Chandra Reddy, C.J.
1. The two questions that are referred to the Full Bench are (i) whether the provisions of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act) are retrospective and (ii) whether a married woman, who left her husband and lived with another as his permanently kept mistress could be regarded as an Avaruddha Stree.
2. The facts material for this enquiry may be set out shortly. The respondents originally raised an action In the Court of the Subordinate Judge, Masulipatam, for a declaration of their right to and possession of the several properties set out in the plaint schedule. The 1st respondent is the mother and next friend of respondents 2 to 4, who are minors. The properties were claimed as belonging to one Amireddi Llngayya, who died in February, 1948, with the averments that the 1st respondent is a Brahmin by birth, that in or about 1938 she was married to the said Lingayya, a Sudra, who had lost his first wife and that respondents 3 to 4 as the sons of Lingayya by her born in lawful wedlock. Art alternative case was also put forward, namely, that if for any reason it was held that the 1st respondent was not the legally wedded wife of Lingayya, she was at least his permanently kept concubine and exclusively in his keeping during his life time and as such she and her children by Lingayya were entitled to the properties left by him.
3. The suit was opposed by trip brothers of Lingayya and their sons on the defence that the 1st respondent was never married to Lingayya, that she was married to Chivakula Siyaramakrishnayya, that she left her husband and was living a life of promiscuous immorality, that she had nothing to do with Lingayya and that respondents 2 to 4 were not born to him. They also pleaded that Lingayya died undivided from his brothers.
4. The Subordinate Judge found that the 1st respondent was married to Chivakula Sivarama-krishnayya, that she was not lawfully married to Lingayya hut was exclusively kept by him, that respondents 2 to 4 were born to him, that Lingayya died divided from his brothers and that the suit properties were the separate and absolute properties of Lingayya. But he dismissed the suit for the reason that the 1st respondent, being a married woman and children born of adulterous intercourse between her and Lingayya, were not entitled to succeed to the properties of Lingayya. As there was no alternative prayer for maintenance, that question was not considered by him,
5. The respondents carried the matter in appeal to the High Court of Madras. The High Court agreed with the aforementioned conclusions of the trial court and dismissed the appeal. However, they granted leave to amend the plaint by including the necessary averments and prayer for the award of maintenance on the footing that the 1st plaintiff though not married to Lingayya, was his permanently kept concubine, and remanded the suit to the Subordinate Judge, Masulipatam, for trial in regard to the relief of maintenance.
6. In spite of the finding of the trial court on the former occasion that the 1st plaintiff was kept exclusively by the said Lingayya as his concubine and that the other plaintiffs were born to him by the 1st plaintiff, the defendants raised the issue once again in the trial court. The Subordinate; Judge examined this question afresh on the material placed before him and arrived at the decision that the 1st plaintiff was living with Lingayya from 1938 up to his death in February, 1948, that she hore to him the other plaintiffs, that she was keeping her sexual fidelity to him and that therefore, the plaintiffs were entitled to maintenance. He fixed a maintenance of 25 bags of paddy to each of the plaintiffs per year for their fives.
7. Both parties were dissatisfied with the judgment of the trial court and they have preferred these appeals. Defendants have preferred A. S. No. 709 of 1954 and plaintiffs A. S. No. 199 of 1955. The parties will be referred to in this judgment as arrayed in A. S. No. 709 of 1954.
8. In this appeal, the finding of the trial court that 1st plaintiff was the permanently and continuously kept mistress of the deceased Lingayya is not brought into question. But two contentions are advanced on behalf of the appellants (i) that the 1st plaintiff who had her husband living at the time she became the mistress of Lingayya cannot fall within the connotation of an Avaruddha Stri and (ii) even if she could be regarded as an Avaruddha Stri the right of the 1st plaintiff to maintenance was extinguished by virtue of the Act and that the other plaintiffs could receive maintenance only till they attained majority.
