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Ram Kumar Dube and ors. Vs. Mt. Bhagwanta - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All78
AppellantRam Kumar Dube and ors.
RespondentMt. Bhagwanta
Excerpt:
.....of narada has been quoted which says that if a widow of a coparconer is guilty of immorality, her maintenance should be resumed. , in a very well considered and elaborate judgment, and it was held that where a hindu widow who had been unchaste was proved to have given up the life of unchastity she was entitled to a bare maintenance......with the texts of hindu law and has asked us to hold that on a true interpretation of the texts a hindu widow who once becomes unchaste loses her right of maintenance even after her reformation. he relies on the following text of narada which is referred to in ch. 2, section 2, pl. 7 of the mitaksharaamong brothers, if any one die without 'issue' crenter a religious order, let the rest of the brothers divide his property, excepting the stridhan (of the widow). they should make provision, for the maintenance of his wives till their death, provided they preserve unsullied the bed of their lord they may however out it off in case of those who have otherwise.3. this text is an authority for the proposition that the right of a widow to get maintenance is dependent upon her leading a chaste.....
Judgment:

Rachhpal Singh, J.

1. This is a defendant's appeal arising out of a suit for recovery of maintenance allowance. The plaintiff Mt. Bhagwanta is the widow of one Hazari Lal, who died as a member of a joint family consisting of himself and the defendants. In 1906 Mt. Bhagwanta instituted a suit against the defendants for her maintenance, but it was dismissed because the Court found that she had been leading an unchaste life. The plaintiff again filed a fresh suit for the recovery of maintenance allowance in 1929 which has given rise to this appeal. She alleged that since the decision of the former suit by the appellate Court she had been leading a chaste and pure life and was therefore entitled to get maintenance from the defendants. She claimed the same at the rate of Rs.60 per mensem. The defendants resisted the claim on the grounds that the plaintiff had all along been leading an immoral life and was not therefore entitled to any maintenance, that the suit was barred by the rule of res judicata, and that it was also not within limitation. The learned Subordinate Judge held that the plaintiff had been leading a chaste life and was therefore entitled to a bare maintenance from the defendants, which he awarded at the rate of Rs. 15 monthly. The defendants have preferred this appeal against the decree of the Court below. The plaintiff has also filed cross-objections, contending that the rate at which maintenance has been awarded to her is very low. The plaintiff is now about 60 years of age. The learned Subordinate Judge has found that at least for the last 22 or 23 years the plaintiff has been leading a chaste life and has been living in the house of her brother and nephew. This finding of the Court below was not challenged before us by the learned Counsel for the defendant-appellants.

2. The only question which has been argued before us by the learned Counsel for the appellants was that under the Hindu law a widow who had become unchaste once could not get maintenance allowance from the other members of the joint family, even if she reformed. I proceed to consider this question. The learned Counsel for the appellants had to admit at the very outset that some of the recent decisions of the Bombay and Madras High Courts were against the contention raised by him. There is however no decision of this Court bearing: on the point. He had contended before us that the Bombay and Madras decisions are not in consonance with the texts of Hindu law and has asked us to hold that on a true interpretation of the texts a Hindu widow who once becomes unchaste loses her right of maintenance even after her reformation. He relies on the following text of Narada which is referred to in Ch. 2, Section 2, pl. 7 of the Mitakshara

Among brothers, if any one die without 'issue' crenter a religious order, let the rest of the brothers divide his property, excepting the stridhan (of the widow). They should make provision, for the maintenance of his wives till their death, provided they preserve unsullied the bed of their lord They may however out it off in case of those who have otherwise.

3. This text is an authority for the proposition that the right of a widow to get maintenance is dependent upon her leading a chaste life. It is now a fairly well-settled proposition that a widow loses her right to the ordinary rate of maintenance if she is leading an impure life; but it is still a debatable question whether such, a widow is not entitled even to a bare or, what is called, 'starving maintenance allowance.' But the question which we are asked to decide in this case is somewhat different. It is whether a widow who has gone astray once can claim starving allowance after she has given up leading an immoral life. It appears to me that the old texts of Hindu law are silent on this point. The learned Counsel for the appellant was unable to cite any text having a direct bearing on the point in issue before us. It, however, appears that according to some of the texts an unchaste woman would be entitled to a starving maintenance allowance : verse 70 in the Achara Adhayaya in the chapter relating to 'marriage', with Vijnaneswara's commentary thereon, is translated as follows by Srisa Chandra Vidyarnava in his translation of the Achara Adhyaya at p. 136:

The author now describes how unchaste women are to be treated.

