1. This appeal raises an important and interesting question of law in regard to the interpretation of Clause 4 of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act (XIX of 1946) hereinafter referred to as the Act. The section in so far as it is relevant runs as follows :
'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 :
X X X X X
(4) if he marries again;'
This Act was made applicable to Hyderabad State on 7-2-1953.
2. The suit out of which this appeal arises was filed by the respondent on 12-4-1951 for restitution of conjugal rights against his wife, the 2nd appellant herein. One of the contentions raised by the wife was that as the husband had married again in 1951 (though prior to the Act being made applicable to Hyderabad State), he was not entitled to maintain the suit. The Dt. Judge of Karimnagar overruled this objection without any discussion in the following sentence :
'Ho cannot be deprived of the decree merely because he has married another woman now.' The learned Advocate for the appellants contended that Clause (4) of Section 2 was declaratory in nature and had retrospective operation and that the words 'marries again' are merely descriptive of the position of the husband as a twice married man and do not exclude a husband who had taken a second wife before the Act came into operation. In support of this view, he relied on the Bench decision of the Madras High Court, in Nagendramma v. Ramakotayya, : AIR1954Mad713 , and the decision of the Hyderabad High Court in Varalakshmi v. Viramulu, AIR 1956 Hyd 75. The correctness of the Bench decision in : AIR1954Mad713 was canvassed in the Full Bench decision in Palaniswami Gounder v. Devanai Ammal, (S) AIR 1956 Mad 337. The order of reference was made by Govinda Menon and Krishnaswami Nayudu JJ. The learned Chief Justice who delivered the Full Bench judgment held that the words 'if he marrias again' mean 'if he contracts a marriage after the Act'.
3. The view taken by Krishnaswami Nayudu J. in Sidda Setty v. Muniamma, : AIR1953Mad712 and by the Nagpur and Bombay High Courts in Mt. Sukhri Bai v. Pokhalsingh, AIR 1950 Nag 33 and Laxmibai v. Waman Rao, : AIR1953Bom342 , was accepted and the decision in Lakshmi Animal v. Narayanaswami, : AIR1950Mad321 and : AIR1954Mad713 , were overruled. The learned Judges of the Hyderabad High Court in AIR 1956 Hyd 75, followed the decisions of the Madras High Court in : AIR1950Mad321 and : AIR1954Mad713 and the view of Panigrahi C. J. in Anjani Devi v. Krishna Chandra, AlR 1954 Orissa 117 and of the Judicial Commissioner of Vindhya Pradesh in Baijnath Dharamadass v. Hiraman Ram Rasik, AIR 1951 Vindh-Pra 10 in preference to the view expressed by the Nagpur and Bombay High Courts in the cases referred to supra and that of the Allahabad High Court in Ratan Chand v. Mt. Kalawati. (S) : AIR1955All364 .
The learned advocate for the appellants relied upon the Full Bench decision of the Andhra pradesh High Court in Subbarayudu v. State, : AIR1955AP87 and contended that the Bench decision of the Madras High Court pronounced before 5-7-1934 is binding on this Court and that we should follow it even though it was subsequently overruled by the Full Bench decision in AIR 1956 Mad 337. In Salmond's Jurisprudence, 10th, Edn, page .189, it is stated as follows :
'A precedent overruled is definitely and formally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old.'
So, the effect of the Full Bench decision in AIR 1956 Mad 337 is to deprive the Bench decision in : AIR1954Mad713 of all authority as a precedent and to render it null and void. If this view is correct, the Bench decision has no binding force on this Court and the decision of Krishnaswami Nayudu J. pronounced prior to 5-7-1954 and approved by the Full Bench subsequent thereto remains to be considered by this Court. As it is only a decision of a single Judge, it is not binding upon a Bench of this Court. The question will, therefore, have to be considered only on the language of the enactment. As there is considerable divergence of authority on the question and as the question involved is one of considerable importance, we consider it necessary that the whole question may be considered by a Full Bench.
4. It may also be pointed out that Subba Rao C. J. pointed out in : AIR1955AP87 that if a judgment of a Division Bench of the Madras High Court is reversed by a Full Bench or that Court after 5-7-1954, the Division Bench of the Andhra High Court might, if they agree with the decision of the Full Bench, refer the matter to a Full Bench of the Andhra High Court (now Andhra Pradesh High Court). As we are prima facie inclined, on a plain reading of the terms of the section to agree with the Full Bench decision of the Madras and Nagpur High Courts and the decisions of the Bombay and Allahabad High Courts in preference to the view of the Orissa and Vindhya Pradesh Courts, and as we consider that there should be an authoritative ruling on this important question, the matter is referred to a Full Bench. The question of cruelty will be decided, if necessary, after the Full Bench reference 19 disposed of. Question :
'Is Clause (4) of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act (XIX of 1946} applicable only if the husband contracts a marriage after the Act or are the words 'marries again' merely descriptive of the position of the husband as a twice married man at tne data when the proceedings are taken under the Act and! they do not exclude from their operation the husband who has taken a second wifo before the Act?'
(In pursuance of the above order of the High Court (Division Bench) dated 14-11-1957 and made herein referring the case to the Full Bench of this High Court, the Full Bench consisting of the Hon'ble Mr. K. Subba Rao, Chief Justice, the Hon'ble Mr. Justice Satyanarayana Raju and the Hon'ble Mr. Justicd Ranganadham Chetty expressed the following opinion) :
OPINION OF THE FULL BENCH
K. Subba Rao, C.J.
5. The following question has been referred to the Full Bench by a Division Bench of this High Court:
'Is Clause (4) of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act (IX of 1946) applicable only if the husband contracts a marriage after the Act or are the words 'marries again' merely descriptive of the position of the husband as twice married man at the date when thd 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?'
6. The facts relevant to the question formulated may be briefly stated. The 2nd appellant Parameshwaramma is one of the wives of the respondent Nayiah. They were married in or about the year 1944. The first appellant is the father of the 2nd defendant. The respondent also married another wife and, though the year of the marriage is not disclosed, it is common case that the second marriage also took place before 23-4-1946. The respondent filed O.V.S. No. 14/1/1953-54 in the Court of the Dt. Judge, Karimnagar, for restitution of conjugal rights.
The appellants pleaded, inter alia, that the respondent was not entitled to that relief on the ground that he had a second wife living at the time the suit was filed. The learned Dt. Judge held that that was not a valid ground for non-suiting the respondent. On appeal, Umamaheswaram and Jaganmohan Reddy JJ. finding that there was a conflict of decisions on the question whether a wife would be entitled to separate residence and maintenance on the ground that her husband had married a second wife prior to the passing of the Hindu Marriage Women's Right to Separate Residence and Maintenance Act, 1949 (hereafter referred to as the Act), referred the aforesaid question to the Full Bench.
7. The suit was for restitution of conjugal rights. The Act entitles a wife to separate residence and maintenance if the husband marries again. If she is entitled to separate residence and maintenance under the Act the suit for restitution of conjugal rights obviously would not lie. From this perspective, the interpretation of the relevant provisions of Section 2, which entitles a wife to claim a right to separate residence and maintenance becomes relevant. The material part of the said section reads :
Section 2 :
'Not withstanding any custom or law to the contrary, Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely,
(4) if he marries again.'
This Act became law on 23-4-1946, and the question is whether the clause 'if he marries again' applies to a second marriage of the husband prior to the Act coming into force.
8. There was a conflict of decisions in the Madras High Court on the interpretation of Section 2(4) of the Act, which necessitated a reference to a Full Bench. A Full Bench of the Madras High Court in (S) AIR 1956 Mad 337 ruled that a Hindu wife is entitled to claim separate residence and maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, on the ground that her husband has married a second time only when the second marriage took place after the passing of the said Act and not before. Rajamannar C. J. who delivered the judgment on behalf of the Full Bench, observed at page 484 (of ILR Mad): (at p. 338 of AIR) thus :
'The language, as it is, contemplates the event happening in the future and is not at all appropriate to refer to an act which has already been done.' This Full Bench decision was delivered after the inauguration of the Andhra High Court and, therefore, is not a binding authority on this Court, though of great persuasive effect. But, in this case, we are relieved of our duty of considering the correctness of this decision as the question raised does not arise in view of the provisions of the Hindu Marriage Act (Act XXV of 1955) which became law on 18-5-1955. If this Act had been brought to the notice of the le'arned Judges, I am certain that they would not have referred the case to the Full Bench. I shall, therefore, proceed to consider the applicability of the provisions of that Act to the plea raised by the appellant.
9. The Hindu Marriage Act, 1955, is a Central Act and it extends to the whole of India except the State of Jammu and Kashmir. Section 9 enables a husband or wife to file an application in the District Court for restitution of conjugal rights. Subsection 2 of Section 9 particularises the pleas available to the other spouse in such an action. It says :
'Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall nob be a ground for judicial separation or for nullity of marriage for divorce.'
Section 13 lays down the conditions under which a husband or a wife can get a divorce from the other. Sub-section (2) says that a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground that 'in the case of any marriage solemnised before the commencement of this Act that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the lime of the solemnisation of the marriage of the petitioner'. It is, therefore, manifest that under this Act a wife could resist a petition for restitution of conjugal rights on the ground that the husband had married another wife before the Act.
Whatever might have been the rights of the respondent to claim restitution of conjugal rights before the Act, he ceased to have any after this Act in view of the second marriage, though contracted before the Act. Section 29 (3) which saves certain proceedings, docs not include in its ambit a proceeding for the restitution of conjugal rights. I, therefore, hold that after the Act of 1955 the respondent is not entitled to have a decree for restitution of conjugal rights against the second appellant.
10. The reference is answered accordingly.
(This appeal coming on for final hearing after the opinion is expressed by the Full Bench of this High Court dated 27-11-1957 and made herein on the question referred by Division Bench, the Court delivered the following judgment) :
11. Following the Full Bench decision the appeal is allowed with costs of this Court, There will be no order as to costs in the ourt below.