Varghese Kalliath, J.
1. This is an appeal by the defendant. Defendant is the husband of the 1st plaintiff. The 2nd plaintiff is the minor child of the 1st plaintiff and the defendant.
2. Suit was one for return of the streedhanam amount paid to the defendant by the parents of the 1st plaintiff. According to the 1st plaintiff, on the date of betrothal, the father of the 1st plaintiff promised an amount of Rs. 22.000/- and 16 sovereigns of gold ornaments as streedhanam for his daughter, the 1st plaintiff and the father agreed to pay Rs. 12.000/- on the date of betrothal and the balance of Rs. 10,000/- within one year after the marriage. It was also agreed that the gold sovereigns will be given at the time of marriage. The marriage took place on 13,11.1977.
3. The further case of the 1st plaintiff is that as promised, Rs 12,000/ was given on the betrothal day by the father and the gold sovereigns were givenon the date of marriage. The balance amount of Rs. 10,000/- was paid on two occasions; on 30.3. 1978 an amount of Rs. 5,000/- and on 10.1.197^ the balance amount of Rs. 5,000/-. The husband and wife were living together for some time and the 2nd defendant was born in that wedlock. But quarrels and bickerings started and the marriage ended in an unhappy separation. Though no divorce has been obtained, the husband and wife are living separately, wife, the 1st plaintiff in, her parents home with the child, the 2nd plaintiff. In these circumstances, the plaintiffs filed the suit for recovery of an amount of Rs. 22,000/- and also the value of 16 sovereigns of gold ornaments or the return of the 16 sovereigns of gold ornaments.
4. Defendant contended that he has received from the father of the 1st plaintiff only an amount of Rs. 12,000/-. There was no promise to pay an amount of Rs. 10,000/- as alleged in the plaint. It was also stated that apart from Rs. 12.000/- paid by the father of the 1st plaintiff, no amount was paid by the parents of the 1st plaintiff. Certainly the amount of Rs. 12,000/- is dowry and so it has got all the incidents of dowry, viz., this amount is in trust for the wife paid to the husband by the wife's father. He contended that at the time of marriage, 1st plaintiff was given only 5-6 soeverigns and the case of the 1st plaintiff that she has been given 16 sovereigns is a false case. Further he contended that whatever gold ornaments the 1st plaintiff had, she had taken it when she left her husband-defendant. It is also stated that the 1st plaintiff k unwilling to live with the husband not on account of any ill-treatment, but she is arrogant and that she wanted to live with more affluence in the house of her father.
5. The Court below took evidence in the case, analysed the evidence, applied the law and granted a decree directing payment of Rs. 22,000/- by way of streedhanam and the value of 16 sovereigns of gold ornaments within a period of two months from the date of judgment, failing which the plaintiff can realise from the defendant its value calculated at the rate of Rs. 1,300/- per sovereign. There was another relief claimed in the plaint. The 1st plaintiff wanted maintenance for her and for the 2nd plaintiff from the defendant. The Court below decreed maintenance at the rate of Rs. 100/- per mensem from the date of suit for the 2nd plaintiff-minor child. The decree is now challenged in this appeal by the defendant.
