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S. Radhakumari Vs. K.M.K. Nair - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 3834 of 1981
Judge
Reported inAIR1983Ker139
ActsHindu Marriage Act, 1955 - Sections 24; Evidence Act, 1872 - Sections 114
AppellantS. Radhakumari
RespondentK.M.K. Nair
Appellant Advocate N. Nandakumara Menon, Adv.
Respondent Advocate K.S. Rajamony and; Shahul Hameed, Advs.
Disposition Revision allowed
Cases ReferredSamir Banerjee v. Sujata Banerjee
Excerpt:
family - alimony - section 24 of hindu marriage act, 1955 and section 114 of evidence act, 1872 - appellants filed petition for alimony and expenses pending decision in divorce petition - husband had earlier filed petition for divorce on main ground that despite court orders appellant failed to resume cohabitation - husband cannot claim immunity from his legal liability just because parents of appellant provided some monetary aid - husband had ability to pay - held, appellant entitled to get alimony and expenses. - - he (or she), who has the means and who under law is obliged to protect or maintain another of the family, can be compelled, if necessary, by the strong arm of law, to do the duty. the letter wound up by saying that the husband had no authority to prohibit the wife from.....orderk. sukumaran, j.1. home, sweet home, is a cherished concept of all. thoughts centre round the home where the wife and children stay, even when one is away. it is in that sense that lord denning conceived of home, when he observed: 'the man 'occupies' the home by his wife and family even whilst he is overseas'. (see r. v. l.b. of hillingdon (1981) 2 all er 1089 (1092)).2. a broken home, however, is a traumatic experience. to many, merely being under the same roof, without emotional attachment and the connection of affection, is a mere vegetative existence. quite offen, a deserted wife gets reconciled to think, (unnecessarily and unscientifically perhaps): 'what is fated cannot be blotted; and counts the days with sorrows* crown of sorrow. the plight of the children, however, appears.....
Judgment:
ORDER

K. Sukumaran, J.

1. Home, sweet home, is a cherished concept of all. Thoughts centre round the home where the wife and children stay, even when one is away. It is in that sense that Lord Denning conceived of home, when he observed: 'The man 'occupies' the home by his wife and family even whilst he is overseas'. (See R. v. L.B. of Hillingdon (1981) 2 All ER 1089 (1092)).

2. A broken home, however, is a traumatic experience. To many, merely being under the same roof, without emotional attachment and the connection of affection, is a mere vegetative existence. Quite offen, a deserted wife gets reconciled to think, (unnecessarily and unscientifically perhaps): 'what is fated cannot be blotted; and counts the days with sorrows* crown of sorrow. The plight of the children, however, appears to be more tragic. As Lane J. observed in L. v. F. (Times dated 1-8-81 and quoted W. v. A. (1981) 1 All RE 100 at 104: 'a marriage could be dissolved but not parenthood'. The decision in W. v. A. (supra) refers (at page 105) to the evi-dance given by a very distinguished child psychiatrist that when they grew older children were often greatly concerned with their biological origin George Eliot in 'the Mill on the Floss' referred to 'these bitter sorrows of childhood --when sorrow is all new and strange, when hope has not yet got wings to fly beyond the days and the weeks, and the space from summer to summer seems measureless'. Law feels almost helpless, uninitiated as it is in the art of caring and curing, in that sensitive area. Law can do little for the reparation of the weeping wounds in the emotional capillaries, sufferings exist not only in the emotional sphere. Pecuniary disability adds to the agony of a discarded spouse or neglected child. In that sphere, however, the court of law is not completely helpless. He (or she), who has the means and who under law is obliged to protect or maintain another of the family, can be compelled, if necessary, by the strong arm of law, to do the duty. This revision petition seeks relief in that regard.

3. An application by a wife on her own behalf and on behalf of her two children, for alimony and expenses pending decision in a divorce petition did not succeed in the court below. She has approached this Court for correction in revision, of that order, which according to her, amounted to an abdication of jurisdiction vested in the court below, for reasons unsustainable.