9. We shall first deal with the scope and ambit of the relevant provisions of the Act. At this stage, It is convenient to reproduce some of the sections of the Act. Section 4 runs as follows:
'Save as otherwise expressly provided in this Act:
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.'
Section 21 defines the following relatives of the deceased as dependants for the purpose of Chapter III -
(i) his or her father;
(ii) his or her mother;
(iii) his widow, so long as she does not remarry;
(iv) his or her son or the son of his predeceased son or the son of a predeceased son of his predeceased son, so long as he is a minor: provided and to the extent that he is unable to obtain maintenance, in the case of a grand-son from his father's Or mother's estate, and in the case of a great-grandson from the estate of his father or mother or father's father or father's mother;
(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried; provided and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her father's Or mother's estate and in the case of a great grand-daughter from the estate of her father or mother or father's father or father's mother;
(vi) his widowed daughter; provided and to the extent that she is unable to obtain maintenance--
(a) from the estate of her husband; or
(b) from her son or daughter, if any, or his Of her estate Or
(c) from her father-in-law or his father or the estate of either of them;
(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry; provided and to the extent that she is unable to obtain maintenance from her husband's estate, or from her son or daughter if any, or his or her estate; or in the case of a grand-son's widow, also from her father-in-law's estate;
(viii) his or her minor illegitimate son, so long as he remains a minor;
(ix) his or her illegitimate daughter, so long as she remains unmarried.'
10. It is plain that a concubine is not included in the list of dependants. Section 22 of the Act, in so far as it is of immediate relevance, runs thus:
'(1) Subject to the provisions of Sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.
(2) Where a dependant has not obtained by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who lake the estate.'
11. The point raised on behalf of the appellants is that Section 4 makes the Act retroactive. It is said that whatever rights accrued to any person under Hindu Law, shall forthwith be extinguished by reason of Section 4. This, according to the learned Counsel, is the result, flowing from Clause (a) of that section. It may incidentally be mentioned that we are here unconcerned with Clause (b) as that relates only to statutory law.
12. The question for consideration is whether this construction of Clause (a) could be justified on its language. This, in its turn, depends upon the import of the expression 'shall cease to have effect.' In our opinion, it could only mean that it shall cease to be in force; in other words 'any text, rule or interpretation of Hindu Law' etc. in operation before the commencement of the Act would no longer govern matters for which provision was made in the Act. It has not the effect of curtailing vested rights. We do not find any indication, in Section 4(a) as destroying the rights already acquired.
It is worthy of note that it makes in terms only the texts, rules or interpretation of Hindu Law or custom or usage as being inoperative to the extent provision is made in the Act in regard to any matter. In other words, the texts, rules etc. ere rendered ineffective only to the extent they are in conflict with provisions of law bearing on any matter in regard to which provision U made. That section does not entirely obliterate the operation of the texts, rules etc. obtaining prior to the commencement of the Act and as such this section does not stand in the way of enforcement of the rights that accrued before the commencement of the Act.
13. However, we need not pause here any longer as the rights of the parties to maintenance have to be determined with reference to the language of Sections 21 and 22.
14. We have already seen that Section 21 merely enumerates the persons, who could receive maintenance from the estate of the deceased Hindu. That does not by itself create any rights in the dependants. The right to get maintenance is conferred on the dependants by Section 22. These two sections together deal with the rights and liabilities of the dependants of a deceased Hindu. Subsection (2) of Section 22 recites that only such of the dependants as have not obtained any share in the estate of a Hindu dying after the commencement of the Act would be entitled to maintenance from the estate.
Note the words 'any share in the estate of a Hindu dying after the commencement of this Act.' They establish that it is only the dependants of a person dying after the commencement of this Acs that were within its contemplation. If really the legislature intended to include the estates of persons dying before the Act also, it would have used appropriate language either by adding the words 'dying before or after the commencement of this Act' or by omitting the words 'dying after the commencement of this Act.'