6. Counsel for the appellant took me to the entire evidence in the case and the pleadings and advanced elaborate argument based on the evidence in this case. He submitted that in view of the Dowry Prohibition Act, 1961 the suit itself is not maintainable. I do not think that this contention has any force in view of the Division Bench decision reported in 1980 K.L.T. 353 (Mary v. Cherchi & others). In 1980 K.L.T. 353 the Division Bench found that the suit is maintainable even if it is streedhanam or dowry notwithstanding the Dowry Prohibition Act on the basis that 'streedhanam is always the property of the woman whoever is given custody of the same. Woman can always claim it back and enforce the return of it. A suit for recovering this amount will not be hit by the Dowry Prohibition Act'. . This is a valid reason. I would like to re-enforce by adding one more reason for holding that a suit by the wife is justly maintainable for the return of her dowry from her husband or his father or whoever is in custody of the same. Section 6 of the Dowry Prohibition Act makes it obligatory to repay the amount of dowry received by any person other than the woman to whom it belongs within a particular period. What is stated is where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the women (a) if the dowry was received before marriage; or (b) if the dowry was received at the time of or after the marriage, within one year after the date of its receipt; (c) if the dowry was received when the woman was a minor. Within one year after she has attained the age of eighteen years. Further it is said that the amount in the hands of 'any other person' is a trust amount by enacting that the person 'shall hold it' in trust for the benefit of the woman. The statute does not stop there. It further says that if any person fails to transfer the dowry as required by Section 6(1) of the Dowry Prohibition Act it is an offence and it is punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both; but such punishment shall not absolve the person from his obligation to transfer the property as required by sub-Section (1) of the above Act. So it is clear and evident that the husband or the parents of the husband cannot keep the dowry when a demand is made by the wife. It has to be returned and the statute says that if not returned, it is a punishable offence. In these circumstances, I have absolutely no hesitation to hold that the Dowry Prohibition Act will not stand in the way of maintaining the Suit. The suit is perfectly maintainable.
7. Counsel for the appellant submitted that the suit is barred by limitation This aspect of the matter also has been considered in 1980 K.L.T. 353. The Court said thus :-
'The character of the Streedhanam being in the nature of a payment in trust and a suit for recovery of that amount is not governed by any specific article of the Limitation Act the, residuary Art. 113 will apply. The period starts from the time the right to sue recrues. A right to sue in this case is equivalent to the cause of action'.
Of course, in the Full Bench case reported in 1972 K.L.T. 24 (Commissioner of Income-tax, Kerala v. P.M. Paily Pillai) the Court has found that the residuary Article is applicable and also found that the starting point of limitation is the cause of action itself and the cause of action is the demand for the dowry by the wife. Counsel submitted that there was no previous demand. Even if there was no previous demand, the plaint itself can be considered as a demand and if I calculate the period for limitation from the date of suit, there is absolutely no difficulty to say that the suit is not barred by limitation. But I feel that it is not a correct statement that the dowry would only part take the nature of a trust amount. True under the Trust Act, there were certain obligations which are in the nature of trust and certainly without in any other statutory provision the amount given as dowry will legitimately assume the character and nature of trust in the hands of any person other than the person entitled to the amount, viz., the wife. Of course for recovery of a trust amount no period of limitation is prescribed. But I feel that by virtue of the Dowry Prohibition Act, the statute itself says that the amounts in the hands of the husband or the husband's parents for and on behalf of the wife is a trust amount and so there is no difficulty .to say that the obligation is not only in the nature of a trust, but the obligation is one under trust to return the amount by virtue of the statutory provisions and so there is no limitation for such a suit. So I find that there is absolutely no merit in the contention advanced by counsel on the basis that the suit is barred by limitation. I rejected that contention.
8. Counsel submitted that the defendant is a honest man and he fairly admitted the fact that he has received Rs. 12.000/- as dowry and in the light of this can did admission by the defendant the evidence given in the case has to beappreciated for the purpose of determining whether the case pleaded by the 1st plaintiff that over and above Rs. 12,000/-, defendant has received another Rs. 10,000/- and 16 sovereigns of gold (laments. The case of the 1st plaintiff is that on the date of betrothal/the fall) r of the 1st plaintiff promised to pay an amount of Rs. 22,000/- as dowry and part of it was paid on that day and agreed that the balance will be paid within one year after the marriage. Further it is stated that the balance has been paid in two instalments; first on 30.3.1978 an amount of Rs. 5.000/- and the balance Rs. 5,000/- on 10.1.1979. The evidence regarding these payments is not very satisfactory, particularly in regard to Rs. 5,000/- alleged to have been paid on 30.3.1978. As regards, this payment, there is only the evidence of the father of the 1st plaintiff, PW 5. .This evidence is not even corroborated by the evidence of any other witnesses excepting the hereby evidence of PW 4, his own son. Counsel for the respondents submitted that there is evidence regarding the promise made by the father of the 1st plaintiff on the date of betrothal and that has to be considered as a corroborative piece of evidence in the circumstances of the case, I do not think that it is very correct, The evidence that is required in this case in the payment, of Rs. 5,000/- and for that there must be at least some corroboration with respect to the evidence of PW 5, who is none other than the father of the 1st plaintiff. Of course, evidence of a witness .without corroboration can be relied on. But circumstances have to be considered. The father of the 1st plaintiff is an interested person and that interested persons' version cannot be accepted safely without any corroboration. So there is o legal evidence to hold that the father has paid Rs. 5.000/- as alleged in the plaint. In regard to the other payment made on 10.1.1979, the position is a little different. This payment was made by the brother of the 1st plaintiff. He has given evidence to that effect that he has paid the amount to the defendant. This evidence is corroborated by the evidence of PW 3 and so I think that there is no justification for me to disagree with the finding of the Court below that there is evidence regarding payment of Rs. 5,000/- to the defendant on 10.1.1979. I uphold that finding that there is evidence of payment of Rs. 5,000/- on 30,3.1978.