4. The revision petitioner herein, Radha Kumari, was married happily a decade and half before, on 19-5-1967 in the sanctified atmosphere of the Shanghumugham temple at Trivandrum. (I shall refer to her in this judgment as 'the wife'; she still, is). Two children --Binoj and Rishma -- were born of the wedlock. The husband belongs to the medical profession and is an Assistant Surgeon in Government service. Nearly after a decade of married life, unfortunate differences of opinion appear to have simmered. The records of the case received pursuant to the requisition from this court reveal a tragic story, It is, however, not necessary, and perhaps not desirable to refer to them in detail, for the purpose of deciding the limited question arising in this revision petition. Even a narration of the events as disclosed from the records may, perhaps unwittingly, appear to be tendentious. It is farthest from the intention of this court, to load the dice either way, A brief statement of the bare facts is therefore attempted, for the limited purpose of deciding the point raised in the revision petition.

5. O.P. (B.M.A.) 278/79 was filed by the husband seeking restitution of conjugal rights. It was alleged that consequent on his transfer on 18-5-1979, he had entered on leave for 120 days with a view to shift to the new station at Chathanoor, and that despite a request in that behalf the wife refused to stay with him.

6. The wife demurred. According to her she had been always willing to stay with her husband, but had apprehension to go with him to a far off place,

7. That petition was decided, without the parties even entering the box.

8. The court observed:

'No oral evidence was let in by either side. So the question for consideration is whether on the facts admitted and in view of the pleadings the petitioner is entitled to get a decree in his favour.'

After referring to the pleadings and the facts admitted in those proceedings, the court continued:

'It was evident that the respondent was not ready and willing to live with the petitioner at bis place of employment. Para. 16 of the respondent's objection was to the effect that she was prepared to live with the petitioner in the house Binushma, the implication of which had been already adverted to. The excuse given by the respondent for refusing to reside with the petitioner at any place other than the Binushma in Trivandrum was that his behaviour was intolerable and unbearable and that his behaviour was unbecoming of a husband, It was also alleged that the petitioner had been behaving cruelly (towards?) the respondent. The respondent also attributed immoral conduct to the petitioner by alleging that he was maintaining illicit connections with other females. There was absolutely no evidence to establish all these points. There was nothing to suggest a cruel behaviour by the petitioner to the respondent. There was also no evidence of any immoral conduct on the part of the petitioner. Thus it could not be said that the respondent had proved any reasonable excuse for refusing to cohabit with the petitioner at his place of employment.'

In view of the fact that the wife had not proved a reasonable excuse for not staying with the husband, the court allowed restitution of conjugal rights by its order dated 18-4-1980.

9. This order of the court does not appear to have mended matters. On 13-7-1980, nearly three months after the order granting restitution of conjugal rights, a notice was caused to be sent through the advocate of the husband. Reference was made therein to the order of the Court in H. M. A. No. 278/79, and it was alleged that the order had not been obeyed by the wife, the wife not having stayed with the husband at 'Binushma', the house in Padmanagar in Trivandrum. The lawyer's notice, however, further stated that the husband had been transferred to Thannithode Government Dispensary, of which Quilon is the Headquarters. According to the notice, the husband had made adequate arrangements for putting the children in boarding school at Quilon. The husband wanted the wife to stay with him at Thannithode. This notice in addition, made a property claim too'. It stated that plot No. 11. Padmanagar, Trivandrum, where the wife was staying then, belonged to the husband. There was a very serious allegation that the wife 'managed to obtain the title deed in respect of the said plot No. 11' in her name 'by misrepresentation and fraud'. The notice wound up with this sentence :

'Please take notice therefore, that you are humbly (sic) prohibited from alienating or creating any document on, the said property, plot No. 11, Padmanagar, Fort, Trivandrum, without the written permission of my client.'

10. To this notice, a reply was sent by the wife's advocate on 2-8-1980- the reply stated that the wife had been always prepared to reside with the husband in 'Binushma', but the husband had not taken her to that place. It further stated that the wife was residing in the house in plot No. 11, within a distance of 200 feet from Binushma'. It was alleged that the husband was deliberately avoiding to have marital relationship with wife. The reply referred to the fact that the children were studying in Trivandrum and to the necessity that 'their studies should not be disturbed', for, 'it is not conducive for the welfare of the children to put them in a boarding school at Quilon'. The request to the wife to stay at Thannithode was characterised as 'without any bona fides' and made with ulterior motives.