15. It is argued that while Sub-section (2) refers to the estates of persons dying after the coming into force of the Act, Sub-section (1) does not make any allusion to the death of a Hindu after the commencement of the Act but speaks only of the liability of the heirs o( a deceased Hindu to maintain all his dependants and that the expression 'deceased Hindu' is generic in its sense and its application cannot be confined to a Hindu dying after the coming into operation of this Act.
16. In support of this construction, the following remarks of Chief Justice Subbarao, who delivered the opinion of the Court in Kameshwaramma v. Subrahmanyam, : AIR1959AP269 are relied upon:
'Section 22(1) which imposes a liability on the heir to maintain the dependants of the deceased Hindu is in general terms and does not say or imply that the dependant widow's husband should have died after the Act came into force. A right] to maintenance is a recurring right and the liability to maintain after the Act came into force is imposed by Section 22. Having regard to the object of the Act, namely, to amend and codify the law, there is no reason to exclude widows of persons who died before the Act from the operation of Section 22. Sub-Section (2), which is really in the nature of an exception to Section 22, excludes from the operation of Section 22 (1) a dependant, who obtained a share in the estate of a Hindu dying after the commencement of the Act.'
17. With respect, we are unable to subscribe to the proposition thus enunciated. It is to be home in mind that Sub-section (I) imposes only a liability on the heirs of a deceased who have inherited the estate to maintain the dependants of the deceased, while it is Sub-section (2) that talks of the rights of the dependants to receive maintenance. This Sub-section makes it abundantly clear that it has relation only to the estate of a deceased whose death takes place after the commencement of die Act.
Further Sub-section (1) is subject to the provisions of Sub-section (2); in other words, Sub-section. (2) controls Sub-section (1). Sub-section (1) does not say who should be maintained by the heirs. To decide that, one has to look at the terms of Sub-section (2). The combined effect of Sections 21 and 22 is time only dependants of persons mentioned in Section 21 dying alter the commencement of the Act and as have not obtained any share in the estate that have a right to maintenance. It has no application to persons entitled to maintenance from the estate of a Hindu who died before the Act.
18. In : AIR1959AP269 the learned Judges were not concerned with the problem we are now called upon to solve. The controversy in that case centered round the right of a widow, who had entered into an agreement not to ask for enhanced rate in future to claim enhanced maintenance after the Act. They held that the agreement did not preclude her from invoking Section 25 of the Act.
Section 25 empowers a court to vary, modify or even discharge any order fixing the amount of maintenance made by a decree of the Court or agreement either before or after the Act, if there is a material change in the circumstances justifying such action. Thus it applies to maintenance of every description irrespective of the time of fixation. Therefore, the considerations that are relevant in the interpretation of Section 25 do not bear on Section 22. On the other hand, the language of this Section contrasted with that of Section 22 also lends some countenance' to the theory that Section 22 is restricted to persons claiming maintenance from the estate of a Hindu dying after the commencement of the Act.
19. We may now refer to Sections 18 and 19 of the Act in this context, which use the expression 'whether married before or after the commencement of this Act.' We may legitimately take into consideration the difference in the language of these sections in considering the significance of the expression 'estate of a Hindu dying after the commencement of the Act.'
20. We may view this question from another angle also. In regard to a person, who died before the commencement of the Act, his estate would have vested in persons entitled to it subject to the liabilities fastened thereon under the law then prevailing. If these provisions are to apply to estates of all Hindus irrespective of the time of their death, person^ in enjoyment of these properties will have to meet new obligations which they were not expected to fulfil at the time they acquired the estates, since Section 21 has added to the list of 'dependants' and excluded some who were entitled to maintenance under the old law. In a case where a Hindu died long before the coming into force of the Act his estate might have changed several hands. It would then cause great hardship to the person who ultimately got into possession thereof if new liabilities are to be, imposed thereon. Conversely, the persons who have taken such estate would escape liability in regard to the maintenance of some of the dependants who are excluded from the list of 'dependants', as a result of which such of the persons who were entitled to be maintained under the general Hindu Law would be deprived of their right.
