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Kopparthi Satyanarayana Vs. Smt. Kopparti Seetharamamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Nos. 334 of 1955, 369 of 1956, 38 and 56 of 1957, Tr. Appeal No. 263 of 1957, C.R.P. No. 362
Judge
Reported inAIR1963AP270
ActsHindu Women's Right to Separate Residence and Maintenance Act, 1946 - Sections 2; Hindu Adoptions and Maintenance Act, 1956 - Sections 18(2)
AppellantKopparthi Satyanarayana
RespondentSmt. Kopparti Seetharamamma
Appellant AdvocateM. Suryanarayana Murthy, Adv. in Appeal No. 334 of 1955, ;C. Rama Rao and ;C. Poorniaiah, Advs. in Appeal No. 369 of 1956, ;Y. Satyanarayana and ;P. Venkata Ramana Murthy, Advs. in Appeal No. 38 of 19
Respondent AdvocateM. Suryanarayana Murthy, Adv. in Appeal No. 369 of 1956, ;C. Rama Rao and ;C. Poornaiah, Advs. in Appeal No. 334 of 1955, ;A. Sambasiva Rao, ;R. Rajeswara Rao and ;P.L.N. Sarma, Advs. and ;P. Venkata
Excerpt:
family - maintenance - sections 2 and 18 of hindu women's right to separate residence and maintenance act, 1946 - maintenance is claimed on grounds of bigamy - second marriage of husband should have taken place after the act came in force - act not applicable retrospectively - claim of wife for separate residence is denied as she has to stay in protection of her husband and the act is not declaratory - a statute which influences present rights should inferred prospectively and not retrospectively - held, plea of maintenance and separate residence invalid. - - 1. if he is suffering from any loathsome disease not contracted from her, 2. if he is guilty of such cruelty towards her asrenders it unsafe or undesirable for her to live with him; it is plain that the wile's right would accrue.....chandra reddy c.j. 1. the question referred to the full bench is whether clause (4) of section 2, hindu women's right to separate residence and maintenance act (19 of 1946) (hereinafter referred to as 'the act') is applicable only if the husband contracts a marriage after the act or whether the words 'marries again' are merely descriptive of the position of the husband as a twice married man at the date when the proceedings are taken under the act, and they do not exclude from their operation the husband, who has taken a second wife before the act. this point arises in all these appeals, some preferred by the wives and others by the husbands. for the sake of convenience, we will refer to the husbands as appellants and the wives as respondents.2. the answer to this question turns upon the.....
Judgment:

Chandra Reddy C.J.

1. The question referred to the Full Bench is whether Clause (4) of Section 2, Hindu Women's Right to Separate Residence and Maintenance Act (19 of 1946) (hereinafter referred to as 'the Act') is applicable only if the husband contracts a marriage after the Act or whether the words 'marries again' are merely descriptive of the position of the husband as a twice married man at the date when the proceedings are taken under the Act, and they do not exclude from their operation the husband, who has taken a second wife before the Act. This point arises in all these appeals, some preferred by the wives and others by the husbands. For the sake of convenience, we will refer to the husbands as appellants and the wives as respondents.

2. The answer to this question turns upon the interpreation of Clause (4) of Section 2 of the Act. That section is in these words;

'2. Notwithstanding any custom or law to the contrary, a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely:

1. If he is suffering from any loathsome disease not contracted from her,

2. If he is guilty of such cruelty towards her asrenders it unsafe or undesirable for her to live with him;

3. If he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish;

4. If he marries again;

5. If he ceases to be a Hindu by conversion to another religion;

6. If he keeps a concubine in the house or habitually resides with a concubine;

7. For any other justifiable cause: Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by change to another religion or fails without sufficient cause to comply with a decree of competent Court for the restitution of conjugal rights.'

3. In this enquiry, we are called upon to interpret the expression 'if he marries again' occurring in Clause (4). So, the problem to be solved is whether a wife, whose husband had taken another wife before the commencement of the Act, could obtain the benefit of that section.

4. There has been a divergence of opinion on the construction of this clause, some Judges expressing the opinion that the clause 'if he marries again' would apply to marriages that took place before the Act came into operation while others had taken a narrower view that it would only govern future marriages.

