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Subbegowda Vs. Honnamma and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal Nos. 199 and 200 of 1981
Judge
Reported inAIR1984Kant41
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18(2)
AppellantSubbegowda
RespondentHonnamma and anr.
Appellant AdvocateK. Channabasappa, Adv.
Respondent AdvocateM.S. Purushothama Rao and ;G.D. Aswathanarayana Rao, Advs.
Excerpt:
.....in his house, the 1st plaintiff was justified in living apart from him and was entitled to claim maintenance. since the 1st plaintiff was not living when her husband brought his concubine to live with him in his house the courts below felt some difficulty in strictly bringing the case within clause (e). but for the aforesaid reason they uphold the claim under clause (g). it is also true that, if the plaintiffs' case clearly falls-under any of the clauses (a) to (f), clause (g) should not be applied. what these causes are and how far they will justify the court in awarding separate maintenance against the husband are matters left to the judicial discretion of the court to be exercised in accordance with the principles of justice and equity, principles 'which cannot be defined by..........under clause (d) of that provision she can claim maintenance if the husband has any other wife living. the munsiff did not award maintenance under clause (e) for the reason that the 1st plaintiff-wife was not living with her husband when the defendant had brought nanjamanni to his house and started living with her. he did not award maintenance under clause (d) on the ground that, in law, the defendant's marriage to nanjamanni, being null and void it cannot be said within the meaning of clause (d) that he, the defendant, 'has any other wife living'. but, then he granted the plaintiff's request for maintenance under clause (g) of sub-section (2) of section 18 which enables a hindu wife 'to live separately from her husband without forfeiting her claim for maintenance if there is.....
Judgment:

1. These two appeals have arisen out of a common judgment and decree dated 10-10-1980 of the Principal Civil Judge, Mandya in R. A. Nos. 96 and 97 of 1979 on his file.

2. The appellant Subbegowda was the defendant and respondents Honnamma and Jayalakshmi were respectively plaintiffs 1and 2 in O. S. No. 199 of 1974 on the file of the Munsiff. Nagamangala Honnamma is the wife of Subbegowda and Jayalakshmi is their child. In the suit they had filed, the plaintiffs had claimed maintenance from the defendant. The Munsiff decreed the suit by his judgment dated 16-8-1976 granting maintenance at the rate of Rs. 30/- per month for Honnamma and Rs. 15/- per month for Jayalakshmi from the date of his judgment and also created a charge against the plaint schedule properties.

3. Being aggrieved by the decree awarding compensation Subbegowda preferred R. A. No. 96 of 1979 and not being satisfied with the quantum of maintenance and the insufficiency of the charge, the plaintiffs preferred R. S. No. 97 of 1979. The learned Civil Judge allowed both the appeals in part. Re: maintenance he awarded at the rate of Rs. 100/- per month from the date of suit during the lifetime of the 1st plaintiff and until the 2nd plaintiff attains majority. He created a charge over the suit schedule item No. 1, the house situated in Manchanaikanahally. Though he could have preferred a single appeal Subbegowda has filed two construing the decrees of the Civil Judge as separate ones.

4. The plaintiffs' claim for maintenance from the defendant was on two grounds. Firstly, on the ground that the defendant was treating the 1st plaintiff cruelly and, secondly, that he had married one Nanjamanni recently and that both of them were living together. In his written statement the defendant denied both the allegations.

5. The three relevant issues on which the parties went to trial were: (i) whether the defendant was treating cruelly the 1st plaintiff (1st issue); (ii) whether be had taken Nanjamanni as his 2nd wife (additional issue); and (iii) whether the plaintiffs were entitled to maintenance and if so at what rate and in case the same is awarded, has there to be a charge on the suit properties?

6. On the question of cruelty the Munsiff held that 'the evidence adduced by the plaintiff is not reliable to bold that the defendant has treated the 1st plaintiff with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with her husband'. On the 2nd question his finding was that the defendant was living with Nanjamanni in his house from 20-3-1974 treating her as his wife.

