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Kesarabai Vs. Haribhau - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 467 of 1964
Judge
Reported inAIR1975Bom115; 1974MhLJ924
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18(2)
AppellantKesarabai
RespondentHaribhau
Appellant AdvocateV.M. Kulkarni, Adv.
Respondent AdvocateM.W. Samudra and ;P.N. Khode, Advs.
Excerpt:
.....of the concept of marriage. at any rate, the institution, of marriage enjoins and obliges both husband and wife to live together under the same roof and by common effort to achieve the good of both. thus the relational activity meaningfully results in chiseling out the social unit because of bond of husband and wife, and law enjoins upon them the respective obligations and duty, loyalty, love chastity and care are all the part of the same bond. 13. for the present considerations it is enough to observe that any of the partners causing rupture of this relation by developing amorous connections outside the wedlock is clearly made answerable to another. as noted earlier not only the grounds permit the wife depurative from her duty and obligation to reside under the roof of husband but..........* * * * 7. it is clear that under the above said provisions of the act, the right of a hindu wife to maintenance is statutory recognized and is treated as an incidence of her status of marriage. sub-section (1) of section 18 declares her right. sub-section (2) gives the grounds on the proof of which she can work out the right to separate residence as well to claim maintenance, in sub-section (3), disqualifications that operate against a hindu wife in the matter of her entitlement to maintenance have been stated, being unchastity and conversion, the scheme of these three sub-sections thus is a self contained one and having declared the right clearly carves out the grounds on the basis of which that right has to be enforced. in the formation of the provisions of sub-section (2) of.....
Judgment:

1. Kesarbai, the present, appellant a Hindu wife in her forties, seeks to enforce her right of separate residence and maintenance against her husband, respondent Haribhau.

2. By the impugned judgment the Assistant Judge, Akola, reversed a decree in her favour and dismissed her application finding that she had not proved the grounds.

3. Kesarbai had filed the application mainly seeking relief on the plea that Haribhau had deserted her and further that he had kept a concubine by name Sulochana the trial Court on both these matters found in her favour inter alia holding that from February 1958. Hari Bhau had deserted Kesaribai: that he had kept a concubine by name Sulochana at Khambra where he has another residential house and that kesarbai was entitled to Rs.50/- per month as past and future maintenance. He also directed a charge against the immovable property being Survey Nos. 1/1-A, 1/5, 6/1. and 15/1 shown in Schedule B and a bungalow near lady Harding Hospital, Akola. The appellate Court found that the evidence in the matter of desertion, as was spoken to by Kesarbai and her witnesses was not convincing and he further found that Hari bhau had admittedly kept a concubine but that was not in the same house where Kesarbai stayed with him at Khambors. He thus thought that the grounds mentioned by Section 18(2) of the Hindu Adoption and maintenance Act, 1956 were not made out. He die not consider the latter part of clause (e) of Section 18(2) of the Act on a view that kesarbai had contended that Sulochana, the concubine was kept in the residential house but that has not been established. In other words, though, in fact, it was admitted by the husband Haribhau that he had kept the concubine, only because it was not shown that she was kept in the residential house where wife was living the appellate Court negatived the claim of kesarbai. On the question of quantum Rs.75/- for past and future maintenance would meet the ends of justice. Having found on the main issues against the wife he allowed the appeal of the husband.

4. It is not necessary in this appeal to consider the grounds of desertion for it is obvious and is not in dispute that Haribhau has at least been keeping Sulochana as his exclusive mistress since about 1958. He had merely added that only after Kesarbai left, he had kept Sulochana. For the purpose of the present appeal, it is not disputed that keeping of Sulochana as a mistress by Haribhau was continuous since 1958 and is continued during the trial and even till date. The only submission which will be noticed later on in some details, that is canvassed by Mr. Samudra the learned counsel appearing for the respondent, is that to satisfy the provisions of Section 18(2)(e), it must be shown firstly, that husband keeps concubine in the same house in which wife is living or it must otherwise be shown that husband had shifted his ordinary residence and is residing with a keep at any other residential house. He submits that mere keeping of a mistress without change of residence is not sufficient to enable a Hindu wife to claim maintenance under Section 18(2)(e) of the Act.

