JUDGMENT S. Ramachandra Iyer, C.J.
(1) These appeals are the outcome of a suit instituted by the wife, for herself and on behalf of the children born of her wedlock, against her husband for maintenance. The suit was partially decreed, the lower court awarding Rs. 100 per month as maintenance to the wife and Rs. 35 per month for each one for the two children who lived with her; no amount was awarded in respect of the maintenance of the other two children who were residing with their father. The wife has filed the former of the two appeals complaining of the inadequacy of the amount awarded; the husband has filed the latter appeal contesting the right of the wife and his children who live separate from him to ask for maintenance.
(2) The parties, who belong to a well-to-do family in Nazarath in Tirunelveli Dt. are Indian Christians belonging to the Protestant persuasion. They were married on 9-9-1942. They have four issues, three daughters and a son. One of the daughters and the son are now with the father, while the other two daughters are living with their mother. In the suit, the wife claimed maintenance on behalf of the four children, and she had by then instituted a petition under the Guardians and Wards Act for the custody of the two children staying with her husband.
(3) The present suit itself has been preceded by a long and acrimonious fight between the husband and wife. Although the actual point for determination in these appeals does not depend very much on the antecedent history, we consider that it should be referred to in brief to serve an introduction to the present dispute. We shall refer to the parties with reference to their respective ranks in the lower court.
(4) There was a childless couple, Peria Nadar and Annammal, in Nazarath. The former was doing very good business and owned considerable properties. They brought up the defendant, Rajiah Ratnam, as their foster son. Peria Nadar dies in the year 1946 leaving a will bequeathing considerable properties to Rajiah Ratnam--in some of the properties so bequeathed Rajia Ratnam's interest was only for his life, the remainder having been disposed of in favour of his children. Even so, the remaining properties were undoubtedly very substantial in value. Soon after the death of Peria Nadar, Rajiah Ratnam is said to have taken to loose ways of life, associating himself with women of easy virtue. Protests on the part of the wife only resulted in misunderstandings between the couple.
The regrettable feature of this fight was that Annammal, instead of trying to reform the ways of her foster son, joined him in his crusade against his wife. The wife complained of ill-treatment, she said that on 5-2-1952 there was an attempt by her husband and his foster-mother to administer poison to her through a cup of milk sent through the servant maid. Naturally, this created a great sensation in the locality. The wife followed up her accusation with a complaint against her husband, Annammal and five others under S. 307, I.P.C. but the complaint was thrown out, after enquiry, on the ground that no prima facie case had been made out against the persons charged. A subsequent complaint against the servant maid, who gave her the poisoned milk, ended in the acquittal of the latter. The husband on his part, filed a petition under S. 10 of the Indian Divorce Act against the wife for the dissolution of the marriage, charging the latter with adulterous conduct. The Court of the first instance accepted the petition; a decree nisi was passed. But on appeal, this court, after a detailed consideration of the evidence, found in R.C. 19 of 1953, that the accusation against the wife was unjustified and that the evidence adduced on the side of the husband was thoroughly untrustworthy. The result was that the petition filed by the defendant for dissolution of marriage stood dismissed. This order was passed on 19-2-1954.
(5) It is the case for the wife that shortly after the filing of the petition for dissolution of marriage, the feeling between the parties were high; that her husband wrongfully confined her in his house and that she had to escape from such wrongful confinement along with two of her daughters. The matrimonial cause was, therefore, fought out between the parties, when the spouses were living away from each other. After the disposal of the referred case, in this court, both the husband and wife filed applications under Ss. 10 and 25 of the Guardians and Wards Act, each alleging that the other was unfit to have the custody of the children or to be their guardian, and seeking the aid of court to obtain custody of the two children remaining with the other. The wife succeeded in her attempt. The defendant was removed from guardianship. This order was confirmed on appeal by this court and on further appeal by the Supreme Court; Annammal died in April 1954.
(6) After the termination of the guardianship proceedings in the court of first instance, the wife instituted the suit, which has given rise to the present appeals, for recovery from her husband maintenance for herself and her children. She claimed that, having regard to the financial status of her husband and the standard of life she was accustomed to, she should get Rs. 500 per month for herself and that each of her four children should get from their father Rs. 150 per month. The suit was contested on several grounds, the husband taking up the stand that the wife's infidelity disentitled her to separate maintenance.
