TMI Blog1990 (12) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... ay by -the father and the gold sovereigns were given on the date of marriage. The balance amount of ₹ 10,000/- was paid on two occasions; on 30-3-1978 an amount of ₹ 5,000/- and on 10-1-1979 the balance amount of ₹ 5,000/. The husband and wife were living together for some time and the 2nd defendant was born in that wedlock. But quarrels and bickering 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 parent? home with the child, the 2nd plaintiff. In these circumstances, the plaintiffs filed the suit for recovery of an amount of ₹ 22,000/- and also the value of 16 sovereigns of gold ornaments or the return of the 16 sovereigns of gold ornaments. 3. Defendant contended that be has received from the father of the 1st plaintiff only an amount of ₹ 12,000/-. There was no promise to pay an amount of ₹ 10,000/- as alleged in the plaint. It was also stated that apart from ₹ 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 ₹ 12,000/- is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 woman-(a) if the dowry was received before marriage, within one year after the date of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provision 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 reject that contention. 7. Counsel submitted that the defendant is a honest man and he fairly admitted the fact that he has received ₹ 12,000/- as dowry and in the light of this candid admission by the defendant, the evidence given in the case has to be appreciated for the purpose of determining whether the case pleaded by the 1st plaintiff that over and above ₹ 12,000/-, defendant has received another ₹ 10,000/- and 16 sovereigns of gold ornaments. The case of the 1st plaintiff is that on the date of betrothal, the father of the 1st plaintiff promised to pay an amount of ₹ 22,000/- as dowry and part of it was paid on that day and agreed that the balance wilt be paid within one year after the marriage. Further it is stated that the balance has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards the fact that 16 sovereigns of gold ornaments were given. The court below said that as regards taking of the gold ornaments, by snatching it away from the body of the 1st plaintiff, there is only the interested testimony of the 1st plaintiff act 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 seat her to the parents house I am of the view that there is no legal evidence which can be relied on 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 degree with the court below in regard to this finding. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and from them buildup the general principles. Just as the theories of the scientist 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 antiquated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of S. 64 (iv) of the Income - tax Act? In considering the above question, the Full Bench said that The document dated 22nd March, 1963 executed by the assesses in 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 S. 64 (iv) of the Income-Tax Act 1961 uses the word Consideration' in the sense which it is understood in agreement enforceable at law. So the document must be for consideration other than love and affection. However the document itself shows 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 must 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation to maintain his children. 19. In a considered judgment reported in A I. R. 1955 Travancore -Cochin 255 (Cheriya Varkey v. Ouseph Thresia and others), Joseph Vithaya-thil, J. observed thus :- In matters not governed by statute or customary Jaw, 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 enforced in law although not by direct action by the wife. Therefore according to the personal law of the Christians in the Travancore - Cochin State, the husband has to legal obligation of maintain his wife. The wife is entitled to claim separate maintenance only if there is justifiable cause for her refusal to live with him The question whether the wife has justifiable cause for refusing to live with her husband will depend upon the facts of each case. Desertion by the husband and habitual cruelty are recorganised as justifiable causes. Same principle is applicable in the case of a claim for ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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