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Bibitha Felix vs Felix Miranda on 24 January, 2019

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, THIRUVANANTHAPURAM-
695003.

BY ADVS.
DR.SEBASTIAN CHAMPAPPILLY
SMT.ANNIE GEORGE
SRI.M.P.RAJU
Mat.Appeal No.322/2010

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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, THIRUVANANTHAPURM-
695003

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:-

JUDGMENT

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

1st 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

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maintain the petitioners. He is a person having financial capacity

to meet their expenditure and accordingly 1st petitioner sought

for recovery of `15 lakhs towards the marriage expenses and the

2nd petitioner sought for `20,000/- per month as educational

expenses including hostel expenses. 2nd petitioner contended

that she is undergoing a course in Bio Technology at Indian

Academy. She had completed 3rd 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 1st

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 1st 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

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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, 2nd 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

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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 1st 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

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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 1132002 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

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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

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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

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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

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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

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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 1st respondent is a millionaire, no such

material had been produced to prove the said fact. Therefore,
Mat.Appeal No.322/2010

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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 2nd 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 2nd 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

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of maintenance always depends upon the facts and

circumstances arising in the case. The 2nd petitioner claimed

`20,000/- per month and the Family Court allowed `5,000/- taking

into account the income of the 1st 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

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