5. On the other hand, the learned Counsel appearing for the appellant Mr. Kulkarni submitted with great force that such a construction of the provisions of section 18(2)(e) on the admitted facts would defeat the very statutory contemplation. His approach is that clause (e) of sub-section (2) is a prohibition against keeping a concubine and once it is established that the husband has formed a habit in that regard, the requirements of law are answered. He complained that the learned appellate Judge has erred in not granting the relief on the admitted positions in the litigation.

6. Relevant provisions of S. 18(1) and Section 18(2)(e) of the Hindu Adoptions and Maintenance Act, hereinafter called as the Act, read as under:-

'18(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time 92) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance -.

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere: * * * *

7. It is clear that under the above said provisions of the Act, the right of a Hindu wife to maintenance is statutory recognized and is treated as an incidence of her status of marriage. Sub-section (1) of Section 18 declares her right. Sub-section (2) gives the grounds on the proof of which she can work out the right to separate residence as well to claim maintenance, In sub-section (3), disqualifications that operate against a Hindu wife in the matter of her entitlement to maintenance have been stated, being unchastity and conversion, the scheme of these three sub-sections thus is a self contained one and having declared the right clearly carves out the grounds on the basis of which that right has to be enforced. In the formation of the provisions of sub-section (2) of section 18 laying down the grounds by various sub-clauses, the treatment is more or less exhaustive. Upon the proof of those grounds it follows that a Hindu wife can claim separate residence and by that she does not forgo her claims to maintenance Like any other basic factors. These grounds could be established by direct and circumstantial evidence. as well on the admitted facts. in each case, It is not necessary to plead the words of the ground when all the facts are known to the parties and they join consciously the issue thereupon. Even on the plea of would be entitled to consider the case of the wife so as to find out her right being enforced under the provisions of section 18(2).Strict construction of pleadings in such matters does not appear to further the ends of justice. In fact it appears that broad fair and somewhat tolerant approach is necessitated on the matters of pleas with regard to such claims. for any technicality in that regard to such claims for any technicality in that regard to such claims for any technicality in that regard may result in miscarriage of justice. Where the parties are not misled, nor defence is prejudiced in any manner and by the admitted positions the grounds on which the trial was held are made out there is no reason to withhold the relief from the complaining party. The approach of the learned appellate Judge to the pleadings, therefore in holding that only there is a complaint under first part of clause (e) of sub-section(2) of section 18 and no relief can be given on the admitted facts to the wife cannot be upheld. This is more so because it appears that even on the say of the husband he was exclusively keeping Sulochana as his mistress and the case was within the mischief clearly contemplated section 18(2)(e) of the Act.

8. Having seen the relevant form of the provision it is necessary to consider certain basic matters involved in material relationship. Without that, the statutory relationship. Without that, the statutory provisions cannot properly be understood.9. The basic concept of Hindu wedlock is that a sacrament and a union of two souls enjoined to cohabit together and to live a meaningful life as one. By that union wife is obliged to live under the roof of the husband and be under his protection. However, certain exceptions were always recognized even under the age-old Shastric injunctions. Under the present statute, by section 18(2)(e) it is clear that these exceptional circumstances under which a Hindu wife may claim separate residence and maintenance and thus fall apart from the aforesaid well-recognized precept of duty, have been codified and enumerated. A little probing into these principles is necessary to understand the efficacy of the terms of sub-section (2) and particularly clause (e) thereof.