11. The concluding portion of the reply dealt with the property in dispute. Plot No. 11, it was asserted, belonged to the wife absolutely and that the husband had no right over the same. The charge against the wife that she managed to obtain the title deads in respect of the property in her name by misrepresentation or fraud was stoutly refuted, the attempt was characterised as mala fides and vitiated by ulterior motives. The letter wound up by saying that the husband had no authority to prohibit the wife from alienating or dealing with the property, as it belonged to her absolutely and consequently she had full authority to deal with that property as she liked.

12. The petition under Section 13(1A) for divorce was filed by the husband on 5-6-1981 on the main ground that the wife did not resume cohabitation despite the order of the court and the request made by him on 19-7-1980 it was stated that there had teen no resumption of cohabitation between the husband and wife for a period of more than one year after the decree for restitution of conjugal rights. A certified copy of the order in R.M.A. No. 278/79 was produced along with the petition.

13. The wife filed her objection on 24-8-1981. She had a different story to say. According to her, the petition was wilfully and maliciously filed making use of his own wrong. She stated that even before filing the petition for restitution of conjugal rights, the petitioner himself had prepared a 'divorce deed' through a document writer and corrected it himself and handed it over to her for approval and signature. According to :he wife, 'this will throw light on the habit of the petitioner'. She charged 1hat thereafter, the petitioner had been making every attempt to get her divorced. According to her, even at the time when he was staying at 'Binushma' in Trivandrum, he used to send letters asking her to go and live at Karikode, Koikkamukku, Thannithode and other fictitious places. She made a very specific allegation regarding the probable motive of the husband's conduct by stating in para. 4:

'The petitioner is having illicit connections with one Usha residing at Saradalayam, Chalakkuzhi lane, Medical College and her family and he wants to neglect this respondent and the children and his intention is to conduct a remarriage after deserting this respondent and the children'.

The prayer for divorce was opposed. The omission on the part of the husband to execute a decree as contemplated under Order 21, Rule 32 of C.P.C. was pointed out as a circumstance to show that the petitioner was 'adamant, to evade' the wife and children.

14. The wife then filed a petition I. A. No. 1908/81 for alimony and expenses, invoking Section 24 of the Hindu Marriage Act. She alleged that the husband was working as an Assistant Surgeon and had private practice, earning an amount of Rs. 5,000/- per mensem. There was also a reference to the income from immoveable properties. The children were studying at M.M. Residential School and Holy Angels Convent. Without a job or other source of income, she was solely depending on her parents for her livelihood- the husband, according to her, had completely neglected her and the children and was not giving maintenance to them. In view of what was alleged to be wilful default on the part of the husband, she prayed that a sum of Rs. 1,000/- per mensem may be ordered to be paid to her. This petition was filed on 12-10-1981.

15. In his counter-affidavit filed on 13-10-1981, the husband submitted that his annual income during 1980-81 was only Rs. 4,410/-, as he was on leave on loss of pay from 1-6-1980. According to him, the wife had a monthly income of Rs. 500/- by way of rent from the building in plot No- 11, which, according to the husband, was occupied by an officer of the Syndicate Bank. He further stated that the wife had received a sum of Rs. 35,000/- in October, 1979, from Smt, Haridas, the sum representing the advance paid by the husband to Smt. Haridas for purchase of a property in Trivandrum. He made a further claim that plot No. 11 in Padmanagar belonged to him despite the title standing in the wife's name, which happened, according to him, due to misrepresentation and fraud on the vendor of that property. The counter-affidavit continued:

'Hence, the petitioner is a person of very sound means and affluence, capable of maintaining herself and the children, in a very high standard the fact that the petitioner has not approached any court' for maintenance, will stand testimony to the circumstances in which the petitioner and the children are placed in life, by me.'

According to him, the wife was capable of maintaining herself and her children and he had provided for enough to them and had discharged his moral and legal obligations. In para 7 he stated:

'There is absolutely no bona fides for the petition, for the simple reason, that the petitioner is in very affluent circumstances, of course, with my assets.'

