K. Sukumaran, J.
1. This case may well serve as a study in the continuing suffering of Indian womanhood. The legal battle for getting a paltry amount of less than Rs. 2,000/- by way of mahar and past maintenance, spanned a period of nearly a decade and spread over three courts including the High Court.
2. Mammu, was a man of means, owning landed properties, and doing business in the bury bazar of Nadapuram. He was married and with six children. His wife had gone to her parents house, presumably for the delivery of the 7th child. He felt like marrying again; he was only around 45; and his personal law permitted it. That was how he married Kunhimariyam, a girl about half his age, on 9-4-1972. The married life, nay, even the honey moon -- was, however, short-lived. By the end of July, the first wife came back. The second wife was packed off to her parents' house. She was then big with a child; and in due time delivered Suhara, the 2nd plaintiff in the case.
3. It was thereafter a case of continued neglect and abject abandonment as far as the plaintiffs were concerned. Mammu was so busy that he did not have time even to see his child, much less to care for its needs. The utility of the second wife was over as far as he was concerned.
4. The plaintiffs bided by time with an unhappy uncertainty. Soon they were disillusioned about the prospects of being protected or maintained by the defendant. Section 125, Cr.P.C.; 1973 came to their help. They filed, in July 1973, a petition, M. C. No. 41 of 1973 before the 1st Class Magistrate Court. Quilandy. Maintenance was claimed for the wife and the child. The defendant reacted, quickly and violently, on receipt of the notice from the Magistrate Court. He divorced and that too is permitted by his personal law -- the 1st plaintiff on 29-8-1973. The Magistrate awarded by Ext. A7 order dated 9-9-1974 maintenance at the rate of Rs. 60/- for the wife and Rs. 25/-for the child, for the period after 25-5-1973.
5. Even during the pendency of the criminal proceedings, claim was made for payment of past maintenance for the period prior to 25-5-1973 and return of the mahar. There was exchange of correspondence between the lawyers of the parties. The suit was filed in 1975, when the defendant did not satisfy the demand of the plaintiffs but was content with a despatch of a sum of Rs. 305/-, Rs. 105/- representing the mahar and the balance, the arrears of maintenance. The bare bones of the claim were the return of mahar and payment of past maintenance. While the plaintiffs claimed that the Mahar had been fixed at 11 miscal gold units (which she valued at Rs. 1199.99), according to the husband it was only Rs. 105/-. He also claimed of having effected payments to the plaintiffs on earlier occasions.
6. The trial Court, in a commendably detailed judgment, upheld the plaintiffs' claim and rejected the defence. That court emphasised the fact that the defendant was an arch liar. The Mahar promised was found to be 11 miscal units of gold and its value was fixed at Rs. 1199.99. By way of past maintenance, a sum of Rs. 888/- was found due to the 1st plaintiff and Rs. 95/- to the 2nd plaintiff. After deducting the payment of Rs. 305/- sent by money order, the balance due to the plaintiffs was fixed at Rs. 1877.99.
7. The defendant took up the matter in appeal. He succeeded substantially there. The defence version about the mahar was accepted According to the appellate Court, past maintenance could not be granted at the same rate as the future maintenance; and therefore reduced it by half. The net result was that the decree which the two plaintiffs got was in the magnificent sum of Rs. 596.50 :
8. The desperate mother and child have come up in second appeal It is complained that there was no justification in law in reducing the past maintenance by one half. The finding regarding mahar is also challenged. This Court has to consider seriously and anxiously their contentions, though assistance from their counsel was unfortunately absent
9. As regards the first question, there is no controversy that the plaintiffs are entitled to past maintenance, as they belong to the Shafi sect. (See Mahamed Haji v. Kalimabi, ILR 41 Mad 211 : (AIR 1981 Mad 722)).
10. There is a difference between the Hanafi law and Shafi law on this point. This is pointed out in Hedaya (Hamilton, Vol. I, page 398). The relevant passage is :
'Shafi says that the maintenance is in all circumstances to be considered as a debt upon the husband in conformity with his tenant that it is not a gratuity but a return, wherefore it cannot drop like demands of the former description.'
