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Dayavati Ramchandra Vs. Kesarbai Kasibai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 19 of 1933
Judge
Reported inAIR1934Bom66; (1934)36BOMLR61; 150Ind.Cas.488
AppellantDayavati Ramchandra
RespondentKesarbai Kasibai
DispositionAppeal dismissed
Excerpt:
.....and exclusive connection till death of her paramour.;under hindu law, an avaruddha stree or a permanent concubine of a man is after his death entitled to maintenance from his estate, provided the concubinage is permanent till his death and sexual fidelity to him is preserved. it is not necessary to show that the concubine was recognised by the family of the deceased or that his relationship with her was known to the family.;nagubai v. monghibai (1926) 28 bom. l.r. 1143. p.c. followed. - - it may well be that a connection between a man and a woman which in fact endured down to the date of his death may appear on the evidence not to have been intended as a permanent connection. but in this case i am quite satisfied from the evidence, and particularly the letters, that down to the..........was open and avowed, and that she had lived as a member of the deceased's family either in his family house or else in such circumstances that she was regarded by everybody as a member of the family. the plaintiff then appealed to the privy council, and the privy council reversed the decision of the appeal court. their lordships agreed with the court of appeal in thinking that the plaintiff must prove that she was an avaruddha stree, and they construed that word as meaning a permanent concubine. they left open the question whether it was necessary to prove more than that the plaintiff was merely a woman kept and reserved for the sexual enjoyment of one man to whom she remained faithful, because they held that in that case the evidence, even as accepted in the court of appeal, showed.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal against the decision of Mr. Justice Kania in a suit by the plaintiff for maintenance, the defendant being the widowed heir of a man named Ramchandra in whose keeping the plaintiff alleges that she was down to the date of his death. In the plaint, as originally drawn, the plaintiff alleged that she had been for twelve years in the exclusive keeping of the deceased as a permanent concubine, and that the arrangement had continued down to his death, and on that basis she claimed maintenance. When the matter first came before the learned trial Judge he accepted the view of the defendant that the plaint as drawn disclosed no cause of action, and he therefore allowed an amendment in these terms: 'The deceased treated the plaintiff as he would a wife and the plaintiff was an avaruddha stree of the deceased.' The written statement denies that the plaintiff was the avaruddha stree of the deceased, and it also alleges that the plaintiff was not chaste, and traverses her claim to maintenance. Various issues were framed which were answered in favour of the plaintiff. The learned Judge held that she was not shown to have been unchaste, and that she had been the permanent concubine of the deceased. The third issue related to the point raised by the amendment, namely, whether the deceased treated the plaintiff as he would a wife and whether the plaintiff was an avaruddha stree of the deceased. That issue also was answered in the affirmative. On this appeal the findings of fact of the learned Judge have not been challenged, except in respect of his findings relating to the third issue, and the plaintiff's chastity except in her relation to the deceased is not questioned. The point argued on the appeal is this : it is said that in order to succeed the plaintiff must show that she was an avaruddha stree of the deceased, and that involves, not only that she was a permanent concubine, but that she formed part of the family of the deceased. On the other hand the plaintiff-respondent contends that it is sufficient if it be proved that the plaintiff was a permanent concubine, that it is not necessary that that relationship should have been known to the family of the deceased, and a fortiori it is not necessary that the plaintiff should have been treated as a member of that family.

2. So far as the facts are concerned it is found by the learned Judge, and his finding is not challenged, that for twelve years prior to the death of the deceased, which occurred in August 1932, the plaintiff had been under his exclusive protection. She lived in a house in Bombay, and the deceased paid her Rs. 400 a month for maintenance. The deceased sometimes lived at his up-country place, but he had a house in Bombay in which he generally lived, and he visited the plaintiff, according to her evidence, every day whilst he was in Bombay between the hours of 5 p. m. and about 8 p.m. Shortly before his death, and after his marriage to the defendant, he stayed with the plaintiff for about three weeks. The plaintiff produced a large number of letters written to her by the deceased ( Ex. A collectively), and I think those letters show that the deceased had very great affection for the plaintiff. He treated her as much more than a woman reserved merely for purposes of sexual enjoyment; he evidently confided to her all matters of family interest and also matters relating to his business, and so far as he was concerned he certainly regarded her as a member of his family in the sense of being a person for whom he had great affection and in whom he confided. But there is no evidence that the deceased's wife or members of his family knew about his connection with the plaintiff. Some of his friends knew about the connection, the evidence of the plaintiff being that four male friends of the deceased knew about his connection with her and some times came to her place generally with the deceased.