This, in our opinion, could not have been the intendment of these sections. In our considered opinion, these sections do not bear on the preexisting rights of maintenance holders. The Act does not abridge those rights and leaves them un-touched. Consequently, a right of maintenance, which a concubine had acquired against the estate of her deceased paramour prior to the Act is not inullified by the Act, since Sections 21 and 22 leave the estates of Hindus whose death occurred be-fore the Act unaffected.
21. The above view of ours gains support from the following passage in 'Principles of Hindu Law' by Mulla, I2th Edition, page 705:
'The law on the question is now changed and an Avaruddha Stree cannot claim maintenance out of the estate of the deceased paramour where his death took place after the coming into operation of the Hindu Adoptions and Maintenance Act. 1956. She is not one of the persons within the definition of dependants given in Section 21 of that Act.'
Finally, our answer to the first question is that the relevant provisions of the Act apply only to estates of Hindus whose death overtakes after the commencement of the Act.
22. On the above discussion, it follows that the 1st plaintiff could still claim to be maintained out of the estate in question.
23. In this view of the matter, it is unnecessary for us to express any opinion on the question whether the right to maintenance is one accruing from time to time and not a vested one, whether the distinction between right to maintenance and the right to recover maintenance pointed out in a decision of the Patna High Court is well founded and whether assuming there is any such real distinction, that in any way affects the question of such right being affected by subsequent legislation.
24. Alternatively it is argued for the appellants that the 1st plaintiff is disentitled to maintenance as she could not be described as an Avaru-ddha Stree as her husband was alive at the time of the death of her paramour. A woman, who left! her husband to live with another as his permanently kept mistress, could not be regarded as an Avavuddha Stree as her cojunction with her paramour was adulterous. These contentions are based on Anandilal Bhagchand v. .Ahandra Bai, ILR 48 Bom 203: (AIR 1924 Bom 311).
It is urged that the law declared in Akku Prahlad v. Ganesh Prahlad, ILR 1945 Bom 216: (AIR 1945 Born 217) (FB) which overruled ILR 49 Bom 203: (AIR 1924 Bom 311) (supra) is not sound and the counsel invites us to uphold the view taken in the earlier ruling. We do not think we can give effect to this contention. There is no authority favourable to, the appellants except ILR 48 Bom 203: (AIR 1924 Bora 311) (supra) while all the rulings of that Court are in support of the stand taken on behalf of the respondents as we will show presently.
25. There does not seem to be any basis for this restriction in the texts either. Al, any rate, our attention was not drawn to any which puts a mistress with a living husband out of the pale of the expression 'Avaruddha Stree.' The recognition of the status of a concubine and her right to be maintained out of her deceased paramour's estate is founded on the texts of Katyayana and Narada alluded to in Mitakshara Chapter II, Section 1, PI. 27 and 28. In PI. 27 Vijnaneshwara says:
'Heirless property goes to the king, deducting however, a subsistence for the females as well as the funeral charges.....That is excluding or setting apart a sufficiency for the food and raiment of the women, and as such as may be requisite for the funeral repasts and Other obsequies in honour of the late owner, the residue goes to the king.'
25a. This is further explained in pl. 28 thus: 'This relates to women kept in concubinage; for the term employed is female (yoshit). The text of Narada likewise relates to concubines; since the word there used is 'women' (stree); vide: Cole-brocke's Treatise on the Hindu Law of Inheritance 335'.
In pl. 7 Vijnaneshwara, quoting Narada says:
'Among broughts, if any one dies without issue or enters a religious order, let the rest of the brethren divide his wealth, except the wife's separata property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord. But if they behave otherwise, the brethren may resume that allowance.'
26. Jt is seen from the texts of Katyayana and Narada that the expressions used are 'yoshit' and 'stree' respectively, which were interpreted as including an avaruddha stree which literally means 'a woman subject to control or restraint'. According to Gharpure's translations, avaruddha means
'Prohibited by the master from intercourse with other men with an injunction to stay at home with the object of avoiding any lapse of service.'
Thus, the essential condition to be 'satisfied is that the mistress should be in the exclusive keeping of one man.
The sexual fidelity should be maintained even after the death of her master. The further requirement that she should have no husband at the time her connection begins with another man or that he should not be alive at the death of the paramour to enable such a woman to claim the status of an avaruddha stree seems to be unwarranted. The nearest approach to the meaning of the expression 'Avaruddha Stree' is 'concubine'.
27. As remarked by Nanabhai Haridas J. in Yashvantrav v. Kashibai, ILR 12 Bom 26 it is unnecessary to speculate as to whether the text writers really intended to include in the expression 'women', concubines, or kept women', since the commentators and judicial authorities have clearly stated that they were so included and it is not now disputed that an Avarnddlia Stree could claim to he maintained after her paramour's death out of his estate.
28. It is true that this right is subject to certain limitations as a result of judicial decisions. One of the conditions is that she must have been so continuously and exclusively in his keeping till his death, that it could he said that the connection, had become permanent. Another condition imposed by the decisions is that she must preserve her sexual fidelity to her deceased paramour. It was further considered essential till the pronouncement of the Judicial Committee in Bai Nagubai v. Bai Monghi-bai, ILR 50 Bom 604: (AIR 1926 PC 73), that she should live as a member of the family of her paramour. In that case, the Privy Council ruled that it was not necessary that she should take up her residence in the same house as a regular member of the family after the emancipation of the slaves.
29. A fourth condition was also thought necessary to make the estate liable for maintenance, viz: that she should have begotten children to her paramour. Sec Rama Raja Thavar v. Papammal, ILR 48 Mad 805: (AIR 1925 Mad 1230). We are not in agreement with the principles embodied therein This opinion of the Bench is based upon the statement in Khemkor v. Umiashankar, 10 Bom HCR 381. But a reference to the judgment in the cited case would make it abundantly clear that they used the language as synonymous with being 'his concubine'. It is plain that the learned Judges did not intend to lay down, as a proposition of law, that to he entitled to maintenance, she should be the mother of an illegitimate child.
No such condition is imposed by the texts whose only requirement is that she should he an avaruddha stree. There is no reason why a barren concubine should be refused maintenance while it is not denied to a barren widow. We feel that the obligation of the heirs of a Hindu to maintain a concubine rests on the consideration that she lives practically as a dependant member of the family accepting all the limitation of a married life 'openly and avowedly' and not because she gives birth to children. However, it is unnecessary to pursue that in this case as admittedly the 1st respondent is the mother of respondents 2 to 4.
30. What we have now to consider is whether a further limitation should be imposed viz. that her connection should not have been adulterous. It is said that a woman, who abandons her husband and lives with another man could not be regarded as an avaruddha stree as her connection with him is adulterous in character. This is the doctrine underlying 1LR 48 Bom 203 at p. 208: (AIR 1924 Born 311 at p. 312). We do not think there is any justification for the assumption that a mistress is deprived of this status by reason of her husband Jiving during the relevant period.
31. No authority is cited in ILR 48 Bom 203: (AIR 1924 Born 311) (supra) either in the shape of decided cases or texts. The texts themselves do not lay down any condition that the connection ought not to be adulterous. Lallubhai Shah C. J., who Spoke for the court, put it on general grounds of morality. The reasons of the rule is stated in the following words:
'Such a woman (that is a woman living adul-terously in the keeping of another) cannot he an avaruddha stree such as could acquire the right to be maintained out of the estate of her paramour. All along her rightful residence would be with her hushand and the residence with her paramour wholly wrongful. The idea of an avaruddha stree is inconsistent with the position which such a woman occupies. Further, the obligation to lead a chaste life after the death of the man with whom she lived an adulterous life is not possible of fulfilment according to law when the husband is alive at the time of her paramour's death. The view taken in ILR 12 Bom 26, as regards the obligation of a woman kept in concubinage to lead a chaste life can have no application to a woman kept in that manner when her husband is alive.'