In Tohfatal Mierhaj, an authoritative commentary on the Mirhaj by Shahabuddin Ahmad Ibu Hayanul Hailini who flourished in the sixteenth century, it is stated that the maintenance is a debt on her husband even if it was not decreed by the Kazee. These views have got reflected in Tyabji's Principles of Muhammadan Law. All these aspects have been discussed in the Madras decision, ILR 41 Mad 211 : (AIR 1918 Mad 722) supra.
11. About the capacity of the defendant and his liability in that regard there could possibly be no doubt whatever, notwithstanding the long procession of falsehood seen in the course of his evidence. The documents in the case, Exts. A8 to A11 would give an indication of the fairly extensive immovable properties he owned. He disclaimed possession over portions of these properties on the ground that they had been orally leased, a story without any supporting material. The evidence of the 1st plaintiff about his landed property and his varied business activities could be rightly acted upon in the circumstances. His fairly lucrative trade and business and attractive agricultural income are established by acceptable evidence. His plea about his entitlement to the benefits of the Debt Reliefs Act (which permits payment in intelements and other benefits) was as foul and as false as many of his other contentions. The plea was rightly repelled by the trial Court and had been advisedly abandoned thereafter.
12. The appellate Court was apparently carried away by the argument that as regards arrears of maintenance, a lesser rate would be justifiable. It was obsessed by what it perceived to be the ratio in the decision, Laxmi v. Krishna, AIR 1968 Mys 288; and as in that decision, the maintenance was reduced by half.
13. The discussion on that aspect is in para 63 at page 292 of the Mysore decision. The reasoning underlying the conclusion therein is the following :
'The award of arrears at the same rate as future maintenance would cause undue hardship to the person who is liable to pay maintenance and would make available to the person who is entitled to the maintenance a fund which could be constructed only to the great detriment of the person liable to pay maintenance.'
14. The observations of the Mysore High Court have to be appreciated in the factual matrix of the case. The marriage there broke down in 1943. Cruel treatment made the wife demand payment of maintenance; but the suit was filed only in 1958, that is after a period of fifteen years. Whatever be the justification for the observations in the above factual background, I do not find any such in the present case. As noted earlier, the plaintiff was back home after a few months of living together with her husband. Thereafter it has been an unabated agony for her; delivering a child, and then looking after that infant girl. She had to approach the Magistrate Court initially; and then had to face the divorce during the pendency of such proceedings. The suit was filed in 1975, within two years of neglect and the later divorce. Having regard to the disabilities of a Muslim girl situate in such circumstances, I am definitely of the view that no default could be attributed at all to the plaintiffs in the case.
15. That apart, with utmost respect to the learned Judge of the Mysore High Court, I am of the view that a misplaced sympathy is lavished on an undeserving defaulter. Where is the justice or equity in reducing the rate of maintenance payable to the helpless woman and a minor girl, when the party morally and legally liable for the same has been contumacious in his neglect in prompt payments? I can discern none. The person on whom a duty to so pay the maintenance was cast, had the capacity all the while for making the payment. It was sheer cruelty on his part to have withheld the amount from a starving wife and a suffering child. The mere fact that the parents of the unfortunate woman had somehow supported her, and her new born baby, is no reason whatever for the defendant to claim, with any sense of grace, any indulgence whatever. No known principles of law would justify helping a person of such diabolic disposition.
16. It is then argued that there is a likelihood of hardship when a sudden claim for a large amount is made against the defaulter. But then, who was responsible for such a situation? Was it the forsaken wife or the innocent child? The defaulter did have the benefit of the utility of the money rightly payable to those helpless souls. He cannot then plead any hardship whatever in effecting a payment long overdue. If at all, the defaulter has to make good the suffering caused to those who are entitled to the payment, by the withholding of the amount for over a long period. If the Courts in bygone days have been unmindful of the hardship of the neglected wife or the abandoned child, it is not good reason to continue that cruelty even in the present age. Many archaic notions have been swept away by the strong current of judicial activism, to effectuate substantial and real justice to the needy. Only recently, the Supreme Court of India trailed the new path, taking note of the special and peculiar features of Indian womenhood, although in a different context. (See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753).
17. It is perhaps worthwhile in this context to undertake a survey of the old decisions which seek to support the view which the Court below adopted as having been reflected in the decision of the Mysore High Court (AIR 1968 Mys 288) (supra).