10. The system of Hindu law, as came to be handed down to us, cannot be treated as merely a system of a religious or person law. It has always been and has all the incidents of a purposeful and pragmatic law of social growth and development. There were principles present to the mind of the earliest law-givers that appear to be now statutorily recognized even in the present legislation which are meant to uphold the basic social institutions including 'the marriage' and 'the family'. Under Hindu juridical thoughts social relationship is treated transcendental. In the institutional set-up, there is eminent effort to uphold the balance between individual interest and social good. Several structural and organizational concepts of social life have been afforded recognition to achieve a well-balanced growth of the society itself.

11. Marriage and its institution is treated for all purposes as a holy sacrament and further has primordial importance in the contemplation of law. On the one hand it signifies the spiritual union of man and woman as husband and wife and on the other it conceives of the basic principle of mutuality bringing two partners together with the forces of social milieu developing, since the age old times of civilisation, several obligations, rights corresponding duties and relative injunctions seem to evolve out so as to hold this the together and further support and supplement its existence. Ethics and principles of morality have obvious their interplay in the generic field. That subserves all the social virtues or personal love mutual respect and best of the co-operation. The aim and objective of this institution is to achieve by cohabitation of man and woman the supreme values of Dharma (i.e. duty according to law and religion. Arth (economic effort and achievement). Kam (love and procreation), and purusharth (i.e. best and noble actions and deeds). These are the material determinants of the concept of marriage. I have left out Moksha, i.e. the attainment of ultimate liberation of soul for that obviously is a spiritual aspiration of this transcendental relationship. At any rate, the institution, of marriage enjoins and obliges both husband and wife to live together under the same roof and by common effort to achieve the good of both. Marriage thus means mutuality and respects reciprocity.

12. From this concept flowers out the Family and Home. These institutions are based on the principle of procreation and protection. Common roof affords and nourishes and social feelings of togetherness and proves the efficacy of marriage as an institution. Husband is obliged to furnish the roof and further, protection. Wife is enjoined to remain under that roof and nurse the growth of the family. Thus the relational activity meaningfully results in chiseling out the social unit because of bond of husband and wife, and law enjoins upon them the respective obligations and duty, loyalty, love chastity and care are all the part of the same bond. On the social plane that answer the character either of husband or wife. Negative injunctions are ingrained in this relationship.

13. For the present considerations it is enough to observe that any of the partners causing rupture of this relation by developing amorous connections outside the wedlock is clearly made answerable to another. It should be obvious that upon such unwanted and forbidden conduct law ends its mercy by providing for necessary need of retributive justice to a wife remaining chaste and willing to uphold marriage. Law assures all protection and compels the fallen spouse to furnish her with a separate roof and all the need of her maintenance.

14. In the instant provision, therefore, there is clear enabling concern to afford a wife to live as such with respect and dignity. Legislature here has drawn upon the elemental experience in this regard and provisions under considerations indicate all awareness about the same. As noted earlier not only the grounds permit the wife depurative from her duty and obligation to reside under the roof of husband but clearly enable her to have an independent roof and live with dignity, that by itself should furnish a clear guideline to a husband to behave within the acknowledged limits of social. moral and ethical concepts necessary to upholds the life of the institution of marriage. Statutory provisions appear to indicate both decorum and discipline. There is a balance achieved in the rights, obligation and duties undertaken by husband and wife. There is further clear, objective to make her free and economically sound so that she is not subjected to unnecessary on relief against the husband through the intervention of the Court by itself recognizes that after the coming into force of the Act. wife need not be treated as a mute object of suppression but she is entitled to a status followed by certain basic rights which can always be enforced. It is similarly clear that legislature is conscious of the fact that life of such ladies requires economic relief, obviously for it is hard fact that economic want can depress all glorious values of human life.

15. All this basic policy as well the background of social, economical and ethical compulsions inherent in the institution of the marriage, should be kept in view while interpreting or construing or applying, the provisions of the present enactment. Restitution and reliefs therefor are the noble pursuit of law and every effort must be made to make it available to the aggrieved party.

