Bibitha Felix & Beona v. Felix Miranda & Justina Teddy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** **Mat.Appeal.No. 322 of 2010** **AGAINST THE JUDGMENT IN OP 245/2008 of FAMILY COURT,THIRUVANANTHAPURUM DATED 31-03-2010** ## **APPELLANTS/PETITIONERS:** **1 BIBITHA FELIX, AGED 25 YEARS,D/O FELIX MIRANDA, T.C.NO.6/329,KARIMANKULAM ROAD, VATTIYOORKAVU,THIRUVANANTHAPURAM, REPRESENTED BY HER SISTER AND P/A.HOLDER BEONA, D/O.FELIX MIRANDA, T.C.NO.6/329,KARIMANKULAM ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM, NOW RESIDING AT MRITHYUNJAYA HOLISTIC CENTER, D-81, PARAYIL DEVI TEMPLE LANE, KURAVANKONAM, KOWDIAR, THIRUVANANTHAPURAM 695003.** **2 BEONA AGED 21 YEARS, D/O.FELIX MIRANDA T.C.NO.6/329,KARIMANKULAM ROAD,VATTIYOORKAVU,THIRUVANANTHAPURAM, NOW RESIDING AT RESIDING AT MRITHYUNJAYA, HOLISTIC CENTER,D-81,PARAYIL DEVI TEMPLE LANE,, KURAVANKONAM, KOWDIAR, THIRUVANANTHAPURAM695003.** **BY ADVS. DR.SEBASTIAN CHAMPAPPILLY SMT.ANNIE GEORGE SRI.M.P.RAJU** Mat.Appeal No.322/2010 -:2:- ## **RESPONDENTS/RESPONDENTS:** **1 FELIX MIRANDA, AGED 60 YEARS, S/O. MICHEAL MIRANDA, PERMANANT ADDRESS, 'SHANTI BHAVAN,', VETTUCAUD, THIRUVANANTHAPURAM, AND PRESENTLY EMPLOYED AT SHARJAH AND HAVING THE ADDRESS P.O.BOX NO.430, SHARJAH, UAE. 2 JUSTINA TEDDY AGED 53 YEARS D/O.C.S. TEDDY, RESIDING AT MRITHYUNJAYA,, HOLISTIC CENTER, KOWDIAR, THIRUVANANTHAPURM695003 BY ADVS. SMT.ANN EMIL JOSEPH SMT.K.R.RIJA SMT.ZEENA S.FERNANDEZ SRI.CELINE WILFRED SRI.KURIAN ANTONY EDASSERY SRI.M.P.M.ASLAMAMI.CURIAE SRI.M.RETHEESH SRI.SUMAN CHAKRAVARTHY** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2018, THE COURT ON 24.01.2019 DELIVERED THE FOLLOWING:** Mat.Appeal No.322/2010 -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ The appeal has been filed by the daughters of the respondents challenging judgment dated 31/3/2010 in OP No.245/2008 of the Family Court, Thiruvananthapuram. The appellants filed the Original Petition seeking past and future maintenance, educational expenses for the 2[nd] petitioner and marriage expenses for the first petitioner and for other incidental reliefs. The Family Court partly decreed the petition directing the 1[st] respondent to pay maintenance to the 2[nd] petitioner at the rate of `5,000/- per month from 3/3/2008 until she obtains employment or any other independent source of income or till she gets married, whichever is earlier. Other claims made by the petitioners were dismissed. 2. The short facts of the case are as under. Petitioners/appellants are the daughters of the first and second respondent. The marriage between the respondents were dissolved by mutual consent as per order in OP No.823/2006. According to the petitioners, after divorce, 1[st] respondent contracted a second marriage and thereafter he did not care to Mat.Appeal No.322/2010 -:4:- maintain the petitioners. He is a person having financial capacity to meet their expenditure and accordingly 1[st] petitioner sought for recovery of `15 lakhs towards the marriage expenses and the 2[nd] petitioner sought for `20,000/- per month as educational expenses including hostel expenses. 2[nd] petitioner contended that she is undergoing a course in Bio Technology at Indian Academy. She had completed 3[rd] semester. She has 3 more semesters to complete. The total amount to be spent for completing the said course will come to `7,50,000/-, which the 1[st] respondent is liable to pay. It is contended that the first respondent who is employed abroad draws a salary of more than `2 lakhs per month. They also sought for past maintenance from September, 2006 onwards. The OP was later amended claiming further amounts regarding the expenditure for completing the studies. 3. The 1[st] respondent _inter alia_ contended that the OP has been filed in collusion with the 2[nd] respondent. He however submitted that he has got the obligation to maintain his children with his financial capacity. He denied having contracted a second marriage. He denied having drawn a salary of `2 lakhs. According Mat.Appeal No.322/2010 -:5:- to him, he was only getting 1,500 UAE Dirhams per month as salary. He further submitted that he had purchased several sovereigns of gold ornaments for his wife from the savings and all his money which had been sent to her had been appropriated. That apart, after the birth of the third child, the 2[nd] respondent continued her studies and had obtained a Doctorate in Sidha Medicine. She started a clinic at Sasthamangalam and is having a private business. She is a super-tax payee and has immense resource. He further submitted that he was without job for five years. With the money sent by him, 2[nd] respondent had purchased 15 cents of land and he had constructed a building in the property. The rent of the building is being collected by the 2[nd] respondent. He only has one half right over the said property. He does not have any place to stay. Further, he contended that he is left with no assets. However, he has spent an amount of `2,39,000/- for the education of 2[nd] petitioner. She was also given 40 sovereigns of gold ornaments. With regard to marriage of the first petitioner, he submitted that he was not informed about the marriage. He had come to know about the marriage later. It was not a ceremonial marriage as the first petitioner chose her own Mat.Appeal No.322/2010 -:6:- partner and registered the marriage before the Sub Registrar office. The marriage expenses will be less than `1,000/-. He was also not informed about the studies undertaken by the 2[nd] petitioner. The 1[st] respondent is completing 60 years of age on 2/3/2010. With his limited income, he is unable to cop with his own life and therefore he sought for dismissal of the petition. 