18. The High Court decisions, like many others to which reference has been made therein, refer to claims of Hindu widows against joint families. They have been rendered in the background of a societal set up where a joint family system, in a sense, worked almost like a comprehensive insurance cover against all mundane maladies. Quite often, marriages take place in pre-puberty period as in Rajamma v. Varadarajulu, AIR 1957 Mad 198. Instances are not rare where the girl continues living in her own house even after marriage. Sometimes, after the death of the husband, the Hindu widow would return to her parents' house to be looked after by the father or the brothers, as in Raghubans Kunwar v. Bhagwant Kunwar. (1899) ILR 21 All 183. When her frugal needs are so met, she rarely thinks of a litigative exercise in a remote and difficult court. Such considerations of a bygone age need not any longer be reckoned while considering the claim for maintenance made by a forsaken wife or a neglected child, from the husband or the father as the case may be, guilty of chronic default in the payment of such maintenance.
19. If the maintenance claimed is a legal sight and if the claim is within the period of limitation, ordinarily the party entitled to get it must get it in full measure from the party who defaults the payment.
20. Even in the case of Hindu widow, a reduction in relation to past maintenance would not appear to be justified either in principle or on precedents. To say so is not to overlook some decisions of the recent past making sweeping generalisations about the proposition of law. A closer analysis of the case law does not appear to support such generalisations. On a detailed analysis of the various decisions, it is seen that the two basic decisions, one of the Allahabad High Court in the year 1899 and the other of the Bombay High Court in the year 1918, gave inspiration to the later generalised statements, which in turn got reflected in the summarised legal position in text books of acknowledged reputation such as those of Mayne and of Mulla.
21. In the first of the above cases. Raghubanas Kunwar v, Bhagwant Kunwar, (1899) ILR 21 All 183, the evidence showed that the additional expense incurred by a brother who was looking after the Hindu widow was Rs. 10/- per month. The trial Court had awarded past maintenance at the rate of Rs. 167- per month. The evidence about the additional expense in relation to the maintenance of the widow by her brother a: Rs. 107- did weigh with that Court as an important factor in sustaining a reduced amount in relation to past arrears. That is evident from the observation reading :
'Having regard to this fact, and to the fact that for nearly eleven years the plaintiff made no claim whatever for her maintenance, leaving probably the defendants under the impression that she had waived her claim for maintenance, we think that she is not entitled to be allowed arrears of maintenance at the rate at which maintenance has been fixed for her for the future.'
22. In the second case. Karbasappa v. Kallava, ILR 43 Bom 66 : AIR 1918 Bom 122, a Hindu widow claimed maintenance, including arrears, for the past six years. The trial Court awarded future maintenance at Rs. 120/- per year; but the rate was fixed at Rs. 75/- for the past period of six years. The High Court varied the decree by reducing the period for which past arrears could be claimed as 3 years. Beaman, J. who spoke for the court observed that the case law to which the Court was referred 'yielded no definite principles upon which all cases of the kind would be decided' and candidly stated that it amounted to 'virtually saying that every such case must be decided upon its own facts.' One aspect which struck the Court was that 'if the pinch of want was being very seVerely felt a Hindu widow would insist upon her rights particularly if her husband's family were well to do and her father's family were extremely poor.' The conclusion reached by the Court was termed by the learned Judge himself as a 'common sense conclusion', based on that most general ground (relating to the pinch of want referred to above) and 'a balance of the most general and shifting considerations.'
23. A significant decision of the Privy Council was rendered about a decade after the Bombay decision. (See Ekradeshwari Bahuasin v. Homeshwar Singh, AIR 1929 PC 120 : 56 Ind App 182). The classic statement on maintenance as contained therein reads :
'Maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past lite of the married parties and the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties.'
The Privy Council held therein that a Hindu widow who left the residence of her deceased husband, not for unchaste purposes, and who thereafter resided with her father, was entitled to maintenance and to arrears of maintenance from the date of her leaving her husband's residence. The fact that she did not offer any proof about her incurring debts in maintaining herself or that no reasons had been given for changing her residence, were found to be totally inadequate reasons for denying the claim.