The wife, on the other hand, pleaded cruelty which justified her to live apart from her husband. Very little evidence, beyond what formed the record of the earlier proceedings, was adduced in the case. The learned Subordinate Judge held that the wife was entitled to separate maintenance, which he fixed at Rs. 100 per month; for the two children living with her he granted Rs. 35 each per month. Both parties have appealed against that decree.
(7) In these appeals no attempt was made to challenge the correctness of the view that the wife was justified in living apart from the husband. Three questions were alone argued before us: (1) Whether a Christian wife has a claim for separate maintenance against her husband and even so, whether she could enforce such a claim in a suit for maintenance? (2) Whether the children born (out of) a lawful wedlock would be entitled to be provided with maintenance by their father? (3) What is the quantum of maintenance to be awarded?
(8) Before we proceed to consider the points set out above, we would like, at the outset, to refer to a few matters.
During the period when the petition for divorce was pending, the husband was directed, by an order of court, to pay his wife alimony at rate of Rs. 250 per month, and there was a further order for payment of maintenance to the two children living with the wife at the rate of Rs. 25 per month. But the children were then very young. Those amounts were paid by the husband till the termination of the Matrimonial cause in this court on 19-2-1954. Soon after the institution of the present suit, an application was filed before the lower court by the wife for payment of interim maintenance for herself and the two children living with her. The learned Subordinate Judge granted her Rs. 200 and her children Rs. 25 each per month, so long as the wife had not protection of her father; and half the former amount and Rs. 25 per child if she had such protection. This order formed the subject matter of challenge in this Court in C.R.P. 74 of 1956. Ramaswami J. on a detailed consideration of the authorities on the question of a christian husband's liability to maintain his wife, confirmed the order, though he felt that the provision made for the children was inadequate.
(9) We have already referred to the fact that under the will of Peria Nadar the defendant obtained extensive properties. Further, he had a banking business and an agency for the sale of kerosene oil etc. Ramaswami J. described him as a multi-lakhier, and the learned District Judge, who first granted the alimony to the wife, during the pendency of the matrimonial cause, referred to the sum of Rs. 250 which he awarded to her as a fleabite on the husband's income.
(10) However, after misunderstandings between the spouses started, the husband began systematically to dispose of his properties. He even went to the extent of closing down his business, presumably with a view to prevent his wife from obtaining maintenance in case she were to obtain a decree. The evidence discloses that the defendant had sold properties to the extent of Rs. 2,94,340. In spite of all these alienations, there are a number of houses and also the properties in respect of which Peria Nadar had given him a life-interest with a remainder to his children, still with him, they are undoubtedly of substantial value. The learned Subordinate Judge has held that the sales were an attempt on the part of the husband to put away the properties from the reach of his wife. Only vague suggestions were made as to the disposal of the proceeds. But, having regard to all the circumstances of the case, one can reasonably conclude that a substantial part of the moneys so got by the sale of properties still remain with the defendant. The learned Subordinate Judge, however, did not give any definite finding as to the husband's income. We shall advert to this matter when we consider the question of the quantum of maintenance.
(11) Mr. V. T. Rangaswami Aiyangar appearing for the husband has contended that, apart from any custom that may be proved in any case (there being no plea or proof of any custom in this case), and apart from any statutory provision, the Indian Christians have no distinctive personal law, and their domestic obligations will have to be governed by the English law, and, as under that law a wife has no common law right of suing her husband for maintenance, the present action could not be sustained.
This contention was sought to be elaborated on two bases: (i) Under S. 7 of the Indian Divorce Act, the Courts in India are compelled to give relief on principles and rules which prevail in England from time to time and inasmuch as that statutory provision deals with matters of substantive law as well as the procedural one, a right of action for maintenance would lie only if it existed in a similar case in England; (ii) There being no distinctive personal law for Indian Christians in this country, the only remedy which the wife or children of an Indian Christian can have, in respect of their maintenance, would be to file an application under S. 488, Cri.P.C., in the appropriate court and obtain relief, or to initiate proceedings for judicial separation or divorce and obtain alimony during the pendency or on the termination of those proceedings. These two statutes as contended are exhaustive of the wife's right to recourse to courts and that independent of them there would be no common law right.