In para 8 he stated further:

'If maintenance pendente lite is allowed, I will be put to untold suffering, loss and hardship, since, the petitioner has expropriated many of my assets and I am not having sufficient means. The petitioner is owning a telephone, with number 5336, in Trivandrum. The letter dated 18-3-1980, from the Commercial Officer, Telephones, Trivandrum, will stand testimony to the fact of the status of the petitioner in society.'

16. The court below by its order Dt. 21-10-1981 dismissed the application. It observed that for deciding whether alimony and expenses of proceedings are to be ordered or not the court is not expected to embark upon a detailed enquiry regarding the means of parties; and in that view of the matter, it thought it fit to dispose of the petition only on the basis of the affidavits. After adverting to the contentions of the husband, as contained in the counter-affidavit, the application was rejected on these grounds:

'Even though the averments have been made in the counter-affidavit filed by the husband, the wife has not chosen to file a rejoiner affidavit to controvert these facts. Thus there is only oath against oath before the court which is not at all sufficient to find that the wife in not having sufficient means to support herself or to meet the expenses of the proceedings.'

17. The approach of the court below is totally erroneous. If the question had to be decided on the basis of the affidavits, the court was bound to consider the question as to whose version was more acceptable. The court cannot, with folded hands as it were, adopt an attitude of utter helplessness in such situations. If this attitude is adopted, the court will not be in a position to grant alimony or expresses in many such proceedings. That is farthest from the intention of the Parliament. There are very many matters, including matters of great moment like writ petitions under Arts. 32 and 226, which are decided on the basis of affidavit evidence, parties to the proceedings must necessarily get relief, if circumstances justify it. The mere fact that one party has chosen to contradict the averments in the affidavit of the other party does not absolve the court from its solemn duty to weigh the respective contentions and come to a proper decision.

18. It is evident from the counter-affidavit that the allegation about the wife being without any job and about the children studying in the school and convent are not denied. As regards the allegation that the husband is working as an Assistant Surgeon, and that he is having private practice also, and is in receipt of income from immovable properties, there is no specific denial. The averment in para 4 of the counter of the husband relates only to the salary income which for various reasons including his entering on leave on loss of pay, (which he did voluntarily and for reasons not satisfactorily explained), came down to Rs. 4,410/- during the year 1980-81. Even on a rough calculation, having regard to the age and the probable period of service of the husband, it can be seen that the salary and other emoluments of the husband would come to about Rs. 1,500/- per mensem by making a reference to the Government Orders fixing the pay of medical officers. Any medical practitioner around the age of 37 and actually having private practice, must be in receipt of income from that source also. That such income would be substantial, (even when he is on leave; during the leave period he can devote more time for private practice) is a fair inference in the circumstances. It may also be noted that even in the main petition, he had expressed his willingness to put the two children in a boarding house. This is also indicative of the financial capacity of the husband even on his own showing. He cannot grudge a payment direct to the wife, when he was prepared to pay a boarding house, for their stay and other expenses. Regard being had to the fact that the husband was in the medical profession and was having private practice and was in receipt of income from immovable property, which thus remain uncontradicted, it will be safe and reasonable to come to the conclusion that he is in. receipt of a sufficiently high income. The capacity of the husband to maintain the wife and children cannot therefore be disputed.

19. The only further question is to see whether the wife and children, who admittedly are in the custody of the wife, are possessed of sufficient means to maintain themselves. The three reasons suggested by the husband as indicative of the means of the wife are: (1) the building in plot No. 11 is rented out by the wife and she is therefore in receipt of a rental income of Rs. 500/- per mensem. (2) She has still with her a sum of Rs. 35,000/- received by her from Mrs. Rajalakshmi Haridas, money which really belonged to the husband and which he had paid to Mrs. Haridas for a property intended to be purchased from her and (3) the ownership of a telephone.

20. These reasons, I have no hesitation to say, do not bear scrutiny.

21. As regards the rental arrangement of plot No. 11, there is not even an acceptable prima facie evidence or an averment which could be acted upon. The husband could have without difficulty brought to the notice of the court some evidence in that behalf, if the rental arrangement was true. It was for him to establish by a positive material that the building had been rented out and the rental income was being received by the wife. He has not chosen to do so. The wife's version can be acted upon in such circumstances. Such is the approach made in Pushpa Rani v. Asa Nand, (1978) 80 Pun LR 300, where it has been observed that in a situation where a certain given fact was within the knowledge of one party (there the husband) and that party also had the ability to prove that fact with documentary evidence, if that party does not do so, then it cannot be said that the evidence given by the other party (the wife) regarding the income of her husband is unreliable. The averment of the husband even stands contradicted by his own statement in the very same paragraph, where he states:

'The building in plot No. 11, Padmanagar, Trivandrum, in which' the petitioner is presently residing, belongs to me......'