32. In our opinion, the right of a concubine to be maintained cannot be judged strictly on moral considerations or injunctions of Hindu Law or dharma. Wo have just now stated why the text-writers or at any rate the commentators and the judicial decisions would have thought it fit to include a concubine in the term 'yoshit' or 'stree' occurring in the texts of Katyayana and Narada. If a woman could continue to be in the exclusive keeping of a person for a number of years, there does not seem to be any reason why she should not keep her sexual fidelity after his death. The chances of such a woman going back to her husband or her husband taking steps for restitution of conjugal rights after the death of her paramour are very remote.
Even otherwise, the position of such a woman is not dissimilar to that of a woman whose husband is dead by the time of her paramour's death. Further, the argument that the idea of an avaruddha stree is inconsistent with the position which a woman with her husband living occupies, since she could not lead a chaste life after the death of the man with whom she lived, does not take us anywhere because if she. has no husband living, she could become the mistress of someone else or have promiscuous connection with others. If she defiles the bed of her master i.e., the deceased paramour, she incurs the penalty of the forfeiture of her maintenance. She is entitled to maintenance from the property of her deceased husband so long as she leads a life of chastity.
33. We may now turn our attention to the two early cases of the Bombay High Court which have dealt with this subject. The earliest case on this topic is 10 Bom. HCR 381. That case arose out of a reference to the High Court of Bombay by a Judge of the Court of Small Causes as to whether a Brahmin woman who contracted marriage with another man of that (SIC) by name Ranchhor during the life time of hr first husband and without his consent could (SIC) maintenance out of the estate after the death of the latter. This reference was heard by Westropp C. J. and Nanahhai Hari-das J.
The learned Judges concurred with the opinion, of the Judge of the Court oE Small Causes that though the plaintiff could not he considered to be the lawful wife of Ranchhor, she was entitled to maintenance as the mother of his illegitimate children i.e., as his concubine. It is apparent from the facts of this case that the connection with Ranchhor was adulterous because her husband was alive at the time she married Ranchhor.
Yet the learned Judges thought that she could get maintenance from, the estate of Ranchhor. This surely lends assurance to the opinion that the existence of the husband would not in any way alter the right of a woman so long as she satisfies the Other requirements; such as the connection being permanent and her keeping the bed of her deceased paramour unsullied. This has stood for a long time and it has been understood as applying, to a case where the husband was alive.
34. This ruling was sought to be distinguished in ILR 48 Bom 203: (AIR 1924 Bom 311) on the ground that it was not clear that the husband of Khemkor was alive when Ranchhor, the person with whom she lived as his mistress, died. In our opinion, this ground of distinction is untenable. In this connection the following remarks of Baja-dhyaksha, J. in ILR 1945 Bom 216 at pp. 254 and 255: (AIR 1945 Bom. 217 at pp. 228-229) (FB) are pertinent:--
'If I may say so with respect, this test viz., whether her husband is alive or not at the date ot the paramour's death, is bound to create an ana-malous situation. If the husband dies one day after the paramour's death, then the mistress would not be entitled to maintenance; but if he dies one-day before the death of the paramour, she would be so entitled, because on the day of the paramour's death the husband was dead and he 'was not alive during the whole period of her adulterous connection'. It is difficult to justify this distinction on any logical basis. If, on the other hand, the right to receive maintenance is made to depend upon how long the connection was adulterous and how long non-adulterous, we shall be introducing an element of uncertainly in law which is to be deplored. Further, among the sudras where an illegitimate son is entitled to a share in the estate of his father, he is refused that share if the connection was adulterous when he was conceived. But even then he is held entitled to maintenance. II so, it is somewhat difficult to deny that privilege to his mother.'
