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Kusum Krishnaji Panse Vs. Krishnaji Anant Panse - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 152 of 1936
Judge
Reported inAIR1939Bom271; (1939)41BOMLR445
AppellantKusum Krishnaji Panse
RespondentKrishnaji Anant Panse
Excerpt:
.....by their protectors in a state of dependence ;even in lawful and innocent recreations, being too much addicted to them, they must be kept by their protectors, under their own dominion. the question is not one of motives, for however laudable the object of the maternal grandfather may be in retaining the custody of his grandchildren, assuming that his action is prompted by affection towards them, the right to claim maintenance against the father is dependent on the discharge of the filial duty of obedience and love which the shastras enjoin. in this case we are satisfied,-and we do not wish to make any distinction between the daughter who is suijuris and the other daughters who are not in regard to their claim,-that the foundation of the right which is based on their relationship is..........to maintain his daughters, under hindu law there is an independent right in the daughters to claim maintenance from the person in possession of the ancestral property, whether he be the father or other relative, and that such a right in the income of ancestral property is a proprietary right not qualified by any terms as to obedience to the person in possession or to the accepting of his tutelege and protection. the claim to marriage expenses is also based upon that footing.8. it will be convenient to deal separately with the claim for maintenance out of the ancestral property in the hands of the father from that for marriage expenses. it is pointed out that an unmarried daughter had, according to the ancient texts, a right to a share in the, joint family property, particularly on.....
Judgment:

Wassoodew, J.

1. This is an appeal from the decree of the First Class Subordinate Judge of Satara in a suit instituted by the three minor daughters of the defendant Krishnaji, through their next friend their maternal grandfather Shankar, to recover from him maintenance at the rate of Rs. 45 per month till their marriage, Rs. 945 for arrears of maintenance since February 13, 1933, till the date of suit, Rs. 2,000 for marriage expenses, and Rs. 2,550 or ornaments of, equal value left by their deceased mother in the possession of the defendant. The latter has met the claim with the plea that he was deprived of the company and custody of his children by their maternal grandfather, that notwithstanding his continuous eagerness and willingness to maintain and bring them up and educate them, the plaintiffs were kept away from him during the lifetime of their mother and since her death, and that in consequence he is not liable to pay the sums claimed, particularly when they have been living separately from him and not under his protection. The defendant expressly denied the allegations of cruelty and desertion of his deceased wife, and contended inter alias that the suit through the maternal grandfather as next friend was incompetent, and was not maintainable until a suitable and proper guardian were appointed under the Guardians and Wards Act (VIII of 1890). With regard to the claim for ornaments or their value, it was stated that all the ornaments of the deceased mother of the plaintiffs were taken away by her to her father's house, and that the defendant had no ornaments with him. The defendant's contentions were upheld by the trial Judge, and although he did not frame any specific issue on the question as to whether the defendant was in possession of his deceased wife's ornaments, he decided the point against the plaintiffs. Accordingly the plaintiffs' suit was dismissed, the learned trial Judge directing that the costs should be borne by the next friend personally. Against that decree the plaintiffs have filed this appeal.

2. It may be noted that since the filing of this appeal one of the plaintiffs, namely, plaintiff No. 1, has become a major, and she has elected to continue the appeal.

3. Before proceeding with the discussion of the principal contentions raised, it will be convenient to briefly recapitulate the facts precipitating this action. The parties are Brahmins and possess property in Was in the Satara District. The defendant is a school teacher in the Panchgani High School on a monthly salary of Rs. 60.For some time the next friend of the minors has been living in Poona with his family and his granddaughters, the plaintiffs, are now living with him. The plaintiffs' mother Sonu was married to the defendant in 1918. That was his fourth marriage. At that time his first wife Radhabai was alive, the second and third wives having died soon after their marriages. The reason for taking three wives in succession during the lifetime of the first has been attributed to the desire to get children, the first and the next two wives having failed to beget them. The fourth was fortunate in giving birth to three daughters who are the plaintiffs, and one son by name Anant. On May 21, 1933, Sonu died of pernicious anaemia at Poona in her father's house. The defendant was then in Panchgani and did not attend the funeral. It seems that although the relations between the husband and wife and also the latter parents were cordial till about February, 1933, those relations were estranged since then on account of a discourteous letter written by the father-in-law to the defendant on February 7, 1933, (exhibit 87). That letter contained a demand of the expenses for maintenance and sickness of Sonu while she was living with her parents, which the defendant did not arrange to provide for. That letter invited a retort in reply on February 13, 1933, which bears traces of deep resentment (exhibit 88). The portion of that letter which is relevant for the present purpose is as follows :

I cannot send you anything and I am not prepared to take away your daughter, i.e., my wife, and children till they have not improved their conduct and till your relation is not severed. You have incurred no expense for my wife and children. The expenses are incurred out of the ornaments taken from us and from the amounts taken from me from time to time for several reasons.