7. Now itself it may be stated that Section 18(2)(e) of the Hindu Adoptions and Maintenance Act, 1956 (the Act) confers a right on the wife to claim maintenance while living separately from her husband 'if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere'. Under Clause (d) of that provision she can claim maintenance if the husband has any other wife living. The Munsiff did not award maintenance under Clause (e) for the reason that the 1st plaintiff-wife was not living with her husband when the defendant had brought Nanjamanni to his house and started living with her. He did not award maintenance under Clause (d) on the ground that, in law, the defendant's marriage to Nanjamanni, being null and void it cannot be said within the meaning of Clause (d) that he, the defendant, 'has any other wife living'. But, then he granted the plaintiff's request for maintenance under Clause (g) of sub-section (2) of Section 18 which enables a Hindu wife 'to live separately from her husband without forfeiting her claim for maintenance if there is any other cause justifying, her living separately.' Any other cause means, causes other than the ones referred to at Cls. (a) to (f) of sub-section (2) of Section 18. In this connection the Munsiff observes that the fact that the defendant was living with another woman entitled the lst plaintiff under Clause (9) to live separately from him claiming maintenance.

8. Confirming the judgment of the Munsiff the learned Civil Judge observes as follows :

'As rightly argued by the learned Counsel for the appellants this extra marital relationship of the defendant has made it impossible for the plaintiff to return to the defendant. It is a situation, as observed by the learned Author N. R. Raghavachariar, with which no woman can be asked to put up. I, therefore, find that the learned Munsiff has rightly come to the conclusion that on this ground plaintiffs are entitled to separate maintenance and the matter comes within the ambit of Section 18(2)(g) of the Act. 'Hence, point No. 3 is answered in the affirmative.'

9. The only substantial question of law' for the consideration, of which those appeals were admitted, is whether on facts and circumstances of the cases, the appellate authority was justified in granting maintenance to the plaintiffs on the ground set out in Clause (g) of Section 18(2) of the Act ?

10. In the circumstances of the case I feel that this is the only question that is required to be considered in these appeals.

11. Attacking the findings of the Courts below the learned Counsel for the appellant mainly made two submissions: His first submission is that without there being any plea for maintenance under Clause (g) and there being no issue and evidence touching that question the Courts below had erred in allowing the plaintiffs' claim under that clause. His second submission is that Clause (g) of sub-section (2) of S. 18 is not at all attracted to the case for the reason that that clause is attracted only to a case not covered by any other clause - Clauses (a) to (f) of that sub-section. He argues that the Courts below, having found against the 1st plaintiff on the question of cruelty and second marriage, the only two grounds on which she had claimed maintenance, were not justified in granting her a decree under Clause (g).

12. On the other hand, learned Counsel for the respondents, supporting the concurrent findings of the Courts below, submitted that the provisions of the Act being of beneficial nature the same and, in particular Section 18 should be construed liberally. In a given case, he argues, even if the plaintiff-wife fails to prove her specific case set-up under any of the clauses -Clauses (a) to (f) of sub-section (2) - she can still press her claim and the Court may consider the same under Clause (g) thereof.

13. Section 18 of the Act reads as follows:

'Maintenance of wife- (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 lifetime;

(2) A Hindu wife shall be entitled to live separately from her husband without forgetting her claim to maintenance-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against. her wish, or of willfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

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

(f) if be has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.

'(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.'

Sub-section (1) of Section 18 is a general rule containing a mandate casting a duty on the husband to maintain his wife. Sub-section (2) provides that thee wife can claim maintenance from her husband even if she lives separately from him in the circumstances enumerated at Clauses (a) to (g), In an appropriate case, even if the claim of the wife does not fall under Clauses (a) to (f), the Court may award maintenance under Clause (g) 'if there is any other cause justifying her living separately'.

14. It is true that the 1st plaintiff's specific case was that her husband having taken Nanjamanni as his wife was living with her. The Munsiff considers this issue at para 13 of this judgment. The contesting parties have let in evidence on this question. Witnesses examined on behalf of the plaintiffs, P. Ws. 1, 2, 4 and 6, gave evidence in sun port of the plaintiffs. On the side of the defendant D. Ws. 1 and 2 gave evidence. Considering the oral evidence the Munsiff says that 'the evidence of D. W. 1, the defendant and D. W. 2, when they say that defendant has not taken any second wife, cannot be accepted on the face of positive evidence of P. Ws. 1, 2, 4 and 6'. He further observes that 'from the evidence I conclude that defendant is now. living in his house with another woman Smt. Nanjamma from 20-3-1974 treating her as his wife. Nanjamma is also having a male child got from the defendant.' It has appeared in the evidence that the plaintiffs were living in the same village with the parents of the 1st plaintiff. Even if the defendant was living with Nanjamanni, treating her as his wife, it cannot be said, within the meaning of Clause (d) of sub-section (2) of Section 18, that he 'has any other wife living. 'Any other wife' means any other legally wedded wife. The personal law governing the parties prohibits a bigamous marriage.