5. We will first discuss the question with reference to the terms of the clause unhampered by decided cases. Although we are concerned here only with clause (4), it is useful to read the whole of the section, as it throws considerable light on the controversy that ranges here. Clauses (1) to (3), (5), (6) and (7) give a clear indication that they apply to a state of affairs that prevail at the time the claim for separate residence and maintenance is made and after the commencement of the Act and do not qualify events that existed be-fore the Act. Let us first look at Clause (1). It is obvious that that clause requires proof of the husband suffering from a loathsome disease at the time the claim for maintenance is made. The fact that the husband suffered from a loathsome disease in the past would not be a ground for claiming separate maintenance unless he continues to be suffering at the relevant date. The wife cannot maintain such a claim if the husband was cured of the disease by the date the claim is put forward. Similar remarks may be made as regards Clauses. (2), (3) or (6). None of these clauses have any relation to me antecedent conduct of the husband. These clauses leave no mm for doubt that it is only things done by the husband subsequent to the Act that would invest a Hindu married woman with a right to claim separate maintenance; in other wards, a Hindu married woman could not take advantage of this clause in regard to things that occurred before the Act came into operation.

6. Could a different intendment be attributed toClause (4)? Our answer is in the negative for the following'reasons. Here also the tense used is the present one.

This clause refers to an act done by the husband, namely, marrying again. It is not a continuous act, though the state of marriage might continue. This, in our opinion, gives an indication that it has reference to a future act. That expression only means that a married woman, whose husband takes another wife, could claim maintenance; to put it in another way, if the husband take's another wife, he will become liable to pay separate maintenance. It is plain that the wile's right would accrue only if the act complained of is committed in the future. These words do not convey the thought that the right for separate maintenance flows even from the second marriage of the husband performed before the Act. We feel that this clause is susceptible of only one interpretation, namely, that the marriage, which gives rise to a cause of action to a wife must be one celebrated after the Act. The language is not appropriate to refer to an act which had already been done.

7. In our opinion, they can only mean, according to the ordinary use of the English language 'if any man shall or may hereafter be married-' We are invited to hold that the words 'marries again' have the same connotation as 'another wife alive' or 'had married again'. The words, which we have to interpret, are altogether different and to interpret it in the manner suggested by the counsel for the respondent would be to substitute words which are not In the clause. That the Legislature intended to restrict the operation of this section to future marriages could also be seen by contrasting it with the language of Section 18, Hindu Adoptions and Maintenance Act, Sub-section (2) (d) of which reads;

'A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.

XX XX XX (d) if he has any other wife living.'

8. This section has been so drafted as to take in all cases of husbands having their other wives living. So this has undoubtedly a wider scope than the one which we are required to construe. If shows that when the Legislature thought of including all Hindus who were married more than once, it had employed comprehensive language. A comparison of the language of the two clauses leads to the inescapable conclusion that Clause (4) of Section 2 covers only future marriages.

9. Another contention urged on behalf of the respondents that these words are descriptive and indicative of the position of the husband as a married man is equally fallacious. If it was intended to describe the position of the husband as a married man, even the wife last married would he entitled to maintenance. But such a construction would be obviously opposed to the plain meaning of the words 'marries again' which Implies that there should be a marriage subsequent to the marriage of the woman who claims separate maintenance. If there is no marriage, after the marriage of the woman claiming separate maintenance, she would have no right to claim maintenance. This excludes the idea of the woman last married having a right to separate maintentance. We, therefore, find it difficult to accept this argument.

10. In this content, a Judgment of an English Court in Bourke v. Nutt, 1894-1 OB 725, which construed similar language is of much assistance. Section 32, Bankruptcy Act, 1883, which fell to be considered in that case, provided Inter alia,

'Where a debtor is adjudged bankrupt, he shall subject to the provisions of this Act, be disqualified for being elected to or holding or exercising the office ..... member of school board.'

It was decided by tile Court of Appeal that the disqualification contemplated by that section did not attach to a person adjudged bankrupt prior to the Act and applied only to one adjudicated after the Act. In repelling that contention it was observed by the Court of Appeal:

'to apply it to a case of adjudication prior to the Act would be not to give the word 'is' its ordinary and natural meaning but to distort it.'

and if such were the intention of the Legislature, they would have used that form. The doctrine of this ruling would, in our judgment, clearly apply to the clause in question.

11. There is another consideration which is quite apposite in this context. As we have already remarked, the statute conferred a new right on Hindu married woman for separate maintenance in the eventualities envisaged by the various clauses. That this is so is apparent from the preamble and also from Section 2. The non-obstante clause 'notwithstanding etc.' in Section 2 is a pointer in the direction of the Act superseding the principles of Hindu law on the subject of maintenance.

12. Clause (4) makes another marriage by the husband 'per se' a ground for claiming separate maintenance. This has brought about a fundamental change in the Hindu law of maintenance as it obtained prior to the Act. Polygamy was widely prevalent in Hindu society and no obligation was imposed upon a husband who took another wife during the life-time of the first wife to provide separate maintenance for her. For the first time, the Legislature intervened by enacting this Act vesting right in a Hindu married woman to claim separate maintenance when her husband took another wife and imposed a new liability on such a husband. Thus, this enactment affects the rights of a Hindu to take a second wife without subjecting himself to the liability of giving separate maintenance to the wife. It confers substantial rights on a wife and corresponding obligations on the husband and it does not deal merely with matters of procedure. In such a situation, could retrospective operation be assigned to that clause?

13. It is a well accepted construction of statutes that retrospective operation could not be given to a statute so as to impair an ensiling right or an obligation unless such an intention could be gathered from the express terms of the Act or it arises by necessary and distinct intendment or that retrospective effect could not be avoided without doing violence to the language. A statute, which touches existing rights should be construed prospectively, and nor retrospectively. Incontrovertibly, there is no clear language conveying such an internment. Could it then be said that it follows as a necessary implication? We are not pointed out any circumstance which indicates any such necessary or distinct implication. On the other hand, all pointers are in the opposite direction,

14. Further as stated in Maxwell's interpretation of Statutes [Edn. 10) page 214:

'If the enactment is expressed in language which is fairly susceptible of either interpretation, it ought lo be construed as prospective only.'

Applying this test, we cannot but reach the conclusion that this clause was not intended to have retrospective effect.

15. ft was contended on behalf of the respondents that this being a remedial measure, retrospective effect should be attributed to it. This legislation was conceived in the interests of married women who had suffered from several disadvantages under the law as it existed and such a construction as would aid the legislative policy should be adopted and this could be achieved only by giving retrospective operation to it, proceeds the learned counsel. In support of this contention, our attention is drawn to the statement of law contained at page 68 of Maxwell's interpretation of Statutes (Edn. 10):

'It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it.'

We do not see how this passage is of any avail to the respondents. That does not lay down the proposition that every remedial measure should be construed retrospectively and not prospectively. All that is stated there is that, in the construction of remedial measures, an extended meaning may be given if the words used are not sufficient to bring out the intention of the Legislature clearly. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words. The legislative intent or policy/has to be gathered from the language used. In construing the effect of an enactment, regard must be had to the language of the section. ........ The passage does not also lend support to the proposition that Courts should ascribe art unnatural meaning 'simply to avoid mischief or injustice'. If the words are plain, a Court has to give effect to them. The passage does not warrant the proposition that every remedial measure must necessarily be given retrospective effect. It is the language of a statute that has to be considered and it will not be permissible to give retrospective- effect to every statute, which is a remedial one. On the other hand, the normal rule is that a remedial measure should be interpreted as applying prcspeclively and not retrospectively.

16. In this connection, we may usefully refer to the remarks of the Supreme Court in Central Bank of India v Their Workmen, : [1960]1SCR200 ;

'A remedial Act, on the contrary, is not necessarily retrospective; it may he either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment.'

There is, therefore, no scope for extending the operation of this section to second marriages effected before the Act came into operation.

17. Another point raised by the learned counsel is that this being a declaratory law, it should be held to have retrospective effect. We do not think that there is any scope for this argument, in this connection, the preamble of the fact may be noticed. It says:

'Whereas it is expedient to provide for the right to separate residence and maintenance under certain circumstances in the case of Hindu married women'1.

18. It if plain that this legislation was not interned to recognise the rights possessed by Hindu married women. Further, words like 'declared' have not been used in the preamble. On the contrary, it clearly indicates that a fresh right was being created in their favour. So, it is not a question of a declaratory Act. The following observations in Craies on Statute Law (Edn. 5) at pp. 56 and 57 are pertinent in this behalf:

'An Act is said by Blackstone to be declaratory where the old custom of the realm is almost fallen into disuse or become disputable, in which case parliament Has thought proper, in 'perpetuum rein testimenium' and for avoiding all doubts and difficulties to declare that the law is and ever hath been.'

19. For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective.

20. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word 'declared' 'as well as the word 'enacted'.

21. It is true that support could be found in the judicial pronouncements or dicta for the rules contained in some of the clauses of Section 2 other than Clause (4). But it must be mentioned that in the circumstances specified in Clause (5) and (6), there is support for the contrary view also. Therefore, even with regard to the other clauses, the Legislature may be said to have removed whatever doubts might have existed in regard to some of those concepts and enacted these rules conceding the right of maintenance to Hindu married women.

22. If we apply the test propounded in this passage, there can be little doubt that the statute in question could not be described as a declaratory Act. If so, the doctrine of retrospective operation could not be invoked. Moreover, the present law could not be regarded as declaratory in nature since, there was no rule of Hindu law enabling a Hindu married woman to claim separate maintenance merely because her husband had taken another wife. On the other hand, the judicial dicta, so far as we are aware, are to the effect that a Hindu wife was not released from her duty and obligation to live in the protection of her husband and under his roof notwithstanding the latter taking a second wife, which means that she could not live separately from her husband and claim maintenance simply because her husband had taken another wife. If there was no right inhering in a Hindu married woman prior to the Act, we fail to see how this Act could be described as declaratory in character. No doubt, there are one or two decisions which have gone to the length of saying that this Act was a declaratory one and which will be dealt with presently.

23. For these reasons, we reach the conclusion that Clause (4) of Section 2 of the Act governs only marriages that took place subsequent to the Act.

24. We shall now proceed to deal with the case-law on the subject. The first case, which is the main basis of the view that the clause is attracted even to second marriages solemnised before the Act is Lakshmi Ammal v. Narayanaswami Naicker, : AIR1950Mad321 . It was ruled by Viswanatha Sastry, J. that the words 'marries again in Section 2(4) of the Act were merely descriptive of the position of the husband as a twice married man at the date when the wife's claim for separate maintenance was made under the Act and did not exclude a husband who had taken a second wife before the Act from its operation. The learned Judge remarked:

'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 that Act, the wife is not entitled to separate maintenance. 'Cruelty' and 'desertion' referred to in Section 2(2) and (3) obviously do not exclude cruelty and desertion which started anterior to the passing of the Act. Similarly, the reference to apostacy in Section 2(5) and to the keeping of a concubine in the house in Section 2(6) must contemplate events which had their inception before the Act came into force. With reference to Section 2(4), however, it is argued that the words 'marries again' refer to a future marriage, that is after the Act. I appreciate the verbal point of this interpretation but I am unable to accept it. In my opinion, the words are merely descriptive of the position of the husband as a twice married man at the date when the wife's claim for separate maintenance is made tinder the Act and do not exclude a husband who has taken a second wife before the Act from its operation. Reading Section 2 as a whole and the several clauses of the section together, I see no reason to hold that while all the other clauses which use the present tense refer to a state of affairs in existence at the date of a suit for separate maintenance by the wife, though it had its origin before the Act came into force, Clause (4) of Section 2 also must have reference only to an event which occurs after the Act comes into force.'

25. With reference to the criticism based upon Clause (1) to (3), (5) and (6), the answer is that though the events that had their inception before the Act may not be altogether irrelevant, they should exist on the date the claim for separate maintenance is put forward. If the husband was cured of the loathsome disease before the Act, or if he was no longer keeping a concubine after the Act and at the time when the claim was sought to be enforced, or, if the husband was not guiity of desertion at the relevant time, it would be of no avail to the wife. Thus, the reasoning of the learned Judge founded on those clauses would not support his conclusion in regard to the clause in controversy. We nave already dealt with the question whether the words 'marries again' are merely descriptive of the position of the husband as a twice married man or whether they denote words of futurity. It is unnecessary to repeat it here.

26. Another reason adduced, by the learned Judge in support of his opinion was:

'There is no reason why the Legislature should have made art invidious distinction between wives superseded by a second marriage of the Husband before the Act and those who are so superseded by a second marriage after the Act.'

The obvious answer to that is that in regard to marriages celebrated before the Act, the husband could not have anticipated that he would incur a liability to make provision for separate maintenance to his wife if he were to marry another wife, since, the law as it obtained before the Act permitted him to take any number of wives without the necessity of giving separate maintenance to his superseded wives. But the situation became different after this legislative measure was made. Thereafter, when husband takes a second wife voluntarily, he does it with the knowledge of the consequences that flow from his act. There is thus a valid distinction between the two sets of acts and such a distinction could not be regarded as an invidious one. The Legislature must be taken to have been aware of this distinction and appears to have purposely confined it to marriages solemnised after the Act, as it would not have thought of impesing a greater liability for the act done by the husband than he was subject to under the law as obtained at that time, by giving it a retrospective operation.

27. Reliance was placed by the learned Judge as also by the counsel for the respondents on the construction placed by the Privy Council on the words 'dying intestate' occurring in Duni Chand v. Anar Kali, ILR (1946) All 748 : (AIR 1946 PC 173). The Judicial Committee rejected the contention that the words 'dying intestate in the preamble of the Act connoted the future tense and said that it had no reference to the time of the death of the Hindu male but were only descriptive of the status of the deceased. The operative provision was held to govern only successions after the Act had come into operation. This pronouncement of the Judicial Committee is not quits apposite in this connection because under Act 2 of 1929, the relevant date is not the date of the death of the Hindu male owner but the date when succession opened up.

28. Mack J. of the same High Court who took the same view in S.A. No. 1413 of 1946 (unreported) was influenced by similar considerations. The opinion expressed by Raghava Rao, J. in S.A. No. 556 of 1947 was in accord with this principle.

29. A different note was struck by Krishnaswami Nayudu J. in Sidda Setty v. Muniamma, : AIR1953Mad712 , The learned Judge held that the clause in question could refer only to a marriage that took place after the Act. He stated.

'This, in my view, would be the reasonable and natural construction to be put upon the words without doing violence to the language or even to the spirit of the statue, and 'the language does not admit of any ambiguity and is plain. To do otherwise would be to lead to inconvenient and unjust results which should always be avoided In judicial interpretation of the words of a statute.'

30. The same question came up again before a Division Bench of that High Court in Nagendramma v. Ramakotayya, : AIR1954Mad713 . Ramaswami J., who wrote the leading opinion of the Bench, assented to the proposition contained in : AIR1950Mad321 . It was held there that the expression 'marries again' in Clause (4) of Section 2 of the Act was not used with reference to any particular point of lime but merely as descriptive of the husband's position as being a twice-married man, whether before the Act came into force or after and that the 1946 legislation only declared and put beyond doubt what was already judge-made law. The learned Judge examined the original text elaborately and opined that the judicial decisions, which laid down that a Hindu wife was not released from her obligation to be under the protection of her husband despite his marrying another wife and the second marriage did not 'per se' clothe her with a right for separate maintenance, were based on the transition of Colebrook of the commentary of Kulluka Bhatta of the relevant texts which in his opinion was wrong. The translation was in conflict with the gloss put on the text in Smrithichandrika and Apararka. In this context, the learned Judge expressed himself thus:

'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 viz., when on the part of the husband he is unable to restrain or perusade the superseded wife to continue cohabitation without stultifying her former position In the house-hold and on the part of the wife when the conduct of the husband towards her is such that in the words of Subrahmania lyer J., she cannot live with him consistently with her self-respect and her position as a wife in the house-hold.'

31. We find it difficult to agree with the learned Judge that the translation by Colebrook of the relevant text accepted by Mayne and Strange and acted upon by the highest Courts in the land was incorrect merely because that is not in consonance with the commentary thereon in Smriti-chandrika and Apararka. The original text may be open to an equally authoritative interpretation, which in fact has been uniformly accepted for over a century. There is, 'here-fore, no justification to assert that the texts were distorted and all the Courts uniformly went wrong in proceeding on the assumption that the translation by Colebrook was right.

Assuming it to be so for the sake of argument, the question is not whether the judicial decisions proceeded on a wrong assumption as to the meaning of the relevant texts, but whether the law as embodied in judicial decisions at the time of the passing of the Act recognised the right of a Hindu married woman for separate maintenance when her husband married another wife. The very elaborate examination by Ramaswami, J. did not bring to light a single decision prior to the Act, which justified a wife to live apart from her husband for no reason other than the second marriage of her husband. On the other hand, the uniform course of judicial decisions was to the contrary.

Thus, the case-law rather than establishing a practice of separate maintenance proved the contrary. That being so, the Legislature might be taken to have started with tha law as expounded by Courts. It is true that the Legislature must be assumed to have informed itself as to the state, of law on any topic in regard to which it legislates. But there is nothing in the language of the Act to indicate that the Legislature disapproved of the translation by Colebrook of the commentary of Kulluka Bhatta on the relevant texts of Manu as adopted by Mayne and Strange, discarded the decisions of the highest Courts of the land, accepted the gloss put by Smritichandrika or Apararka on the text and recognised the right of a married woman whose husband had taken another wife as understood by commentators, to live apart from her husband and claim separate maintenance.

32. It is well recognised that if prior to the Act the wife resided in her father's house against the will of her husband or deserted him without sufficient cause, she could not claim maintenance while living apart from her husband irrespective of whether her husband had married again. The learned Judge seems to have equated the position of a second wife to that of a concubine. It is needless to say that the second wife could not be placed on a par with a concubine and second marriage by itself would not amount to misconduct as understood prior to the present statute.

33. Moreover, the reasoning of the learned Judge as to the nature of the Act is opposed to the very dicta contained in : AIR1950Mad321 where the learned Judge said that a new right was given under the Act. Sastry J. assumed that, prior to the Act, the law was that the fact that a husband took a second wife did not by itself enable a wife to ask for separate maintenance. Further, in the case under citation, the actual decision turned on the finding that there was cruel conduct on the part of the husband and it did not appear that the husband was willing to receive the wife and maintain her in his house. It may be also mentioned that Subba Rao J. as he then was) who was the other member of the Division Bench, reserved his opinion on the question whether the first wife was entitled to maintenance by reason of the second marriage alone and whether such marriage in itself afforded a sufficient ground for awarding maintenance to the first wife. It must be mentioned here that this was overruled by a Full Bench of the same Court in Palaniswami v Devanal Animal, ILR (1956) Mad 482: ((S) AIR 1956 Mad 337) (FB) to which this question was referred by a Division Bench consisting of Govinda Menon and Krishnaswami Nayudu JJ. who thought that : AIR1954Mad713 required reconsideration.

34. The learned counsel for the respondents desire that we should accept as correct the 'ratio decidenci of : AIR1954Mad713 since it is in consonance with two rulings of the Orissa High Court, Anjanidei v Krushna Chandra, : AIR1954Ori117 and Kula Mani Hota v Parbati Debi, (S) : AIR1955Ori77 , another of the Vindhya' Pradesh High Court in Baijnath v. Hiraman, AIR 1951 Vindh Pra 10 and another of the Hyderabad High 'Court in Varalakshmi v. Viramulu, ILR (1955) Hyd 854.

35. in : AIR1954Ori117 Panigralhi C. J. remark ed;

'The very fact that a husband transfers his affections to another woman, whether married or not, is a justifying reason for not compelling the first wife to live with her husband. The Hindu Women's Right to Separate Residence and Maintenance Act, 1946, merely gave a statutory recognition to the dicta of Judges who had on several occasions applied this principle to the facts of individual cases.'

36. We have already dealt with the topic whether that' Act is declaratory in nature and it is needless to go over it again. Suffice it to say that there is no foundation for the statement that the Act gave statutory recognition to the dicta of the Judges. It may also be pointed out that Mohapatra, J. did not express any opinion on the question.

37. The second of the Orissa cases is on a line with this view.

38. In AIR 1951 Vindh Pra 10 which accepted : AIR1950Mad321 in preference to Sukribai v. Pohkalsingh, ILR (1950) Nag 196 : (AIR 1950 Nag 33) which will be adverted to presently there is no independent discussion on the subject. The learned judge contented himself with saying:

'Studying the Act as a whole, I would follow the Madras ruling rather than that of Nagpur.'

It is worthy of note that he remarked that Section 2(4) of the Act was a far-reaching measure, that the law would not go so far as to declare illegal a man's marrying again in the life-time of the first wife, that had it done so, the disability imposed by it cannot act retrospectively and that it does what is obviously the second best. We are unable to reconcile this statement with the view that it is retrospective so far as the claim for separate maintenance is concerned.

39. Coming now to the Hyderabad case, the clause in question fell to be interpreted in the context of the question whether a suit for restitution of conjugal rights could be resisted by a wife whose husband had married before the commencement of the Act taking advantage of Section 2(4) of the Act. A Division Bench of that High Court expressed the opinion that in those circumstances, the wife could invoke the provisions of the Act for the reason that the statute end its internment partook of the characteristics of a declaratory law and consequently could be considered to have retrospect time effect. It is interesting to note that in dealing with this subject, Srinivasachari J., who spoke for the Court, said that 'although taking a second wife would not by itself have entitled a wife to separate maintenance, the trend of Judicial opinion has been to decline to pass a decree for restitution of conjugal rights where the husband kept a concubine.' The earlier part of the sentence indicates that the learned fudge thought that the second marriage by itself did not confer a right of separate maintenance on the wife. It is also worthy of note that the learned Judge relied in support of his conclusion that the law was declaratory on decisions which dealt with the right of a wife to live separate when her husband brings in a concubine, such as Dular Koer v. Dwartanath, ILR 34 Cal 971 and Appatamma v. Yellayya, ILR 20 Mad 470 (FB). We do not think that this line of cases lends any colour to the view expressed by the learned Judges. We have already stated that this clause did not purport to decision the pre-existing law regarding the rights of a superseded wife for separate residence and maintenance. Therefore, we are constrained to disagree with the principle underlying ILR (1955) Hyd 854 : (AIR 1956 Hyd 75).

40. We will now turn to the cases, which have taken the opposite view. The first reported case, which enunciated the principle that it was only a Hindu married woman, whose husband had solemnised another marriage after the Act that could take advantage of the Act is ILR (1950) Nag 196 : (AIR 1950 Nag 33). It was held there that the Act did not have retrospective effect and that the wording of Clause (4) cut down its application to those cases in which the husband married again after the date on which the Act became law. This conclusion of the learned Judges was reached after a critical examination of the language used and its grammatical meaning and after an elaborate discussion of whether the Act was declaratory or remedial and whether it was retrospective or prospective only.

41. This was affirmed by a Full Bench of the same High Court in Kasubai v. Bhagwan, ILR (1955) Nag 281 : ((S) AIR 1955 Nag 210) (FB). There is an exhaustive treatment of the subject in this ruling. After considering the matter afresh in the light of the relevant original texts and reviewing the case-law, they thought that there was no ground to depart from the rule stated in ILR (1950) Nag 196 ; (AIR 1950 Nag 33). They were of the opinion that the Act, as a whole, could not be called declaratory in the strict sense of the word. They disagreed with the reasoning of Ramaswamy J. in : AIR1954Mad713 that the gloss put by Smritichandrika and Apararka on the texts of Manu (X-83) was the only correct one and that Its Incorrect translation, by Colebrook led to erroneous decisions by the Courts in India.

42. In the same strain of thought Is Laxmibai Waman-rao v. Wamanrao Govindrao, : AIR1953Bom342 . Rajadhyaksha J. who delivered the judgment on behalf of the Bench, discussed the various aspects of the matter and arrived at the decision that Section 2(4) of the Act was inapplicable to marriages effected prior to the coming into force of the Act. In the course of the judgment, the learned Judge expressed himself thus:

'Polygamy was widely prevalent in the Hindu Society and indeed the Hindu' law laid no limit on the number of wives which a husband could take. No corresponding right was conferred upon the wife to obtain a divorce from her husband under such circumstances. Modern opinion, imbued with ideas of justice and fair play frowned upon such practice and often a person who married a second time during the life-time of his first wife was socially ostracised. In the State of Bombay, bigamous marriages have been prevented by the legislation. But Act 19 of 1946, an Act of all-India application confers fresh rights upon the wife and imposes fresh liabilities upon the husband.'

43. Dealing with the intendment of the clause, this is what the learned Judge had to say:

'It may well have been the intention of the Legislature that such an Act should not have retrospective effect. Before the Act came into force, a Hindu husband marrying a second time during the life-time of the first wife could not have anticipated that, by doing so, he would be laying himself open to the liability of providing separate residence and maintenance for the first wife. The Act would, therefore, impose upon the husband a new liability if the legislation were given a retrospective effect and the Legislature may have thought that it would not be fair lo Hindu husbands to subject them to such new liability. After the Act came into force, a husband marrying a second time could do so with full knowledge that his wife would have a right to claim separate residence and maintenance. An Act Imposing a new liability on one party and conferring fresh rights on the other is not ordinarily given a retrospective effect.'