If the building is one in which the wife is 'presently residing' the situation rules out the possibility of the building being rented out, as there is no case in the counter-affidavit that only a portion of the building has been let out.

22. The story about the return of Rs. 35,000/- in Oct. 1979 by Mrs. Raja-lakshmi Haridas, does not commend itself for acceptance. The materials prima facie indicate that there was no love lost between the parties even by June, 1979, when the husband sent the registered notice Dt. 8-6-1979. The letter of 8-6-1979 is referred to in the order in H.M.A. No- 278/79 produced by the husband himself as evidence on his side. The letter is produced in this case with a list of documents, by the wife. The letter stated:

'From 1977 you are not living with me as my wife. In spite of repeated demands made by me you have been behaving in a cruel manner and have been wilfully neglecting me. Your, conduct' towards me for the past few years has been abnormal, most irresponsible and unbecoming of a wife. You have admittedly serious disease. You have been keeping objectionable contacts with others.'

It is difficult, if not impossible, to believe, that with that frame of mind, the husband would permit, the wife, without any document whatever, to receive such a large sum as Rs. 35,000/- from a stranger with whom the husband is alleged to have had dealings in real estate.

23. Equally irrelevant is the circumstance that a telephone connection is available in the building in which the wife resides. The possession of the telephone, cannot be treated, in the circumstances, as a symbol of luxury which the wife and children enjoy.

24. the wife had candidly stated that she had been solely depending on her parents for her livelihood. The fact that even after the impact of modern life, familial nexus is cherished and nurtured in this country, and consequently a helpless daughter and grandchildren happen to be cared for and looked after, by the parents or grandparents, as the case may be, is no ground for the husband to disown his own legal responsibility in the matter. A joint family, at one time in Kerala's social history, gave protection to all its members, including the deserted wives and neglected children. Those are, however, things of the past. An awakened public opinion quarrelled against the matrilineal joint family system as is evident from the Travancore Marumakkathayam Committee Report of 1908, which expressed the view that 'law should encourage, as a general policy, the living together of mother and children with the father'. With the disruption of the old system (of which the screen and literature of this country portray many a tragic picture) and the decline of the financial capacity and emotional integration of those families (some of which have been referred to in the well documented book of Dr. Robin Jeffrey, Professor of Australian National University, 'The Decline of Nair Dominance'), it has become difficult for such unfortunate members of the family to obtain timely and sufficient help. In the above circumstances, the mere fact that in an unfortunate situation, parents rushed with some aid or consolation to their daughter is no ground at ail for the husband to claim immunity from his legal liability of paying maintenance to his wife and children.

25. I have therefore come to the conclusion that the husband has the means to pay; and that the wife and children are entitled to get alimony and expenses as prayed for by them. The social status, age, educational and other requirements of the children are al] factors to be considered in fixing the quantum of maintenance. I have already indicated the range of income the husband is likely to obtain. The requirements of two children studying in the school and convent, and the fiscal implication of the same in these days, cannot be under-rated. I have already referred to the fact that the husband himself had expressed his preparedness to meet the boarding expenses of the children. Having regard to all the circumstances, I feel that a sum of Rs. 600/-per month should be fixed as the amount payable to the wife and children by way of alimony and expenses.

26. Though in some cases the view is taken that the grant should commence from the date of application u/s. 24, I am unable to share the view the section does not contain any limiting provision. The object of the enactment does not justify the court imposing on itself any such fetter, when the Parliament in its wisdom has not chosen to do so. The view taken by the Mysore High Court in N. Subramaniyam v. M.G. Saraswathy (AIR 1964 Mys 38) and by the Punjab and Haryana Court in Sarita Mehta v. Aravind K. Mehta, (1978) 80 Pun LR 213, and the Calcutta High Court in Samir Banerjee v. Sujata Banerjee, (1966) 70 Cal WN 633 at p. 642, according to me, reflects the correct legal position. I would accordingly direct that the payment will be effective from the date of service of summons of the main petition for divorce on the wife.

