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Philomena Mendoza Vs. Dara Nusserwanji Mistry - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Pauper Petition No. 36 of 1942
Judge
Reported inAIR1943Bom338; (1943)45BOMLR687
AppellantPhilomena Mendoza
RespondentDara Nusserwanji Mistry
Excerpt:
parsi-illegitimate child-maintenance-common law of england.;a parsi, who is governed by the common law of england, is, apart from the statutory liability under section 488 of the criminal procedure code, 1898, under no legal obligation to pay maintenance to his illegitimate child. a civil suit for maintenance by such a child is, therefore, not maintainable. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs..........equity and good conscience which our courts administer are those principles which have been embodied in the common law of england and to which the english courts have given effect. i am not aware of any principles of justice, equity and good conscience which are contrary to or not recognised by the common law of england. if according to the common law of england an illegitimate son is not entitled to claim maintenance from his putative father, it is very difficult for me to hold that, apart from the common law which applies to the respondent in this case, on general principles of justice, equity and good conscience he is liable to pay maintenance to his illegitimate child.8. i would, therefore, refuse to allow the petitioner to sue as a pauper. petition dismissed.
Judgment:

Chagla, J.

1. This is a pauper petition filed by the petitioner who alleges that she is the illegitimate child of the respondent and claims maintenance from him. The petition of the petitioner to sue in forma pauperis came on before the Prothonotary, and the Prothonotary feeling some doubt as to whether the petition disclosed any cause of action referred it to the Chamber Judge, Mr, Justice Kania rejected the petition under Order XXXIII, Rule 5(d), of the Civil Procedure Code, 1908, holding that the allegations in the petition did not show a cause of action. From this decision of Mr. Justice Kania the petitioner appealed and the Court of Appeal reversed the order of Mr. Justice Kania and held that the petition should be accepted assuming that pauperism is proved. In the judgment of the Appeal Court the learned Chief Justice stated that it was not an absurd application on the part of the petitioner if she could establish that she was the illegitimate child of the respondent. He went on to observe :

Whether such a cause of action is likely to succeed may be doubtful. But I am not prepared to say off-hand that it necessarily cannot lie, I do not know of any case binding on this Court and still less of the Privy Council, which so decides.

After this decision of the Court of Appeal the usual notice was served on the respondent. The respondent appeared before the Prothonotary and contended that under Order XXXIII, Rule 7, the petitioner's petition should be refused because the applicant was subject to the prohibition specified in Rule 5, Sub-rule (d). The Prothonotary held against the contention of the respondent and granted the petitioner leave to sue in forma pauperis. This decision of the Prothonotary has been referred to me under Rule 90 of the Bombay High Court Rules at the instance of the respondent.

2. The first contention of Mr. Menezes is that the Court of Appeal having held that the petition disclosed a cause of action I was bound by that decision and that I should permit the petitioner to sue in forma pauperis, she having established her pauperism. It has to be remembered that when the Court of Appeal reversed the order of Mr. Justice Kania the petition had not gone beyond the stage of Order XXXIII, Rule 5. It was an ex parte application on the part of the petitioner; the respondent had not been heard and he had not had an opportunity to advance arguments; and the Court of Appeal took the view that prima facie the petition should not be rejected on the ground that the allegations in the petition did not show a cause of action. The petition has now progressed to a further stage, and the respondent has now had an opportunity to appear and to submit his arguments, as provided under Order XXXIII, Rule 7, to satisfy me that I should refuse the petitioner to sue as a pauper. If I am so satisfied by the arguments advanced by the respondent, I do not see why I cannot decide in his favour although the Court of Appeal, on an ex parte application without having the benefit of the respondent's arguments, came to a contrary conclusion.

3. The question, therefore, for my determination is whether assuming all the allegations in the petition are correct and, as I have pointed out, the material allegation is that the petitioner is the illegitimate child of the respondent-whether that in itself discloses any cause of action and whether that would make the respondent liable to pay maintenance to the petitioner. The respondent is a Parsi. There is no code of law which governs the Parsis in this country, and except for the statutory law they are governed by the common law of England. Therefore the question that arises is whether under the English common law there is any obligation upon a putative father to maintain his illegitimate child. So authoritative a text-book as Halsbury's 'Laws of England', Hailsham Edition, Vol. II, at p. 579, expresses the emphatic opinion that the father of an illegitimate child, so long as it remains illegitimate, is not recognised by the law of England for civil purposes. Therefore he is under no obligation to provide for the child, in the absence of any affiliation order. Even a legitimate child has no right under the English common law to claim maintenance from its father. As pointed out by Halsbury in his Hailsham Edition, Vol. XVII, p. 671, except under the operation of the poor law, there is no actual legal obligation on a father or mother to maintain a child, unless the neglect to do so would bring the case within the criminal law. The only duty of a father to maintain his infant children is merely a moral obligation or a duty of imperfect obligation. It is true that the Court of Chancery in England has in certain cases enforced this moral duty whenever it could do so. The only instance to which my attention has been drawn by Mr. Menezes is a case reported in Ex parte Haycock (1828) 5 Rus. 154, where the father was adjudicated a lunatic and a committee was appointed for the management of his affairs. The father had four illegitimate children and they applied to the Court to be paid maintenance out of his estate, and the Court granted that application. It has to be remembered in this case that the father was adjudged a lunatic by a Court, that his estate was under the control of the Court and that the father being under a moral obligation to maintain his infant children, the Court enforced that moral obligation by paying to them out of the funds under its control their maintenance.

4. In the petition before me what the petitioner wants to establish is a personal liability on the part of the respondent to pay her maintenance. There is no case in England to which my attention has been drawn where such a liability has been established. On the contrary, as I have pointed out, Halsbury in his Laws of England definitely negatives any such liability on the part of the father.

5. Coming to India there is no decision on this question either of our Court or of any other Court in India which relates to Parsis. But there is a decision of the Madras High Court in Lingappa Goundan v. Esudasan I.L.R. (1903) Mad. 13 where a Hindu had an illegitimate child by a woman who was not a Hindu. The child claimed maintenance and its claim was rejected on the ground that there is no text of Hindu law under which an illegitimate son of a Hindu, by a woman who is not a Hindu, can claim maintenance. In the judgment of the Court of Appeal consisting of Mr. Justice Benson and Mr. Justice Bhashyam Ayyangar it is pointed out that if a child is entitled to claim maintenance under the common law, then the statutory remedy given by Section 488 of the Criminal Procedure Code, 1898, will only be a cumulative remedy and will not take away the remedy under the common law; but in regard to illegitimate children who are not under the common law entitled to claim maintenance, then their only right is under the statute and can only be enforced by the particular remedy provided by the statute. There is no doubt that the petitioner has a statutory remedy given to her under Section 488 of the Criminal Procedure Code and she is entitled to enforce that right by the remedy provided by that statute. But apart from that statute, before I can hold that she is entitled to maintain this petition, it is for her to satisfy me that she has some right under the common law over and above the right given to her under the statute.

6. Mr. Menezes has very strongly relied on certain observations of the Court of Appeal in Calcutta in Ghana Kanta Mohanta v. Gereli I.L.R. (1904) Cal. 479. This was a case where both the illegitimate child and the putative father were Hindus and the maintenance was claimed by the illegitimate child under the Hindu law. In their judgment at p. 482 the learned Judges observed :

But apart from the Hindu law, we should think that, upon general principles, the defendant, having begotten the child, is bound to provide for its maintenance, if that is necessary.

With great respect to the learned Judges, apart from the fact that this particular observation is obiter, it is difficult to understand what are the general principles which they had in their mind. In a later decision of the same Court in Victor Justin Walter v. Marie Josephine Walter I.L.R. (1927) Cal. 730 these observations of the Court of Appeal in Ghana Kanta Mohanta v. Gereli have been doubted. Mr. Justice Mukerji says (p. 741) :

The broad proposition that under general principles the father of a child is bound to provide for its maintenance such as was suggested in the case of Ghana Kanta Mohanta v. Gereli has hardly any foundation.

7. Mr. Menezes has appealed to me to take a sympathetic view of the case and to hold that on principles of justice, equity and good conscience a putative father is bound to maintain' his illegitimate child. The principles of equity and good conscience which our Courts administer are those principles which have been embodied in the common law of England and to which the English Courts have given effect. I am not aware of any principles of justice, equity and good conscience which are contrary to or not recognised by the common law of England. If according to the common law of England an illegitimate son is not entitled to claim maintenance from his putative father, it is very difficult for me to hold that, apart from the common law which applies to the respondent in this case, on general principles of justice, equity and good conscience he is liable to pay maintenance to his illegitimate child.

8. I would, therefore, refuse to allow the petitioner to sue as a pauper. Petition dismissed.


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