(12) The first part of the contention can be disposed of shortly. It is true that under S. 7 of the Indian Divorce Act, the courts in this country shall act and give relief on principles and rules, which in their opinion, are as nearly as may be, conformable to the principles and rules on which the court for divorce and matrimonial causes in England for the time being acts and gives relief. It may be that at the time when the Indian Divorce Act was enacted, the legislature thought that it would be desirable that the law regarding the solution of matrimonial disputes should develop along side with the English law and should not be static. But, S. 7 limits that principle expressly to all suits and proceedings "hereunder" that is, those contemplated by that enactment. In other words, the principles of English law, substantive as well as procedural, can apply only in regard to matters provided under the Indian Divorce Act, namely, those relating to dissolution of marriage, judicial separation, alimony, custody of children etc. Obviously, the statute cannot be held to justify the importation of all technicalities of the English law in regard to matters unrelated to the Indian Divorce Act.
(13) Section 16 of the Madras Civil Courts Act enacts that wherever a question regarding succession, inheritance, marriage etc., were to arise, the court will have to decide the question, in cases where no specific rule exists, according to justice, equity and good conscience. Therefore, the question whether a Christian husband would be liable to maintain his wife, and, if so, what form of procedure the latter should adopt for enforcing such a right, will have to be decided not so much on the technical notions or procedure followed by the English law, but on principles of equity and justice and by adopting the procedure obtaining in this country.
(14) The second part of the contention appears to us to be equally untenable. Section 488, Cri.P.C. only provides for a cumulative and speedy remedy to a wife or child in distress for obtaining maintenance. There is a limit prescribed by the section to the quantum of maintenance allowable thereunder. Obviously, such a provision cannot be the only remedy to a wife, if she has a right under law to be maintained, according to the standard of life she was accustomed to in her husband's house. The scope of S. 488, Cri.P.C. was considered in Lingappa Goundan v. Esudasan, ILR 27 Mad 13, where it was held that he remedy provided thereunder would only be a cumulative one, which would not have the effect of taking away the remedy under the common law to enforce the right of maintenance by an action in court. That case related to a claim for maintenance by an illegitimate child of a Hindu through a Christian mother.
(15) Nor can we accept the contention that the remedy of a Christian wife, placed in circumstances like the present will be only to resort to the matrimonial court. To accept such a contention would be to say that such a wife will not be entitled to obtain separate maintenance from her husband, except when she sues for a judicial separation or divorce. This, however, as we shall show, is not the law in any country. Secondly, if that be so, the position will be that the husband, after failing in his suit for obtaining a dissolution of his marriage, can effectively drive his innocent spouse to the matrimonial court, on pain of starvation, to obtain judicial separation or divorce.
(16) Under the English law, marriage is the fulfilment of contract satisfied by the solemnisation of the marriage. It creates, by law, a relation between the parties so as to affect their status. Such a change in the status involves or brings about certain rights, liabilities and duties, and in certain cases, disabilities as well, in the spouses. Although, therefore, the origin of marriage lies in contract, the obligations arising therefrom do not depend on any contract, but are the result of the change in the status. One of the rights of the parties to the marriage is the right of consortium with the other. In Lush on "Husband and Wife", 4th edn., page 406, the learned author observes:
"Consortium is a fundamental obligation of the marriage contract; consequently if a wife leaves her husband with neither his consent, nor conduct of his part justifying in law her living away from him, she will, although not guilty of adultery so long as she wilfully and wrongfully remains absent from him, forfeit all claims upon him for support, because it is by her own action that she has deprived her husband of his opportunity of fulfilling his obligations of maintaining her in the house. The relationship of husband and wife, however continues in existence, and it is open to the wife at any time to return to her husband's home and be received back therein and the husband will be compelled to receive her; if he refused he would be guilty of failing to maintain her i.e., his obligation to maintain her has merely been temporarily suspended during such period as she is wrongfully absent........"
Earlier, at page 68, the learned author says:
"One of the first duties which the husband undertakes towards his wife is to maintain and support her, so long as the marriage relation continues and so long as the wife remains faithful to him; though she may divest herself of her right to be maintained and supported by him if she leaves him without his consent."
The principle underlying the obligation of the husband to maintain the wife has been discussed by the court of Exchequer in Read v. Legard, (1851) 155 ER 698. That was a case where the question arose as to the liability of the husband to a person who supplied the necessaries for his wife. Pollock C.B. observed:
"The action is founded on this, that the defendant, having contracted marriage with the person sustained by the plaintiff, has thereby become, in point of law, liable to maintain her, and if he fails to do so, unless under circumstances which justify him, she was authority to pledge his credit........ The true principle seems to be, that when a man marries he contracts an obligation to support his wife, and, in point of law, he gives her authority to pledge his credit for her support, if circumstances render it necessary, and she herself not being in fault."