4. Within three months thereafter the wife died, and this suit was instituted on July 15, 1933, in form pauperis and registered after enquiry into the plaintiffs' pauperism on September 10, 1934.

5. There is no satisfactory evidence to suggest that the defendant was cruel to his wife or children, and except for some occasional domestic differences of opinion and a little sternness, there is no reason to hold that there was want of ordinary kindness and affection towards his relations. Nor is any attempt made by the plaintiffs' advocate to justify the allegations in that respect in the plaint. It is sufficient to say that we accept the conclusion of the lower Court on the point. At the same time we are not satisfied that the next friend is animated by any other motive than the protection of the interests of his deceased daughter's children. Perhaps this action was precipitated on account of the tone of the defendant's letter of February 13, 1933, (exhibit 88), but there is nothing to suggest that the next friend is attempting to profit himself by this action. It may also be noted that no argument has been addressed to establish that there is any irregularity in the filing of the suit in the absence of a guardian appointed under the Guardians and Wards Act. All that is suggested is that in the exercise of judicial discretion which, we recognize, is very wide, in the protection of the interests of the minors, the lower Court should have appointed, or at least we should appoint, in this appeal, some other proper guardian to watch the interests of the minor plaintiffs before hearing their claim. Now in the lower Court no attempt was made to prove the unfitness of the next friend ; nor were any steps taken for his removal under Order XXXII, Rule 9, of the Civil Procedure Code. And we do not think that the minors' interests could be better protected by the appointment of any other next friend.

6. The principal controversy in this appeal is with regard to the liability of a Hindu father for providing maintenance and marriage expenses of his daughters, when they are taken away from his care and custody and brought up by their maternal grandfather against the father's will. It has been made perfectly clear on behalf of the respondent-defendant that he was at all times willing and ready, since the death of his wife Sonu, to do his legal and natural duty towards his children in a proper and satisfactory manner. The Hindu Law is not an exception to the other systems of jurisprudence in regard to the duty of a father to support such of his minor children as are incapable of supporting themselves. That duty has been enjoined by the Shasta's and in that connection I might refer to the following texts of Manu-(See The Laws of Manu by G. Buhler, Volume XXV, Chapter XI, paragraphs 9 and 10, page 432) :

(If) an opulent man (is) liberal towards strangers, while his family lives in distress, that counterfeit virtue will first make him taste the sweets (of fame, but afterwards) make him swallow the poison (of punishment in hell).

If (a man) does anything for the sake of his happiness in another world, to the detriment of those whom he is bound to maintain, that produces evil results for him, both while he lives and when he is dead.

7. The texts have been elaborately explained in Sasvitribai v. Luxmibm and Sadasiv Ganoba I.L.R. (1878) 2 Bom. 573 the important being the text of Manu cited in the Mitak-shara to the following effect :-'The aged parents, a virtuous wife and an infant son, must be maintained'.-(See Manu, Chapter IX, placitum 74 ; and 3 Digest, Book V, Chapter VI). According to the texts the obligation is the consequence of parentage, that is, arising from the relationship of child and parent, and therefore independent of the possession of property, and upon authority, is legally enforceable against a parent who is unwilling to discharge his natural duty. The question is whether the legal duty is conditional on the child obeying the parent in all respects and its readiness and willingness to live under the father's protection. The view pressed on behalf of the appellants is that, apart from the personal obligation of the father to maintain his daughters, under Hindu law there is an independent right in the daughters to claim maintenance from the person in possession of the ancestral property, whether he be the father or other relative, and that such a right in the income of ancestral property is a proprietary right not qualified by any terms as to obedience to the person in possession or to the accepting of his tutelege and protection. The claim to marriage expenses is also based upon that footing.

8. It will be convenient to deal separately with the claim for maintenance out of the ancestral property in the hands of the father from that for marriage expenses. It is pointed out that an unmarried daughter had, according to the ancient texts, a right to a share in the, joint family property, particularly on partition of that property, and that that right has now been whittled down to a mere right to maintenance and marriage expenses against all persons inheriting the said property. It has been conceded that an unmarried daughter has no right to demand partition against the father or his coparceners. But it is urged that the absence of such a right does not negative a proprietary interest in the property limited to the claim to maintenance and marriage expenses. In that connection it will be interesting to refer to the Mitakshara, Chapter I, Section VII, Verse 14 (Stokes Hindu Law, p. 401) :

Therefore, after the decease of the father, an unmarried daughter participates in the inheritance. But, before his demise, she obtains that only, whatever it be, which her father gives ; since there is no special precept respecting this case. Thus all is unexceptionable.

9. That verse destroys the daughter's claim to maintenance and marriage expenses out of the property in the hands of the father either self-acquired or ancestral. The case of Vaikuntam Ammangar v. Kallapiran Ayyangar I.L.R. (1900) Mad. 512 has been referred to in support of the view that the claim to maintenance and marriage expenses of daughters in a family is a charge on the family property. That was a case where a daughter of a deceased undivided brother was married by the latter's widow, and she claimed the expenses incurred for that marriage. It was held that the surviving brother was liable for those expenses out of the funds of the joint family property in his hands. In that case no claim was made against the father. The case of Gangu v, Chandrabhagabm I.L.R. (1907) Bom 275 : 10 Bom. L.R. 149, to which we were referred, was one relating to unmarried daughters of disqualified persons. But there are observations in Bai Mongol v. Bai Rukhmini I.L.R. (1898) 23 Bom. 291, which support the view that daughters are entitled to maintenance until they are married. Mr. Justice Ranade there referred to certain texts dealing with the rights of unmarried daughters, particularly those from the Mitakshara (Stokes' Hindu Law, p. 457), and the Vyavahara Mayu-kha (Stokes' Translation, p. 109), and he concluded as follows (p. 295):

.it is only the unmarried daughters who have a legal claim for maintenance.

10. It is true that the question of the right to maintenance of an unmarried daughter did not directly arise in the case, for the Court was dealing with the case of a widowed daughter's claim on the estate left by her father in the hands of her brother. But the Court examined the texts to see if the right of the unmarried daughter could be extended to widowed daughters, and therefore considered what the former's rights were. It is clear from that case that the unmarried daughter's maintenance is an obligation of the father which is legally enforceable against him. The majority of the Judges in Subbayya V. Anmia Ramayya I.L.R. (1928) Mad. 84 based the right of the daughter to her marriage expenses and maintenance on her right to or interest in the joint family property, and not on the natural obligation of a father to maintain his children. In that case a suit for partition was instituted against the father and the step-brother, and the father claimed a provision for the marriage expenses of his daughters. The son suing for partition contended that he or his share in the family property was not liable therefor, after the disruption of the coparceners. It was held that the obligation of the family property was not affected by a partition between the father and his sons ; but that the son's share, on partition, was liable for the marriage expenses of the daughter of the father in proportion to the son's share in the property divided. It is difficult to say whether that view would be in consonance with the practice prevailing in this Presidency, and we are not referred to any authority following that view. Ramesam J. goes so far as to say, upon an examination of the historical evolution of the daughter's right, that she can claim for the purpose of her marriage expenses and maintenance a share in the joint family funds even during the lifetime of the father and upon allotment of the latter's share to him.

11. It has been argued that like maintenance the father's obligation extends to the making of provision for marriage of his daughter, independently of the possession of the joint family property, and that that obligation is legally enforceable. In my view the obligation to marry a daughter is essentially a religious obligation. It cannot be denied that according to the Shastras marriage is a 'samskma'-See Sundrabai v. Shivnmayana I.L.R. (1907) 32 Bom. 81 : 9 Bom. L.R. 1366. Perhaps in order to prevent undesirable unions the Shastras ordained the early marriages of daughters before they attained puberty. 'To a distinguished, handsome suitor (of) equal (caste) should (a father) give his daughter in accordance with the prescribed rule, though she has not attained (the proper age)'. (Sacred Books of the East, Volume XXV, 'The Laws of Manu' by G. Buhler, Chapter IX, paragraph 88, p. 343.) Ordinarily the expenses of marriages of daughters of male members of the family are provided out of the joint family funds and the manager is protected in incurring expenses on that account-See Chhotiram V. Narayandas I.L.R. (1887) 11 Bom. 605. The question is whether the daughter can enforce her right against the father personally or against the ancestral property in his hands.

12. There is no doubt, as I have said, that the right of an unmarried daughter to be maintained by her father is independent of the possession of property. But that cannot be said of the daughter's right to be married. The Madras High Court in Subbayya v. Ananta Ramayya has held that the father's obligation to make provision for the marriage of his daughter arises, apart from his relationship, from the possession of ancestral or joint family property. In that case the claim was not directly against the father, but against the brother who had sued for partition. The right to claim marriage expenses from ancestral property is based upon the following verse in the Mitakshara, Chapter I, Section VII, paragraph 5 (Stokes' Hindu Law, p. 398). It says :

In regard to unmarried sisters, they should be disposed of in marriage, giving them as an allotment, the fourth part of a brother's own share.

13. But that rule, assuming it is not obsolete, does not expressly say that the division should take place during the lifetime of the father; for, it obviously applies to the case of a division between a sister and a brother. And moreover it is inconsistent with the more specific rule contained in paragraph 14 of the same section referred to above. The underlying supposition is that there is no right to claim anything during the father's lifetime. Therefore no claim can be enforced against his wishes for marriage expenses. The reference to the father's duty to marry the daughter constitutes an injunction of the religion, and I doubt whether it would create a corresponding right which could be enforced against him or his property during his lifetime. The case of Simdmi Ammal v. Subramania Ayyar I.L.R. (1902) Mad. 505 is an authority for the view that the father is not under an obligation to marry his daughter. There is undoubtedly a distinction between an unmarried daughter's claim to be married against the father and his estate and that against a person in whose hands that estate has descended after the father's death. Accordingly it has been held that the marriage expense of a sister is a necessary charge on the joint estate-See Jairam v. Nathu I.L.R. (1906) 31 Bom. 54 : 8 Bom. L.R. 632. But there is no authority showing that during the father's lifetime a daughter can succeed in securing provision for her marriage expenses from the father either out of his personal property or the ancestral property in his sole possession. And in my opinion it would make no difference to the legal position if the father possesses two classes of property, provided he is the sole owner thereof.

14. From the examination of the texts and judicial decisions the following propositions emerge. It is the natural and legal duty of the father to maintain his unmarried daughters independently of the possession of any property, and after his death the daughter becomes entitled to be maintained out of his estate in the hands of his heirs. That right extends to the joint family property in the hands of the surviving coparceners after the father's death. In regard to marriage a father is bound in the discharge of his moral duty to marry hi6 daughter, and that obligation is independent of the possession of any property. The right of the daughter to claim provision for marriage expenses can be enforced against the father's heirs in possession of his estate and against the joint family property in the hands of the surviving coparceners.

15. But the question we have to decide is whether the unmarried daughter can enforce either obligation after revolting against the father and refusing to live under his protection. That has not been a matter of judicial decision. But there is ample textual authority dealing with the mutual obligations and duties of the parent and child. I have already referred to the duties of a parent towards his child. In Chapter II, paragraphs 145 to 148 and 225 to 237, Manu has laid down the following duties which children must observe towards their parents-(See The Laws of Manu by G. Buhler, Volume XXV) :

The teacher is ten times more venerable than a sub-teacher, the father a hundred times more than the teacher....

The teacher, the father, the mother and an elder brother must not be treated with disrespect, especially by a Brahmana, though one be grievously offended (by them).

.the father is the image of Prajapati (the lord of created beings).

Let him always do what is agreeable to those (two-father and mother) and always (what may please) his teacher; when those three are pleased, he obtains all (those rewards which) austerities (yield).

All duties have been fulfilled by him who honours those three.

By (honouring) these three all that ought to be done by man, is accomplished.

16. These injunctions need not be multiplied to emphasize the importance of reverence to the father enjoined by the Shastras. In Colebrooke's Digest of Hindu Law, Volume II, Book IV, Chapter 1, at page 108, there is an interesting reference to the following text from Manu dealing with the dependence of daughters on the parents :

Day and night must women be held by their protectors in a state of dependence ; even in lawful and innocent recreations, being too much addicted to them, they must be kept by their protectors, under their own dominion.

17. There is the text of Narada containing the following :

Through independence, even women bon of noble families would swerve from their duty; hence the lord of created beings has established their perpetual dependence.

18. In regard to the necessity of guarding daughters by the father Manu observes as follows :

The fathers protect them in childhood; the husbands protect them in youth ; their sons protect them in age.

19. Having regard to the reciprocal duties and obligations it is difficult to conceive that the Hindu Shastras contemplated a right in an unmarried daughter to claim maintenance from the father while failing to do her duty towards him. In my opinion it can safely be inferred that the obligation which the Hindu law imposes on the father to maintain his daughter must exist only where the reciprocal duty is observed by the daughter, that is, when she submits to the care and custody of the! father and obeys him in all respects. It cannot be said that that is a rule of unqualified application. There may be cases where it might be the duty of the children to refuse to obey the parent if the latter has been proved to be vicious, corrupt and immoral. The Courts have in consequence of the father's misconduct interfered with his rights to the custody of his children. There may also be cases where a Hindu father may waive his right, in favour of some other person by becoming an ascetic or renouncing the world in all respects. But so long as it is not demonstrated that the father is in some way incompetent to maintain and look after the interests of his children, it is difficult to see how in view of the texts, a Court of law could enforce the claim of a refractory daughter against the father either by executing its decree against his person or property, whether inherited or self-acquired. In Subbayya v. finmta Ramayya the right was not claimed against the father or his property in such circumstances. Nor is there any authority to which our attention has been directed which goes to the length of establishing that a Hindu father, notwithstanding the latter's competence to take care of the daughter and superintend her education, can be compelled to make provision in invitum for her maintenance even if she is kept out of his protection and custody.

20. We agree with the conclusion of the learned trial Judge that the father is not guilty of any misconduct in this case. The solitary instance of threat to the father-in-law contained in exhibit 88 could not be regarded as such misconduct as to deprive him of his natural right to the protection of his children. There is a manifest militant attitude on the part of the plaintiffs nourished by the foolish behaviour of the maternal grandfather who tries to justify the revolt against the father's authority. The question is not one of motives, for however laudable the object of the maternal grandfather may be in retaining the custody of his grandchildren, assuming that his action is prompted by affection towards them, the right to claim maintenance against the father is dependent on the discharge of the filial duty of obedience and love which the Shastras enjoin. In dealing with the question of the daughters' claim against the father, when their entire subjection to his authority is borne in mind, it is easy to refute the claim upon proof of their hostility towards him. Therefore I am inclined to hold that the enforcement of the right which an unmarried daughter in the family has, to be maintained and married by her parents independently of the possession of any property, can be conditioned only upon the readiness and willingness to surrender herself to the protection of the father, and that if the latter then fails to discharge his obligation, there may be a proper cause of action for enforcing that right by a decree of the Court. In this case we are satisfied,-and we do not wish to make any distinction between the daughter who is suijuris and the other daughters who are not in regard to their claim,-that the foundation of the right which is based on their relationship is weakened by the daughters' own conduct in refusing to live with the father and preferring the custody and protection of their maternal grandfather. Therefore their claim in respect to maintenance and marriage expenses cannot be allowed. We accordingly maintain the decree of the lower Court in that respect.

21. With regard to the claim to ornaments, it has been agreed before us that inasmuch as no specific issue was raised and no evidence available led by the plaintiffs, the claim in that respect should be allowed to be withdrawn with leave and left out of consideration in the present suit, particularly because on account of the requirements of the Court-fees Act it has been reduced to a very ludicrous sum in this appeal.

22. As to costs, it must be noted that the next friend was made to bear the costs of the suit personally of both the plaintiffs and the defendant in the exercise of the Court's discretion. That the Court has the power to give such directions if it finds that the suit is not for the benefit of the minor cannot be doubted-(See Geereeballa Dabee v. Ckunder Kant Maokerjee I.L.R. (1885) Cal. 213). In the circumstances of the case however it seems to us that that order savours of vindictiveness. It may be that there was no necessity to precipitate the action, and recourse might have been had to private negotiation. But it cannot be said that the action of the next friend was1 altogether unjustifiable or contrary to the interests of the minors having regard to the past attitude of the defendant. Practically since 1933 the next friend has been maintaining and looking after the interests of the minors and educating them. That action was evidently inspired by natural affection. Although the next friend has not separately appealed against the order of costs he is representing for this appeal the minors as their next friend as he did in the lower Court. The minors themselves have made a grievance in their appeal memorandum against the order of costs, and there is nothing to prevent us from accepting the appeal in that respect. We have not been pointed out any provision in law requiring the next friend in such cases to file a separate appeal. Moreover under the provisions of Order XLI, Rule 33, of the Civil Procedure Code, the powers of the appellate Court are wide enough to permit of interference with the order passed in regard to costs. We think that the ends of justice will be met by our directing the next friend to bear the Court-fees and the plaintiffs' costs both in the lower Court and in this Court personally. The defendant shall bear his own costs throughout.


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