3. The question on this appeal is whether the learned Judge was right in holding that the facts entitled the plaintiff to maintenance. The right of a concubine under Hindu law, when the relationship has been permanent in the sense that it has lasted down to the death of the man, rests on the ancient texts, and no doubt the women who were entitled to maintenance in olden times were women in the position of slaves. But it is quite clear on the authorities that the obligation has been recognised and enforced since slavery was abolished. It is not necessary I think to go through the texts, or the old cases, because in my view the question arising on this appeal is really governed by the decision of the Privy Council in the case of Nagubai v. Monghibai : (1926)28BOMLR1143 That case originally came before this High Court on its original side, and the facts proved shortly were that the claimant in that case had been in the keeping of the deceased for about five years prior to his death ; he made her an allowance and she maintained herself in a house where the man himself often lived with her, though he sometimes resided in his business premises. His wife and family lived in a separate house. The learned trial Judge in that case held that the plaintiff had shown that she was a permanent concubine, and he decreed her maintenance. There was an appeal which was heard by Mr. Justice Shah and Mr. Justice Crump, and they reversed the decision, and held that for a woman to be entitled to maintenance as a permanent concubine it was necessary that she should prove that her relationship with the deceased was open and avowed, and that she had lived as a member of the deceased's family either in his family house or else in such circumstances that she was regarded by everybody as a member of the family. The plaintiff then appealed to the Privy Council, and the Privy Council reversed the decision of the Appeal Court. Their Lordships agreed with the Court of Appeal in thinking that the plaintiff must prove that she was an avaruddha stree, and they construed that word as meaning a permanent concubine. They left open the question whether it was necessary to prove more than that the plaintiff was merely a woman kept and reserved for the sexual enjoyment of one man to whom she remained faithful, because they held that in that case the evidence, even as accepted in the Court of Appeal, showed that the woman was much more than that. They accepted the finding of the trial Judge that the inference from the evidence was that the deceased did not care for the members of his family, and the members of his family did not care for him, and the deceased looked to the plaintiff as the person who was a member of his family and looked to her for nursing him, and then they held that in order to be a member of his family It was not necessary that the woman should reside in the family house. Then later on their Lordships definitely accepted and followed the decision of this Court in Ningareddi v. Lakshmmwa I.L.R. (1901) Bom. 163 : Bom. L.R. 647 and they held that the case established that, provided the concubinage be permanent until the death of the paramour and sexual fidelity to him be preserved, the right to maintenance was established. In Ningareddi v. Lakshmawa (supra) the postition was that the man's wife left him on account of ill-health and he then introduced a concubine into his family house; after thirteen years the wife returned and the concubine was then sent out of the family house, but the man continued to visit her. In that case, therefore, it was clear that the woman was not living as part of the family of the man. There was no finding as to whether the relationship of the man with his concubine after the return of the wife was known to the family, and the Court apparently regarded that as immaterial. It seems to me that the Privy Council have negatived the view that in order to succeed in establishing a claim for maintenance a concubine must show that she was recognised by the family of the deceased, or that his relationship with her was known to the family. 'What is necessary for her to show is that she was a permanent concubine. No doubt the question of permanency is a question of fact to be determined in each particular case. It may well be that a connection between a man and a woman which in fact endured down to the date of his death may appear on the evidence not to have been intended as a permanent connection. But in this case I am quite satisfied from the evidence, and particularly the letters, that down to the death of the deceased he certainly did intend that his connection with the plaintiff should be a permanent one. I am unable to distinguish the facts of this case, in their essentials, from the facts in Nagubais case. In that case, as here, the woman belonged to the caste of professional prostitutes, and there were, therefore, grave social obstacles in the way of her marrying, or openly associating with, the deceased man. In that case, as here, the man made her an allowance, and she maintained herself in her own house. No doubt there are distinctions in detail; the man in that case seems to have more often spent the night at the house of his mistress than did the deceased in the present case ; and it may be that in that case the deceased took the woman about with him rather more than in the present case. On the other hand the letters in the present case show more strongly the affectionate relations which existed between the deceased and the concubine. The fact which has been relied upon by Mr. Carden Noad for the appellant as distinguishing Nagubais case from the present one, and as showing that in that case the relationship of the deceased man with the plaintiff was known to his family, is that his sons visited him occasionally at the house of the plaintiff. It appears, however, from the judgment of the trial Judge that the sons in question were only aged thirteen and fourteen respectively, and it is not shown how often they visited their father at the house of the plaintiff. Even if boys of that age may have known or suspected what the relationship was between their father and the woman living in the house where they visited him, it is extremely unlikely that they would have discussed the matter with the members of the father's family, and there is no evidence that any adult member of the family knew of the deceased's relations with the plaintiff. The Privy Council noticed this circumstance amongst the facts proved in the case, but they did not, as far as I can see, rely upon it, and as I read their judgment, they do not consider it necessary for the relationship of the plaintiff with the deceased to be known to his family. The decision of the Privy Council has been accepted by text-writers in India in the sense in which I understand it, see, for example, Sir Dinshah Mulla's Hindu Law, 7th Edn., p. 557. The learned author of Sarkar's Hindu Law thinks that the decision of the Court of Appeal in Nagubai's case was right, and that the Privy Council decision altered the law. On the other hand the learned Advocate General for the respondent contended that it was the judgment of Mr. Justice Shah in the Court of Appeal which, if not reversed, would have altered the law. One cannot help observing that if the qualification which that judgment sought to impose upon the right of a permanent concubine to recover maintenance, namely, that she should have been recognised openly as a member of the deceased's family, be accepted, that qualification would largely destroy in practice the right. Public opinion in modern times would hardly tolerate a concubine being kept in the same house as the wife, and the right to maintenance would therefore generally only arise in the case of a man prepared to defy public opinion. But, whether the decision of the Privy Council altered the law or not, we are bound by it, and in my opinion it governs this case. I think, therefore, that the appeal must be dismissed with costs.

BlackWell, J.

4. I agree. In the face of the Privy Council decision in Nagubai v. Monghibai : (1926)28BOMLR1143 I think that the interesting argument which Mr. Garden Noad has addressed to us is not now open to him. He has contended that in that case their Lordships merely decided that it was no longer necessary for an avaruddha stree to live in the same house as the family of the Hindu whose concubine she was, but that it was essential that his connection with her should be open and permanent and that he should treat her as a member of his family. No doubt some colour is lent to that contention by that passage in their Lordships' judgment which is as follows (p. 1150):

And so the real question would appear to be whether to be of the family the concubine, otherwise entitled to maintenance, must reside in the same house with the deceased, together with his wife and the regular members of his family.

5. But after going on to negative the obligation of the common residence and to hold that it is now unnecessary their Lordships cited the head-note of a decision of the Appeal Court in this Presidency in the case of Ningareddi v. Lakshmawa I.L.R. (1901) Bom. L.R. 1143 That head-note is in these terms:

Under Hindu Law a concubine gets no right of maintenance against her paramour, unless, having been kept continuously till his death, it can be said that the connection had become permanent.

6. Their Lordships accept that as an accurate summary of the law and say that in their view that decision is sufficient authority for holding that provided the concubinage be permanent until the death of the paramour and sexual fidelity to him be preserved the right to maintenance is established, although the concubine be not kept in the family house of the deceased. Mr. Garden Noad has argued that in Ningareddi v. Lakshmawd it was assumed without, discussion that the connection between the person keeping the concubine and the concubine was open and avowed. In my opinion there is no justification for that contention. It is true that the concubine was kept by the deceased in his own house for thirteen years, but when his wife returned to that house the deceased turned the concubine out and visited her at some other place. There is no evidence whatever in that case that it was known to any body that he visited her at the place in which he kept her after she left his house. More over their Lordships of the Privy Council draw a distinction between the case which they were dealing with and the case in Ningareddi v. Lakshmawa and say that the facts proved or admitted in the case before them are certainly strong enough to bring the case within the rule entitling the appellant to maintenance out of the property of the deceased since the findings in her favour go beyond those held sufficient in the case oiNinga-reddi v. Lakshmawa by the Court of Appeal in Bombay-a decision whose authority has not been questioned. I understand their Lordships to mean by this that in the case before them there was some evidence that the deceased treated the concubine as a member of his family and some evidence that certain members of his family were aware of the connection, but that in the appeal Court decision whose authority has not been questioned there was no such evidence at all, and the only facts which the Court had before them and upon which they could come to their decision were that the concubinage was permanent until the death of the paramour. In my opinion, therefore, all that need be established by a concubine seeking maintenance after the death of her paramour is that the concubinage was permanent which is a question of fact, that it lasted until the death of the paramour, and that sexual fidelity to the deceased had been preserved by her. As regards the facts of the present case, it seems to be established beyond any question that the plaintiff lived for a very large number of years with the deceased, that he regarded her with great affection and almost as a wife, and that he intended that that relationship should continue as it had existed in the past. That, in my opinion, is all that it was essential for the plaintiff to prove. The connection in fact lasted till his death. In those circumstances I agree that this appeal should be dismissed with costs.

7. Per Curiam. Appeal dismissed with costs. Respondent to recover her costs of the suit and appeal from the moneys, ornaments and articles in the hands of the two attorneys Mangaldas Mehta and Damodardas Mehta as per order dated February 21, 1933, and they to pay the same and also the costs of suit and appeal out of the moneys in their hands. They also to pay respondent arrears of maintenance at the rate and from the date mentioned in Mr. Justice Kania's decree until further orders. This order without prejudice to the respondent's right in the event of a deficit to proceed against any other estate of the deceased in the appellant's hands.


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