16. Coming to the provision of clause (e) of sub-section (2) of Section 18 it is obvious that that provision is in two parts and those are divided by disjunction 'or'. Any one of the parts if satisfied would answer the terms of clause (e). Where the husband keeps a mistress in the same house in which his wife is living or where it is shown that he resides habitually with such concubine, the wife is enabled to have the relief. It is plain that the terms of clause (e) itself primarily inhibit the course of conduct of the husband wherein he involves himself with another woman outside wedlock, the terms of that clause therefore should be so interpreted which would suppress the mischief and further the remedy.

17. Applying the first and basic rule of interpretation i.e. to understand the language used by the legislature in its literal sense so s to find out its intention one should approach to the words of clause (e) itself. 'Concubine' is known to Hindu Law by the term 'Avarudhha Stri'. That means a 'Keep' or a 'Mistress'. A woman outside the wedlock or marriage exclusively taken by a husband answers the etymology of 'Avarudhha Stri'. In English language the word 'concubine' connotes 'a lesser wife' She is not treated as a mere prostitute, but the term is indicative of a woman attached or in keeping of a man either or amorous or otherwise reason and who is not bound by the bond of marriage. Once a married man accepts or keeps such 'lesser wife' either as the part of his life or by way of habit, he is said to have kept a mistress. It follows that such a married man surely acts against the bond of the marriage and that transgression gives rise to certain logical and legal needs that are made available in favour of his wedded wife. Firstly, the initial obligation undertaken by the wife to remain under his roof and under his protection comes clearly under eclipse by the very act of the spouse keeping 'a lesser wife' and secondly, of necessity, facts of life dictate to secure unto her all economic reliefs. Being bound by marriage, husband by his own act cannot absolve himself from the obligation to provide for his wife.

18. Another word which should be noted with care is 'habitually'. That is an adverb drawn from the noun 'habit'. that connotes ordinary course of behavior, custom accustomedness and, therefore, 'habitually' would mean 'as a usual practice'. The next term on which some controversy centres is the word 'reside'. It has several meanings and would take in the sense of 'dwelling in a place' or 'act of living' and would indicate, 'that in which something permanently inheres or has its seat.

19. Keeping all these conceptual contemplations and connotations of the words used by the Legislature together the latter part of clause (e) does not show any ambiguity but, on the other hand, appears to be clear. What is of relevance and importance is the adoption of a way of life by the husband. As noticed earlier, the emphasis of entire clause (e) is on the practice of keeping a woman by a married man and that should be kept in view while considering all the relevant terms. If, therefore, upon evidence it is shown that a husband has kept a mistress, though at a different place, it should be sufficient to answer the latter part of clause (e). the whole phrase 'habitually resides with a concubine elsewhere' is indicative of a customary behaviour of a married man, though he might not have changed his ordinary place or residence. His course of conduct spread over a period, his mental attitude in visiting the place of concubine, his assertions, his involvement with such other woman, should all enter the ken of consideration to find out whether he habitually resides with such a keep or not. By the term 'habitually resides', the emphasis is on the 'habit' and not on 'residence'. If he brings the mistress in his house where his wife is living, the first part in full force applies but where he does not bring such a mistress and keeps her outside, the second part should always apply.

20. By merely emphasising the grammar of the term 'reside' the efficacy of the entitled provision would be whittled down. For answering the latter part, necessary to show that husband in fact had changed his permanent abode or ordinary place of residence; it would be enough if it is shown that there is a consistent course of conduct spread over a time indicating that the husband has kept a mistress exclusively to himself and visits her regularly. That would answer the habitual residence elsewhere of the husband. That residence need not be continuous but surely would indicate the way of life or course of conduct. The latter part is so worded to take in those cases where husband by way of practice goes out to the place of his mistress and resides there as a matter of course. It follows, therefore, that change of his permanent abode or change of his permanent abode or change of his place of usual residence cannot be treated as germane to find out whether wife is entitled to separate residence. It is all a matter of reasonable inference to be drawn from the conduct of the parties. if insistence is placed on the change of residence by the husband, the revision itself would be rendered ineffective. The husband may actually adopt a course of conduct to keep a mistress and yet avoid the liability to afford separate residence to the wife by visiting the place of residence of the wife for a short while and continuing the home of family as it were a place of passing visits, permanent change of residence by husband therefore, does not appear to the necessary condition of the latter part. The matter has to be decided on the basis of the facts which indicate a habitual behavior. Any other interpretation would tend to put a premium on promiscuous course of conduct of a party bound by marriage, to certain basic values. By an approach that ordinary place of residence must be changed by the husband to enable the wife to claim relief, in several causes the remedy would be lost and we would reach a cul de sac. Such result surely is not conceived by the Legislature. Thus I am inclined to interpret the words of latter part of clause (e) to indicate the case of a husband who has as a matter of habit or course or way of life kept a concubine or a mistress at any other place excepting his place of ordinary residence.