Alderson B. Said:
"By the marriage contract entered into when the defendant was sane, the parties contracted a relation which gave the wife certain rights, which the law recognises. It is only necessary for us to say that one of them is, that the wife is entitled to be supported, according to the estate and condition of her husband. If she is compelled by his conduct to procure the necessary articles for herself, as for instance, if he drives her from his house, or brings improper persons into it, so that no respectable woman could live there, according to decided cases, he gives her authority to pledge his credit for her necessary maintenance elsewhere; which means that the law gives that authority by force of the relation of husband and wife. So if a husband omits to furnish his wife with necessaries while living with him, she may procure them elsewhere, otherwise she would perish."
The rule so laid would show that the obligation of the husband, which arises out of the relationship between him and his wife, is one under the common law and is independent of, and indeed antecedent to, any statute. But, as stated by Alderson B, in the case cited above, the obligation on the part of the husband to maintain his wife living separately from him, arises only when separate living is due to causes for which the wife could not be held to be justly responsible. Otherwise, the duty of the wife will be to live with her husband and give him that consortium to which the marriage entitles him and then obtain protection of their home.
(17) In regard to cases where she is entitled to be maintained, while living separately from him, it is plain that the foundation of such a right is a common law obligation. Once it is conceded that there is such a right in the wife, it will follow that she will have a remedy at common law, for it is an elementary maxim of law that whenever the common law gives a right or prohibits an injury, it also gives a remedy.
(18) But that does not necessarily mean that he remedy will be by an action at law. In England, under rules of common law, the husband and wife were regarded as one person, so that during marriage the legal existence of the latter was treated as merged into that of the former. This principle inevitably led to difficulties in the matter of the wife vindicating her rights as against her husband; technical rules had to be invented to do justice to the wife. Statutes had also to be passed when even they were found to be insufficient. The Ecclesiastical Courts enforced the obligation of the husband to maintain his wife by a decree for alimony accompanied by a decree for divorce, or what is now called, a decree for judicial separation. But this could not meet all cases; for, a wife who did not want either judicial separation or divorce or could not prove her case for obtaining either of the two drastic remedies, could obtain no relief in those courts. The Common Law Courts, therefore, found certain methods by which the obligation of the husband could be enforced. If the husband failed to maintain the wife, the courts held, the latter had his implied authority to pledge the former's credit for necessaries suitable to his station in life. But, even this was only an indirect way of enforcing the rights of the wife. For example, the wife could not obtain directly from the husband what was needed for her maintenance, but when there was a willing shop-keeper to give the necessaries for her maintenance, he could have a right of action against the husband for the necessaries so supplied. Therefore, the ability of the wife to maintain herself depended upon her ability to procure a person who can give credit for her necessaries. There has been more than one statute which remedied this defect in the law. The Matrimonial Causes Act, 1878 and the Married Women (Maintenance in Case of Desertion) Act, 1886, enabled the wife to apply for relief against her husband, for herself and her infant children, in regard to their maintenance. These enactments were subsequently replaced by the Summary Jurisdiction (Married Women) Act, 1895. The Vagrancy Act, 1824, contained a penal provision for neglect of wife in certain cases.
(19) But these procedural difficulties, in the way of the life in England of enforcing her just claim for maintenance, has no counterpart in other countries. For example, the law which obtains in the United States of America is set out in Volume 27 of the American Jurisprudence, at page 9 thus:
"According to the great weight of authority in this country, however, especially according to the more recent decisions, a court of equity is regarded as having inherent jurisdiction to entertain, independent of any suit for divorce or separation or of a suit to enforce a contract of separation, a suit by a wife for alimony, support, maintenance, or separate maintenance out of the general estate of the husband as distinguished from that of his wife coming to him under the common law or out of her own fortune. This doctrine is of purely American origin and growth."
Later, it has been observed:
"...... the mere fact that statutory provision has been made for awarding alimony when divorces are granted does not exclude, by implication, any jurisdiction the courts may have had to enforce the fulfilment of that obligation in an action independent of a proceeding for a divorce; for it cannot be presumed that the legislature, while carefully providing for the continuance of the obligation of maintenance after divorce, intended thereby to cut off any jurisdiction which might be in the course to enforce that obligation while the bonds of matrimony still existed."