44. With respect, we are in entire agreement with the 'raison d'etre' of the learned Judge.

45. A Full Bench of the Madras High Court in ILR (1956) Mad 482 : (AIR 1956 Mad 337) (FB) took the same view as in ILR (1955) Nag 281 : ((S) AIR 1955 Nag 210) (FB) differing from : AIR1950Mad321 and : AIR1954Mad713 . The learned Judges on a consideration of the law and on a thorough and critical examination of the language of the clause, arrived at the decision that the clause operated prospectively and not retrospectively. Rajamannar C. J. who spoke for the Court said that he found himself in agreement with Krishnaswaml Nayudu J. in : AIR1953Mad712 and the decision of the Nagpur and Bombay High Courts.

46. To the same effect is a judgment of a Full Bench of the Punjab High Court in Ram Prakash v. Savitri Devi, (FB). Bhandari C. J. who delivered the opinion of the Court, did not concur with the view that Clause (4) of Section 2 is designed to operate retrospectively and that a wife is at liberty to take the benefit of the Act even though the second marriage look place before the commencement of the Act. There Is a full discussion on this point in that judgment and all the rulings rendered so far were considered by them.

47. A judgment of a Division Bench of the Rajasthan High Court in Gopal v. Mst. Kallu, which also contains an elaborate discussion of the case-law and of the principles of Hindu law governing the rights of Hindu married women to maintenance adopted the same view.

48. The rule stated by a single Judge of the Allahabad High Court in Ratan Chand v. Mst. Kalawati, (S) : AIR1955All364 is to the same effect.

49. We are in entire agreement with the principle adumbrated in this line of cases which, in our opinion, brings out the spirit and the letter of the wording of Clause (1) of Section 2 of the Act. We have stated our reasons earlier as to why we are unable to share the opinion that the clause should be given retrospective effect.

50. It follows that the Act would come into operation only in regard to marriages solemnised subsequent to the passing of the Act and a Hindu wife, whose husband had married another wife before the Act, could not invoke this Act.

51. Since there are other questions raised in these appeals and the appeals as such are not before us and so not argued before us, they will be posted before a Division Bench for dealing with the other points.

(In pursuance of the aforesaid opinion of the Full Bench the above cases came for hearing and the following judgment has been pronounced by--)

Chandra Reddy, C.J.

52. Appeals Nos. 334 of 1955 and 359 of 1956 :- The subject-matter of both these appeals is the same and they relate to the same parties. They are against the judgment of the Subordinate Judge, Narasapur, awarding a maintenance to a wife, whose husband took a second wife in December, 1944, at the rate of Rs. 900/- per year. The parties will be referred to as they are arrayed in Appeal No. 334 of 1955.

53. In the suit, which has given rise to these appeals, the respondent who was married to the appellant on 6-6-41. claimed maintenance from her husband at the rate of Rs. 1800/- per annum, Rs. 1807- per annum for her residence and Rs. 1007- for utensils alleging, inter alia, cruelty and abandonment. She had also invoked the provisions of Section 2(4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 19 of 1946.

54. Several defences were raised to the suit, the chief among them being that Act 19 of 1946 would not help the appellant in that the marriage was effected prior to the Act. The learned Subordinate Judge, while holding that cruelty and abandonment have not been, made out, granted a decree to the respondent as mentioned above in the view that Act 19 of 1946 was applicable to all second marriages, whether they be before the Act or after it. This opinion of the learned Judge Is based upon : AIR1954Mad713 . Having regard to the conflict of judicial opinion, when the appeals came on for hearing before a Division Bench on the question as to the applicability of the Act, they were referred to a Full Bench and the Full Bench has answered that the Act qualified only second marriages effected after the Act.

55. In view of the decision of the Full Bench, it is not disputed that the respondent would not be entitled to separate residence and maintenance only on the ground of her husband having taken a second wife before the Act. In this case, no other ground has been put forward as entitling her to claim maintenance. But subsequent to the decision of the Trial Court and the filing of this appeal, the Central Legislature had enacted the Hindu Adoptions and Maintenance Act. By Section 18 of that statute, right to separate residence and maintenance was given to the wife whose husband had any other wife living. By reason of this section, indisputably, the respondent is entitled to maintenance from the date of the coming into force of this Act, which is 21st December, 1955. This position Is not contested by the learned counsel for the appellant.

(The rest of this judgment is not material for this report.)


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