9. Now I have to consider the evidence regarding the case that the defendant has taken all the gold ornaments of his wife. The case is that there was some man-handling of this 1st plaintiff by the defendant and the wife left for here parents home and at that time all the ornaments were snatched away by the husband defendant' This case itself seems to be not very probable Of course, there is no clear evidence as regards the fact that 16 sovereigns of gold ornaments were given. The Court below said that as regards taken of the gold ornaments by shatching it away from the body of the 1st plaintiff there is only the interested testimony of the 1st plaintiff and it is not safe to rely on that evidence for the purpose of determining as to whether the husband has taken the gold ornaments. I am of the view that it is very unsafe to rely on the evidence of the 1st respondent alone for the purpose of holding that the husband has taken the gold ornaments of the wife and sent her to the parents house. I am of the view that there is no legal evidence, which can be relied oh for the purpose of holding that the defendant has taken the gold ornaments of 16 sovereigns alleged to have been given by the father of the 1st plaintiff I disagree with the Court below in regard to this finding.
10. The only remaining question I have to consider in this case is as to the question whether the 2nd plaintiff is entitled to maintenance ^ Admittedly the defendant is the father of the 2nd plaintiff. The Court below has found that the 2nd plaintiff is entitled ;to maintenance and granted maintenance at the rate of Rs. 100/- per mensom. Counsel for the appellant submitted that a Full Bench of this Court in 1972 K.L.T. 24 has held that the Christian law does not mandate an obligation on the father to maintain his child and so in that case, this Court found that the transfer of property mad in favour of the minor cannot be considered as a transfer with consideration and that it cannot be treated as a gift. The peculiar circumstances existed in that case have to be examined. I shall shortly give here the important circumstances which persuaded the Full Bench to say that Christian father has no obligation to maintain his child. A 1 parecer counsel is right in his submission that this Court should apply the ration of the decision reported in 1972 K.L.T. 24. The ratio of every precedent has to be considered when application of the ratio is enough for or relied on for deciding a later case in the light of the facts of the precedents to be followed and the facts of the cae to be decided. A mechanical application of the ratio even if it has been said unambiguously in positive terms without knowing the background which necessitated the Court to lay down such a principle is hazardous and may land in blatent failure of justice in the case to be decided.
11. Lord Denning said that 'if lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justic which, they should serve, they may find the whole edifice comes tumbling down about them. They will be lost in
'That codeloss myriad of precedent,
That wilderness of single instances'
Mr. Justice Jackson of US Supreme Court in 'the struggle for Judicial Supermacy, cautioned the indiscrete and indiscriminate application of precedents by saying that common law will cease to grow, like a coral reaf, it will become a structure of fossila'. We have to avoid this fate of being in fossils of precedents at the risk of dealing to do justice knowing that the situations demand a meaningful understanding of the precedent. Law is not a 'lawless science'. It should be 'science of law'.