That a wife, in England, could not, but for the statute, agitate her claim for maintenance against her husband by an action, is more or less due to a historical development of the law due perhaps to the basic concept of the spouses being one in the eye of law. That rule has not been accepted in America. There is less reason in this country for the acceptance of any such rule, where, under S. 9, C.P.C. the court has jurisdiction to try all suits of a civil nature except those the cognisance of which has been either expressly or impliedly barred.
(20) We have indicated before that a right to obtain alimony in the matrimonial courts cannot be exhaustive of the rights of the wife to obtain maintenance. There may be circumstances or situations in which the wife might not want to obtain judicial separation from her husband or she might not have the necessary evidence to support her case for such a decree. That does not mean that she could not enforce her claim for maintenance, if otherwise she was entitled to it. Her right being the result of an obligation on the part of her husband to provide her with maintenance, she must have a remedy. There being no express or implied prohibition in the Indian Divorce Act, or any other statute in this country to the wife filing a suit, she by virtue of S. 9 of the C.P.Code, will have a right of action in this country.
(21) Devasahayam v. Devamony, ILR 46 Mad 133: (AIR 1923 Mad 211) was a case where the husband's application for dissolution of the marriage with his wife was dismissed. But while so doing, the lower court granted a certain sum of money, payable every month as permanent maintenance to the wife. A Bench of this Court held that, apart from the provisions of S. 37 of the Indian Divorce Act, there would be no power in the court to grant permanent alimony and the suit for dissolution of marriage having been dismissed, there was no justification for the award of maintenance. At the same time, it was observed:
"If she wants maintenance without either judicial separation or divorce, she can have the remedy only by filing a suit or an application under Criminal Procedure Code."
A right to agitate the wife's claim to separate maintenance apart from proceedings under the Indian Divorce Act, has thus been accepted.
Beaumont, C. J. in Mary Do Rozario v. Ernest Do Rozario, AIR 1941 Bom 372, the learned Judge expressed himself in a less emphatic form.
In Cheriya Varkey v. Thresia, (S) AIR 1955 TC 255, a Full Bench of the Travancore-Cochin High Court considered the liability of the husband to maintain his wife. After full review of the relevant authorities, it was laid down that, according to the personal law of the Christians in the Travancore-Cochin State, the husband would be under a legal obligation to maintain his wife, when there was justifiable cause for her refusal to live with him.
That was also the view expressed by Ramaswami J. In C.R.P. No. 74 of 1956 (Mad) at an earlier stage of these proceedings.
(21A) The procedural aspect of the enforcement of such a liability formed the subject-matter of consideration by Umamaheswaram J. In Chinnamma v. Subbareddi, 1958-1 Andh WR 197. The learned Judge held that the right of the wife to obtain maintenance could be enforced by a suit under the Civil Procedure Code. We are in complete agreement with the judgment in that case. It is not disputed that the circumstances of the case do justify the wife living separately from her husband. An action for enforcing her claim for maintenance will, therefore, be competent.
(22) The question then is, whether the children will be entitled to maintenance. There can be little doubt that the father would be bound to maintain his child upto the time of the child attaining majority. In the instant case, the children were all minors on the date of suit. One of the daughters, who is living with her mother, is said to have taken employment as a teacher. Presumably, she was driven to taken up employment by reason of the neglect of her father to provide her with maintenance. But, whether that be so or not, that consideration will not be relevant for the present purpose. The father will be bound to maintain her as also the other children upto the age of their majority.
(23) The next question relates to the quantum of maintenance. The learned Subordinate Judge has fixed Rs. 100 per month as the maintenance payable to his wife. We are not satisfied that it is adequate. The circumstance that the husband chose to sell away his properties and convert them into the shape of cash will not entitle the court to reduce the maintenance necessary for the upkeep of his wife and children. It has not been made out that the sale proceeds of the lands are not now available with the husband. We must take it that besides the immoveable properties now with him, he has cash at least to the extent of two and a half lakhs of rupees. Taking all the circumstances into consideration, we consider that the wife should be paid a maintenance of Rs. 200 per month.
(24) As regards the children, the provision made by the lower court is quite insufficient. We consider that Rs. 75 per month for each child will be appropriate in all the circumstances of the case. The decree of the lower court will be modified accordingly.
(25) The result is that A.S. 39 of 1960 is partly allowed and A.S. 114 of 1960 will stand dismissed. The husband will pay the costs of the wife and also pay the court fee due thereon in the former of the two appeals. There will be no order as to costs in the other appeal.
(26) Order accordingly.