21. As stated earlier, in the present case, there is no dispute that Haribhau has kept Sulochana as his exclusive mistress. That keeping started in 1958 and still is continuing. Haribhau's evidence is unequivocal in that regard. He states that he has kept a concubine but she is in a separate house of Kesarbai is to the effect that Haribhau kept a concubine in his residential house. Evidence of kesarbai is to the effect that Haribhau kept a concubine in his residential house in the village when she was at Akola that statement of hers has not been challenged by any cross examination. As stated earlier in this court too, the learned counsel does not dispute the fact of keeping Sulochana by Haribhar, but his submission is that she is not kept in the house where Kesarbai is residing.

22. Thus there is clear evidence to hold that Haribhau has fallen out of the marriage-tie and has taken to an exclusive keep by name Sulochana. That answers the second part or clause(e). In fact, Sulochana the mistress has been provided with a separate residence at another residential house in the village owned by Haribhau.

23. Kesarbai thus for all purposes was entitled to separate residence and reasonable amount of maintenance. There any submission that Haribhau had at any point of time stopped living with Sulochana or Sulochana has left his keeping. That being the position, the view taken by the appellate Court cannot be affirmed and it has to be found that Kesarbai is entitled to succeed.

24. Haribhau appeared to be a man of about forty years of age when these proceedings were started, having two sons and having main source of income from the agriculture which is about 40 acres. The first Court had assessed the maintenance at Rs.50/- per month. The first appellate Court has raised that amount to Rs.75/-. That finding is based on the appreciation of evidence of the defendant himself and upon the reasonable estimate of the status of the wife of such a person. The sum of Rs.75/- per month fixed by the first appellate Court appears to be reasonable and proper. That finding has to be affirmed.

25. Then comes the question of payment to be ordered on account of past and future maintenance and its arrangements. Though the litigation itself started in the year 1960, 14 years have passed out till the stage of the decision of this second appeal and that is a relevant factor while considering the case in this regard. I am inclined, therefore to take the view that for all the past maintenance which is recoverable from the defendant, there should be such arrangement which will not affect immediately his agricultural economy. The total amount at the rate of Rs.75/- per month would work out at Rs. 14775/- for the period February 1958 upto June 1974 Mr. Kulkarni appearing for the appellant Kesarbai states that she gives up her claim out of this amount to the tune of Rs.3000/- and that leaves a balance recoverable of Rs.11775/- I direct that the said balance be paid in twelve equal annual instalments first such instalment being payable by 5th of December 1974 and the subsequent instalments payable by that date of each year. Any two defaults would make entire amount exisgible. The amount of Rs.75/- per month of the future maintenance shall be paid by every 6th of each month, beginning with 16th of August 1974 for the month of July to be paid in August and subsequently in the same manner. The property in the hands of haribhau as found by trial Court would carry charge of these amounts.

26. The appeal that succeeds and a decree shall be made in above terms. However, in the circumstances, I am not inclined to make an award of costs is this appeal.

27. Mr. Samudra learned counsel for respondent applies orally for leave to file Letters Patent Appeal. Leave refused.

28. Appeal allowed.


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