35. The next case which has a direct bearing on this enquiry is Ningaraddy v. Lakshmawa, ILR 26 Bora 163. The facts of that case were these. One Govindareddi took one Lakshmawa to his house during the absence of his wife Venkawa, who went to reside with her parents on account of her illness and Lakshmawa lived with him as his mistress. Sometime late Venkawa having regained her health rejoined her husband. All the same, Govindareddi continued to visit his mistress Lakshmawa till his death in 1897.
The claim of Lakshmawa to maintenance out of the estate of Govindareddi was recognised by Growe and Chandavarkar JJ, of the Bombay High Court, who finally decided the matter. In. discussing the subject Growe J. stated that 'there can be no doubt on the authorities that a concubine is entitled to maintenance, though the connection was an adulterous one, provided that it was of a permanent nature.' A perusal of the statement of facts would reveal that Lakshmawa deserted her Udki husband to live with, Govindareddi and, as such, the connection was adulterous.
The Privy Council in ILR 50 Bom 604: (AIR 1926 PC 73) remarked that this decision was sufficient authority for holding that, provided the concubinage be permanent until the death of the paramour and sexual fidelity to him be preserved, the right to maintenance is established, although the concubine be not kept in the family house of the deceased. Lallubhai Shah C. J. thought that the remarks of Growe J. in ILR 26 Born. 163 were unnecessary for the decision of the case.
With great respect to the learned Judges, we think that it is not justified by the facts of the case because if Lakshmawa was a married woman, her intercourse with her paramour was adulterous. It was, therefore, necessary to consider whether continuous and exclusive intercourse, though adulterous, would confer upon a concubine a right to maintenance out of her deceased paramour's estate. It is in such circumstances that Growe J., stated that it was settled that it would. It could not, therefore, he regarded as obiter. Even otherwise, they substantiate the proposition that the fact that the connection was adulterous by virtue of the first husband living would not change the character of a mistress as an avaruddha stree.
36. We now come to ILR 1945 Bom 216 : (AIR 1945 Bom. 217) (FB). There, a Hindu made a gift of some of his ancestral properly to a woman, who was in his exclusive keeping for a number of years till his death, although her husband was still living and had not divorced her. His son filed a suit to recover the property from her on the ground that the gift was invalid and would not bind him. The courts below decided that the gift was ineffective, the property conveyed being ancestral joint property and, therefore, the plaintiff was entitled to recover possession from the 1st defendant.
Nevertheless, the trial court held that as the 1st defendant was the permanently kept mistress of the plaintiff's father and remained faithful to him, she was entitled to get maintenance from that estate. The appellate court reversed the judgment of the trial court in regard to maintenance on the ground that the 1st defendant's intercourse with the plaintiff's father being adulterous she was not an-avaruddha stree and so was not entitled to be maintained out of the estate after his death. The matter was carried in Second appeal to the High Court of Bombay. The question received full consideration at the hands of the learned Judges Constituting the Full Bench, Wadia, Lokur and Rajadhyaksha JJ.
They discussed the subject exhaustively with reference to the texts and the case law and expressed the view that a married woman could attain the status of an avaruddha stree by remaining faithful to her paramour, even though her husband was alive and her connection with her paramour was adulterous and she had a right to claim maintenance out of the estate of her deceased paramour so long as she preserved her sexual fidelity to him. The learned Judges referred to the relevant placitums in Mitakshara and also pointed out the distinction between an avaruddha and Bhujishya or swairini and in what circumstances a bhujishya or a swairini could become an avaruddha stree.
If we may say so with respect, the law expounded by the Full Bench is quite correct, being in consonance with the texts and with the cases referred to above. We are in full agreement with the principle stated in that case. In Kamata Bai v. Uma Bai. AIR 1929 Nag. 127 the opinion expressed by Mac Nair, A. J. C. is to the same effect. He dissented from ILR 48 Bom. 203 : (AIR 1924 Bom. 311) and called in assistance ILR 26 Bom. 163.
