(1) The appellant (plaintiff) sued the respondent (defendant) her husband to recover a sum of Rs. 4,320/- as arrears of 6 years' past maintenance. She also prayed for a decree for future maintenance, at the rate of Rs. 60/- per month. They were married about 18 years prior to the suit. For some time they lived cordially. The appellant has no issued. In about 1942-43, the respondent took a second wife. It is now admitted that even after the second marriage, the appellant lived with her husband for about two years. Ever since then she has been living separately with her parents. According to the appellant, she was treated cruelly by her husband; she was assaulted by him a number of times; and hence it was not possible for her to live with him. She further pleads that he deserted her.
On the basis of these allegations, she claimed separate maintenance as mentioned above. She also contends that she is entitled to the separate maintenance claimed in view of section 2(4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act 1946 (Act XIX of 1946) (which shall be hereinafter called the Act), as her husband has taken a second wife. The Court below held that the cruelty and desertion pleaded is not proved. It further came to the conclusion that section 2(4) of the Act does not apply to the facts of the present case, as the marriage in question had taken place prior to the commencement of the Act. Aggrieved by this decision the appellant has come up in appeal and in this Court she has reiterated her contentions advanced in the Court below.
It is further urged that after the disposal of the present suit by the trial Court, the Hindu Adoptions and Maintenance Act, 1956 has come into force on 21-12-1956 and consequently she is entitled to separate maintenance at least from the date on which that Act came into force. According to the plaintiff, the annual net income of the defendants, is about Rs. 4,000/- to 5,000. It is contended on her behalf that on taking the net annual income as well as the needs of the plaintiff into consideration, she is entitled to get maintenance at the rate of Rs. 60/- per month. On the question of the rate of maintenance, the Court below after an examination f all the evidence before it has opined that the net annual income of the defendant is about Rs. 1,800/- and if the plaintiff is entitled to separate maintenance, the proper rate would be Rs. 20/- per month. The plaintiff challenges this conclusions as well.
(2) From the foregoing it is seen that following questions arise for determination in this appeal, i.e. (1) Is the plaintiff entitled to any separate maintenance on the ground that the defendant had been guilty of cruelty to her or that he deserted her? (2) Is she entitled to the separate maintenance under section 2(4) of the Act? (3) In any event, is she not entitled to separate maintenance at least from the date the Hindu Adoption and Maintenance Act, 1956 came into force i.e. 21-12-1956? and (4) What is the proper rate of maintenance?
(3) We are in agreement with the Court below that the plaintiff's allegations that the defendant was guilty of cruelty to her or that she was deserted by him is not proved. It is in evidence that the plaintiff is living separate from her husband from about 1944. The present suit was filed only in 1955. It is not satisfactorily proved that the plaintiff had demanded separate maintenance at any time prior to the suit. In the course of her cross-examination she admitted that she did not inform any one till the institution of this suit, about the beatings she now complains, nor did any one witness to those bearings. Her evidence available is hardly sufficient to find in her favour. Equally insufficient is the evidence relating to desertion.
The defendant in the course of his evidence has offered to take back the plaintiff and according to him he was always willing and anxious that she should live with him. The plaintiff has categorically stated in her evidence that she is not willing to reside with the defendant. We see no reason to differ from the conclusions of the trial Court that the desertion pleaded is not true. From the available circumstances in the case, it is clear, that the plaintiff was either inconvenienced or irritated by her husband taking a second wife and that was the reason why she left her husband's house and protection.
(4) In view of this finding it is unnecessary to consider the further question whether the cruelty alleged, even if true, is sufficient to decree separate maintenance to the plaintiff.
