Judgment:
Kamat, J.
1. The concept of maintenance had a long travel, from the days when Sir Henry Mayne described Hindu marriage or relationship between a man and a woman with one end absolutely loose. This has to be abreast with the changing needs and situation. What was anachronistic became suitable to application of the demands of the changing needs. Maintenance for judicial purposes has its own pragmatics having relation to the need and necessity to make provisions for securing reasonable bio-economic as well as biocultural requirements for persons such as shelter, food, garment and health. The need to provide reliefs of maintenance emanate from social ethics and personal economics and this need is sought for both on the moral and secular grounds. Maintenance is a personal obligation and where there is estate, the rights in maintenance could be worked against the estate and there can be charge upon it. It is said in the context of the position of a woman that the social ethics is heavily overloaded against them on counts more than one. Courts have projected considerations relating to the legal right of maintenance, taking into consideration the above aspects, even to the extent of recognising the right of maintenance in regard to a woman whose marriage may not be perhaps legal according to law, but is well recognised by the members of the society as a relationship between a man and a woman, understood to have been a married couple. This was on the basis of a presumption creating a situation that if a man and a woman is understood and recognised as a married couple, this personal obligation on the basis of the above consideration is seen clearly by the Courts to recognise even the legal right of maintenance in favour of a relationship which may perhaps be not a legal marriage. This has been by resort to the provisions of presumptions under Section 114 of the Indian Evidence Act, 1872.
2. The principles of Hindu Personal Law have developed in an evolutionary way out of the concern for all those subject to it so as to make a fair provision against destitution. The law of maintenance stems out of the secular desire to achieve the social objectives for making bare minimum provision to sustain the members of relative smaller social groups. Although not necessary these principles are referable to certain decisions (Rajeshbai v. Sbantabai, 1981 Mah LJ 820; T.P.K. Nateshan v. Achiyayee, AIR 1975 Mad 202 and Govindrao v. Anandiba, 79 Bom LR 73): (AIR 1976 Bom 433) which were considered and valued subsequently in the judgment in Vaijayantabai w/o Keru Gangarde v. Keru Anant Gangarde, (1992 (1) Mah LJ 417) case, by one of us (myself). This is in regard to the proposition specified hereinbefore.
3. It is in the light of the above principles this appeal between the parties who are Christians, in a suit for maintenance, will have to be considered for decision. In this process, because the parties are Christians we will have to keep in mind that there is no specific statutory provision mandating Christians, a Christian father or a Christian husband to maintain his children and his wife. In this context, this Court in Scariah Varghese v. Marykutty, 1991 (2) Ker LT 71, with advantage, observed that the matters not governed by a statute or where there is no accepted customary law, the Judge should be guided by that great principle of justice, equity and good conscience to the effect that with the Indian tradition a citizen is bound to maintain his children which is the tradition of the society in accordance with justice, equity and good conscience, irrespective of the position in English law which are peculiar to the said system.
4. We have heard the learned counsel in support of the appeal. The impugned judgment of the Family Court, Thrissur has awarded maintenance -- Rs. 500/- to the wife-- plaintiff No. 1 and Rs. 300/- per month to the child out of the wedlock -- second plaintiff, from the date of filing of the plaint-- 6-3-1994. We must at the outset make it clear that it is very difficult to say anything with regard to the quantum -- Rs. 500/- for the mother-wife and Rs. 300/- for the child in relation to the marriage in question. Needless to state that these amounts represent the bare minimum for the bioeconomic needs of today. The child is 12 years of age, studying at present in sixth standard and, therefore, if these aspects are taken into consideration in regard to the quantum for the child it is less even than the bare minimum.
5. The material on record shows that the husband is engaged in grocery business owned by his father. Although the evidence is that he is being paid monthly salary of Rs. 1,200/-. This is against the contention ofthe wife that the husband is the owner or at least one of the co-owners of the grocery business. Attitude to this position is that there is no material, documentary or otherwise to show payment of salary as is sought to be contended, in regard to which it is added on the basis of his evidence that the accounts would only show the salary paid to the employees. The learned Judge is justified in reaching the conclusion on the basis of the material on record that the husband could not be considered as an employee of the shop.
6. Added to this it appears that the said business is located in the heart of the Thrissur town.
7. The material on record shows that after marriage on 3-5-1981 the husband and wife cohabited in the family house for a period of 10 months. The offspring was born on 24-10-1982. Then the party shifted to a rented house and thereafter an independent house was purchased in the joint names of the husband and wife. It is also on record that again there was a shift to a rented house owned by PW3 and it was during the residence in the rented house parties separated.
8. The learned Judge in connection with the shifting of place of residence has observed that the wife's share in the property appears to has been surrendered by her in favour of the husband under a threat of divorce. He has also further observed that the conduct of the husband in getting the release deed is also a reflection on the attitude of the husband. This conduct also, in our judgment, shows that the wife has been virtually stripped off all the assets as a result of the release deed in question.
9. We are concerned with the question of maintenance. The learned counsel strenuously submitted that the parties would come together and, therefore, we should consider it as the main consideration for admission of the appeal. In this context the learned Judge in paragraph 3 of the judgment has referred to the attempts in the process of counselling recording that the parties were not prepared to reconcile with each other. We make it clear that the order of maintenance has to beappreciated on an entire different context discussed hereinbefore. Maintenance is an obligation of the husband and we would not like to disturb the order of maintenance in any manner. We make it clear that the appellant is free to take steps, if wiser counsel prevails, to bring a union amongst them. However it is not possible to disturb the order of maintenance passed by the learned Judge. For all these reasons the appeal stands dismissed summarily.