27. I have thus disposed of this Revision petition, which concerns only an interim arrangement during the pendency of the proceedings. I hope it would be an interim arrangement in the sense that it would be soon superseded by a happy union of the spouses. 'Binushma', where the wife is prepared to stay, and which the husband claims as his own, Binushma which symbolises the happy fusion of the names of the children Binoj and Rushma (as I venture to speculate), and around which many sweet dreams are yet to bloom, beckons the parties for the submersion of their differences for their own sake (as they are still only in the prime of their life) and for (perhaps, more for) the sake of their children. I have not attempted any 'sweet persuasion' on the parties in the course of the short hearing of these proceedings, as I felt that the parties are sufficiently mature, educated and sophisticated to seriously attempt one even without any adventitious aid.

28. A few more words before I conclude. I have set aside the order of the court below, as I felt that it had abdicated its function in dealing with and disposing of a petition under Section 24 of the Hindu Marriage Act. It may be, however, unfair to that court, to be too critical about its conduct or its decision. The stress and strain of routine work on these ordinary courts are such that they are sometimes, with the oppressive constraints, unable to cope up with the exacting requirements of an adjudicative mechanism in this delicate area. It is not as though this is a new experience or unnoticed feature. Nearly a decade back (and immediately proceeding the International Year of the Women), the Law Commission of India under the Chairmanship of P.B. Gajendragadkar, learned in Vedic and Legal lore, while submitting the fifty-ninth report on Hindu Marriage Act. 1955 and Special Marriage Act, 1954 observed as follows:

'Before we proceed to deal with the questions relating to revision or amendment of the provisions of the two Acts, we ought to mention here one important consideration which is an integral part of our approach. In our Report on the Code of Civil Procedure, we have had occasion to emphasise that in dealing with disputes concerning the family, the court ought to adopt a human approach -- an approach radically different from that adopted in ordinary civil proceedings, and that the court should make reasonable efforts at settlement before commencement of the trial. In our view, it is essential that such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in due course. States should think of establishing family courts, with pregiding officers who will be well qualified in law, no doubt, but who will be trained to deal with such dispute in a human way, and to such courts all disputes concerning the family should be referred. What we have said in our Report on the Civil P. C. should be treated as a part of the present Report also. We are clear in our mind that if these measures are adopted, they will go a long way towards the proper resolution of such deputes. We may add that selected judicial officers could be posted in courts empowered under both the Acts, and by dealing with disputes concerning the family, they will be able to acquire experience and knowledge which should not only be of value to them but will ultimately benefit the society'.

And in the International Women's Year 1975, the publication under the auspices of the Indian Council of Social Science Research 'Status of Women in India', made known to the public the Report of the National Committee on the 'Status of Women in India', which pursuant to its appointment by the Government of India in 1971, examined in depth and detail many facets of that subject. The suggestions contained in Chap. IV, entitled 'Women and the Law' relating to the establishment of family courts, deserve to be extracted in this context:

'The statutory law in all matrimonial matters follows the adversary principle for giving relief, i. e., the petitioner seeking relief alleges certain farts and the respondent refutes them. In addition, most of the grounds in these statutes are based on the 'fault principle' instead of on the breakdown theory. As a result, strong advocacy rather than family welfare is often the determining factor in these cases. The absence of distinction between matrimonial cases and other civil suits leads to inordinate delay which stands in the way of conciliation and further embitters the relationship of the parties. Conciliation, which ought to be the main consideration in all family matters, is not the guiding principle in the statutes dealing with them. We. therefore, strongly recommend the abandonment of the established adversary system for settlement of family problems, and the establishment of family courts which will adopt conciliatory methods and informal procedure in order to achieve socially desirable results.'

There is a further publication of the Ministry of Information, Government of India, ''Indian Women'. ed;ted by the well-known social scientist, Smt. Devaki Jain, which refers to the necessity for the establishment of family courts. The following passage occurs at page 123 of the book:

'The establishment of family courts is yet another aspect which will have to be taken in hand immediately by the legislature. In some Western countries there are Special Courts for adjudication of matrimonial matters. It is suggested that such courts with exclusive matrimonial jurisdiction be established immediately. These courts will render speedier justice and also ensure privacy which is necessary in such matters.'