(5) It is convenient to take up at this stage the question of her right to get separate maintenance under the Hindu Adoptions and Maintenance Act, 1956. The learned Counsel for the respondent very appropriately did not contest this point. He conceded that the plaintiff will be entitled to separate maintenance from the date of the commencement of that Act, as section 18(2) of that Act is retrospective in operation. A Bench of this Court of which one of us was a member held in Misc. Appeal No. 248 of 1948 that that section 18(2) of that Act applied to cases where the husband bad taken a second wife even before the Act came into force. This decision is binding on us. But the could be given the relief in question in this suit or whether she should be driven to a separate suit. On the admitted facts the plaintiff is entitled to separate maintenance at least from 21-12-1956 and we see no reason to deny her that relief in this suit.
(6) Before we proceed to consider the true scope of section 2(4) of the Act, we may dispose of the question relating to the rate of maintenance to be awarded to the plaintiff. The plaintiff has come forward with the case that her husband gets a net annual income of Rs. 4,000/- to 5,000/- whereas according to the defendant the income from his land is about 300/- per year. Both the sides have adduced considerable oral evidence on this point, in the very nature of things, the evidence adduced cannot be precise. The witnesses appear to have largely drawn from their imagination. The Court below has opined that the plaintiff and her witnesses have tried to exaggerate the income, while the defendant and his witnesses have tried to minimise it.
We have been taken through the evidence in this case. The evidence does not appear to be satisfactory. We feel that the witnesses examined on either side are partisan witnesses. The Court below was unable to rely on their evidence and we see no reason to differ from it. In the absence of satisfactory evidence, the Court below estimated the annual net income by multiplying the annual assessment i.e. Rs. 90/- by twenty times; i.e. Rs. 1,800/- per year. Taking into consideration the number of members in the defendant's family (six), the Court below thought that the proper rate of maintenance to be allowed to the plaintiff is Rs. 20/- per month. In the state of evidence on record, we do not think that any other conclusion is reasonable. Hence we are not inclined to disturb the finding of the lower Court on this point.
(7) This leaves us with the question as to the true scope of section 2(4) of the Act. Under Section 2(4) of the Act, a Hindu married woman can claim separate residence and maintenance from her husband 'if he marries again'. The question for our consideration is whether this provision is retrospective in operation. In other words, does this provision entitle a Hindu married woman for separate maintenance and residence if her husband had taken a second wife prior to the commencement of the Act? There is considerable conflict of judicial opinion on this point. Some cases have taken the view that this provision applies only to cases where the husband has taken a second wife after the commencement of the Act.
See Palaniswami Gounder v. Devanai Ammal, (S) AIR 1956 Mad 337 (FB); Mt. Sukhri Bai v. Pohkal Sing, AIR 1950 Nag 33; Laxmi Bai Wamanrao v. Wamanrao Govindrao, : AIR1953Bom342 ; Ratan Chand v. Mst. Kalawati, : AIR1955All364 ; Kasubai v. Bhagawan Bhagaji, (S) AIR 1955 nag 210 (FB); and Rama Parkash v. Smt. Savitri Devi, (FB). But some other cases have taken a contrary view. See Lakshmi Ammal v. Narayanaswami Naicker, : AIR1950Mad321 ; Musunuru Nagendramma v. M. Ramakotayya, : AIR1954Mad713 ; Sm. Pancho v. Ram Prasad, : AIR1956All41 ; Varalakshmi v. Viramulu, AIR 1956 Hyd. 75; Anjani Dei v. Kurshna Chandra, : AIR1954Ori117 , Kulamani Hota v. Parbati Debi, : AIR1955Ori77 and Baijnath Dharamdas v. Hiraman Ram Rasik, AIR 1951 Vindh Pra 10.
(8) We have examined these decisions with the assistance of the learned Counsel appearing on either side. Decisions that have taken the view that the clause in question is prospective in operation have emphasized the rule of grammatical construction. They have also relied on the rule that the Court should not lean in favour of an interpretation which imposes financial liability on a party retrospectively. On a review of the decisions that have taken the contrary view we come across three different lines of reasonings. Some of the Judges have taken the view that section 2(4) of the Act is declaratory in character, while some others opine that the section in question was enacted with a view to remedy an existing evil and as such the Court ought to put a beneficial construction on that provision with a view to suppress the mischief and advance the remedy. Yet others rely on the scheme of Section 2 as a whole.
