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Bhikubai Yeshwantrao Meher Vs. Hariba Sawalaram Meher - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 5 of 1924 and Suit No. 482 of 1922
Judge
Reported inAIR1925Bom153; (1925)27BOMLR13; 94Ind.Cas.665
AppellantBhikubai Yeshwantrao Meher
RespondentHariba Sawalaram Meher
Excerpt:
hindu law - maintenance-unchaste widow -widow reverting to chastity-bare maintenance-quantum- reference to commissioner.;under hindu law, a widow who has been unchaste, but who is proved to have given up the life of unchastify, is entitled to bare maintenance.;the question of determining the amount of bare maintenance need not be referred to the commissioner; it can ordinarily be filed by a rough and ready reference to the general conditions of the family as disclosed in the evidence. - - if i fail to lead a moral life and to behave according to the duties of female i shall not claim the right of food and clothing (i. (achchindyuh). this word clearly indicates that they may cut off or forfeit if the widow does not lead a chaste life, or, to use the words in the translation, if the widow.....lallubhai shah, kt., acting c.j.1. [his lordship after discussing evidence held that it was not proved that bhikubai had married shankar; but held that bhikubai had been intimate with shankar. the judgment then proceeded:] the next question of fact to be determined is whether the finding that she has reverted to a moral life is correct. its correctness has been challenged by mr. setalvad. it appears from the evidence that shankar married one jijibai at dehu in december 1918. the case for the plaintiff is that ever since that marriage there is nothing to show that shankar has been living on terms of improper intimacy with bhikubai. it appears from the various receipts of money-orders sent by the defendant to bhikubai at dehu and junnar that shankar signed for bhikubai, and that his.....
Judgment:

Lallubhai Shah, Kt., Acting C.J.

1. [His lordship after discussing evidence held that it was not proved that Bhikubai had married Shankar; but held that Bhikubai had been intimate with Shankar. The judgment then proceeded:] The next question of fact to be determined is whether the finding that she has reverted to a moral life is correct. Its correctness has been challenged by Mr. Setalvad. It appears from the evidence that Shankar married one Jijibai at Dehu in December 1918. The case for the plaintiff is that ever since that marriage there is nothing to show that Shankar has been living on terms of improper intimacy with Bhikubai. It appears from the various receipts of money-orders sent by the defendant to Bhikubai at Dehu and Junnar that Shankar signed for Bhikubai, and that his association with her has not ceased. There are other letters in the case, which it is not necessary to refer to, that the apparent association of Shankar with Bhikubai, who has been living apparently since 1918 at Junnar and Dehu, has continued. When once we find that the relations between Shankar and Bhikubai had reached the stage of improper familiarity, and when we find that the apparent association of Shankar with Bhikubai has not ceased, it is not easy to draw the inference that after his marriage with Jijibai, the improper connection with Bhikubai has ceased. At the same time we have the evidence of Jijibai which goes to show that such improper relations did not exist-at any rate not to her knowledge. While I am prepared to give due weight to the evidence of Jijibai, speaking for myself I do not find it easy to hold it proved that the improper relations between Bhikubai and Shankar have ceased. The learned trial Judge was prepared to draw that inference in favour of Bhikubai, and my learned brother is also prepared to draw that inference in her favour on the evidence of Jijibai.

2. As I consider that that inference is a reasonably possible inference under the circumstances, in spite of the difficulty which I feel in accepting it, I am not prepared to differ from the conclusion that for some time prior to the date of the suit Bhikubai had given up her life of incontinence.

3. On these facts, the question arises whether Bhikubai has forfeited her claim to maintenance altogether, or whether she is entitled to bare maintenance, as the learned trial Judge has held. It is argued on her behalf that in view of the observations of Chandavarkar J. in Parami v. Mahadevi I. L. R. (1909) 34 Bom. 278, Section c. 12 Bom. L. R. 196 she is entitled to full maintenance as a widow living a chaste life would gets as she has given up the life of incontinence.

4. I shall, therefore, first deal with the question as to whether she has lost her right to maintenance generally speaking, and shall deal with the question of her right to bare maintenance separately.

5. It has been argued on behalf of the respondents that in view of the terms of the agreement, Ex. A, she has lost all right to maintenance. The material clause in the agreement is as follows:-

By the aforesaid deed or agreement I Bhikubai widow of Yeshwantrao Sawlaram pass in writing as follows. I will always live with my mother-in-law Jenabai wife of Sawlaram Dhondiba Meher and will always lead a moral life and behave according to the duties of female (i. e.) lead a virtuous life. If I fail to lead a moral life and to behave according to the duties of female I shall not claim the right of food and clothing (i. e. maintenance) referred to above; similarly I will not live independently (1) (i. e. by myself alone).

6. It is urged that as her incontinence is proved, under this clause she has lost all right to maintenance. It is true that she has lost the right to maintenance referred to in the agreement. But I do not think that this clause can be read as meaning that if she has any right under the law in spite of incontinence, that right is affected. The question of her right to maintenance must be determined according to Hindu law on the facts found, and it cannot be held to be affected in any way by this clause in the agreement, as contended on behalf of the respondents.

7. As regards the consequences of unchastity on the right of a Hindu widow to maintenance, there can be no doubt. The text of Narada, which is referred to in Ch. 2, Section 1, p1 7, of the Mitakshara, makes the position clear. I shall refer to the translation of this text, as given in Gharpure's translation of the Mitakshara, Vyavahara Adhyaya, p. 230 :-

Among brothers, if any one die without issue, or enter a religious order, let the rest of the brothers divide his property excepting the stridhana (of his wife). They should make provision for the maintenance of his wives till their death, provided they preserve unsullied the bed of their lord. They may, however, cut it off in the case of those who behave otherwise.

8. The original word for 'cut off'' or 'resume' used in other translations is: (Achchindyuh). This word clearly indicates that they may cut off or forfeit if the widow does not lead a chaste life, or, to use the words in the translation, 'if the widow does not preserve unsullied the bed of her lord.' Yajnavalkya's Verse No. 142 and Vijnanesvara's commentary thereon as translated in placita 14 and 15 in Ch. 2, Section 10, of Cole-brooke's translation of the Mitakshara, which need not be quoted here, would show that the sonless wives of disqualified heirs were to be maintained so long as they conducted themselves aright, but were liable to be expelled if they were unchaste. This is consistent with Narada's view as to the obligation on the part of a widow to lead a chaste life in order to be entitled to maintenance.

9. In the Vyavahara Mayukha also this text of Narada is quoted with approval (see p. 78, Mandlik's Hindu Law).

10. The decisions of this Court are consistent on this point. In Valu v. Ganga I. L. R. (1882) 7 Bom. 84 the question has been considered and the conclusion reached is that she forfeits her right to maintenance.

11. In the earlier decision in Honamma v. Timannabhat I. L. R. (1877) 1 Bom. 559, which was dissented from in the above case, it was observed that 'the observations (in Rajah Pirthee Singh v. Ranee Raj Kower (1873) 20 W. R. 21) as to loss of maintenance in consequence of unchastity,... refer red to maintenance as a dives, not to a starving maintenance, as a bare maintenance has been sometimes denominated.' (p.561). In Yeshvantrav v. Kashibai I. L. R. (1887) 12 Bom. 20 Nanabhai Haridas J., who delivered the judgment of the Court, sitting with Sargent C. J., referred to this rule in these words : 'The wives and widows of disqualified co-parceners are entitled to maintenance, but only on condition of their continuing chaste 1 Strange 175 : 2 Cole. Dig. 438.' (p. 28).

12. The point for decision in that case was different, but I refer to this statement as showing that Nanabhai Haridas J., who was a party to the decision in Honamma v. Tiniannabhat, described the right of maintenance of widows as being subject to the condition of their continuing to be chaste.

13. Therefore it is clear that if the incontinence of Bhikubai is proved, under this rule she would forfeit her right to be maintained by the co-parceners of her deceased husband. Mr. Thakor, however, has relied upon the observations of Chandavarkar J. in Parami v. Mahadevi I. L. R. (1909) 34 Bom. 278. 12 Bom. L. R. 196. I do not think that Chandavarkar J. meant to question in any sense the well-settled rule that the right of the widow to maintenance was , dependent upon her continuing to be chaste, and that in case her incontinence was proved, she forfeited that right. The opinion of Apararka, referred to by Chandavarkar J., cannot be read as modifying this view: and even if it means what Mr. Thakor contends it does mean, it cannot be accepted as against the opinions of Vijnaneavara and Nilakantha on this point and the uniform current of decisions. The opinion of Madhavacharya, referred to by Chandavarkar J., does not in any sense support the contention that even an incontinent widow may retain her right to full maintenance if she has reverted to the path of morality. I am quite clear that the observations of Chandavarkar J. are directed to the point of bare maintenance, as to which there was an apparent conflict between Honamma v. Timannabhat and Valu v. Ganga. The lower Court was, therefore, right in disallowing the plaintiff's claim for maintenance generally. She claimed in this suit increased maintenance in spite of the agreement which was entered into between her and her husband's relations. But, on account of her proved incontinence, that right is forfeited, and the defendants are entitled to refuse to maintain her.

14. The next question is whether she is entitled even to bare maintenance in view of her having given up the path of unchastity. On this point apparently there is a conflict between the two decisions of this Court to which I have referred. With reference to this apparent conflict Chandavarkar J. has examined the texts of Hindu law, and has expressed the opinion that those texts would seem to support the decision of this Court in Honamma v. Timanrimbhat. It is quite true that those observations were not essential for the decision of the case. As the point was argued in that case he examined the texts and expressed his opinion. The question that we have to consider is whether there is really any conflict between the two decisions, and if there is no necessary conflict, as to whether the widow can be allowed bare maintenance under the circumstances of this case.

15. It appears from the judgment of the learned Chief Justice in Valu v. Ganga that the authorities which were referred to in Honamma v. Timannabhat were considered, and after quoting a passage from Strange's Hindu law, at page 90 it is pointed out that:-

In the absence of any text distinctly imposing this obligation or of any expression qualifying the right which is reserved by so many texts to those who take the husband's property, of withdrawing maintenance from an unchaste widow, it cannot (except perhaps in the case of a son) be regarded as a legal liability to be enforced in a Civil Court.

16. It does not appear from the judgment that the passages in the Achara and Prayaschitta Adhyayas in the Mitakahara, to which I shall presently refer, were before the Court If any text which would support the view taken in Honamma's case had been brought to the notice of the learned Judges, it is permissible to think that they might not have expressed their dissent in an unqualified form. It does not appear from the facts of the case in Valu v. Ganga that the question whether the widow would be entitled to bare maintenance if she had given up the life of incontinence arose for decision in that case.

17. The decision in Vishnu Shambhog v. Manjamma I. L. R. (1884) Bom. 108 does not carry the apparent conflict between the two views any further. In that case the necessary facts which would raise the question of allowing bare maintenance to the widow were not alleged, and the decision proceeds upon the general ground as to whether on account of unchastity the right of the widow to maintenance is lost, even though it may have been decreed before.

18. I have considered the authorities which have been mentioned by Chandavarkar J. in Parami v. Mahadevi, and I do not consider it necessary to refer to them all in this judgment. It is sufficient to refer to the passages in the Mitakshara. Veree 70 in the Achara Adhyaya in the Chapter relating to 'Marriage', with Vijnanesvara's commentary thereon, is translated as follows by Srisa Chandra Vidyarnava in his translation of the Achara Adhyaya at p. 136 :-

The author now describes how unchaste women are to be treated.

Yajnavalkya.

LXX.-The unchaste wife should be deprived of authority, should be unadorned, allowed food barely sufficient to sustain her body, rebuked, and let sleep on low bed, and thus allowed to dwell.-70.

Mitaksara.

She who commits adultery, 'should be deprived of authority : i. e., the control over servants and the management of the house-hold etc., should be taken away. She should be kept 'unadorned' i. e., without collyrium, ointments, white cloth or ornaments; 'with food enough to maintain her body' and sustain her life merely, and 'rebuked' with censure etc., aid 'sleeping on low bed', on the ground, and 'allowed to dwell', only in his own house, This should be done in order to produce repentance, and not for purification.

19. In the commentary on Verse No. 72, the meaning of the word 'abandonment' is explained by Vijnaneavara in these terms at page 139 of the same translation:-

The abandonment should be by not having any carnal connection with her, and by not allowing her to join in any religious ceremonies and does not mean that she should be driven out of the house, because of the rule 'she should be kept confined to one apartment (Manu XI. 176 or 177).

20. It must be remembered, however, that these passages in terms relate to a wife and not to a widow.

21. In the Prayaschitta Adhyaya of the Mitakshara in Verses 297 and 298, in dealing with the question of penance, Yajnavalkya lays down the following rule as translated in the Sacred Laws of the Aryas (Mitakshara, Vol. II, Prayaschitta Adhyaya) translated by S. M. Naraharayya and published from the Panini Office, Allahabad, at p. 437 :-

It is declared that this very process (should hold good) with regard to women who have suffered degradation (from caste).

CCXCVIII. (But) accommodation should be given (to them) cloge to the house, (and also) food and clothing along with protection.

And then in the commentary on that verse the following explanation is given of these women (p. 438) :-

To those women, who, though have sufficed degradation (from caste) and for whom the rite of presenting (disconnecting) water libations etc., have been performed, accommodation, (that is,) a small cottage built of straws and leaves should be given in the proximity of the main (building of the) house. Similarly food that is just sufficient for the maintenance of life and also raiment of a low description along with (the protection) of preventing her from being enjoyed again by another man should be given.

22. In the commentary on the next verse it is explained at p. 439 of the same book that women under certain circumstances may be abandoned. The following translation of Vijnanesvara's commentary on this text is material:-

(Here) it has been said that the abandoning is with regard to these four (sorts of) women only, and, nevertheless, the idea is that among such women who (have suffered degradation from caste and) will not perform the penance, only four, (namely,) one who yields herself to (her husband's) pupil etc. should be abandoned without the (allowance of the) necessaries of life, (namely,) clothing, food, accommodation, etc., and it is not so with respect to other (offending women). And hence, it is inferred that (in the case) of other women who have suffered degradation (from caste), all that is said as, 'accommodation should be given (to them) close to the house etc.,' (111,297) should be done though they do not perform the penance.

23. These passages may go to show that in the case of women who did not fall from the path of chastity in any of the grave manners specified in this last verse, she may be allowed to live as described in the preceding verse. It is not easy to determine whether these passages in the Achara Adhyaya and the Prayaschitta Adyaya are applicable to the case of a widow who claims maintenance from the coparceners of her deceased husband. I may refer to the following passage in the Vyavahara Mayukha at page 79 of Mandlik's Hindu law :-

As for the text:-'This same course should be followed in the case of degraded females; food and raiment are to be given to them, and they should reside near the house; ' it is, in the opinion of some others, in reference to the husband while living.

This suggests that in the opinion of Nilakantha, it might not be so limited.

24. In the Vira Mitrodaya, Mitra Misra expresses an opinion, as given at p. 153 of Golap Chandra Sarkar's translation of the Vira Mitrodaya, in the following passage:-

As for the allowance of food and raiment even to the unchaste wives, as is declared in the following text, namely,-' Also let one act in the same manner towards even the fallen wives; food and raiment, however, should be allowed to them, if they reside in the vicinity of the dwelling house':- that however is to be explained as referring to the husband, consistently with what is ordained by Yogisvara after having premised the husband, as in the text,-'Deprived of her position in the family, clad in dirty clothes, living upon morsels barely sufficient for life, and humiliated, an unchaste wife shall be made to lie down upon the bare earth'.

25. At the same time it is a reasonably possible reading of the passages in the Mitakshara, particularly the passages in the Prayashchitta Adhyaya, that they refer to women generally and are not confined to wives.

26. In this state of the opinions with regard to the application of these passages to the case of a widow who has been unchaste but who has reverted to the path of propriety it is not unreasonable to say that they may apply to such widows.

27. It is important to remember that, so far back as 1876, Sir Michael Westropp C. J. and Nanabhai Haridas J. accepted the view that where the widow had resumed proper ways, she might be and ought to be given bare maintenance. No doubt, in coming to that conclusion, they referred to a text of Harita, which is quoted in placita 37 and 38 of Mitakshara, Oh. 2, Section 1, which has no bearing upon the question. This text of Harita has been referred to and considered by Sir Charles Sargent in Valu v. Ganga (p. 84) and the view taken of Harita's text there by the learned Chief Justice is correct, if I may say so with respect. But the fact remains that in Honamma's case the learned Judges acted upon the view that a bare maintenance could be allowed to an incontinent widow without referring to the passages in the Achara and Priyaschitta Adhyayaa of the Mitakshara. I read that judgment as really applicable to the case of a widow who is proved to have given up the life of un-chastity. In that case it is pointed out that the allegation that the widow was living in a state of unchastity was not proved, and it appears that the widow had gone to reside with , her mother-in-law. Under those circumstances the learned Judges considered whether her incontinence had disentitled her to bare maintenance which was allotted to the widow in that case under a previous decree. The decision is really applicable and limited to the case of a widow who is proved to have ceased to lead an unchaste life. If it is read as going beyond that, it has not the support of any text or of any recognised commentator; nor has it the support of any decision of this Court or of any other High Court. I cannot believe that the learned Judges could have meant to go beyond the strict necessity of the case and to hold that even an incontinent widow was entitled to bare maintenance.

28. In Roma Nath v. Rajonimoni Dasi I. L. R. (1890) Cal. 674 the learned Judges declined to apply the rule of Honamma v. Timannotbhat to the case of a widow who was living a life of unchastity at the date of the suit. But they expressed the following opinion in the judgment at page 679 :-

We do not decide in this case what her rights would be if she were to give up her present way of living and begin to lead a moral life; we do not say that she would not, even in that case, be entitled to claim a starving maintenance. All that we say now is, that under the existing state of things she is not entitled to maintenance of any sort.

29. This point has been recently considered in Sathyabhama v. Kesavacharya I. L. R. (1915) Mad. 658. The view taken by Seshagiri Ayyar J. is that these passages in the Mitakshara go to show that the widow will get starving maintenance, though on account of unchastity, she would lose the right to the ordinary rate of maintenance. Undoubtedly this case supports the view that a widow who has been unchaste, but who has ceased to lead a life of incontinence, may be given bare maintenance, and that such right is not excluded by the text of Narada which, seems to give the co-parceners the right of cutting oft' her maintenance.

30. This is the state of the authorities and the opinions with reference to this point. The question is whether there is any real conflict of decisions such as would necessitate a reference to a Full Bench. As I have already stated, the decision in Honamma v Timannabhat must be treated as limited to the case of a widow who has ceased to be unchaste, and cannot be read as applicable to a widow who continues to be unchaste. If the judgments in Valu v. Ganga and Vishnu Shambhog v. Manjamma are read with reference to the facts of those cases that question did not arise for decision. If Honamma's case is< read as laying down that bare maintenance should be allowed to a widow who is in fact leading a life of unchastity, there is undoubtedly a difference of opinion. But, as I have already said, the weight of opinion would be preponderatingly against the view that a widow continuing to be unchaste can get bare maintenance : and no reference to a Full Bench would be called for. Further, on the facts of this case, that question would not arise. But if the decision in Honamma's case is, as I think it should be, restricted to the case of a widow who has really given up a life of unchastity, there is really no conflict of decisions. In view of the concurrence of judicial opinion in the three High Courts, that where a widow who has been unchaste, but who is proved to have given up the life of unchastity, should be given bare maintenance, I think that that view may be given effect to without any reference to a Full Bench. I may respectfully say that, in spite of the difficulty of applying these passages in the Mitakshara to the case of a widow who is proved to have lapsed from the path of chastity but who has improved her ways, I am of opinion that they are fairly capable of being applied to the case of such a widow, provided she has not been guilty of any such grave misconduct as has been stated in the said passages. At the same time these passages cannot be literally applied to modern conditions under which the Hindu law is administered. While, therefore, the Court allows such a widow to live separately, it must insist upon her continuing to lead a chaste life, if she wishes to have the benefit of bare maintenance.

31. I am, therefore, of opinion that the conclusion of the trial Court on this point, that Bhikubai is entitled to bare maintenance, can be accepted.

32. The learned trial Judge has referred the question of determining the amount of bare maintenance to the Commissioner. I do not think, however, that any reference to the Commissioner is necessary. Bare maintenance can and should ordinarily be fixed by a rough and ready reference to the general condition of the family as disclosed in the evidence. It must be bare maintenance as indicated in the passages cited in this judgment. Though these passages are not capable of literal application to the case of a widow who does not live in the family house, under the law as administered now it is simply a question of determining the bare minimum which should be allowed to her under the circumstances in order to enable her, to live. We asked the learned counsel for the respondents as to what amount he would suggest under the circumstances. He suggested Rs. 20 as maintenance and Rs. 5 as house rent, in all Rs. 25 The appellant's counsel has not accepted this as being a reasonable amount for bare maintenance. But his suggestion for allowing Rs. 75 or Rs. 100 per month as bare maintenance is clearly unreasonable. I am of opinion that Rs. 25 would be reasonable as bare maintenance under the circumstances.

33. We modify, the decree appealed from by cancelling the order of reference to the Commissioner and the other provisions in the decree incidental to the reference, and by ordering that the defendants Nos. 1 to 4 do pay Rs. 25 per mensem including house rent to the plaintiff' from the date of the suit; the liability to pay in the case of defendants Nos. 2 to 4 to be limited to the estate in the hands of the Administrator General. The amount now lying with the plaintiff's solicitors in respect of payments made under the order of the Court during the pendency of the suit to be refunded to defendants, so far as it is in excess of Rs. 25 per mensem. The excess amount paid during the pendency of the appeal to be set off against payments already due or which may fall due hereafter. In the trial Court each party to bear his or her own costs.

34. The appellant to pay the respondents' costs in appeal and to get the costs of cross-objections from respondents Nos 1 to 4.

Kincaid, J.

35. [His lordship agreed with the acting Chief Justice in conclusions on facts, and then addressed himself to the question whether Bhikubai had reverted to a moral life.] The next question is whether the improper intimacy between Bhikubai still exists. In 1918 Shankar, after quarrelling with Kashibai, married yet another wife Jijibai. Jijibai has sworn that no intimacy now exists between Shankar and Bhikubai. The learned counsel for the defendants has argued that Shankar and Bhikubai have not ceased to meet and therefore their intimacy most probably continues. But if we accept Kashibai's statement as regards impropriety of their conduct, we should, I think, also accept Jijibai's statement as to its present propriety. I, therefore, agree with the learned trial Judge in holding that their immoral intimacy has ceased and that Bhikubai has returned to a chaste life.

36. The last question is whether even on that finding Bhikubai is entitled to a bare maintenance. The case-law on the subject is not inconsiderable. The first authority brought to our notice is that of Honamma v. Timannabhat I. L. R. (1877) 1 Bom. 559 where Westropp 0. J. held that where a widow had obtained an award of maintenance, she did not forfeit a bare maintenance by her incontinence. It should, however, be observed that the question whether she was incontinent at the time of the suit was left in doubt. The Judge of the first appellate Court did not positively find 'that allegation (i. e. of continued incontinence) to be true and he did state that she resided with her mother-in-law.'

37. The correctness of the above decision was questioned in the case of Valu v. Ganga I. L. R. (1882) 7 Bom. 84. Sir Charles Sargent observed (p. 90):-

In the absence of any text distinctly imposing this obligation (to give an unchaste widow maintenance) or of any expression qualifying the right which is reserved by so many texts to those who take the husband's property, of withdrawing maintenance from an unchaste widow, it cannot (except perhaps in the case of a son) be regarded as a legal liability to be enforced in a Civil Court.

In this case, too, the question whether the widow had returned to a moral life did not arise.

38. This authority was followed in Vishnu Shambhog v. Manjamma I. L. R. (1884) 9 Bom. 108 is But a passage which occurs to the close of Sargent C. J.'s judgment is worthy of note (p 110):-

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 of impended in its operation on proof of such unchastity.

39. Here, again, the question of the widow's return to a moral life was not before the learned Judges but the words 'suspended in its operation' seem to imply that a widow was to be deprived of her maintenance only so long as her unchastity lasted.

40. The matter was again discussed in the case of Pararni v. Mahadevi I. L. R. (1909) 34 Bom. 278 12 Bom. L. R. 196 by Chandavarkar J. Although he decided the case on other grounds he quoted with approval a text of Parashara which supports the contention that a repentant widow must be maintained. The passage runs as follows (p. 285):-

This text of Parashara, which includes the case of a widow, is explained by Madhavaoharya Parashara, Dharraa Samhita, Bombay Sanskrit Series, Vol.11, Bombay Sanskrit Series, Vol.11,, as relating only to a woman who is leading a life of unchastity, is unrepentant, 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 explanation, cannot boast out of the house, but that she mast be maintained.

41. Other High Courts, besides the Bombay High Court, have considered the same question.

42. In the case of Roma Nath v. Rajonimoni Dasi I. L. R. (1890) Cal. 674 their lordships held that an unchaste widow was not entitled to a 'starving maintenance,' but they deliberately left open the question of her rights should she return to a moral life. They observed (p. 679):-

We do not decide in this case what her rights would be if she were to give up her present way of living and begin to lead a moral life; we do not say that she would not, even in that case, be entitled to claim a starving maintenance. All that we say now is, that under the existing state of things she is not entitled to maintenance of any sort.

43. In the Madras High Court there were two similar cases. The first, however, Kundasmni Pillai v. Murugammal I. L. R. (1895) 19 Mad. 6, deals with a wife, and is therefore hardly pertinent. Still the following passage may be quoted from the judgment (p. 8):-

I have little doubt that before a decree for maintenance is given to a wife who has one been guilty of infidelity, she must show, not only that at the time of the plaint and the trial she was leading a chaste life, but also that she had done so for a sufficient period previously so as clearly to I. ad to the conclusion that she has completely renounced her immoral course, and that, in fact, and is a reformed woman.

44. A case exactly analogous to the present one was that of Hathyabhama v. Kesavacharya I. L. R. (1915) Mad. 658. There the learned Judges, after reviewing the authorities cited by me, came to the conclusion that an unchaste widow who had definitely repented was entitled to a bare maintenance. I quote the following passage (p. 660):-

But in none of these (Hindu) texts is there any provision for a woman who had repented and was subsequently leading an honest life. It is not to be presumed from the omission to provide for such a contingency, that the resumption once made is to be irrevocable and that the fallen woman who had reformed is to be denied even a starving allowance.

45. We thus have a series of decisions that at first sight seem to conflict, but if closely scrutinized, appear not really opposed to each other. In the case of Honamma v. Timannabhat we do not know whether the widow had reformed or not, but as the was living with her mother in-law, their lordships seem to have believed that she had. In Valu v. Ganga and Vishnu Shambhog v. Manjamma the widow had certainly not reformed and in the latter case their lordships seem at any rate to have felt a doubt whether, if she had returned to a chaste life, she would not have been entitled to a starving maintenance. In Parami v. Mahadevi Ghandavarkar J. certainly inclined to the opinion that a repentant widow must be maintained. In Roma Nath v. Rajonimoni Dasi their lordships deliberately refused to hold that a repentant widow had no claims. Finally in Sathyabhama v. Kesavacharya the Madras High Court affirmatively held that a reformed widow must be given a starving maintenance. In these circumstances the decision of the trial Judge seems to be the right one and I would confirm it with costs save in one particular. I should not send the case for further consideration of the Commissioner but would award by way of starving maintenance Us. 25 inclusive of rent and all other charges.

46. I would modify the trial Court's decree therefore as indicated by the Chief Justice.


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