits are filled in the courts of the State by Christian wives for maintenance against their husbands and decrees are given in such suits awarding ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate maintenance - 'Surampalli Rangaramma v. Surampalli Brambaze', 31 Mad. 338 (D) and - 'A. Seenayya Reddi v. A. Mangamma', AIR 1927 Mad. 1159 (E). The English Law as to the liability of the husband to maintain the wife and the cessation of her right if she leaves him without his consent in circumstances which do not justify her in living apart, is similar. Then again nothing will justify a Hindu wife in leaving her home except such violence as renders it unsafe for her to continue there or such ill-usage as would be termed cruelty in an English Matrimonial Court, - 'Matangini Dasi v. Jogendra Chunder', 19 Cal. 84 (F). On the question of what is legal cruelty between man and wife, there is not material difference as between the English Law and the Hindu and Muhammedan Law - 'Yamunabai v. Narayan Moreshvar', 1 Bom. 164 (G). It is not suggested that, in case of this kind the customary law of the Syrian Christians is different. The plaintiff has to stand or fall according to the allegation of cruelty and misconduct she had put forward in the plaint. The burden is heavily upon her in the peculiar circumstances of this case. 7. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d...... It seems to us that what the learned author means when he says that the obligation of the husband to maintain his wife was 'rather moral than legal' is that the wife could not bring an action against the husband for her maintenance. This was on account of the peculiar position which the wife occupied in relation to her husband under the English Common Law. Under that Law, the husband and wife are one in person and, therefore, the wife could not sue the husband. 10. The position of married women under the English Common Law is described thus by Blackstone: By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and covet, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it if deserted by him, and so a father cannot be compelled to pay for the necessaries supplied to his child. It is clear from this that so far as the husband's obligation to maintain his wife is concerned it was not a mere moral obligation, but was a legal obligation which could be enforced by indirect action. 11. The question is discussed by Montague Lush in his 'Law of Husband and wife'. The learned author says: One of the first duties which the husband undertakes towards his wife is to maintain and support her, so long as the marriage relation continues and so long as the wife remains faithful to him: though she may divest herself of her right to be maintained and supported by him if she leaves him without his consent. This duty of the husband is one which is, and always has been directly enforced by the Ecclesiastical Courts by a decree of alimony accompanied by a decree, formerly of divorce a mensa at toto, and now of judicial separation, in case the husband refuses to supply his wife with the necessaries of life, which is a recognised form of cruelty entitling the wife to such a decree. As far as the Common Law is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rimonial Causes Act, 1878, and the Married Women (Maintenance in Case of Desertion) Act, 1886, which were replaced by the Summary Jurisdiction (Married Women) Act, 1895. Under the latter Act a married woman whose husband wilfully neglected to provide reasonable maintenance for her or her infant children could apply for relief to the Court of Summary Jurisdiction and the Court could order the husband to pay the wife personally or for her use to any officer of the Court or third person such sum as the Court might consider treasonable having regard to the means of both the husband and wife. With regard to procedure adopted by the Courts of Common Law for enforcing the duty of the husband to maintain his wife the learned author says: The means whereby the Courts of Common Law enforced the duty of a husband to support and maintain his wife are indirect but effective. If he with-holds from her support and maintenance or fails to supply her with necessaries, the law holds him liable to anybody who supplies her with them............ It will be seen that a wife is entitled to pledge her husband's credit for what is necessary to maintain her in health, if he de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of her husband. If she is compelled by his misconduct to procure the necessary articles herself, as for instance if he drives her from his house, or brings improper persons into it, so that no respectable women could live there, according to the decided cases he gives her authority to pledge his credit for her necessary maintenance elsewhere; which means that the law gives that authority toy force or the relation of husband and wife. Platt, B., also observed that the defendant had contracted a relation by his marriage which imposed on him the obligation to maintain his wife. Martin, B., adopted the reasoning of Alderson, B., and said that by contracting the relation of marriage the husband took on himself the duty of supplying his wife with necessaries and that if he did not perform that duty either through his own fault or in consequence of a misfortune like insanity the wife had by reason of that relation authority to procure them herself and the husband was responsible for what was so supplied to her. It will thus be seen that under the Common Law of England the obligation of the husband to maintain his wife is not a mere moral obligation but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s claim for maintenance was not pressed before us in view of the decision of this court in AIR 1953 TC 61 (A). We are, therefore, concerned with the claim of the first plaintiff only. According to the plaintiffs, the first defendant's income from his properties is over ₹ 1,000/- a year, while according to the first defendant it is only ₹ 200/-. In any case, we do not think that ₹ 100/- a year awarded by the Court below as maintenance to the first plaintiff is excessive. We, therefore, confirm that award. The first plaintiff will be entitled to arrears of maintenance from 15-10-1120 and future maintenance from the date of suit at that rate. Arrears of maintenance will carry interest at six per cent per annum. The first plaintiff will be entitled to get maintenance at this rate till her death or re-marriage. The first plaintiff and the first defendant are free to move the Court below for varying the rate of future maintenance if on account of altered circumstances the rate of maintenance becomes either excessive or inadequate. The decree of the Court blow is reversed as regards the award of maintenance and cost, to the second plaintiff. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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