Michael Westropp, C.J.
1. The plaintiff, alleging herself to be the wife of the defendant, by her plaint states that, three days previously to the filing of it he turned her out of doors with her children (of whom there are said to be two), and refused to support her. She, accordingly, sues him for maintenance at the rate of Rs. 4 per mensem.
2. The defendant, in reply, denied that, at the time mentioned by the plaintiff, he turned her out of his house, and he alleged that, about fourteen years previously, she had eloped with another man, and that her suit is barred by the law of limitation. The defendant further asserted that, about twelve years before he filed his written statement, he had divorced the plaintiff, on the occasion of a dispute between them, before the magisterial authorities, and that she had given birth to two illegitimate children.
3. The Subordinate Judge of Haveri made a decree, with costs for the defendant, on the ground that, about ten or twelve years previously to the suit, the plaintiff tore off from her neck the nuptial token, and gave it to the defendant, that she thenceforward resided with her own parents, and, subsequently to the giving of the nuptial token to the defendant; became the mother of two illegitimate children.
4. The plaintiff appealed to the District Judge of Dharwar, who reversed the decree of the Subordinate Judge, and awarded to her maintenance, at the rate she claimed, and costs. The reasoning by which the District Judge arrived at his decree seems to be that, while he believed the parties to have been separated for a much longer time than the plaintiff admitted, he did not regard the circumstance, that they lived apart by mutual consent, as amounting to desertion; that, assuming the fact to be that the plaintiff divested herself of her nuptial token, and that there had been a quarrel between her and her husband, and that she refused to return to him, those circumstances did not relieve her of her conjugal duties or position, or amount to a sufficient ground for a divorce, as the defendant might legally have compelled her to return to him, and that no proof had been given of an alleged caste custom of divorce by mutual consent; that it was still a question whether a divorced woman among the upper castes is not entitled to maintenance, that the illegitimacy of the two children was not proved, and that the divorce, if it occurred, at all, was unlawful.
5. The defendant filed a special appeal against that decree. It is unnecessary now to state the grounds of special appeal, as the question submitted to the Full Bench by the Division Court, which entertained that appeal, was only that contained in a preliminary objection, made on behalf of the plaintiff, to the hearing of it, namely, that the suit, being for maintenance, and valued at Rs. 480, was cognizable by a Court of Small Causes under Act XI of 1865, and, therefore, no special appeal lay. The question, then, for our determination is, whether this suit for maintenance was cognizable by a Court of Small Causes under that Act
6. The sixth section of Act XI of 1865 enacts that 'the following are the suits which shall be cognizable by Courts of Small Causes, namely, claims for money due on bond or other contract, or for rent, or for personal property, or for the value of such property, or for damages, when the debt, damage, or demand does not exceed in amount or value the sum of Rs. 500, whether on balance of account or otherwise.' Then follows a proviso, not material to the present question. It is not pretended that there is in this case any bond in respect of which the maintenance is claimed; and, in the argument in support of the jurisdiction, it was admitted that the words 'or other contract' formed the only basis upon which it could be contended that the Small Cause Courts might entertain a suit for maintenance brought by a widow or other person where the maintenance was not secured by bond.
7. It was on both sides assumed in the argument that, at the time of the marriage, the plaintiff and defendant were in a state of infancy, as is usual amongst Hindus when marrying. It cannot be said that they were contracting parties. Hindu patres familiarum are on these occasions the contracting parties. They have the right to dispose of their children (while minors) in marriage, and to do so without consulting them. And it would be difficult to affirm that there is any subsequent ratification of the contract by the children, inasmuch as they have no power, on attaining majority, to ignore the marriage when complete, or subsequently to rescind or dissolve it, except under such special circumstances or usages as admit of divorce. If there be a suit for breach of the contract to marry, i.e., of the betrothal, the person held liable to pay damages has, in the cases reported in Borradaile's Reports and in Umed Kika v. Nagindas Narotamdas 7 Bom. H.C. Rep. 122, been the father or other adult relative who made the promise that the marriage should take place, and not the intended husband or wife.
8. Minors, idiots, and lunatics are by Hindu law unable to contract 1 Stra. H.L. 271; yet not only are the marriages of infants upheld, but it has been distinctly laid down that the marriage of a Hindu lunatic is valid [Dabychurn v. Radachurn 2 Morle Dig. 99 West and Buhler, p. 288 Q., 6)].
9. But, further, we should take too narrow a view of the nature of maintenance, if we were to limit it to the case of husband and wife. In numerous instances maintenance is recoverable, in which there is not the most remote connexion with contract: e.g., where a Hindu, personally disqualified from inheritance by congenital blindness, or deafness, or dumbness, or insanity, or idiotcy, or sanious leprosy, or illegitimacy, is entitled to be maintained out of the family estate by the next heir who takes it. So, too, a continuous concubine of the deceased proprietor is entitled to maintenance. It cannot be said that her title to it rests upon contract. The proper view seems to us to be to regard maintenance, in its general aspect, as a liability created by the Hindu law in respect of the jural relations of the Hindu family, and this would be so even in the case of the continuous concubine just mentioned. For she is the dasi or sudri or serva of the pater familias. The liability of the husband to maintain his wife, is an obligation, arising out of the status of marriage amongst Hindus, expressly imposed by their law. And, generally, in such other instances in which maintenance is prescribed by the same law, we hold that the right depends on the status to which the law appends it. Even in England and other Christian countries, marriage creates a special status from which, and not, except mediately, from the volition of the parties, spring the rights and duties of married people as such. In Mordaunt v. Mordaunt L.R. 2 Pro. & Div. 103, Lord Penzance says: 'But, is it true that marriage is an ordinary contract? Surely, it is something more. I may be excused if I dwell somewhat on this matter, because I conceive it lies at the very root of the question in discussion. Marriage is an institution. It confers a status on the parties to it, and upon the children that issue from it. Though entered into by individuals, it has a public character. It is the basis upon which the framework of civilized society is built, and, as such, is subject in all countries to general laws which dictate and control its obligations and incidents, independently of the volition of those who enter upon it.' We have not overlooked Govinda v. Bapoo 5 Mad. H.C. Rep. 200, a case not turning upon the married status. The foregoing considerations show that the reasoning, which prevailed there, does not apply here.
10. There are conflicting decisions as to the jurisdiction of Courts of Small Causes in the Mofussal.
11. In Ramchandra Dixit v. Savitribai 4 Bom. H.C. Rep. 73 Couch, C.J., and Newton, J., held that no special appeal lay in a suit by a widow against her step-son for arrears of maintenance under Rs. 500, because they were of opinion that such a suit was cognizable by a Court of Small Causes; but they gave neither reason nor authority for that opinion. They followed that decision in Judal v. Hira 4 Bom. H.C. Rep. 75, but gave no reasons. Those cases seem to have been doubted by Sargent, C.J., (Acting) and Melvill, J., in Ramabai v. Trimbak 9 Bom. H.C. Rep. 283. In Bhagvan Chunder Bose and others v. Bindoo Bashinee Dossee 6 Cal. W.R., 286, Civ. Rul., Shumbhunath Pandit and Bayley, JJ., ruled that a Small Cause Court has jurisdiction only as regards arrears of fixed maintenance, but not to determine the right to maintenance, if in dispute. They did not refer to, and do not appear to have been acquainted with, the earlier decision which we next proceed to mention.
12. In Nobin Kalee Debea v. Bindoobashinee Debea, 5 Cal. W.R. Sm. C.C. Ref. 5 decided in 1866, Peacock, C.J., and L. Jackson, J., held that a suit for maintenance is not cognizable by a Small Cause Court, as maintenance 'is not a claim for money due upon contract, and does not fall within the definition of any of the claims made cognizable by Act XI of 1865, Section 6.' They added: 'If a case of the sort is not cognizable, it makes no difference that a particular case does not involve intricate questions of law or fact.' In that case it appeared that the plaintiff had previously obtained a decree of a Civil Court fixing her maintenance at Rs. 7 per mensem, and subsequently, another decree for arrears of that maintenance, and brought the suit (the subject of the reference to the High Court) in a Small Cause Court for further and other arrears.