29. In other jurisdictions family courts have been established and their working has been subjected to critical study. There is a useful article in 1978 Australian Law Journal, page 237, on the experience of the working of the family court in Australia, where pursuant to the Family Law Act of 1975 the family court had been established and had been working. The Family Law Act of 1975 was perhaps rightly referred to as 'an enlightened piece of legislation that would eliminate much of the bitterness and acrimony associated with divorce and provide a dignified way of terminating a relationship that had irretrievably broken down',

30. The suggestions made and the sentiments echoed still continue as suggestions and as sentiments. Professor Paras Diwan of the Punjab University appears to have put forward the suggestion relating to family courts along with counselling service in a recent seminar organised by the Punjab University on 'Stable Marriages', Was he not echoing similar thoughts which he expressed in 1971 in the article 'Need for a family court' in Law and the Commonwealth' published in connection with the fourth Commonwealth Law Conference? He observed:

'No court which is engaged in finding out what is for the welfare of the children can rest content with the assertions and contentions of the parties and evidence led by them to prove or disprove their contentions and allegations. The court engaged in this task requires a less formal and more active investigating and inquisitional procedure. Litigation in respect to any matter concerning the family, whether divorce or maintenance and more so in respect of custody of children as well as of trial of juvenile offenders should not be viewed in terms of failure or success of legal action but as a social and therapeutic problem. Such a procedure would obviously require the assistance of specialized persons and agencies. Specially trained welfare officers having facility to meet the children and their parents in their natural surroundings and to collect data and information at first hand are proving of great help in countries where their help has already been taken. In short, such a procedure would imply not a litigation in which the parties and their counsel are engaged in winning or defeating legal action. In this type of procedure, lawyers, social workers, welfare officers, psychiatrists -- all together join to assist the court in finding what would be most conducive to the welfare of the children. In this quest parents may also join and the court may still give due credence to what they think best for the children, but parents cannot be the final judges and they can have no proprietary right over the children'.

31. The Chief Justice of India, participating in that function, more as a happy husband than an a Supreme head of the Indian judiciary, is reported to have called upon judges and lawyers to realise that they had an important role to play and urged them to interpret the marriage laws on the 'envil of life's realities and not by applying cut and dried rules resting on technical considerations'. (See Hindustan Times dated 18-1-1982 at p. 7).

32. I have no poetic genius of a Mathew Arnold who could portray the poignance of sorrow of the 'Forsaken Merman', who had a wasteful wait at the watery gate of the deserting mermaid spouse;

'Where wild white horses play Champ and chafe and toss in the spray' and then beckoned:

'Children dear, come away

She will not come if you cry whole day'.

It was only the other day that a Division Bench of which I was a party, dismissed a husband's appeal from an order declining his prayer for judicial separation the Acting Chief Justice, p. Subramanian Poti speaking for the court observed:

'Her case was that she was not maintained after her delivery, a case which appears to be probable in the circumstances of the case. A letter Ext. B-1 produced in this case speaks eloquently to the attitude of the appellant towards his wife and his objective in getting at properties of her father. We are not impressed with the offer now made before us that he is willing to take her back and she may be asked to go with him. We directed the parties to appear. Both appeared. The wife expresses her fear that her life itself may be in danger if she is asked to live with the husband. We do not think that we should, in the light of the attitude evinced by her husband towards her and the charge of adultery recklessly made by him direct the wife to live with him.'

In another case, a subordinate court directed the wife to take her children to a Village Office to enable the husband to visit the children. This court had occasion to caution against the approaches of some of the courts below or other authorities, when they treated a woman or a wife as a chattel or as stolen article'. Illustration can be multiplied of such unsympathetic (though unintentional) approaches to married women. They only confirm the feeling that some serious thought is given, and some speedy follow-up stop is taken, to translate into action the recommendations made by the responsible, representative and authoritative bodies. It is hoped that this land which witnessed many a peaceful transition of great movement would witness the necessary legislation, in a not too distant future. Observing the tearful eyes of the deserted wives and neglected children, the conscience of the court hopes: sooner, the better.


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