4. Before the Family Court, petitioners were examined as PW1 and PW2 and respondent was examined as CPW1. Exts.A1 to A18 were relied upon by the petitioners and Exts.B1 to B5 (b) were relied on by the respondents. 5. The Family Court after considering the evidence rejected the claims except the direction to grant maintenance to the second petitioner. Learned counsel for the appellants while impugning the aforesaid judgment submits that the 1[st] respondent is liable to meet all the expenditure of the petitioners including their marriage and their studies which is settled by a long line of judgments. 6. There is no dispute about the fact that a Christian father has the obligation to maintain his daughters who are not capable of looking after themselves and his obligation continues Mat.Appeal No.322/2010 -:7:- even after obtaining the majority. There is no reason for us to highlight the principles on the point. However, the only question to be considered is to what extent the maintenance can be awarded. As far as the law relating to the award of maintenance under the Hindu Adoptions and Maintenance Act, 1956 is concerned, it is a settled law that in the case of an unmarried daughter, the maintenance includes expenses of and incidents to a marriage. In _**Gladstone v. Geetha Gladstone**_ (ILR 2002 (3) Kerala 113=2002 KHC 686), while considering a case filed u/s 125 of Cr.P.C by a christian lady and a child, it was held that while fixing the quantum of maintenance, the Court shall take into account the income, the earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties to the marriage and conduct of the parties. 7. Therefore, there cannot be any issue regarding the obligation to maintain. What should be the extent to which it can be granted is the question. There cannot be any dispute regarding the fact that unmarried daughters have to be Mat.Appeal No.322/2010 -:8:- maintained either until their marriage or until they get employment or they are in a position to look after themselves, whichever is earlier, which apparently is a question of fact to be decided on the facts and circumstances of each case. In the matter relating to a claim for marriage expenses against a Muslim father, in _**Ismayil v. Fathima and another**_ (2011 (4 KLT 40), a Division Bench of this Court held that the maintenance under the different Personal Laws should be given uniform meaning and interpretation and therefore a Muslim father is liable under his Personal Law to pay maintenance to his unmarried daughter including the obligation to meet the marriage expenses. Paragraphs 15, 28 and 30 are relevant which reads as under:- _“15. Law cannot be far removed from life and therefore it will be necessary to understand the right/obligation to maintain a daughter in the light of the existing situation in the Indian society. We may hasten to observe that we are only trying to find out whether expenses relating to marriage are necessary expenses for the mental and physical well being of the claimant/unmarried daughter. In the present level of emancipation of the Indian woman it is impossible to accept that an unmarried daughter can fend for herself and enter into matrimony without the support and patronage of her father/parent. Even if she is able to choose a bridegroom for herself, it is common_ Mat.Appeal No.322/2010 -:9:- _knowledge that marriage expenses are met by the father. All fathers to whichsoever religious denomination he may belong, does certainly perceive the responsibility in the Indian society of the present day to give his daughter in marriage when she attains the age of marriage. What we intend to note is that consistent with the mandate of Art.21 of the Constitution as accepted by the Full Bench in Mathew Varghese (supra), maintenance is the right of the child. Such maintenance does and must include all expenses for the mental and physical well being of the child and so far as the unmarried daughter is concerned her marriage is also something essential and necessary for the mental and physical well being of the child. Therefore, we feel that the right to marriage expenses can certainly be included in the concept of maintenance which a father is liable to provide for his unmarried daughter. We do promptly note that the entitlement is only for reasonable amount and is available to only an unmarried daughter who does not have means of her own to meet the marriage expenses. Such right is only against the father who has the requisite means.”