N.G. Chandavarkar, J.
1. The appellant is the wife of the respondent, who is Jahagirdar of the village of Here. She sued him in the Court of the First Class Subordinate Judge at Belgaura for separate maintenance at the rate of Rs. 100 a month on the ground of desertion and legal cruelty. The respondent denied the charge and alleged that the appellant had left him at the instigation of her brother.
2. The Subordinate Judge has held the charge of desertion and legal cruelty not proved and accordingly dismissed the claim. The evidence on that question is both oral and documentary, and has, in our opinion, not been rightly appreciated by the Subordinate Judge. The testimony of the witnesses, who depose to having witnessed acts of ill-treatment of the appellant by the respondent, has been disbelieved by the Subordinate Judge upon the ground that they are almost all related to the appellant, But that by itself is very slender ground for disbelieving the sworn testimony of men, some at all events of whom are respectable, and who have not been materially shaken in cross-examination. The appellant observes gosha, and in the case of such ladies it is their relatives who may be best expected to know whether they are well or ill treated by their husbands. One of these witnesses (see Exhibit 189), whose evidence the Subordinate Judge has declined to accept, was not even cross-examined by the respondent's pleader, though the witness in his examination-in-chief had made definite statements as to the ill-treatment of the appellant by her husband. That witness speaks to the respondent having kicked and slapped the appellant and got the ornaments she had on her person removed. The appellant's evidence is corroborated by the documentary evidence in the case. For the appellant a large number of letters was put in. That was all correspondence which had passed either between the parties or between the respondent and the appellant's brother or other persons with reference to the strained character of the relations between husband and wife. The respondent in the witness-box admitted only some of those letters which were imputed to him by the appellant: as to the rest, he would not either admit or deny that they were his. These latter have been proved to be his by other evidence; and the Subordinate Judge has found these letters to have been written by the respondent. Among these the most important, because the most damaging to the respondent's defence to the suit, are Exhibits 85 and 87. In the former there is an admission that the respondent had driven the appellant out of his house; in the latter he calls her chastity into question-an allegation which there has not been the slightest attempt to substantiate by proof. There is reliable evidence to show that the respondent has a number of unmarried women in his house retained as his kept mistresses; and that it was under the influence or at the instigation of some of these that the respondent ill-treated the appellant, kicked her, beat her, and subjected her otherwise to humiliating and cruel treatment in his house. As against all this evidence what have we on the side of the respondent Some of the witnesses examined for the respondent are the medical men, who treated the appellant when she was ill while living with her husband. They say that to their knowledge the respondent treated the appellant kindly. Their knowledge could only have been derived from what they observed when they attended during her illness; and on such occasions an outsider and especially a medical attendant would not be likely to find a husband ill-treating his wife. Apart from that, the question is, of what period are these medical men speaking? It is common ground that up to April 1901, the relations between the husband and the wife were cordial; it is on or about that date that the ill-treatment complained of is alleged to have commenced. Though one of the medical men, Dr. Shirgaonkar, does not state of what period he is speaking (it would appear he was not questioned on that point) yet there is evidence to show that what he witnessed was in 1900. From an extract from the respondent's accounts (Exhibit 222) it is clear that Dr. Shirgaonkar was paid his fee for attendance on the appellant in 1900. Another medical practitioner, Dr. Bhandare (Exhibit 207), says that he called Dr. Shirgaonkar in for consultation when the appellant was ill, and he states that that was in 1900. Of [the other witnesses examined for the respondent, Bapu Appi Gouda (Exhibit 210) admits that he does not know the appellant; Balaram Daji is practically a dependent of the respondent's, getting all his necessaries of life ' for his livelihood ' from the latter; the rest also fall in the same category.
3. But it has been urged strenuously in support of the respondent's defence by his counsel, Mr. Branson, that the story of ill-treatment and cruelty should not be believed, because the correspondence makes no mention of certain salient details of that story, such as the existence of kept mistresses in the respondent's house, the forcible despoiling of her ornaments when she was sent out of that house, or of personal violence to her when she lived there. Whoever has any knowledge and experience of Hindu life must, in our opinion, come to the conclusion that the absence of these details is perfectly consistent with the story of ill-treatment and cruelty on which the appellant relies for her right to separate maintenance. A Hindu wife, generally speaking, will be the last to complain in writing in particular that her husband has beaten her, or resorted to personal violence towards her. Her near relations too are not likely to allude to it in writing out of regard for the wife's patience and habit of endurance. They will as far as possible pass over it in silence lest pointed allusion to it should estrange the husband from the wife altogether and make reconciliation humanly speaking impossible. In her letters, which form part of the correspondence and which were addressed to the respondent) she writes in the most deferential terms and shows an anxiety to win back his love. And that is just what happens in nine out of ten cases where the wife has been ill-treated by the husband among Hindus. The wife bears it all in patience and silence as far as possible.
4. We must, then, differing from the Subordinate Judge, who decided, the case, accept the story of the appellant and her witnesses as reliable. That Judge (Mr. Nadkarni) did not see and hear the witnesses. We are, therefore, in as good a position to appreciate their evidence as he was; and we have the less hesitation in differing from him, because the Subordinate Judge, (Mr. Wagh) before whom the witnesses in question were examined, was so favourably impressed with their evidence that he stopped all further evidence on the question of ill-treatment which the appellant was ready to tender.
5. The evidence establishes that the respondent kept a number of mistresses in his house; that acting under the influence and at the instigation of some of them, the respondent used to beat the appellant, kicked her, and threatened to cut her to pieces and shoot her. It is also proved that the respondent, after having subjected the appellant for some period to that kind of cruelty, drove her out of his house, and though often requested to take her back or provide her with separate maintenance, he not only refused to have anything to do with her but levelled against her charges of unchastity, which he has made no attempt to justify. These facts entitle the appellant to the separate maintenance which she claims. In Yamitnabai v. Narayan Moreshwar Pendse ILR (1876) 1 Bom. 164 Melvill J. said that a Hindu wife could claim separate maintenance if her husband ill-treated her on account of a favourite wife or mistress; that there must be legal cruelty to entitle the wife to such maintenance; and that the criterion of legal cruelty was the same in Hindu as in English Law-it must be personal danger to the wife, danger to limb, life, or health; it must be actual ill-treatment or personal injury or reasonable apprehension of it. Yamunabai v. Narayan Moreshwar Pendse ILR (1876) 1 Bom. 164. According to Yajnyavalkya, mere abandonment of a wife who is chaste by her husband is sufficient to entitle the former to separate maintenance. Yajnyavalkya says:-' (He who) abandons an obedient, intelligent, son-producing, sweet-speaking (wife) must be compelled to give (to her) one-third of his wealth for maintenance.' On this Vijnaneshwara's gloss in the Mitakshara is that the King must compel the husband to give one-third of his wealth to the wife and that if the husband has no wealth, the king must compel him to support her-that is, ' to maintain her by giving her food, clothing &c.;' [The Mitakshara : Moghe's 3rd Edition page 19 ]. Cruelty is not, according to Hindu Law, necessary if there has been abandonment of the wife. In the present case, the evidence is abundant to show that in spite of repeated overtures made to him both by the appellant and her relatives and friends, the respondent declined to take her back ' into his house and falsely charged her with unchastity, after having subjected her to legal cruelty and then driven her out of his house.
6. This is a case, then, in which strictly speaking, according to Hindu Law, the appellant could have legally claimed a third share in the respondent's property. But she has asked for much less than is her right and she is entitled to it. She claims separate maintenance at the rate of Rs. 100 a month from the date of suit (the 3rd of July 1903) and arrears, Rs. 2,600, at the same rate from the 1st of May 1901 to the 3rd of July 1903. The rate claimed is by no means exaggerated. The respondent owns a Jaghir and states in his deposition that his yearly income is Rs. 1000. It will be no burden to him to give to the appellant Rs. 100 a month. In fact the respondent's counsel has addressed to us no argument to show that Rs. 100 a month is too much. The decree appealed from is reversed and the appellant's claim awarded with costs throughout on the respondent.