13. In a later case (Kaminee Dossee, widow of Chunder Mohun Shaha v. Bishonath Shaha 9 Cal. W.R., 214 Peacock, C.J., and Bayley, J., held that a suit by a widow for arrears of maintenance fixed by Munsiff's decree (in which suit the defendant disputed his liability, on the ground that the property of the plaintiff's husband, which had come to his hands, was exhausted, and stated that the defendant had brought a suit to be relieved from his liability under the Munsiff's decree), was not cognizable by a Small Cause Court in the Mofussal.
14. With reference to the two last-mentioned cases, it may be well to draw attention to the remark in the recent case of Lakshman Ramchandra v. Satyabhamabai, I.L.R. 2 Bom. 494 censuring the unnecessary multiplication of suits for the maintenance of one and the same widow. If the first suit were properly framed, and a continuing decree for the payment of her maintenance at a fixed monthly, annual, or quarterly rate were made, any further decree would be unnecessary, unless either party, by suit or otherwise, brought to the notice of the Court that circumstances rendered it equitable that the rate should be enhanced or reduced. Many circumstances might be suggested which would do so: e.g., a marked increase or diminution in the value of the estate or of its annual yield, the destruction of a portion of the estate (out of which the maintenance is payable), or an addition to it, by, say, the shifting of the course of a river, or other cause--(see Shriram Buttacharji and another v. Puddomookhee Debia, 9 Cal. W.R. 152.
15. The very possible necessity of varying the maintenance from time to time and of enquiring into the circumstances of the claimant, or of the family estate, or the family itself, show how unsuitable maintenance suits are for the Small Cause Courts. We say the family itself: because additional burdens may, from time to time, be cast upon the family estate. Other widows, besides the previous claimant, may be thrown upon it for support by the death of their husbands, or the number of sons and daughters of the male co-parceners may have increased. With respect to suits brought upon continuing decrees in the ordinary Civil Courts for present and prospective maintenance, merely for the purpose of enforcing payment of that maintenance, we must say that they not only are unnecessary but unsustainable. If, indeed, they were brought to evade the operation of the law of limitation, they ought, upon that ground alone, to be discountenanced [see on these points Mancharam v. Bakshi Saheb 6 Bom. H.C. Rep. 231 Sandes v. Jomir Sheikh 9 Cal. W.R. 399 The excuse does not in such cases exist that has been relied upon in actions in the High Court upon a decree of a presidency town Small Cause Court, that execution can, by such action, be obtained against a species of property which the latter Court cannot take in execution.
16. The last case which we shall mention (Ningangavda v. Baslingavda, Sp. Ap. 101 of 1870, decided on the 20th July 1870) is unreported. It was a Suit by a daughter-in-law against her father-in-law for maintenance. She had obtained decrees in the Courts below, and he (who contested her right) having made a special appeal to the High Court, it was objected on her behalf that the suit was cognizable in a Court of Small Causes, and, therefore, a special appeal would not lie; a Court, however, consisting of Westropp, C.J., and Kemball and Nanabhai, JJ., held that such a suit was not within the jurisdiction of a Small Cause Court, and overruled the objection; but on the merits affirmed the decrees of the Courts below.
17. We are prepared fully to adopt the decision of Peacock, C.J., and L. Jackson, J., in the case of Nobin Kalee Debea v. Bindoobashinee above cited from 5 Cal. W.R. 5.
18. We think that (in the absence of any special bond or other contract for the payment of maintenance), the question referred to us, viz., 'whether a suit for maintenance is cognizable in a Court of Small Causes in the Mofussil,' must be answered in the negative.