15. It is true, the 1st plaintiff had not claimed maintenance under Clause (e). The Courts below also felt some difficulty in bringing her case under that clause for the reason that the 1st plaintiff was not living with her husband in his house when he brought and started living with Nanjamanni. Therefore it was not possible to say that he was keeping a 'concubine in the same house in which his wife is living' within the meaning of Clause (e).

16. I have referred above to the two submissions made by the learned Counsel for the appellant. Elaborating his second submission that Clause (g) was not at all attracted to a case like this the learned Counsel argued that to apply that clause the plaintiff s should have made out a ground not covered by any other clauses of sub-section (2), and he further argues that the Courts below had erred in upholding the claim of the plaintiffs under Clause (g) on a ground substantially covered by Clause (e) of sub-section (2). It is true the Courts below say that as the defendant is proved to be living with a concubine in his house, the 1st plaintiff was justified in living apart from him and was entitled to claim maintenance. Since the 1st plaintiff was not living when her husband brought his concubine to live with him in his house the Courts below felt some difficulty in strictly bringing the case within Clause (e). But for the aforesaid reason they uphold the claim under Clause (g). It is also true that, if the plaintiffs' case clearly falls-under any of the Clauses (a) to (f), Clause (g) should not be applied. The question is as to whether the Courts below have committed any error, in the instant case, in applying Clause (g) and granting maintenance to the plaintiffs? I am of the view that they have not. The wife's claim for maintenance can be sustained under Clause (g) even on a ground covered by one or the other clauses substantially but not fully. We should not take a technical view in construing this provision. In this connection the following observations of the learned Author Raghava Chariar in his 'Hindu Law' Vol. 11 (7th Edition) at pages 1204 and 1205 may be noted:

'Under this clause are sought to be brought in all other grounds for lawful separate living which cannot strictly be brought under any other previous clauses. What these causes are and how far they will justify the Court in awarding separate maintenance against the husband are matters left to the judicial discretion of the Court to be exercised in accordance with the principles of justice and equity, principles 'which cannot be defined by rules of thumb or well established precepts.' ... ... ... ... ... ... ... ... ... ...

The expression 'any other cause justifying her, living separately' would, it is conceived, takes in a case where the wife's residence in the husband's home is rendered miserable by reason of the existence of his relations like his mother or sister, or others, between whom and the wife there has been no love lost, and for reasons easily imaginable the wife is justified in seeking to live away from such a home. This expression will also comprehend a case where the husband by his addiction to drugs and drinks often indulges in acts which no decent woman would put up with. Such and similar instances justifying the wife living away from the husband and asking for separate maintenance can easily be conceived. The Legislature deliberately uses this elastic expression so that there may be a large margin of judicial discretion vested in the Court which may be moulded to suit the circumstances of any particular case'.

17. The concurrent finding of the Courts below in this case is that the husband had developed illicit intimacy with Nanjamanni; that that Nanjamanni had given birth to a child from him; that he was treating her almost like his wife; and that he had taken her and kept her with him in his very house. In a situation like that what else can the wife do except withdrawing from his society and living away from him Such a case clearly falls under Clause (g) of sub-see. (2) of Section 18 of the Act.

18. It is true, as already stated, she has not specifically pleaded for a consideration of her claim under Clause (g), Evidently no issue has been framed. But the Courts below have allowed her claim under that clause relying on the evidence available. Her claim was that she was entitled to live separately and claim maintenance from the defendant. Merely because she had failed to strictly prove the specific grounds urged by her, she cannot be denied relief, if, otherwise, in law, her claim can be allowed on the basis of the evidence let in by the parties. In fact the only issue in this case is whether she was entitled to claim maintenance living separately and away from her husband. The Courts below have rightly upheld her claim. In the circumstances and for the reasons stated above appeals are dismissed with costs.

19. Appeals dismissed.


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