37. Mulla in his 7th edition does not recognise the soundness of the rule in ILR 48 Bom. 203 : (AIR 1924 Bom. 311). It is pointed out there that the recent ruling of the Bombay High Court that a kept mistress whose husband is alive durinff the period of keeping cannot be treated as an avaruddha stree is inconsistent with what was under stood to have been held in Khemkor's case, 10 B.H.C.R. 381.
Adverting to the Pull Bench in the 11th edition of Mayne's Hindu Law, the editor said that this decision does not conform to the strict notions of Hindu Law and the view might be upheld if the connection ceases to be adulterous by the death, of her hushand. We do not think we can share this opinion. It is interesting to know that in the 8th and 9th editions of Mayne's Hindu Law, it is stated that despite the connection being adulterous, the concubine is entitled to maintenance, provided it was of a permanent nature.
In the latest edition of Mulla's Hindu Law, the principle underlying the Full Bench ruling is accepted and no disagreement is expressed with it. The latter part of this comment has already been dealt with by us in the proper Context. In our considered judgment, the permanent concubine of a deceased Hindu or a woman kept in permanent concubinage till the death of her paramour and who remains faithful to his memory could not he deprived of the status of an avaruddha stree merely because the connection was adulterous by virtue of the fact that the hushand was living and she would be entitled to maintenance.
38. The position with regard to respondents 2 to 4 is slightly different, the illegitimate sons of a deceased Hindu being covered by Section 21. But this does not help them as the maintenance is confined to the majority of the illegitimate children. However, that does not prejudice these respondents very much since we have held that Section 22 is wholly inapplicable to the estates of Hindus who died before the Act.
39. There remains the question as to the quantum of maintenance. While on the one hand it is urged by the appellants that the maintenance awarded is out of all proportion to the income from the estate of the deceased Lingayya, it is contended on the other hand that in fixing the maintenance, the trial court left out of account the income from the mill which belonged to Lingayya and was inherited by the defendants. This point has been dealt with in paragraphs 21 to 29 by the Subordinate Judge. After reviewing the entire evidence, both oral and documentary, the learned Judge came to the conclusion that the net income on the lands left by Lingayya would be 125 bags of paddy.
In computing the gross income from the lands in dispute, the trial court mainly relied on . the admissions of some of the D.Ws. and on the circumstance that 149 bags were seized by the Taluk Supply Officer on the demise of Lingayya. He had not determined the exact net income from the rice mill, which would fall to the share of the defendants. Having regard to the fluctuations in the rentals of the mill and the circumstance that the defendants had to recoup a part of the amount contributed by the defendants towards the construction of the mill after the death of Lingayya, he left out of consideration the income therefr.om.
Taking into account the needs of the plaintiffs, such as education of the plaintiffs 2 to 4 and the social status they enjoyed during the life-time of the deceased Lingayya, who was 'in affluent circumstances', the Subordinate Judge awarded maintenance at 25' bags of paddy for each of the plaintiffs per year for their lives. The learned Judge calculated the maintenance in terms of paddy in accordance with the wishes of the counsel on either side. Learned counsel for the appellants could not successfully impugne this finding and we are satisfied that no exception could be taken to this rate of maintenance.
40. It was laid down in Ratna Raja Kumar v. Nara-yana Rao, : AIR1953SC433 by their Lordships of the Supreme Court that 'an illegitimate* son is not entitled to only a compassionate rate of maintenance' but 'to maintenance as long as he lives in recognition of his status as a member of his father's family and by reason or his exclusion from inheritance among the regenerate classes'. In addition to the income from the lands, the defendants will be in receipt of their share of the rentals from the rice mill. On the state of evidence and the surrounding circumstances, we are inclined to hold that the maintenance awarded by the trial court could not be regarded as excessive.
41. The plaintiffs did not press their appeal.
42. In the result, both the appeals arc dismissed with costs.