24. Krishnan Pandalai. J. considered the question in Sobhanadramma v. Varahalakshmi Narasimhaswami, AIR 1934 Mad 401. That decision took the view that the court had no discretion to limit the period for which arrears of maintenance could be awarded. The learned Judge, however, indicated circumstances which may estop a claim for past maintenance. Mark the guarded language in which the Court expressed itself on the point :
'Silence for a long period and omission to demand maintenance may justify an interference that the claim has been waived or abandoned. A conduct on the part of the widow such as to lead the person in charge of the estate to believe that he would not be claimed upon to meet suddenly a claim for a large sum of money which he ought to have found from the current income, is a matter to be considered.'
25. The Bombay High Court itself noted in a later decision that its earlier view in ILR 43 Bom 66 : (AIR 1918 Bom 122) supra was untenable at least to the extent it assumed a discretion for the court to curtail the period for which arrears of maintenance could be claimed. (See Gurushiddappa v. Parwatewwa, AIR 1937 Bom 135). The Court, however, thought that the Privy Council decision did not militate against the view that in respect of the past period the court had a discretion to award a less rate of maintenance. In AIR 1937 Bom 135 supra, Wassoodew, J. followed the earlier decision of that Court in ILR 43 Bom 66 : (AIR 1.918 Bom 122) supra, for, according to the learned Judge, 'it might be regarded as an authority in this presidency.' The only other reasoning which according to the learned Judge which supported the view was the fact that the amount of maintenance could be increased or diminished on change of circumstances. Bur then, if the only argument for a lower rate of maintenance is that it is for a past period, it is difficult to notice the impact of changed circumstances in the fixation of a smaller sum by way of maintenance for such past period,
26. Most of the later decisions like Shridhar Bhagwanji v. Sitabai. AIR 1938 Nag 198, D. M. Shanbhag v. L. J. Shanbhag, AIR 1942 Bom 260. Musunuru Nagendramma v. Musunuru Ramakotayya, AIR 1954 Mad 713. Rajamma v. Varadarajulu, AIR 1957 Mad 198, and Gowardhan v. Gangabai, AIR 1964 Madh Pra 168, do not usefully add to the discussion on this aspect. In AIR 1957 Mad 198 supra, the Court observed (at p. 200) :
'.....by reason of the arrears not being claimed promptly, the opposite party would have been induced not to make any provision for meeting it out of his annual income and therefore it would not be proper to saddle him with such heavy unexpected liability as would result in the liquidation of the joint family assets.'
The logic is indeed fragile. A widow's right to maintenance is not charity. It is her legal right. If she could claim it at any time within the period of limitation, there is no reason why those in charge of the joint family assets should get 'induced' not to make any provision for meeting such a liability. Prudence dictates and reason requires that enough reserve is provided for meeting such an accrued and distinct liability. A plea that a later demand would saddle the joint family asset with a heavy unexpected liability cannot, in that background, be appreciated at all.
27. The decision rendered by Umamaheswaram, J. in Eluri Krishnamurthy v. Eluri Suryakantamma, AIR 1955 Andh Pra 5, takes a bold, and if I may say so with respect, a right view of the legal position. The learned Judge refused to follow the passage in Mayne's Hindu Law, 11th Kin. Page 830. and the reasoning of the decisions mentioned in the Foot Note (f). The learned Judge observed :
'If the right of the widow is a legal one and if under the law of limitation she is entitled to claim arrears of maintenance for a period of 12 years, I am unable to understand how the Courts are entitled to exercise a wide discretion in cutting down the period or the rate of arrears.'
The learned Judge was in agreement with the view expressed in AIR 1934 Mad 401 supra, which among others contains the following forceful words :
'The only legal answer to such a claim is either abandonment or waiver or such conduct on the part of the plaintiff as may have misled the defendant into thinking that such a claim would not be made thereby inducing him not to make any provision for it, especially as maintenance is a provision to be made out of the current income of the estate or of the person liable.'
Umamaheswaran, J. emphasised that the conduct of the widow must be such as to estop her from claiming arrears or lead to such an inference that she abandoned or waived her claim. I am in respectful agreement with the approach and conclusion of Umamaheswaran, J. in the above decision.
