1. Petitioner and respondent in this case are both Nairs following Marumakkathayam law; and the four children in respect of whom petitioner claims maintenance are the offspring of a sambhandham between them. The Sub-Divisional Magistrate, finding that petitioner's tavazhi, from which the children admittedly had a right to maintenance, was able to maintain them has dismisssed the petition, relying on the ruling in Chantan v. Mathu I.L.R. (1915) Mad. 957.
2. I was a party to that decision, and after hearing the matter re-argued, see no reason to change my mind.
3. It seems to me that the object of including the maintenance sections (Chapter XXXVI) in the Criminal Procedure Code can only have been the prevention of destitution on public grounds; and that it should only be applied in cases where, in the absence of these provisions or the more cumbrous process of civil law, the wife or children would be destitute. Its unrestricted application to a society governed by a system of law like the Marumakkathayam is open to the peculiar objections and danger that it runs counter to the central ideas underlying the matriarchal system and should, in my opinion, only be allowed to the extent absolutely necessary to secure the object at which it is aimed.
4. I would therefore dismiss the petition.
5. This petition arises out of an order passed by the Sub-Divisional Magistrate of South Malabar dismissing a petition by a certain Nair lady asking for an order for maintenance for her children against the respondent. The findings are that the petitioner is a Nair and has been observing the Marumakkathayam system, that she began sambandham with the respondent in 1908-1909 and between the years 1908-1917 four children were born, all of whom were to the respondent. The respondent denied the paternity, but the Magistrate has found it and I certainly accept that finding. The petitioner belongs to a tavazhi, consisting of her mother, herself and her family and one Achutan Nair. The lower Court has not found what the income of the tavazhi is nor has it given any finding as to the income of the tarwad. All it finds is that the tavazhi lands are of some value and able to maintain the children, though not well. On this finding the Magistrate applies a decision of this Court in Chantan v. Mathu I.L.R. (1915) Mad. 957 and holds that no order can be made. The case in Chantan v. Mathu I.L.R. (1915) Mad. 957 entirely holds that the words 'unable to maintain itself' mean 'not having a right to be maintained.' It is argued before us that this decision is wrong as being in conflict with other decisions of this Court and it is pointed out that in the last reported case no one appeared for the petitioner. The question has now been fully re-argued before us and we have examined those cases.
6. The first contention argued is that the section does not apply to persons following the Marumakkathayam law as that is a special law within the meaning of Section 1 of the Criminal Procedure Code.
7. This view has been directly negatived in Ayya Pattar v. Kalyani Amma (1898) 3 M.L.J. 281 Kariyadan Pokkar v. Kay at Beer an Kutti I.L.R. (1895) Mad. 461 and Venkatakrishna Pattar v. Chimmu Kutti I.L.R. (1899) Mad. 246 and I have no doubt that those words in Section 1 have reference to statutory enactments and not to local family law.
8. I have therefore to consider whether apart from Section 1, Chap. XXXVI is applicable. In my opinion we must read the section in such a manner as to be properly applicable to the various social conditions of this country. The section is certainly old, as it is to be found in the Act of 1861. But we have to bear in mind its origin. In so far as illegitimate children are concerned it owes its origin to the old English Act, 7 and 8 Vic. Ch. 101 which gave a right to a woman either before or after the birth of her illegitimate child, to apply for an order against the father and it has been held that the origin of this law is the prevention of vagrancy.
9. Bearing this in mind I think that we should give a meaning to the words ' unable to maintain itself which is in keeping with the legal position of the parlies who are affected. There is no doubt as to the position of the children of a sambandham in Malabar. That system of law is matriarchal and the children are entitled to be maintained by their tavazhi or tarwad. Whatever other rights they have, there can be no doubt that in this respect the Marumakkathayam system differs completely from the Hindu Law in the rest of the Presidency, the Mahomedan Law and the English Law. I am therefore strongly inclined to think that the words 'unable to maintain itself' cannot be confined as suggested, to the tender age of the child but must also have reference to its financial dependency. This view seems to me to gain support from other words in the section. The first is the words almost directly after those words are ' a monthly allowance for the maintenance.' That clearly points to the object of the payment which is to be ordered, and it seems to me that if the payment is not required for maintenance it necessarily follows that the payment should not be ordered. Then there are the words in Section 489 'change in the circumstances,' If the words, 'child unable to maintain itself had reference only to the tender age of the child, it seems to me that so wide a word as 'circumstances' would not have been used in this latter section. If it is only a question of age a child cannot grow younger, it can only grow older, and that change can hardly be called a change of circumstances. The word is very applicable if a wider scope is intended. If, for instance, in this case, the tavazhi lost all its money and there was nothing left for the child for maintenance, that would undoubtedly be a change of circumstances. In the same way if an order had originally been made in consequence of the poverty of the tavazhi and it was brought to the notice of the court that the tavazi had become possessed of wealth, that would be a change of circumstances.
10. So far for the words of the sections. Now for the cases. The first is one of 1893 reported in Ayya Pattar v. Kaliani Amma (1893) 3 M.L.J. 281. That was also a case of Sambandham between a nair woman and a brahmin. The Magistrate found that the tarwad was too poor to take the responsibility off the shoulders of the respondent, but he also held that the words in question had only reference to age. The Revision Petition was heard by Collins, C.J., and Shepherd, J. The judgment however is very short. The Bench negatives the suggestion that the law enacted by the Code does not apply to Malabar and says that on the facts found there is no doubt that the order is right. The next case is Kariyadam Pakkar v. Kayal Beeran Kutti I.L.R. (1895) Mad. 481.The parties were Moplahs but the Magistrate did not find whether they followed the Mahomedan or the Marumakkathayam Law. The Magistrate found that the defendant was willing to maintain the mother and the child if they lived with him and on that finding held that no order could be made. The petition was heard by Collins, C.J., and Parker, J. and it appears that the complainant was the karnavan of the mother's tarwad and was acting as de facto guardian of the children. The Bench negatived the proposition that Section 488 did not apply to Malabar and held that Section 1 was not a bar to the petition. The learned Judges then formulated two questions (1) are the children legitimate or illegitimate children of the defendant and (2) has he neglected or refused to maintain them. They decided nothing but raised the following question. 'If the parties follow Marumakkathayam law, the question will arise whether the father could be held to have neglected his duty to provide for his children if they were being actually maintained by the karnavan of their mother's tarwad who is bound by law to maintain them. 'It seems to me that the Bench rather assumed that the words' unable to maintain itself' were not confined to the question of the tender age of the child. The next case is Venkata Krishna v. Chinna Kutti I.L.R. (1899) Mad. 246. That was also a case of sambandham between persons governed by the marumakkathayam law. The magistrate held that the petitioner, the mother, had no means of maintenance for her child and made an order against the father for Rs. 5 a month. The revision petition was heard by Collins, C.J. and Benson, J. and the judgment is as short as in Ayya Pattar v. Kalyani Amma (1893) 3 M.L.J 281 : I.L.R. (1895) Mad. 461 which was expressly followed without any reference to Kariyadan Pahker v. Kayat Beeran Kutti I.L.R. (1895) Mad. 461. 'We have no doubt but that the Magistrate believed the woman and found that the petitioner before the High Court was the father of the child. He is therefore liable.' I certainly find it impossible to reconcile the wide language of this judgment with the doubts expressed in Kariyadan Pakker v. Kayat Beeran Kutti I.L.R. (1895) Mad. 461 and I have little doubt that the learned Chief Justice took a strong view of the matter and that Parker, J., who sat with Collins, C.J., in the case in Kariyadan Pakkar v. Kayat Beeran Kutti I.L.R. (1895) Mad. 461 did not agree with him. The next case is In re Parathy Valappil Moidin (1913) M.W.N. 997. In that case the parties were Moplahs governed by the Marumakkathayam law. The petitioner had been divorced and was living in her own tarwad house with her children, and it was assumed that they were being maintained. It was also found that the father was willing to take the boy and maintain him. The father petitioned this Court and the case was heard by Sadasiva Aiyar, J.
11. He directly held that the inability referred to in the section relates to the absence of sufficient maturity of physical and mental development in the child rendering it in consequence unable to earn its living by its own efforts, and does not refer to inability through poverty or absence of means. That this is the considered view of our learned brother has been demonstrated to us by the quotation of a decision of his as Chief Justice of the Travancore State which we have carefully considered. The last case is that in Chantan v. Mathu I.L.R. (1915) Mad. 957 There it was found that the children were in fact maintained by the tavazhi but the Magistrate made the order. The petitioner applied to the High Court and his case was argued by a vakil, no one appearing for the mother. Abdur Rahim, J., in his judgment refers to the judgment of Sadasiva Aiyar, J., and says that he was unable to accept the narrow meaning of the words ' unable to maintain itself' and holds that where the child is in fact maintained by some other person as of right the section does not apply. The learned Judge also points out that the procedure is summary and does not cover the same ground as the civil liability of a father to maintain his child, and is of opinion that the legislature did not contemplate a summary order of this sort in a case where a child is well-to-do. He points out that in the case of Kariyadan Pakkar v. Kayal Beeran Kutti I.L.R. (1895) Mad. 461 the Bench did seem to suggest that children who were actually being maintained by their mother's tarwad were not entitled to maintenance. My learned brother concurred in this view.
12. On an examination of these cases there is no doubt that there is a difference of opinion. Collins, C.J., seems to have taken a very strong view in two cases but he was a party to Kariyadan Pakkar v. Kayat Beeran Kutti I.L.R. (1895) Mad. 461 where the opposite view was suggested. The decision of my learned brother Sadasiva Aiyar, J., is entitled to great respect, but it is the decision of a single Judge; whereas the decision in Kariyadan Pakkar v. Kayal Beeran Kutti I.L.R. (1895) Mad. 461 is that of a bench. If I thought the latter decision was wrong I should have asked my learned brother to agree to its being referred to a Full Bench. But as on the policy of the provision and on the language of the section I concur with the latter ruling I would follow it and dismiss the petition.
13. I would however point out that if the mother of the child can at any time show that the amount available from the Tavazhi or possibly from the tarwad funds is insufficient to maintain the child it is open to her to renew her application.