1. This second appeal arises out of a suit brought by the appellant to recover arrears of maintenance from the respondents. Both the Courts below have found that the appellant's husband Ramayya died in February 1890, devising all his property by a will to the respondents. The will contains a provision that the respondents should maintain the appellant in case she lived with them, but that, if owing to disagreement she lived apart, they should give her Rs. 24 a year for her maintenance.
2. It is also found by the lower Courts that after the husband's death the appellant led for some time an unchaste life and gave birth to a child but that since then she has been chaste.
3. Upon these facts the respondents contended in the Court of first instance that, on account of the unchaste life which the appellant had led for some time after her husband's death, she had forfeited her right even to bare or starving maintenance. In support of that contention they relied on two decisions of this Court-Valu v. Ganga (1882) I.L.R. 7 Bom. 84 and Vishnu v. Manjamma (1884) I.L.R. 9 Bom. 108.
4. In an able judgment which is to be commended for a careful collation and examination of original texts, the learned Subordinate Judge (Mr. R. R. Sane) held that these decisions were not applicable to the present case, first, because ' the rule there laid down seems to have been based on certain passages from the Mitakshara and the Mayukha, which refer to the maintenance either of the wives of disqualified heirs or of the widows of deceased coparceners; ' and, secondly, because, ' it did not clearly appear from the reports that the attention of the learned Judges, who were parties to the decisions in question, was drawn to some verses from the Smriti of Yajnyavalkyaand Vijnaneshvara's commentary thereon, relating to the treatment to be given to degraded persons or outcasts in general.' On the strength of these verses, cited in his judgment, and also of the provision in the will, the Subordinate Judge held that the appellant was entitled to ' bare ' maintenance and awarded the claim.
5. On Appeal by the respondents, the District Judge of Kanara held that, whether the decisions of this Court in Valu v. Ganga ILR (1882) 7 Bom. 84 and Vishnu v. Manjamma ILR (1884) 9 Bom. 108 were right or not according to the texts of Hindu law, they were binding all the same on the Subordinate Courts. As to the provision in the will, he held that the annuity of Ks. 24 a year, having been given to the widow in express terms 'as maintenance allowance ', must be presumed to have been intended by the testator to be subject to the condition that the appellant should lead a chaste life. Accordingly, the District Judge reversed the Subordinate Judge's decree and dismissed the suit.
6. On second appeal it is argued that the texts, on which the learned Subordinate Judge has relied in his judgment, apply to the facts of this case, and that the rule to be gathered from those texts is that a Hindu widow, who has at one time led an unchaste life, is entitled at least to starving or bare maintenance, if she has subsequently returned to a life of chastity.
7. The first set of texts versus 70 and 72:-The Mitakshara. (Moghe's 3rd Edition, Page 181 noticed by the Subordinate Judge occurs in Yajnyavalkya in the chapter on ' Marriage ' in the section which treats of' Rituals.' The first text, verse No. 70, relates to an adulterous wife, and, as correctly translated by the Subordinate Judge, it runs as follows : ': She is to be allowed to live (by the husband in his own house), deprived of her rights, poorly dressed, fed with a view to sustain life only, dishonoured, sleeping on the ground.' This obviously relates to a wife, who is leading a life of unchastity, is unrepentent, and is not purified by means of expiatory rites. In the case of one so purified, the general rule is that she is restored to all conjugal and social rights. As Apararkat (Apararka: Anandashrama Series, Vol. I, Page 98) puts it, ' She, who has performed expiatory rites, becomes fit for conjugal and social association.' And for that proposition he cites Manu, who says that ' a wife, who has become purified after degradation, shall not be censured.' This also follows from the next but one verso of Yajnyavalkya (Verse No. 72 : The Mitakshara. (Moghe's 3rd Edition, page 18)) and the explanation given of it by the Mitakshara. There the Mitakshara explains that only a certain class of degraded women must be 'abandoned'--viz., a woman who has committed adultery with a man of a lower caste, and a woman who has committed any of the sins regarded as deadly by the Shastras. The Mitakshara also explains that even in the case of such women, 'abandonment' (tyaga) does not mean entirely forsaking and throwing them upon the world, helpless and hopeless. It means abandonment only 'for the purposes of conjugal rights and religious ceremonies.' That is, such women must be treated in the same way as women leading an unchaste life. They must be kept apart in the house and given just enough feed and clothing to keep body and soul together, but all other relations of husband and wife must cease. The same view is taken by Nilakantha in his Prayashitta Mayukha [Prayaschitta Mayukha : Benares Edition, Page 91]. Referring to a text in the Chatur Vithshati Smriti, which provides that ' there should be no abandonment of any woman except in the case of such sins as the murder of a Brahmin and the like,' he explains that even in such cases, a woman should be made to do penance in the house. Madhavacharya in his Parashara Dharma Samhita explains the law to the same effect (Sanskrit Bombay Series, Edition, Page 352, Vol. II. Part I).
8. The general rule to be gathered from these is that a Hindu wife cannot be absolutely abandoned by her husband. If she is living an unchaste life, he is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life; she is not entitled to any other right. If, however, she repents, returns to purity and performs expiatory rites, she becomes entitled to all conjugal and social rights, unless her adultery was with a man of a lower caste, in which case, after expiation, she can claim no more than bare maintenance and residence.
9. The next set of texts of Yajnyavalkya (The Mitakshara; Verses 297 and 228(Moghe's 3rd Edition, page 432)) noticed by the Subordinate Judge occurs in the section on ' Penances.'
10. In that section Yajnyavalkya first deals with the question of expiatory rites which a degraded man has to perform before he can be restored to his caste. Then in verse 297 he deals with the case of a ' degraded woman.' He says that the same expiatory rites that are prescribed for degraded men are ordained in the case of degraded women too, with this difference, ' however, that in the case of such women, even after their purification by means of expiatory rites, they do not become entitled to restoration of the conjugal and social rights which they had before degradation but they must be allowed to live ' near' the house, provided with bare food and scanty clothing, just to keep body and soul together, and they must be guarded. Literally interpreted, this would seem to apply to all degraded women, who have undergone purification. But Vijnaneshvara points out in his remark introducing the next verse of Yajnyavalkya, that it applies only to a particular class of women, that is, to those whose degradation was caused by one of the sins considered deadly. It is such women only who, even after purification, must be abandoned. That is, while they become entitled to bare food and raiment and residence, they must be treated as unfit ' for the purposes of conjugal rights and the performance of religious ceremonies.' That is the definition and meaning of abandonment (tyaga) as given by Vijnaneshvara in his gloss on one of the verses of Yajnyavalkya in the first set of texts above noticed.
11. As is pointed out by Nilakantha in his Prayaschitta Mayukha [Prayaschitta Mayukha : Benares Edn., p. 91], the word tyaga (abandonment) is explained in the Mitakshara as meaning the discarding of a woman so far as conjugal relations and religious ceremonies are concerned, but it does not mean driving her out of the house (that is, the husband's). No question of abandoning a woman for the purposes of conjugal relations and religious ceremonies can arise except as between a husband and his wife. The important question is whether this latter set of texts applies to the case of an unchaste widow or whether it applies only to the case of an unchaste wife. The learned Subordinate Judge thinks that the language of the texts is wide enough to cover both the cases. Nilakantha in his Prayaschitta Mayukha, in the course of his discussion of the question as to the right of degraded women to the performance of expiatory rites, cites some of the texts and along with them he quotes a text of Parashara (Prayaschitta Mayukha, Benares Edn., p. 91) which provides that ' a woman, who conceives a child from a paramour when her husband is either dead or is not to be found or has gone abroad, should be regarded as degraded and sinful and driven out of the country.' Nilakantha explains ' driven out of the country' to mean driven out of the house.'
12. This text of Parashara, which includes the case of a widow, is explained by Madhavacharya Parashara Dhanna Samhita, Bombay Sanskrit Bevies, Vol. II, Part I, J). 352 as relating only to a woman who is leading a life of unchastity, is unrepentent, and has not performed expiatory rites. As to a woman, whether she is wife or widow, who returns to a life of chastity after she has been unchaste, Madhavacharya explains that she, after expiation, cannot be cast out of the house, but that she must be maintained.
13. These texts of Hindu Shastras, as explained by the commentators of recognised authority, would seem to support the decision of this Court in Honamma v. Timannbhat ILR (1877) 1 Bom. 559 which has been dissented from in the two later decisions in Valu v. Ganga and Vishnu v. Manjamma. Doubt has been expressed in Romnath v. Rajonimoni ILR (1890) Cal. 674 and Kandasami v. Murugammal ILR (1895) 19 Mad. 6 as to the correctness of the decisions in Valu v. Ganga and Vishnu v. Manjamma. It is not necessary for the purposes of this second appeal to decide the question, which, having regard to the conflict of authority in this Court, will have to be settled, when it arises, by a Full Bench. We have referred to it only to notice the texts which bear on the question that they may be of use on a future occasion.
14. In the present case the appellant has claimed maintenance not only under the Hindu law but also under the provision in her husband's will allowing Es. 24 a year to her as maintenance. The fact that the will expressly refers to the allowance as maintenance has led the learned District Judge to infer that chastity is an implied condition of the bequest. He thinks that the testator must be presumed from that expression to have intended that the allowance should be given subject to the condition of chastity on which the right of a Hindu widow to maintenance depends. No doubt, ' in construting the will of a Hindu, it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with regard to the devolution of property.' Mahomed Shumsool v. Shewukram (1874) L.R. 2 IndAp 714. But a Hindu's power to make a will has been held to be co-extensive with his power to make a gift inter vivos. Having regard to the texts relating to an unchaste wife discussed in the earlier part of this judgment and the rule propounded by Vijuaneshvara and Nilakantha, we must presume that the appellant's husband would have given her maintenance even in the event of her unchastity during his lifetime. Such a presumption must be preferred to that which the learned District Judge has drawn on the construction of the word ' maintenance' in the will, because the ordinary notions of the testator in such a case must be judged with reference to what he would have done if his wife had proved unchaste while he was alive. And what he would have done must be judged from what the Shastras, in the absence of usage to the contrary, ordain he was bound to do. According to the Shastras, he would have had to maintain his wife, unless she had misconducted herself with a man of a lower caste. There is no allegation against the appellant of such misconduct. Nor is it the case of the respondents that there is any custom which has broken in upon the rule of the Shastras. Further, though the annuity is granted by the will as ' maintenance,' that word cannot be understood as imposing any condition or restriction so as to cut down or extinguish the right to Rs. 24 a year given by the will. Where an implication is to be made, it must be certain and necessary. The rule that the will of a Hindu must be constructed with due regard to Hindu habits and notions applies only where there is ambiguity. Caution must be used in applying that rule, and it must be adopted only where a suggested construction of doubtful language leads to manifest absurdity or hardship. Here there is neither. The mere fact that the word maintenance is used cannot affect the unconditional terms of the bequest.
15. On these grounds the decree of the District Judge must be reversed and that of the Subordinate Judge restored with the costs of both the appeals on the respondents.