12. I am of the view that just as a scientist seeks for truth, a judge should also seek for justice. Just as a scientist takes him instances from the past and from them builds up his general propositions certainly a lawyer and Judge should take precedents and from them build up the general principles. Just as the theories of the sciestist fall to be modified when shown not to fit all instances, or even discarded when shown to be in error, so the principles laid down in precedents should be applied in a modified way when found to be unsuited to the times or instances at hand or even should be discarded when it would work manifest injustice. The plain understanding is that a judge shall be concerned' with law as it is, not with what it ought to be. For the judge the rule laid down by law is the only light that should guide for the resolution of the controversy between the parties. Whether the rule is antequsted or ill suited to the time, right or wrong, does not matter. This is the general approach in the matter of application of law. Lord Denning said. That approach is all very well for the working lawyer who applies the law as a working mason lays bricks without any responsibility for the building which he is making. But it is not good enough for the lawyer who is concerned with his responsibility to the community at large. He should ever seek to do his part to see that the principles of the law are consonant with justice. If he should fail to do this he will forfeit the confidence of the people. The law will fail into disrepute' and if that happens the stability of the country will be shaken. The law must be certain. Yes, as certain as may be. But it must be just too',
13. Lord Chancellor taking the landing part in this discussion on precedent, made a statement in the House of Lords on 26th July, 1966. One of the significant propositions in that statement was this 'Their Lordships nevertheless recognise that the rigid adherence to precedent may lead to injustice in a particular case and a also unduly restrict the proper development of the law'.
14. Salmond on Jurisprudence, twelth edition at page .143 dealing with the authority of precedents tells us that 'There is no dissatisfaction with the practice of citing cases and of attaching weight to them; dissatisfaction is with the present practice of treating precedents as absolutely binding ...... What is needed, it is submitted, is a power in the judges to set right their own mistakes, such a power does exist at the moment in some degree or a High Court Judge may refuse to follow another High Court Judge, a higher Court may overrules a decision of an inferior Court, and any Court may restrictively distinguish an obnodious precedent.........The power of restrictive distinguishing is alsounsatisfactory because it leaves the 'distinguished' decision standing, and thus in many cases introduces unnecessary refinements and even illegalities into the law. Also, the necessity for distinguishing sometimes leads to extraordinary mental gyanastios, as where a Court distinguishes a precedent by supposing facts in the precedent that were not stated in the report'. In this case, I feel that I am bound and it is quite legitimate and reasonable to do justice to adopt restrictive distinguishing the precedent relied on by counsel which, I acknowledge fully, is binding on me.
15. The decision reported in 1972 K.L.T. 24 is an answer to a reference under Section 265(1) of the Income-tax Act, 1961. The question referred for the decision of the High Court by the Income-tax Tribunal was this; 'Whether, on the facts and in the circumstances of the case and on a true construction of the deed dated 22.3.1963, the Tribunal was right in holding that the deed does not evidence a transfer otherwise then for adequate consideration within the meaning of Section 64(iv) of the Income-tax Act ?' la considering the above question, the Full Bench said that 'The document dated 22nd March, 1963 executed by the assessee on favour of his minor son is 'devoid of consideration' in the sense in which that term has to be understood when we speak of a contract. The expression 'adequate consideration' in Section 64 (iv) of the Income-tax Act, 1961 uses the words 'consideration' in the sense in which it is understood in agreement enforceable at law. So the document must be for a consideration other than love and affection. However the document itself/shown that it was executed for love and affection: such a document cannot be said to be for adequate consideration'. After' stating thus, the Court had considered the obligation of the father under Section 488 of the code of Criminal Procedure and that by the execution of the document the son had given up or must be taken to have given up or most be taken to have impliedly promised not to enforce the obligation of the father under Section 488 of the Code of Criminal Procedure. The above said contention also was not accepted stating that 'in this case because the son had no contracting capacity and he could not have made a valid promise to give up his right to seek maintenance under Section 488 of the Code of Criminal Procedure'.
16. The ratio of the case (1972 K.L.T; 24) as I said earlier, should be understood in the special setting in which it was stated by the full Bench and I feel that it cannot be passed into service in a plan case where a father claims and argues immunity from an obligation to pay any amount as maintenance for his child, who is being taken care of exclusively by the separatedwife on the tenuous and ethereal ground that he professes Christian religion though an India citizen. On the face of it, I feel that it is an air built and vaporous ground.