28. It may also be noted that there was no plea in the written statement of the defendant seeking a fixation of a lower rate of maintenance for the past period. No arguments had been advanced before the trial Court based on the contention that a reduction in rate is warranted, when the period for which the claim was made was a past one. There was therefore no justification whatever in entertaining such a plea for the first time in appeal. On this ground too, the appellate decree calls for interference on this aspect.
29. In the light of the above discussion, 1 am clearly of the view that the courts would not be justified in fixing a lower rate in relation to past maintenance as a general and an inflexible rule. The Court below overlooked this correct legal position when it drastically reduced the rate of past maintenance.
30. On the question of mahar, there was a positive finding by the trial Court. The trial Court had judicial experience in relation to the usage among the section to which the party belonged. It observed :
'In another case I had the opportunity to examine a witness exactly on the point covered herein. The deposition of that witness is not evidence in this case. Still being influenced by the statements of that witness about the practice prevailing among the Muhammadans in the locality I am inclined to hold that the practice of fixing mahar in units of miskal gold is not a forlorn factor. The practice exists even today.'
That Court was, however, cautious enough not to base its conclusion on the information obtained by it. It stated so specifically. The information, however, enabled the Court to appreciate the evidence in the case in the proper perspective. The defendant obviously did not point out in his reply notice Ext. A2 (in answer to the lawyer's notice sent on behalf of the plaintiff, Ext. Al where a demand was made for the return of the 11 miscal of gold fixed as mahar), that the mahar was fixed otherwise or in a different figure, his explanation was that such an omission was due to the fact that the return of mahar had been already effected. This explanation was totally unsustainable. It was in evidence that even while giving evidence before the Magistrate Court, (on 5-7-1974) (Ext. A12 is the deposition) he had admitted that the mahar had not been paid. He had sent Rs. 105/- only by money order and on a later date. Thus the defendant's evidence and explanation on that point was totally unacceptable. The plaintiff gave evidence on the point. She could not examine the Kazi, due to certain unfortunate developments, like the passing away of her counsel engaged, at about the time the suit proceeded for trial. In the above background, notwithstanding the omission to examine the Kazi, the evidence of the plaintiff was rightly found acceptable to the trial Court. The finding on mahar by that Court was therefore perfectly justified. That finding could not ordinarily be set aside by the appellate Court in the absence of justifiable reasons. No such reasons exist. If only the appellate Court had carefully and critically read Ext. A12 (the deposition of the defendant in the Maintenance Case before the Magistrate Court) and his deposition in the present case, it would have had no hesitation to reject the defence version. The defendant's version about the time at which the 1st plaintiff returned to her parents' home, about the ownership of his landed properties which conflicted with the documentary evidence, about the oral entrustment of portions of his property when he was confronted with documents indicating the large extent of immovable properties standing in his name, about the amount required for the daily maintenance the said Rs. 2/- would be sufficient for meeting the entire expenses of himself, his wife and his 7 children'.), and even his plea about his inability to maintain two wives, would all show that he was an adventurer in perjury. To a crucial question whether among the Shafi sect of the Muslim community mahar is not fixed at 11 miscal gold units, he only pleaded ignorance. In such circumstances, the appellate Court acted perversely in interfering with a well reasoned out finding of the trial Court on the question of mahar. I have therefore no hesitation whatever to dislodge the appellate Court's finding on the second point also.
31. In the result, on both the contentions, the appellate decree has to be set aside and the decree of the trial Court has to be restored. I do so, and with costs throughout.
32. Beaman, J. in ILR 43 Bom 65 : (AIR 1918 Bom 122) supra, referred to the 'extremely harsh and rigorous attitude of the Hindu mind towards women so unfortunately situated as Hindu widows often are.' That was in the year nineteen eighteen. This case perhaps demonstrates the extremely harsh and rigorous attitude of Indian mind towards women so unfortunately situated as the Indian divorced wives often are, even in the nineteen eighties.
33. The second appeal is disposed of as above : as for this court there is a disposal of an old appeal; but as for the 1st plaintiff, even now a young woman but with an added responsibility of nursing and nurturing an infant daughter, it is still an unfinished case of the pale flame of a candle burning at both ends.