(9) Scope of Section 2(4) came up incidentally for consideration in M. A. No. 248 of 1948 (Mys) referred to earlier and this Court has opined that the full bench decision in (S) AIR 1956 Mad 337 has laid down the law correctly. It is true that in that case the Court was not called upon to consider the scope of section 2(4) of the Act. Hence a fresh examination of the point in controversy has become necessary.
(10) It is a well accepted canon of interpretation that the Courts should be ordinarily guided by the plain meaning of the words employed in any provision. The first and foremost rule of interpretation is the rule of grammatical interpretation. The Legislature must be deemed to have intended what it has said. It is no part of the duty of the Court to presume that the Legislature meant something other than what it said. If the words of the section are plain and unambiguous then there is no question of interpretation or construction. The duty of the Court is to implement those provisions. The question of interpretation or construction arises only if the words used are not plain or they are ambiguous. It is only then the courts are required to call into aid the several rules of interpretation.
(11) The words 'if he marries again' ordinarily mean that if he marries again after the Act came into force. To us the language appears to be plain. In none of the decisions cited before us this plain meaning was doubted. Every Judge who was called upon to interpret these words has opined that the plain meaning of these words refers to a marriage that has taken place after the commencement of the Act. But some of these learned Judges thought it is necessary to depart from this plain meaning either because they thought that these words merely declared the law as it existed at because they thought that if they are to give a restricted meaning to these words then the supposed intention of the Legislature will not be effectuated.
In other words they thought that the words 'if he marries again' deserve beneficial construction. In the Madras High Court, the opinion on the interpretation to be placed on the words 'it he marries again' was divided. Viswanatha Sastri J. In the case of : AIR1950Mad321 opined that clause (40 of section 2 is retrospective in operation. His view was shared by some of his brother Judges. But Krishnaswami Nayudu J. Struck a different note in the case of Sidda Setty v. Muniamma, : AIR1953Mad712 . In view of this conflict of opinion, the matter was referred to a Full Bench in the case of (S) AIR 1956 Mad 337. The Full bench was presided by Rajamannar C. J. the other members being Rajagopalan and Rajagopala Ayyangar JJ. The judgment of the Full bench was delivered by the learned Chief Justice. After a review of the case law on the point the Full bench held that the clause in question is prospective in operation and it did not apply to cases where the husband had taken a second wife prior to the commencement of the Act. In the course of his judgment, the learned Chief Justice relied on the decision in Bourke v. Nutta 1894-1 QB 725. In that case the Court had to consider the scope of section 32 of the English Bankruptcy Act, 1883, which provided inter alia as follows:
'Where a debtor is adjudged Bankrupt he shall subject to the provisions of this Act, be disqualified for....being elected to.....the office of......member of a school board.'
On an interpretation of this section, the Court of appeal held that such disqualification did not attach to a person who had been adjudged bankrupt before the passing of the Act. Lopes L. J. pointed out that to read the words 'where a debtor is adjudged bankrupt' as applying to the case of an adjudication prior to the Act would be not to give the word 'is' its ordinary and natural meaning, but to distort it. It was urged that the words are equivalent to the words 'where a debtor is an adjudicated bankrupt'. But the argument was met with this observation:
'If the Legislature so meant, why did they not use that form?' Davey L. J. Said: Now reading those words alone, and apart from considerations arising out of the subject-matter of the section in which they occur, I should certainly understand them (according to the ordinary use of the English language) to mean, if any man shall or may hereafter be adjudged bankrupt; and unless there be some controlling context in the Act or in the section, I hold that to be the meaning of the words.' He further remarked: 'It has been suggested that the words may be read as meaning 'where a man is an adjudicated bankrupt.' The answer seems to me to be that those are not the words before us, and that the words we have to construe are grammatically different. I think the words 'is adjudged' are the verb, whereas in the paraphrase suggested the word 'adjudicated' would be an adjective. The one from of sentence points to an event to happen, whereas the form suggested predicates a certain quality of the subject which may just as well attach to him by a previous adjudication as by a subsequent one.' The learned Chief Justice Thought that the principle underlying the decision in 1894-1 QB 725 applied to the clause under consideration. With respect we agree with him.
