Skip to content


Motichand Girdharshet Vs. Chandrabai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 29 of 1923
Judge
Reported inAIR1924Bom421; (1924)26BOMLR488
AppellantMotichand Girdharshet
RespondentChandrabai
Excerpt:
hindu law - mayukha--illegitimate sons--maintenance--marriage expenses--regenerate classes.;according to the vyavahara mayukha, among the regenerate classes illegitimate sons are entitled to maintenance. the maintenance allowed to such illegitimate sons does not cease when they come of age. the illegitimate sons are however not entitled to marriage expenses. - .....a proposition has been cited, and it must be taken that the right under hindu law of illegitimate sons to maintenance is a substitute for any right which they might otherwise have had to share in the family property. we do not think therefore that maintenance should cease when plaintiffs nos. 2, 3 and 4 come of aye. however if in future circumstances alter, we give the first defendant liberty to apply at his own expense, if he thinks he can make out a case for reducing the amount of maintenance.4. in the circumstances of the case the appellant must pay the respondents' costs of the appeal and cross-objections.shah, j.5. i agree. i desire to deal with the argument that has been urged on behalf of the appellant that the illegitimate sons of his father girdhar are not entitled to.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is a suit by the plaintiff No. 1 to recover arrears of maintenance and future maintenance for herself and her three sons, and her daughter, and also marriage expenses of plaintiffs Nos. 2, 3 and 4. The first plaintiff was the kept mistress of one Girdhar Madhowji and the other plaintiffs were her children by him. The parties come from Alibag where they are subject to the Vyavahara Mayukha, and it is contended before us that illegitimate children under the Mayukha would not be entitled to any maintenance. However we agree with the decision of the learned Judge that it does not appear from the Mayukha that there is any direct prohibition against illegitimate children in the case of the regenerate castes being entitled to maintenance, and considering the authorities which have been referred to, it would be going too far if we were to lay down that in the Districts, which are governed by the Mayukha, illegitimate sons are not entitled to maintenance.

2. With regard to the quantum of maintenance, we think that as under the will of Girdhar, Chandrabai, plaintiff No. 1, was to be allowed Rs. 100 annually as maintenance, she ought to be allowed that sum now. Therefore we alter the decree of the lower Court by directing that plaintiff No. 1 should get maintenance at Rs. 100 a year. We see no reason to alter the decision of the lower Court with reference to plaintiffs Now. 2, 3 and 4.

3. With regard to marriage expenses allowed by the decree to plaintiffs Nos 2, 3 and 4, no authority has been cited for such an allowance. That must be deleted.

3. It was also contended that in the case of illegitimate sons the maintenance ceased when they came of age. But no authority for such a proposition has been cited, and it must be taken that the right under Hindu law of illegitimate sons to maintenance is a substitute for any right which they might otherwise have had to share in the family property. We do not think therefore that maintenance should cease when plaintiffs Nos. 2, 3 and 4 come of aye. However if in future circumstances alter, we give the first defendant liberty to apply at his own expense, if he thinks he can make out a case for reducing the amount of maintenance.

4. In the circumstances of the case the appellant must pay the respondents' costs of the appeal and cross-objections.

Shah, J.

5. I agree. I desire to deal with the argument that has been urged on behalf of the appellant that the illegitimate sons of his father Girdhar are not entitled to maintenance according to Hindu law. The deceased Girdhar was a Vaishya. So far as the Mitakshara is concerned, it is clear that they would be entitled to a simple maintenance (see Mitakshara, Chapter 1, Section XII, para 3; Stokes' Hindu Law Books, p. 426). The Vyavahara Mayukha is silent on this point. (See Stokes' Hindu Law Books, pp. 55 and 56, Chapter IV, Section IV, para 32 and Mandlik's Hindu Law). It has been argued that the author of the Vyavahara Mayukha does not mean to adopt the view of the author of the Mitakshara. I am unable to accept that contention. It seems to me that the texts of Brihaspati and Gautama mentioned in para 30 of the same section in the Vyavahara Mayukha refer to a son born by a Shudra wife. The subject of dasiputra is dealt with in para 32. It is, therefore, true to say that Nilkantha is silent on the question of the right of the illegitimate sons of a Brahmin, Kshatriaya and Vaishya. It is, however, a recognised rule in this Presidency that so far as it may be reasonably possible the Mitakshara and the Vyavahara Mayukha should be harmonised, when they are not inconsistent with each other. According to this rule it would be fair to hold that Nilkantha accepts Vijnaneshwara's view on this point; or else he would have expressly said so. The reference to this subject in para 32 of Chapter IV, Section IV, is made in such a manner as to indicate that Nilkantha does not mean to dissent from Vijnaneshwara's view on this subject. This view is further confirmed by the fact that Mitra Mishra expressly accepts this view in the Viramitrodaya. (See Golap Chandra Sarkar Sastri's Translation, p. 130, and Vira Mitrodaya, Calcutta edition of 1875, p. 623). It is clear that the view taken in the Mitakshara must be accepted on the point.

6. As regards the argument that the maintenance should be limited to the period of minority, it may be mentioned that there is nothing in the texts bearing on this point in the Mitakshara or in the Vyavahara Mayukha to justify thin limitation.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //