1. This appeal arises out of an action laid by the plaintiff the daughters of the 1st defendant for maintenance and other reliefs.
2. The plaint case is that the 1st defendant was not maintaining the petitioners nor spending any amount for their education since May 1972 and turned out them and their mother out of the family house at Katevaram without any justification in May 1973 and the plaintiffs could not live with the 1st defendant without their as the mother of the 1st defendant and also, the sister of the 1st plaintiff or the 2nd plaintiff should marry the son of the sister of the 1st defendant and they apprehend that they would bring even criminal force against them for that purpose, it is also alleged that the 1st defendant became callous and kept a concubine named Sambrajgam permanently at Guntur and hence the suit (1) for maintenance of all the plaintiffs. (2) for marriage expenses of plaintiffs 1 to 3(3) for customary gifts of pasupukumkuma and residential accommodation and also for recovery of the amounts entrusted to the 1st defendant , belonging to the minor plaintiffs.
3. The defence is that the wife of the 1st defendant , mother of the plaintiffs is intelligent, aggressive and dominating and the 1st defendant took all steps to educate the plaintiffs initially at their native village Katevaram, at Vinayasramam , Kavyur , Nidubrolu and also at Guntur town was costly and besides being useless suggested that they should go back to their native village but the wife did not agree to stay at the native village as she has become a fashionable lady and wanted to stay in towns. It is also averred in the written statement that he is always ready and willing to perform the marriages of the plaintiffs and maintain them and they may come and stay with him and he is prepared to bear the expenses of education and maintenance and the mother of the plaintiffs who suffered a decree for restitution of conjugal rights at his instance in O.P. No. 74/72 got filed this suit to harass him. The allegations of turning out the plaintiffs from the family house in May 1973, ill treatment keeping a concubine and abandonment of plaintiffs were all denied and consequently the other claims also were refuted being unjustified and not tenable.
4. The trial court held the ill-treatment, of the plaintiffs by the 1st defendant is not proved. It is also held that the allegations regarding the conduct of the 1st defendant relating to drinking and keeping a concubine were not proved. It however held that the plaintiffs were turned out of the family house in May 1973 and the 1st defendant did not maintain the plaintiffs since 1972 and did not take steps to bring them to the family house and hence the claim for maintenance is sustainable and consequently decreed the suit for maintenance at Rs. 75/- p.m. to plaintiffs 1,3 and 4 and Rs.150/- p,m. For the 2nd plaintiff from the date of suit and Rs.5,000/- to each of the plaintiffs towards marriage expenses and a provision of Ac. 1-50 cents of wet land to each of the plaintiffs, given at the time of marriage towards pasupukumkuma.
5. The other claim of the refund of the entrusted amount and the marriage gifts were dismissed. A charge was also created in respect of this decree on A and D schedule properties. The present appeal is filed by the 1st defendant.
6. Sri B. V. Subbayya, the learned counsel for the appellant, raised the following contentions in the appeal :
1. In a suit for maintenance by the child, the plaintiff must proves the neglect or the abandonments of the child by the parent.
2. Once the daughter attains majority the right to maintenance cease even though she remains unmarried.
3. The duty to maintain the child arises only when the child submits to the care and custody of parent and no duty arises in the case of a refractory child.
4. An unmarried daughter has no right of enforcing a pasupukumkuma gift on custom.
7. These submissions are refuted by Sri. Hanumantharao, the learned counsel for the respondents, stating that the provision of S. 20 of the Hindu Adoptions and Maintenance Act 78 of 1956 (herein after called the Act)imposes absolute obligation and the burden is on the defendant to prove that he has discharged the obligation and the liability to the maintain the daughter subsists so long she remains unmarried. He also, urged that the pasupukumkuma gift constitutes an incident of marriage, within the meaning of Sec 3(b) of the act, and supported the findings of the court below as being sustainable both in fact and in law.
8. Let us look to S. 20 of the Act which is in the following terms :
' 20(1) Subject to the provision of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is minor.
3. The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be is unable to maintain himself or herself out of his or her own earnings of property.
Explanation : - In this Section 'Parent' includes a childless stepmother. A reading of the said section discloses that the duty to maintain a child is cast on both the parents. So far the daughter is concerned, the obligation to maintain a minor daughter subsists till marriage takes place. On attaining majority if she remains unmarried the obligation continues provided she is unable to maintain herself out of her own earnings or property. S. 20 unlike S. 18 relating to the right of wife for maintenance does not mention the grounds on which the claim for maintenance can be made. It cases an absolute obligation on the part of the parent. The language employed in S. 20 imposes a duty on the part of the parent though it purports to preserver a right to the child. Hence the burden is on the parent to establish in an action for maintenance that there is no default on his or her part. Even the cases governed under the latter part of sub-sec (3) the parent should prove that the major daughter who remained unmarried has her own earnings or property to maintain herself.
9. The learned counsel for the appellant relied upon Nanakchand v. Chander Kishore , : AIR1969Delhi235 which arose under S. 48 of the previous criminal P.C. which corresponds to S. 125 of the present Code, 1973 holding that the duty is restricted to maintain the minor daughter till she attains majority. This provision differs with S. 20 of the Act in two material particulars . (i) the obligation continues even after the child attains majority if the child is disabled physically or mentally . (ii) The father is liable to provide maintenance for a minor female child if the husband of such minor child is nor possessed of sufficient means. : AIR1958MP231 and K . M. Adam v. Gopala Krishnan , : AIR1974Mad232 . Where the observation occur that the liability to maintain the minor child ceases on the child attaining majority. Those decisions do not construe sub-sec. (3) which made a special provision in the case of unmarried daughters, and hence of no avail to the appellant. In fact in Wali Ram v. Mukhtiar Kaur,. . It was held in view of sub-sec . (3) the parent is under an obligation to maintain the unmarried daughter regardless of age so long she id unable to maintain herself, out of her earnings or property. We share this view. Hence subject to the limitation imposed under sub-sec , (3) the parent is bound to maintain the unmarried daughter even after she attains majority.
10. On the third question : the learned counsel relied upon a judgment of the Bombay High court in Kusam Krishnaji v. Krishnaji, AIR 1939 Bom 271. We mat say this is prior to the codification of law under the present Act. That was a case where the father resisted the suit for maintenance by the minor daughters on the ground that their maternal grandfather kept them out of his protection and custody. In that connection , their Lordships examined whether the legal duty of the parent is conditional on the child obeying the parent in all respects. After examining the ancient texts, it was held that the said question had not been a matter of judicial decision and observed at page 276.
' In my opinion it can safely be inferred that 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 respect. It cannot be said 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 buy executing its decree against his person or property, whether inherited or self-acquired.'
It is difficult to read conditions into the absolute obligation cast under S. 20 on the parent. We are not prepared to do so. Even assuming that a child is refractory or stubborn either temperamentally or due to surrounding circumstance cannot be deprived of the right of maintenance by the parent on the ground of disobedience or not submitting to his custody or care. A child who has not attained discretion cannot be made liable for the consequence of its conduct even assuming such conduct is undesirable and unwarranted. It is duty of the parents to make the surrounding circumstance congenial so that there may not be any room for complaint on behalf of the child. Further under S. 23 of the act a child or an aged parent can claim maintenance even though they live separately. S. 23(2)(c) declares that if a claimant is living separately whether the claimant is justified in doing so or not can be taken into account while determining the quantum of maintenance. An aged parent may live with the son or has to live with the parent or separately for purposes of education. The instance that the claim for maintenance should be conditional on the child being obedient of surrendered to the care and protection amounts to reading into S. 20 of the Act , a vicious, corrupt or immoral the court may award maintenance permitting the child to live separately. The absolute obligation to maintain the child cannot be circumvented on the ground that such duty arises only if the child surrenders to the protection and care of the parent. Hence we are of the opinion such conditions can to be imposed in awarding maintenance. The parent can only defeat the claim on the ground that there is no default on his or her part in maintaining the child or that the claim for maintenance is unreal in the sense the action was brought preventing the parent to maintain the child out of his custody and protection.
11. Let the examine the facts of the present case on these principles.
12. The court below found as already noticed that the illtreatment or the vicious conduct of the 1st defendant such as drinking or keeping a concubine are not proved. But it held that the 1st defendant neglected it maintain the plaintiff since May 1972 and hence granted a decree for maintenance.
13. We have gone through the entire evidence. It is not in dispute that the 1st defendant set up the family at Guntur and lived, with the plaintiffs and their mother in Guntur up to 1972. Subsequently the 1st defendant stopped going to Guntur. P.W.I is a teacher who deposed this fact and said that a teacher who defendant stopped coming to Guntur after 1972. No doubt, he deposed that the 1st defendant is affectionate towards the plaintiffs P.W.2 is related it the plaintiffs maternal grand father. He also deposed that the 1st defendant spent money till 1972 and subsequently stopped coming to Guntur. He deposed that he did not see the 1st defendant consuming arrack or playing cards or keeping women. P.W.3 is also related to the maternal grandfather of the plaintiffs who deposed about the presents made to the plaintiffs at Annaprasana and other ceremonies. His evidence is not of much use on the present question. P.W.4 is the 1st plaintiff. She deposed that defendants 1 and 2 did not allow the plaintiffs and their mother to enter the house when they went to the native village in 1973. She said categorically that after 1972 the 1st defendant did not come to Guntur and look after their needs. She said that her father's affectionate towards them and she is prepared to go to him if he maintain her. She expressed her distress to live at village as her grandmother and also paternal aunt wanted her to many one Rambabu son of her paternal aunt. P.W.5 is the person who is conducting the litigation on behalf of the grandchildren. Though he deposed about the conduct of the 1st defendant like drinking and debauchery, we are not prepared to accept this. However we are inclined to accept the evidence of this witness so far he said that since 1972 May, 1st defendant did not look after the plaintiffs and he was maintaining and educating them. Though separate registered notice was not issued to the 1st defendant, the notice issued by the plaintiff's mother was treated as sufficient. He also said about the apprehension of the proposed marriage of Rambabu with plaintiffs 1 or 2 which was not liked by plaintiffs 1 and 2 of her mother. P. Ws. 6 and 7 spoke about the income of the property.
14. D. W. 1 spoke about the good conduct of the 1st defendant and his innocent nature. D. W. 2 is the 1st Defendant. He said as pleaded by him in the written statement that after the children could not successfully pass the examinations he asked his wife to come to Katevaram but they failed to do so. He was staying at his native village thereafter. He did not state in evidence that subsequent to their refusal he was maintaining them or sending money even though he was staying at his native village. On the other hand he deposed 'I need not pay anything either towards the marriage expenses or maintenance of the plaintiffs as I am willing to perform their marriage and maintain them in my house as their father.' No doubt he denied the suggestion of forcing the plaintiffs 1 and 2 marry Rambabu his sister's son. He also denied the custom of giving any property towards pasupukumkuma. He also denied that he never turned to his wife and children in May 1973. His father the 2nd defendant was examined as D. W. 5 who generally supported him and also spoke about the partition, between himself and his son. He admitted that the plaintiffs mother lived for ten years in the native village.
15. Now what emerges from the evidence and circumstances may be summarised. Though the 1st defendant obtained a decree for restitution of conjugal rights it could not be enforced but on the other hand the wife obtained a decree for maintenance establishing her right to live separately. Now the plaintiffs mother is not living with the 1st defendant. Admittedly from 1972 1st defendant stopped going to Guntur and there is no evidence to show that he sent any money towards maintenance of his children. It is he who initially willingly set up family at Guntur. Even assuming that the wife and children are unwilling to come back to native village even after the discontinuance of the studies the 1st defendant failed to maintain the wife and children. Though we are inclined to accept that there is no negligence on the part of the 1st defendant to maintain and educate the children in the initial period after 1972, he failed to maintain them. He has not taken any steps to bring his children to the native village or take the children to his custody is fatal to his case But we are clear in out mind that this omission to take steps to bring the children to the native village or send money for maintenance clearly establishes the default on his part to attract the liability under S. 20 of the Act. Under the present circumstances of the case it is difficult to describe the plaintiffs as stubborn of haughty and not cooperative in not going to their father and live with him. P. W. 4 said she is willing to go and live with her father it he looks after their needs. In the absence of any evidence to show that the 1st defendant took any steps to bring the plaintiffs to his native village the plaintiffs are forced to live under the protection of their maternal grandfather. Though we are satisfied that 1st defendant was soft and unable to manage to bring them back to the native village after, discontinuance of studies we cannot negative the plaintiff's claim so long the Ist defendant failed to discharge his obligation to maintain the children. He has abandoned the plaintiffs to the care of the maternal grandfather perhaps out of disgust though not wantonly. The 1st defendant did not stage in the evidence that the father-in-law brought the action against him deliberately even though he is maintaining his children. On the other hand he says that the wife is responsible for the litigation. Further when the father-in-law was examined as P. W. 5 it was not suggested to him that he is responsible for this litigation even though the 1st defendant is maintaining the children. The evidence may demonstrate the inability of the 1st defendant to maintain the family affairs. Whatever might be the reason, the 1st defendant failed to discharge the obligation of the parent to maintain his children.
16. The maintenance includes not only food and clothing but educational expenses also. The evidence clearly discloses that the 2nd plaintiff and the 4th plaintiff continued higher studies under the protection and care of their grandfather for all these years. It is not shown that the quantum of maintenance awarded by the court below is in any way excessive.
17. We have requested the learned counsel for the plaintiffs to bring the plaintiffs to the court. All of them are present. We have seen them. They have attained majority and we are satisfied they can protect themselves by exercising their discretion when occasion demands. After some interrogation, we directed them to live with her father and help their parents to come together. Hence we think it is not just to keep the decree for maintenance against the 1st defendant in future. Consequently we confirm the decree for maintenance from the date of suit till today. In respect of the future maintenance from Mar 1, 1985, the decree of maintenance shall stand vacated.
18. The last question is whether the provision for Ac. 1.50 cents made for each daughter towards pasupukumkuma by the trial court is sustainable.
19. It is argued by the plaintiffs counsel that there is a custom in the family of Kamma community in A. P., that a daughter must be provided for marriage gift considering the status and such customary gift on the occasion of marriage constitutes an incident of marriage expenses within the meaning of S. 3(b) of the Act and hence the same is valid. The learned counsel in this connection relied upon two judgments of the Supreme Court viz., Kamla Devi v. Bachulal Gupta, : 1SCR452 and Guramma v. Mallappa, : 4SCR497 . In the first case it was ruled that a widow can gift a reasonable portion of property to a daughter on marriage and such gift is binding on the reversioner. In the second case it was held that a father can make a gift towards maintenance in favour of a widowed daughter. In both the cases the ancient texts were relied upon to show the duty of the father to perform the marriage of a daughter and also giving a reasonable extent of property on the occasion of marriage and also towards her maintenance. In this connection, the learned counsel strongly relied upon judgment of a Division Bench of this court in Commr., of Gift-Tax A. P. V. Chandrasekhara Reddy, (1977) 1 Andh WR (HC) 82 where an identical question was raised though arising under the Gift Tax Act. It was contended that a deed of gift executed by father on the occasion of the marriage of a daughter cannot be treated a mere gift without any consideration and it is in lieu of an obligation towards daughter and the same constitutes an incident of marriage expenses within the meaning of S. 3(b) of the Act. In that case, the Division Bench accepting the contention that such gift deed executed by father cannot be treated as without consideration, remanded the matter for further enquiry to find out whether such custom exists in Kamma community to constitute an incident of marriage so that it cannot be described as gift within the meaning of the Gift Tax Act. In support of the contention of such custom the decision in Parandhamayya v. Navaratna Sikhamani, (1949) 1 Mad LJ 467 : (AIR 1949 Mad 825 was relied upon to show that in case of Kamma families in Andhra Desa if estrangement results between the wife and the husband, dowry and all other kinds of gifts and presents that were made to the bridegroom by the bride's people (at the time of the marriage) have to be handed back to the bride after rendering a complete account with interest by the bridegroom or his family. Basing on this judgment, the learned counsel argued a custom of giving such gifts in Kamma community also can be inferred. We are afraid we cannot deduce such a principle from this judgment. It is one thing to say that a custom of refunding the gifts would arise in the case of estrangement and yet another thing to say that the giving of such gifts is itself established by virtue of the said judgment. The learned counsel also took us through the evidence to show that the custom of giving marriage gifts constituting pasupukumkuma is in vogue. We are not impressed with the evidence in the case as P. W. 2, 3, and 5 deposed that there is a custom of giving land to daughters. The details of custom are not mentioned and in fact P. W. 5 did not say that he has given any land to his daughter, the mother of plaintiffs. The evidence is vague and uncertain and of a general nature. Besides this, the defendant's witnesses denied and such custom. It might be in rich family father may make a gift of land for the benefit of the daughter on the occasion of marriage but in order to hold that the custom was obtained in this community to constitute an enforceable obligation the evidence is far from satisfactory. It is well settled that the custom must be ancient, certain and reasonable and the requirements of a valid custom cannot be said to have been established in this case. Custom cannot be extended by analogy and it cannot be established by a prior methods. (Vide Saraswathi Amma. V. Jagadambal, : 4SCR939 . The learned counsel also drew out attention to a judgment of this court in B. N. Santoshrai v. Spl. Tahsildar, Land Reforms, Tekkali, : AIR1980AP139 a case arising under A. P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1 of 1973, wherein it was held that a land transferred to daughter as provision of her marriage cannot be included in the holding of the declarant. It was further argued that once the obligation of father is recognised by courts it can be considered that such expenses are the incidents of marriage within the meaning of S. 3(b) of the Act.
20. We are clearly of the opinion that it is one thing to say that a manager, a father or even a widow has got power to make a reasonable gift of property which is binding on other members of the family and such gift is indefeasible and yet another thing to say that the father is bound to give and it is legally enforceable by the daughter. It was further urged that the ancient texts of Hindu Law clearly dispose that a daughter has got a share in the family but that practice was lost and hence this principle of giving property to the daughter could be sustained by courts as it will held the community of daughters as a whole. We disagree as such construction transcends the limits of interpretation and constitutes legislation. It is not permissible to extend the rule of construction imposing an obligation on parents to given property which is enforceable compulsorily by daughters. The legislature alone can to that.
21. It is significant to note under the Act even though there is no liability to maintain a married daughter she is declared as dependent entitled to maintenance against the estate of her father if she is a widow provided she has not been able to get maintenance from any other source (vide S. 21 (vi) of the Act. Once we remember that the Act imposes the duty of maintenance we cannot extent the obligation on a prior reasons for different purposes. The judgment referred above arose under the Gift Tax Act cannot lend support to the plaintiffs as the problem in that case is quite different. In the present case the daughter should establish a right to enforce virtually a share in the property which cannot reasonably be described as maintenance within the enlarged definition of the Act. To out mind such customary right must be uniformly applicable to all families irrespective of the fact whether the family is rich, poor or indifferent. Such a custom of providing a compulsory gift is contrary to the provisions of the Act and such customs shall cease to have effect under S. 4 of the Act. Further it can also be described as inconsistent with the provisions of the Act as the Act contemplates payment of maintenance which can be described as incident of marriage.
22. We are of the opinion that the word 'incident' occurring in S. 3(b) also partakes the character of expenses of the marriage. Undoubtedly, expenses of the marriage may include expenses relating to betrothal, nuptial or other ceremonies relating to the marriage. They may include what is generally called in Telugu Country 'Sare Saman' (utensils, furniture and other household equipment) to be given to the bride. The marriage expenses may also include at times the travelling expenses to and fro for, the bride to join the husband at his place. The word 'incident' as defined in Stroud's Judicial Dictionary, Fourth Edition , page 1330 'A thing is 'incident' to another when it appertains to, or follows on, that other which is more worthy, or principle e.g., a court Baron is incident to a manor rent to a reversion, distress to rent, timber trees to the freehold, title deeds to an estate, etc, and of incidents, some be separable, and some inseparable'. Hence we are of the 'opinion that the pasupukumkuma gift cannot constitute an incident of marriage so that it partakes the character of marriage expenses consequently comes within the definition of maintenance within the meaning of S. 3(b); such claim for gift cannot be enforced as maintenance due and payable. Hence we are of the opinion that the decree so far granted by the trial court Ac. 1.50 cents to each daughter towards pasupukumkuma a gift is liable to set aside and accordingly that portion of the decree vacated.
23. The learned counsel for the defendants fairly agreed that the expense of 5,000/- granted by the trial court for plaintiffs 1 to 3 may stand, and hence we confirm the same.
24. We also give a similar direction for the marriage of the 4th plaintiff as she also attained the marriageable age. We also confirm the direction of the trial Court regarding the consent of the father for the marriage of the plaintiffs as embodied in cl. 5 of the decree.
25. In the result, the appeal is allowed in part and the decree stands modified as indicated above. We make no order as to costs.
26. Appeal allowed.