(12) A Full bench of the Nagpur High Court in the case of (S) AIR 1955 210 took a view similar to the one taken by the Madras Full Bench. It opined that the words in section 2 '....A Hindu married woman shall be entitled to separate maintenance from her husband.......(4) if he marries again' are conditional and prospective and not descriptive or retrospective. The expression 'if he marries again' has therefore, to be construed as 'if he marries again after the Act.' (As summarised in the head note).
(13) This is also the view taken by the Bombay High Court in AIR 1953 342.
(14) Gurtu J. in : AIR1955All364 held that the words 'if he marries again' in section 2(4) have reference to a marriage which is solemnized subsequent to the passing of the Act.
(15) Same is the view taken by the Full bench of the Punjab High Court in .
(16) We have earlier observed that from the decisions that have taken the contrary view, three separate principles are deducible and we have enumerated them. We shall now proceed to examine the applicability of those principles to the present controversy.
(17) Is section 2(4) of the Act declaratory in character? Did it merely codify the existing law? Ramaswami J. In : AIR1954Mad713 first advanced this view. The Bench which considered this case consisted of Subba Rao, J. (As he was then) and Ramaswami J. Subba Rao J. Refrained from expressing any opinion on this controversial point though he agreed with his brother Judge in the decision of the case. In the course of his judgment Ramaswami J. after examining the relevant Hindu Law Texts and the commentaries came to the conclusion:
'If the texts are correctly understood, Hindu Law recognises that in certain cases, including supersession by second marriage, the husband and wife should be excused from cohabitation. This excusing from cohabitation was deemed a justifying cause for the superseded wife being given compensation or 'separate maintenance.' The cases from which the absolute proposition that the mere fact that the husband marries a second wife would not entitle the wife to live away from her husband and have separate maintenance, are based upon an incorrect translation of Manu placitum 75 by Colebrook and adopted by Mayne and without a critical discussion of the texts or adduction of adequate reasons.
Consequently, it is not surprising that subsequent case law, though paying lip service to this dictum, has been giving the relief of maintenance on equitable principles applicable to restitution of conjugal rights.' (as summarized in the head note).
In the course of his judgment His Lordship referred to the texts of Manu, Yagnavalkya and other Hindu Law givers. He also referred to the commentaries by Kalluka Bhata and others, in support of his conclusions. But R. Kaushalendra Rao J. In (S) AIR 1955 Nag 210 (FB) differed from Ramaswami J. As regards the true meaning to be attached to these texts and commentaries. He is of the opinion that they do not support the conclusion arrived at by Ramaswami J. Learned as these views are, we think they are of little assistance for our present purpose. Most, if not all controversies arising in the administration of Hindu Law are now settled by judicial decisions.
To the extent they are settled by Judicial decisions, the Courts in India are relying on those decisions, and there is no need to think at present as it was thought once that 'no voices were heard unless they came from the tombs' (Mayne). Today the principle is well established that the duty of a Judge, who is under the obligation to administer Hindu Law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities but to ascertain the law as laid down by the superior Courts in India as well as by the Privy Council. In our opinion the point under examination is a settled question of law and there is no need to go to the fountain head. Then what do the decided cases lay down? In the case of : AIR1954Mad713 referred to earlier Ramaswami J. Thought:
'Though for the purpose of no seeming to disturb the ratio so badly set out in Sree Raja Row Boochee Tummih v. Sree Raja Row Venkata Neeladry Rao, (1805-47) 1 Mad DSDSA 366, lip service has continued to be paid by judges to the proposition that a Hindu husband marrying a second wife is by itself no justifying cause for the superseded first wife to claim separate maintenance, in practice by the extended application of the term 'justifying cause' and by making it to cover all equitable considerations every aggrieved wife including a superseded wife has been given the relief asked for by her, of separate maintenance.'