_ _“28. We are of the opinion that the above stipulations in the Personal Law, though they do not afford direct assistance to us on this controversy, can also be relied on to reach the conclusion that the Muslim father has the indisputable obligation to maintain his unmarried daughter. We find it safe to proceed to further hold that he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly. He hence has, we_ Mat.Appeal No.322/2010 -:10:- _hold, the legal obligation to meet the reasonable marriage expenses of his daughter, as part of his obligation to pay maintenance to her.”_ _“30 The above discussions lead us to the conclusion that the right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers - be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal_ Mat.Appeal No.322/2010 -:11:- _law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father. “_ 8. The first petitioner had claimed marriage expenses. She claimed `15 lakhs on that count. Evidence adduced in the case would indicate that she married a person of her own choice and it was a registered marriage. Expenses for marriage can be claimed only in instances where any expense has been incurred for the marriage. Of course, even before marriage, a claim can be made taking into account the probable marriage expenditure. The expenditure to be incurred for such marriages depends upon the facts and circumstance of each case. At any rate, exorbitant amounts cannot be claimed towards marriage expenses. Marriages can be conducted in a simple form and one can even conduct a luxurious marriage. But while claiming marriage expenses, one can expect only the minimum amount required for conducting a simple marriage function. We are of the view that Mat.Appeal No.322/2010 -:12:- the amount claimed was unreasonable. That apart, while conducting a registered marriage, it is clear that the first petitioner should not have incurred any major expenditure as she had married a person of her own choice. Under such circumstances, the Family Court was justified in rejecting the said claim. 9. Second petitioner claimed `20,000/- per month for educational expenses and `7,50,000/- for her studies. The claim was later amended claiming `10,46,200/- as educational expenses. The Family Court found that the second respondent is also a person who is having sufficient source of income and she is more financially affluent than the 1[st] respondent. She too have the liability to meet the expenses of the petitioners. The present claim is made alleging that she has joined a course for which huge amounts are required. The first respondent took up a contention that he had no capacity to expend such a huge amount. He produced Ext.B3 salary certificate to prove that his income was 1,500 UAE Dirhams. Though the petitioners contended that the 1[st] respondent is a millionaire, no such material had been produced to prove the said fact. Therefore, Mat.Appeal No.322/2010 -:13:- taking into account the income of the 1[st] respondent, the Family Court rejected the claim for payment of such huge amount towards educational expenses and also on a finding that the mother has sufficient wealth. 10. It is also curious to note that the 2[nd] respondent did not enter the box. First respondent has a specific case that the 2[nd] respondent has sufficient income. In so far as she did not enter the box to explain why such a huge claim is being made and that she is not in a position to expend such amount, Family Court was justified in rejecting the said claims. Even if educational expenditure are to be met, only reasonable amounts can be sought. If a person decides to go abroad and continue his/her studies, is it that the parents should be mulcted with such a huge liability? The award of maintenance shall be in accordance with the financial and social status of the persons involved. The income derived by the parent is of primary importance. It is curious to note that the 2[nd] respondent did not file any objection which clearly indicates that she is supporting the claim. If the mother is also an earning member, the liability to maintain the children rests with both the parties. What would be the quantum Mat.Appeal No.322/2010 -:14:- of maintenance always depends upon the facts and circumstances arising in the case. The 2[nd] petitioner claimed `20,000/- per month and the Family Court allowed `5,000/- taking into account the income of the 1[st] respondent and other factual circumstances arising in the case. We do not think that any error had been committed by the Family Court in awarding the maintenance at the said rate and rejecting the other claims. The claims were exorbitant and not in consonance with the scheme of things and there is no evidence to prove that the first respondent had the financial capacity to pay such huge amounts. Appeal is dismissed. No costs. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge