There can be no gainsaying that the Kerala High Court has in a most learned, laudable, landmark and latest judgment titled XXX & Anr. v. YYY in O.P.(FC) Nos. 704 and 721 of 2022 against the order dated 23.11.2022 in I.A.No.11 of 2022 in O.P.No.87 of 2022 on the file of the Family Court, Palakkad and cited in 2023 LiveLaw (Ker) 195 that was finally heard on April 4, 2023 and pronounced as recently as on April 12, 2023 very rightly propounded that every unmarried daughter has right to get reasonable marriage expenses from her father irrespective of religion. There can be just no denying or disputing it. It must be mentioned that the Kerala High Court had gone deep into the moot question as to whether there is a provision that entitles a Christian daughter to realize marriage expenses from the immovable property of her father or the profits therefrom and answered the same in the affirmative.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice P.G. Ajithkumar for a Division Bench of the Kerala High Court comprising of Hon’ble Mr Justice Anil K Narendran and himself sets the ball in motion by first and foremost putting forth in the opening para that, “The petitioners in O.P.No.87 of 2022 before the Family Court, Palakkad have filed these Original Petitions under Article 227 of the Constitution of India.”
As we see, the Division Bench states in para 2 that, “In O.P.(FC) No.704 of 2022 the petitioners challenge the order of the Family Court dated 23.11.2022 in I.A.No.11 of 2022 in O.P.No.87 of 2022. That interlocutory application was filed by the petitioners seeking an order of attachment before judgment. The Family Court allowed that application in part and ordered attachment of the property to secure an amount of Rs.7,50,000/-.”
Further, the Division Bench mentions in para 3 that, “In O.P.(FC) No.721 of 2022 the petitioners challenge the common order of the Family Court dated 23.11.2022 in I.A.Nos.2 and 9 of 2022 in O.P.No.87 of 2022. The petitioners filed I.A.No.2 of 2022 seeking an order of temporary injunction restraining the respondent from alienating or committing any act of waste in the petition schedule property. The Family Court on 2.3.2022 passed an interim injunction. The respondent filed I.A.No.9 of 2022 seeking to vacate the order of injunction. The Family Court as per the impugned common order dismissed I.A.No.2 of 2022 and allowed I.A.No.9 of 2022.”
Furthermore, the Division Bench observes in para 4 that, “On 22.12.2022, notice on admission was directed to be served on the respondent in O.P.(FC) No.704 of 2022. An interim order to retain the petition schedule property under the attachment was granted for one month. The interim order has been extended from time to time.”
Simply put, the Division Bench reveals in para 5 that, “On 04.01.2023, notice on admission was directed to be served on O.P.(FC) No.721 of 2022 and directed to list this Original Petition along with O.P.(FC) No.704 of 2022.”
Needless to say, the Division Bench then specifies in para 6 that, “The respondent entered appearance and filed counter affidavits in both cases.”
To put things in perspective, the Division Bench envisages in para 8 that, “The petitioners are the daughters of the respondent. Petitioners No.1 and 2 are now aged 26 years and 21 years respectively. From the rival pleadings, it appears that there was total estrangement in the marital relationship between the mother of the petitioners and the respondent, and there were litigations between them. As a consequence, the petitioners have been residing with their mother separated from the respondent.”
On the face of it, the Division Bench then further lays bare in para 9 that, “The petitioners have filed O.P.No.87 of 2022 before the Family Court, Palakkad, seeking realisation of Rs.45,92,600/- towards their marriage expenses. They also seek a decree creating charge for the said amount on the petition schedule property. The petitioners filed I.A.No.2 of 2022 to get an order of temporary injunction restraining the respondent from alienating or committing any act of waste in the petition schedule property. The petitioners contended that the respondent purchased the petition schedule property utilising the fund raised by selling the gold ornaments of their mother and other financial help obtained from their mother and her family members. A residential house was constructed on that property. Going by the pleadings of the petitioners, the respondent has been residing in that house. The petitioners would contend that if the property is alienated or some acts of mischief are committed thereon, their right to realise the amount claimed in the original petition would be hampered. They, therefore, sought an order of temporary injunction.”
Truth be told, the Division Bench then observes in para 12 that, “After considering the rival contentions, the Family Court held that there was no reason for granting an order of injunction, particularly when I.A.No.11 of 2022 seeking an order of attachment before judgment was already filed. The Family Court holding that the petitioners were entitled to claim only the minimum required expenses for the marriage, held that an attachment for an amount of Rs.7,50,000/- would be enough to protect their interest. The law laid down in J. W. Arangadan v. Hashmi and another [2022 (1) KHC 122] was relied on by the Family Court in that regard.”
It cannot be glossed over that the Division Bench expounds in para 18 that, “A charge on an immovable property can be created by acts of parties or by operation of law as provided in Section 100 of the Transfer of Property Act, 1882. Admittedly, there is no contract between the petitioners and the respondent for the creation of a charge. Therefore, there must be a provision of law that enables the petitioners to claim charge on the petition schedule property, if to succeed in their claim for creation of charge. A court can only recognize and declare a charge which pre-exists. A court cannot create a charge anew.”
Do note, the Division Bench notes in para 21 that, “Section 20 of the Hindu Adoptions and Maintenance Act creates the right of an unmarried daughter, to claim maintenance. Section 20 reads-,
“20. Maintenance of children and aged parents.- (1) Subject to the provisions of this Section a Hindu is bound, during his or her life-time, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.―In this section “parent” includes a childless step-mother.”
Be it noted, the Division Bench notes in para 22 that, “From the aforesaid provisions, it is explicitly clear that an unmarried Hindu daughter has a statutory right to get the reasonable expenses of and incident to her marriage from her father. Those provisions apply only to a Hindu. This Court in Ismayil v. Fathima and another [2011 (3) KHC 825], considered the question whether a Muslim father has an obligation to pay expenses in relation to the marriage of his daughter. The Division Bench considered that question in its generic perspective and held that not only a Muslim father every father irrespective of religion has such an obligation. Paragraph No.28 of the judgment reads as follows:
“28. 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 v. Rosamma Varghese [2003 (3) KLT 6], 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 interpreter 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 interpreter need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpreter as a functionary of the State must draw inspiration from Art.44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal 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,”.”
Most significantly and also most forthrightly, the Division Bench minces absolutely no words to mandate in para 23 holding that, “We unhesitatingly agree with that view. The right of an unmarried daughter to get reasonable expenses concerning her marriage from her father cannot have a religious shade. It is a right of every unmarried daughter irrespective of her religion. There cannot be a discriminatory exclusion from claiming such a right based on one’s religion. We accordingly hold that the respondent has the obligation to meet the reasonable expenses in connection to the marriage of the petitioners who are his daughters.”
Equally significant is what is then so very commendably encapsulated in para 25 wherein the Division Bench postulates that, “Under Section 39 of the Transfer of Property Act, any person having a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, that claim can be enforced against the immovable property of the person obliged. The right of an unmarried daughter to get marriage expenses from his father is now a legal right. By taking an analogy from the Hindu Adoptions and Maintenance Act that right, irrespective of religion can be enforced against the profits from the immovable property of the father. When the petitioners are thus entitled to claim a charge on the immovable property of the respondent who is their father the relief of creation of a charge on the petition schedule property, which belongs to the respondent, is tenable. In that view of the matter, an application for a temporary injunction against alienation is legally sustainable. However, when the petitioners already have filed a petition for attachment of the same property of the respondent, there is no justification for the petitioner to claim the equitable relief of injunction prohibiting the respondent from alienating the property or committing acts of waste. Applying for injunction and simultaneously an application for attachment of the property shows the intention of the petitioners. Their intention is not merely to secure their right to realise the money becomes due under the decree that may be passed in O.P. No. 87 of 2022, but to cause embarrassment and inconvenience to their father. We are, therefore, of the view that the Family Court rightly had dismissed I.A.No.2 of 2022 and allowed I.A.No.9 of 2022 as its obvious consequence. We do not find any reason to interfere with the said order.”
Finally, the Division Bench concludes by holding in para 26 that, “Although the learned counsel appearing for the petitioners would submit that the claim includes expenses in connection with the education of the petitioners also, the pleadings of the petitioners and the relief they seek which are extracted above, show that the claim is marriage expenses alone. The contention of the respondent that the parties follow Pentecostal belief and the women of their denomination do not wear metal ornaments is not denied by the petitioners. If so, the claim of the petitioners that Rs.18,96,300/- is required for the purchase of 50 sovereigns of gold ornaments for each of the petitioners in connection with their marriage is prima facie baseless. As rightly pointed out by the Family Court what is entitled by the petitioners is the amount to meet reasonable expenses in connection with the marriages. The Family Court computed the expenses on a prima facie estimation as Rs.7,50,000/-. We are of the view that a detailed enquiry into that aspect is unwarranted at this stage. From the materials on record and in the light of the fact that the petitioners do not require any gold ornaments at the time of marriage, the amount to meet reasonable expenses in connection with the marriages of the petitioners would not exceed Rs.15 lakhs. Hence, we are of the view that an attachment to secure an amount of Rs.15 lakhs would certainly protect the interest of the petitioners. We, however, make it clear that the observations we made hereinbefore are for the purpose of disposal of these interlocutory matters alone and final disposal of O.P.No.87 of 2022 shall be uninfluenced by any of the said observations. Accordingly,-
i) O.P.No.704 of 2022 is disposed of by modifying the order in I.A.No.11 of 2022 in O.P.No.87 of 2022 to the extent that there shall be an attachment of the petition schedule property for securing an amount of Rs.15 lakhs. If the respondent furnishes security for Rs.15 lakhs by way of fixed deposit or other similar modes, the Family Court will withdraw the attachment over the property; and
ii) O.P.No.721 of 2022 is dismissed.”
All told, we thus see that it is quite indubitably clear that the Kerala High Court has very forthrightly, firmly, fully and finally endorsed that every unmarried daughter has the right to get reasonable marriage expenses from her father irrespective of religion. It thus merits no reiteration that all the Courts must definitely pay heed to what has been held by the Division Bench of the Kerala High Court so very clearly, cogently and convincingly in this leading case. No denying it!
Sanjeev Sirohi