His Lordship appears to be of the opinion that there are decided cases which support his view that a Hindu wife is entitled to separate maintenance on the sole ground that her husband has taken a second wife.
(18) We have carefully examined the decisions referred to by his Lordship. But none of them seem to support the conclusion arrived at by him. As far as we have been able to examine the authorities on the subject, second marriage of the husband, per se has never been considered as a sufficient ground justifying the wife's claim for separate maintenance from her husband. Unfortunately the opinion of Ramaswami J. is shared by Panigrahi C. J. as seen in the case of : AIR1954Ori117 . This is also a decision given by a Bench. Mohapatra J. the other Judge carefully refrained from pronouncing on this point. But the learned Chief Justice who presided over the Bench, while considering the correctness of the decision in AIR 1950 Nag 33 observed:
'According to this view the wife superseded by the second marriage of the husband before the Act is entitled to separate maintenance under section 2 of the Act. Their Lordships of the Nagpur High Court assumed:
'It is obvious that before this Act was passed neither Hindu custom nor statute law, nor the dicta of Judges allowed the wife to live separate from her husband if he married a second time. 'I regret my inability to accept this observation as an accurate statement of the pre-existing law. As I have shown above Courts have held from time to time that a wife would be entitled to separate maintenance and residence if the husband abandons and breaks off martial relations. The very fact that a husband transfers his affections to another woman, whether compelling the first wife justifying reason for not compelling the first wife to live with her husband.'
Here again our examination of the authorities cited by the learned Chief Justice do not seem to support his conclusion that a second marriage by itself, without more, is sufficient to entitle the wife to claim separate maintenance. It is true as observed by Mohapatra J. In that very case.
'that apart from the question of physical cruelty, torture or assault by any member of the family, if the family, if the circumstances are such that it is not possible for the wife to live as a wife with self respect and dignity in the house of the husband, indeed she is entitled to separate maintenance and residence.'
In considering the question of cruelty, second marriage of the husband may be a piece of evidence and possibly in some cases, an important piece of evidence. But that is not the question that we are considering at present. With great respect to Ramaswami J. And Panigrahi C. J., we are of the opinion that the statement of Law enunciated by their Lordships is not supported by any decision rendered prior to the passing of the Act. Hence we are unable to agree with them that section 2(4) is declaratory in character. The law on this point appears to be settled and the authorities have uniformly held that the second marriage of the husband by itself does not entitle the wife to claim separate maintenance (see the other decisions referred in this judgment).
(19) One line of decisions following the decision in : AIR1950Mad321 , have taken the view that section 2(4) of the Act is a remedial measure and as such a benevolent construction should be put upon it. Viswanatha Sastry J., who decided that case though award of the fact that the plain meaning of the words 'If he marries again' would not support his view, brushed aside that consideration with the observation:--
'The rules of construction are applicable to a remedial enactment like Act XIX (19) of 1946 is stated in these terms in Vol. 31, para 653 of Halsbury's Laws of England (Hailsham Edition): 'Judicial interpretation should be directed to avoid consequences which are inconvenient and unjust, if this can be done without violence to the spirit or the language of a statute. If the language is ambiguous and admits of two views that view must not be adopted which leads to manifest public mischief or inconvenience or to injustice. If, however, the words are plain, the Court has no right to put an unnatural interpretation on them simply to avoid mischief or injustice. In such a case, no further effect should be given to the enactment than is required for the purpose of the legislature to be achieved. In advancement of a remedial statute, everything is to be done that can be done consistently with a proper construction of it, even though it may be necessary to extend enacting words beyond their natural import and effect.'
The object of the Act is to crystallise and give statutory recognition to certain parts of the judge made law and at the same time to liberalise it in other respects in favour of Hindu married woman....' The Rules of construction set out by His Lordship are not open to dispute. But the real question in the present case is whether there is any need to take the aid of those rules. For the reasons we have earlier mentioned, we do not think that there is any ambiguity in the language employed. We will not be justified in departing from the plain meaning of the words employed on the supposed ground of avoiding some mischief or injustice. We must decline to play the role of the Legislature. It is useful to remember as observed in 1894-1 QB 725 :
'It is a well established principle in the construction of statutes that they operate only on cases and facts which come into existence after the statutes are passed, unless a retrospective effect is intended. This principle of construction is especially applicable when the enactment to which a retrospective effect is sought to be given would prejudicially affect vested rights or the legal character of past transactions. It need not be penal in the sense of punishment.
'Every Statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect.'
Combining the principles above enunciated with the Rule of grammatical construction, we are of the opinion that the learned Judge (Viswanatha Sastri J.) was not justified in construing the words 'if he marries again' as having retrospective effect. This decision has influenced a number of other decisions. Roy J. In : AIR1956All41 , followed that decision, Evidently the previous decision of the same High Court to which we have made reference earlier was not brought to the notice of the learned Judge. Panigrahi C. J., in the case of : AIR1954Ori117 , also relied on that decision. So also in the case of AIR 1951 Vindh Pra 10. Srinivasa Chari J., who delivered the judgment in the case of AIR 1956 Hyd 75, followed the decision in : AIR1950Mad321 . Hence it is unnecessary to examine these cases separately.
(20) The third reason that influenced some other learned Judges who took the view that section 294) is retrospective in operation is the present tense used in clauses (1) to (3), (5) and (6). These learned Judges thought that there is no room for doubt on an examination of some of those clauses that they are retrospective in operation. To quote Viswanatha Sastri J., again :
'It is unreasonable to construe Section 2(1) of the Act as meaning that the loathsome disease therein described should have been contracted by the husband after the Act and if the disease had originated before the Act, the wife is not entitled to separate maintenance. 'Cruelty' and 'desertion' referred to in S. 2(2) and 2(3) obviously do not exclude cruelty and desertion which started anterior to the passing of the Act. Similarly, the reference to apostasy in S. 2(5) and to keeping of a concubine in the house in S. 2(6) must contemplate events which had their inception before the Act came into force.'
Hence those learned Judges proceeded to conclude that the same must be the result in the case of section 2(4). The fallacy in this argument is obvious. Most of the sub-sections in section 2 merely codified the existing law. Hence there is no question of giving them retrospective effect. But under section 2(4) a new right was conferred. Hence the reasoning adopted may not be sound.
(21) In the result, we conclude that section 2(4) is not retrospective in its operation. Consequently the plaintiff is not entitled to claim any separate maintenance till the passing of the Hindu Adoptions and Maintenance Act, 1956 (NO. 78 of 1956). But she is entitled to get separate maintenance from the date on which the said Act came into force i.e., 21-12-1956 and that at the rate of Rs. 240 per year. The future maintenance should be paid annually on or before the 1st of May every year. The plaintiff is also entitled to past maintenance from 21-12-1956 up to 30th April 1959 and there will be a decree in plaintiffs favour for the amount due, at the same rate.
Maintenance from that date will be paid along with the future maintenance upto 30th April 1960 on 1-5-1960. In default of payment on the respective dates the defendant will pay interest on the arrears at 6 per cent per annum. In the Court below the plaintiff will pay the costs of the defendant as assessed by the lower Court. In this court the parties will bear their own costs.
(22) Order accordingly.