17. Plaintiff No. 1 is a Catholic lady. She married the defendant on 13.11.1977. After a sacramental ceremony in the Church before the assemblage who witnessed the marriage and before the Priest who blossed the marriage, the husband-defendant proclaimed that he will take up the responsibility of bringing up the children born in the wed-lock as per the tenets of the religion he professes. This is a solemn promise made at the time of marriage.
18. It may be true that there is no specific statutory provision mandating a Christian father or a Charistian husband to maintain his children and his wife. Of course, Indian Divorce Act provides for certain provisions for alimony and maintenance to the wife and children. Since there are provisions in the India Divorce Act can it be said that only when a claim for separation initiated under that statute a decree can be granted for maintenance or alimony for the wife and children. .
19. The matters not governed by statute or where is no accepted customary law, it is the settled principle that Judges should be guided by that great principle of 'justice, equity and good conscience'. Justice, equity and good conscience must be justice, equity and good conscience with India tradition, A father, an Indian citizen in bound to maintain his children -and that is the tradition of the society and that tradition is in accordance with justice, equity and good conscience. Whatever be the special position in English law on account of certain peculiarities of English system, it is difficult for me to say that a father being a Christian and only on account of being a Christian should be considered as a person who has no obligation to maintain his are children.
20. In a considered judgment reported in A.I.R. 1955 Travancore Cochin 255 (Cheriya Varkey v. Ouseph Thresia and Ors.), Joseph Vitbayathil, J. Observed thus :-
'In matters not governed by statute or customary law, it is the principles of 'Justice, equity and good conscience that should apply and it is supposed that those principles are to be found in the Common law of England. Under that law the obligation of the husband to maintain his wife is not a mere moral obligation but is a legal obligation which could be enforce in law although not be direct action by the wife. Therefore according .to the personal law of the Christians in the Travancore-Cochin State, the husband- has a legal obligation to maintain his wife. The wife is entitled to claim separate maintenance only if there is justifiable cause for here refusal to live with him. The question whether the wife has justifiable will depend upon the facts of each case. Desertion by the husband and habitual cruelty are recognised an justifiable causes'.
Same principles is applicable in the Case of a claim for maintenance against a father by his child/children. In Stephen's Commentaries on the laws of England, he said; 'A father is said to be bound to maintain, to protect and to educate his children'. In the Law Husband and Wife Montague Lush said; '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'. English Law says that under the common Law of England, the obligation, of the husband to maintain his wife is not a mere moral obligation, but is a legal obligation which should be enforced in law although not by direct action by the wife. A learned author on domestic relations says that 'The husband, as head of the house-hold, is under an obligation to support and maintain his wife and children in which latter term are included the children of which he has been adjudged to be putative father. Of course, the author has said that the obligation is rather moral than legal. It only means that there was no method to enforce that right. This was on account of the peculiar position which the wife occupied in relation to her husband under the English Common Law. The Orthodox view was that by marriage, the husband and wife are one person and therefore, the wife could not sue the husband. This is clear from what is described by Blackstone : 'By marriage, the husband and wife, are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, foemina viro co-operata; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and here condition during her marriage is called her coverture.
21. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage'.
22. I do not think that the position in India is as what is known and followed in England. Here, there is no difficulty to say that a wife has got a separate status and that she has got right in property even after the marriage. At any rate, to me it appears obnoxious when a original liability is imposed by a statute to maintain the children, to say that a father has no liability to maintain his children only on account of the fact that he professes Christian religion.
23. In the circumstances, I feel that what the Court below has done is perfectly correct in ordering maintenance allowance to the 2nd plaintiff at the rate of Rs. 100/- per mensem from the date of suit. The decree in regard to that part is confirmed and I modify the decree passed by the Court directing that the 1st plaintiff is entitled to recover only an amount of Rs. 17,000/- with 6% interest per annum from the date of suit till the date of recovery from the defendant.
24. Appeal is disposed of as above.