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Bayabai Vs. Esmail Ahmed - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 2053 of 1940
Judge
Reported in(1941)43BOMLR823
AppellantBayabai
RespondentEsmail Ahmed
Excerpt:
.....by her father, and the father married a second wife and became a lunatic, and the daughter claimed separate maintenance allowance:--;that, under the circumstances of the case, she was entitled to such allowance during the life-time of the father till her marriage. - - the statement that in mahomedan law a father is bound to maintain his daughter till marriage, does not necessarily include the contention that the daughter is entitled to stay where she liked and live as she liked, but the father must provide her with maintenance. in my opinion the mahomedan law, like other systems of law, while putting an obligation on the father to maintain his children, gives with it a right to the father to keep the children in his house, unless according to the law governing the parties some..........under an obligation in law to maintain his daughter till her marriage, if the daughter desires to claim separate maintenance i.e. maintenance allowance while she insists on living away from her father, she has to make out the necessary grounds for that. in default, if the father offers to keep her in the house and maintain her there, the daughter has no absolute right to separate maintenance. in my opinion the expression 'absolute right' found in the text books in connection with the daughter's right to maintenance should be read as indicated above and not as giving to the daughter an unrestricted right to live as and where she liked and imposing an obligation on the father to provide separate maintenance for her, even though he may be willing to keep her in the house and maintain her.....
Judgment:

Kania, J.

1. This is a suit filed by a daughter against her father for arrears of maintenance, separate maintenance, and a declaration that the father was liable to pay reasonable expenses which she may have to incur for her marriage.

2. The plaintiff was born at Mandvi (Surat) in 1920. Her mother was divorced by the defendant in December, 1931. On October 5, 1931, the defendant, through his attorneys, wrote to the plaintiff's mother's attorneys threatening to obtain possession of the plaintiff who was alleged to be wrongfully detained by her mother. In that letter the defendant offered to pay Rs. 15 every month, which the plaintiff's mother was asked to receive from the office of the defendant's attorneys, pending the steps which the defendant intended to take to obtain the custody of the plaintiff. No money was received by the plaintiff's mother, but she was thereafter divorced in December, 1931. On August 21, 1940, the plaintiff through her attorneys sent a letter of demand to the defendant claiming separate maintenance at Rs. 40 per month and arrears of maintenance A reminder was sent on September 2, 1940, but the defendant sent no reply. In July, 1940, the present wife of the defendant filed a petition to adjudge the defendant a lunatic, and, as stated in the plaint, the Court-receiver was appointed the Committee on September 6, 1940. Thereafter the plaintiff sent letters of demand to the receiver. In that it was pointed out that the second wife of the defendant had omitted to mention in the petition the plaintiff as a relation and had obtained an order from the Court-about the application of the income of the defendant's property without disclosing that fact. The Court-receiver informed the plaintiff that there was no order for payment to her of separate maintenance or arrears of maintenance. He, however, suggested that the plaintiff might stay with defendant's present wife and the minor son. That suggestion did not appeal to the plaintiff and the present suit was filed in November, 1940.

3. The first contention found in the written statement is that the plaint does not disclose any cause of action. While it is conceded that under Mahomedan law a father is under an obligation to maintain his daughter till marriage, there is no provision for separate maintenance of a daughter. It was further argued that if separate maintenance was claimed the necessary averments to justify the claim should be found in the plaint and it was contended that there were none in this case. It has been repeatedly pointed out that pleadings in India should not be very strictly construed. The plaintiff relied on two facts in support of her claim for separate maintenance: first, that her mother was divorced in 1931 and since then she has been living with her mother, and the other that the defendant had married again and was a lunatic. Under the circumstances it would be unreasonable to expect the plaintiff to stay with her step-mother. A third factor which was pointed out in Court was that the second wife of the defendant was so hostile to the plaintiff that she had even ignored the plaintiff's existence at the time of making the petition to the Court and stating who the relations of the defendant were. The facts that the plaintiff has been living with her mother since 1931, that the defendant had married again and that he was now a lunatic, and that the plaintiff's name was not mentioned in the petition to adjudge the defendant a lunatic are not disputed. As the plaintiff relies on those facts only to establish her right to separate maintenance, I think they are found in the plaint and the annextures thereto. The first issue should therefore be answered in the affirmative.

4. On behalf of the plaintiff it was argued that in all text books on Mahomedan law it is recognised that a father is bound to maintain his daughter till her marriage. It was pointed out that in connection with the maintenance of a wife text books on Mahomedan law discuss the obligation of the wife to stay with her husband, and if separate maintenance was claimed, she must satisfy the conditions under which alone such a claim could be advanced. From those facts it was argued that in the absence of any express provision in the Mahomedan law a father was bound to maintain his daughter till marriage and the daughter's right to separate maintenance is assumed.. There is no reported decision to which my attention has been drawn in which the Court had discussed this question in a civil litigation. I am unable to accept this contention in the wide terms it is advanced. The statement that in Mahomedan law a father is bound to maintain his daughter till marriage, does not necessarily include the contention that the daughter is entitled to stay where she liked and live as she liked, but the father must provide her with maintenance. In my opinion the Mahomedan law, like other systems of law, while putting an obligation on the father to maintain his children, gives with it a right to the father to keep the children in his house, unless according to the law governing the parties some other person is the lawful guardian of the person of the child. Under Mahomedan law it is recognised that till a daughter attains puberty her mother is the natural guardian of the person of the daughter. Emperor v. Ayshabai (1904) 6 Bom. L.R. 536, which has been followed in Allah Rakhi v. Karam llahi (1933) I.L.R. 14 Lah. 770, clearly establishes this point. While therefore a Mahomedan father is under an obligation in law to maintain his daughter till her marriage, if the daughter desires to claim separate maintenance i.e. maintenance allowance while she insists on living away from her father, she has to make out the necessary grounds for that. In default, if the father offers to keep her in the house and maintain her there, the daughter has no absolute right to separate maintenance. In my opinion the expression 'absolute right' found in the text books in connection with the daughter's right to maintenance should be read as indicated above and not as giving to the daughter an unrestricted right to live as and where she liked and imposing an obligation on the father to provide separate maintenance for her, even though he may be willing to keep her in the house and maintain her there. In the present case, having regard to the fact that the plaintiff's mother was divorced in December, 1931, that the plaintiff was not called to live in the defendant's house and has not in fact lived there, coupled with the fact that the deefendant is now a lunatic and the plaintiff if now called upon to stay in the defendant's house will have to live with her step-mother, I think there is sufficient justification for permitting the plaintiff to stay away from the defendant's house at present, and her right under the circumstances to separate maintenance is established. The second issue must therefore be answered in the affirmative under the circumstances of the present case.

5. The plaintiff has claimed arrears of maintenance. On her behalf it was argued that if her right to be maintained is conceded, she is entitled to arrears of maintenance. In my opinion that argument is unsound. When the claim was made in August, 1940, the plaintiff had attained majority. Before that there had been no demand for maintenance on her behalf. The plaintiff's mother did not avail herself of the opportunity to receive Rs. 15 per month offered in the defendant's attorneys' letter of October, 1931. Since then the plaintiff has been maintained by her mother. I do not think these facts permit a claim for arrears of maintenance. If during the minority of the plaintiff someone had supplied necessaries to her, not intending to do so gratuitously, that party may have a claim against the plaintiff. That however is not a claim for arrears of maintenance by the plaintiff. I do not find anything in Mahomedan law to sustain a claim for arrears of maintenance under the circumstances found in the present case. If after the plaintiff attained puberty a claim for maintenance had been made the defendant may have taken steps to obtain possession of the plaintiff as her lawful guardian. The defendant and the plaintiff's mother allowed the plaintiff to remain with the plaintiff's mother without any claim for maintenance being made by the plaintiff or by her mother, while the defendant did not take any steps to recover the custody of the plaintiff. Both sides having left the matters in that way I do not think it can be contended that there was a failure on the part of the defendant to provide maintenance. Without that assumption a decree for arrears is not justified. Under the circumstances I disallow the claim for arrears of maintenance before August, 1940. The third issue is accordingly answered in the negative for all claims prior to August, 1940.

6. In prayer (c) the plaintiff has asked for a declaration that the defendant is liable to pay the plaintiff reasonable expenses as she may have to incur for her marriage. It is not stated in the plaint that there is any near prospect of her marriage. The right of a daughter to obtain marriage expenses from her father rests on Mahomedan law. The right has not been denied in the correspondence. Under the circumstances a declaration, which can only be made under Section 42 of the Specific Relief Act, is not justified. Mr. Vakil appearing on behalf of the defendant has not contended that the plaintiff is not entitled to reasonable provision for her marriage expenses being made by the defendant or out of his property. Under the circumstances I do not think the declaration should be granted. The fourth issue is answered accordingly.

7. As in my opinion the plaintiff is entitled to separate maintenance under the circumstances of the case, it becomes necessary to determine at what rate the same should be allowed. The plaintiff lived with her mother since 1931 and is now about twenty years old. The estate of the defendant is in charge of the Court Receiver at present and the parties are agreed that the net average monthly rent of the properties comes to Rs. 120. There is no other substantial income producing estate belonging to the defendant. Out of this income proper maintenance has also to be provided for the defendant, who is at present a lunatic, his wife, and his minor son aged about thirteen or fourteen years. The defendant, his wife, and the minor son are living together. Having regard to the present condition of the defendant it is certain that some extra expenditure has to be incurred on him. In my opinion, under the circumstances, Rs. 20 per month is a fair rate to be allowed to the plaintiff. I therefore order that the defendant do pay to the plaintiff maintenance at the rate of Rs. 20 per month commencing from August 1, 1940, till the plaintiff's marriage, during the natural life of the defendant. I have fixed August 1, 1940, because the plaintiff sent a letter of demand to the defendant in August in which she has claimed separate maintenance. As in my opinion she is entitled to separate maintenance there has been a failure to pay the same from August, 1940.

8. The plaintiff's out-of-pocket expenses in connection with the suit are stated to be Rs. 300 and on that footing I award the plaintiff Rs. 600 as costs of the suit against the defendant. The Court Receiver's costs, as representing the defendant, are fixed at Rs. 500. The Court Receiver as the Committee of the lunatic defendant is authorised to withdraw from the account of the estate of the defendant sufficient amount to pay the plaintiff's claim for maintenance up to date and her costs as also his own costs.


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