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Vishu Shambhog Vs. Manjamma, Widow of Subaya Shambhog - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom108
AppellantVishu Shambhog
RespondentManjamma, Widow of Subaya Shambhog
Excerpt:
maintenance - hindu law--hindu widow--decrce declaring right to maintenance, and directing payment of arrears--form of decree--order for future payments--maintenance subsequently falling due, and enforced by fresh suit or by execution of decree. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high..........be brought to enforce it, and so it would hitherto appear to have a been brought, as shown by the widow's suit in 1879, to enforce payment of arrears for 1878 and 1879 in which a decree was passed. the defendant's objection, therefore, that the plaintiff's remedy was to recover maintenance by execution of the decree of 1877 is, in our opinion, not sustainable. at the same time we may be allowed to say that we share in the regret expressed by sir michael westropp, 0. j., in lakshmun ramchandra joshi v. satyabhamabai i.l.r. 2 bom. 497 that distinct orders, directing the payment of the future maintenance, should be too frequently, as in this case omitted from decrees of this nature.2. as to the plea of unchastity, no evidence was taken before the subordinate judge?, because he considered.....
Judgment:

Charles Sargent, C.J.

1. The decree of 1877 contains an order, in express terms, to the defendant to pay the plaintiff Rs. 37 as claimed by her for maintenance during the previous year; but, as to the future, it is, in words, merely declaratory of her right to receive maintenance at the above annual rate from the defendant and, therefore, strictly, we think, requires that a suit should be brought to enforce it, and so it would hitherto appear to have a been brought, as shown by the widow's Suit in 1879, to enforce payment of arrears for 1878 and 1879 in which a decree was passed. The defendant's objection, therefore, that the plaintiff's remedy was to recover maintenance by execution of the decree of 1877 is, in our opinion, not sustainable. At the same time we may be allowed to say that we share in the regret expressed by Sir Michael Westropp, 0. J., in Lakshmun Ramchandra Joshi v. Satyabhamabai I.L.R. 2 Bom. 497 that distinct orders, directing the payment of the future maintenance, should be too frequently, as in this case omitted from decrees of this nature.

2. As to the plea of unchastity, no evidence was taken before the Subordinate Judge?, because he considered that the plea was bad in law, on the ground that the right to maintenance having once commenced, it could not be extinguished. This view is diametrically opposed to the Hindu authorities, of which it is only necessary to refer to a text of Narada referred to in the Daya Bhaga, Chap. XI, Section 1, v. 48, which says: 'Let them (meaning husband's relations) allow a maintenance to his women for life, provided they keep unsullied the bed of their lord; but if they behave otherwise, the brother may resume that allowance.' This text is pointed out by the Privy Council in Moniram Kolita v. Kerry Kohtany L.R. 7 IndAp 151 as clearly showing that the right was one liable to resumption or forfeiture as distinguished from the case of a widow's estate by succession. Such being the nature of the widow's right to maintenance, a decree, declaring her right, must from its nature, be liable to be set aside or suspended in its operation on proof of such unchastity; and although the husband's relations might doubtless bring a suit for that purpose, they may properly, we think, meet a suit by a widow to enforce such declaratory decree by a plea that the right so declared has since become extinguished by the widow's misconduct.

3. We must, therefore, reverse the decree, and remand the case to be tried on the merits. Costs to abide the result.


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