Y ajnavalkya.

LXX. The unchaste wife should be deprived of authority, should be unadorned, allowed food barely sufficient to sustain her body, rebuked, and let sleep on low bed, and thus allowed to dwell (70).

Mitakshara.

She who commits adultery, should be deprived of authority, i.e., the control over servants, and the management of the household, etc., should be takena way. She should be kept 'unadorned,' i.e., without collyrium, ointments, white cloth or ornaments; 'with food enough to maintain her body, and sustains her life merely, and 'rebuked' with censure, etc., and sleeping on low bed,' on the ground, and 'allowed to dwell,' only in his own house. This should be done to produce repentance and not purification.

4. The learned Counsel for the appellant has, however, argued before us that the Hindu law texts relating to starving maintenance allowance referred only to a degraded wife and not a widow who has been leading an unchaste life. About this argument it may be said that it was not accepted by the Bombay High Court. In Bhikubai v. Hariba A.I.R. 1925 Bom. 153, the learned Judges deciding that case expressed an opinion that passages about starving allowance referred generally to women and were not confined to wives. The same view has been expressed by Sarvadhikari in his Principles of the Hindu Law of Inheritance, 2nd edition, p. 789, where on the authority of Raghunandan he says that

in the text of Katyayana let the childless widow preserve unsullied, etc.; and in the first half of the next text of the same sage, viz., 'the wife who is chaste takes the wealth of her husband,' the word 'wife' is illustrative.

5. In Parami Ramaya v. Mahadevi (1910) 34 Bom. 278, an eminent authority on Hindu law expressed the view that according to the Hindu law texts an unchaste wife was entitled to a starving maintenance. It is not necessary, in my opinion, to consider various texts bearing on the subject as they are not pertinent to the point in issue before us, which is whether an unchaste widow who has reformed is entitled to claim starving maintenance or not. Let us consider the case law on the subject. The first ruling on which reliance has been placed by the learned Counsel for the appellants is Valu v. Ganga (1883) 7 Bom. 84. It was held that an unchaste widow was entitled not even to a bare maintenance, except, perhaps, from her son. The second ruling cited by the learned Counsel for the appellants is Vishnu Shambog v. Mangamma (1885) 9 Bom. 108. A similar view was expressed' in this ruling and it was said that

a decree obtained by a Hindu widow declaring her right to maintenance is liable to be set aside or suspended in its operation on proof of subsequent unchastity given by her husband's relatives.

6. In regard to these two cases, I am of opinion that they do not help us in determining the point in issue. Both of them deal with the case of a widow who is unchaste and do not refer to the case of a widow who has reformed. The learned Counsel for the appellants next relied on some observations made by Mitter, J., in. the well-known ruling of Kerry Kotitany v. Moneeram Kolita (1874) 13 Beng. L.R. 1. The observations on which the learned Counsel relied are to be found on pp. 21 and 22. At one place Mitter, J., observed as follows:

It is the chaste widow, and the chaste widow alone, who is allowed to inherit the estate of her deceased husband and she is expressly told to use that estate solely and exclusively for his spiritual welfare, subject to the condition of 'preserving his bed unsullied;' once unchaste, she must remain unchaste for ever, and therefore for ever incompetent to satisfy the condition upon which, her title depends. Indeed, if expiation can bar the forfeiture, it can bar the disinherision also; but there is no authority whatever to support either of these propositions.

7. At another place at p. 22 the learned Judge remarked:

The widow having, by reason of her nuchastity. once become incompetent to use the estate of her deceased husband, her right to use that estate ceases; and as, according to a well-known principle of Hindu law, property can never remain in abeyance, the estate mast Immediately vest in the nearest heir of her husband and having once gone there, no subsequent expiation on her part can bring it back to her It has been said that, according to the Hindu law, an state once vested cannot afterwards be divest a But not only is this rule not without exceptions, but its application must necessarily depend upon the nature of the estate in question. But the case of the widow stands upon a quite different footing. Her estate is one, as we have already shown, essentially in the nature of a trust estate for she can use it only for a particular purpose and for no other; and if she has, by her own conduct, rendered herself to tally incapable of using it for that purpose the devesting must follow as a necessary consequence

8. It may be stated that the view expressed by the learned Judge was not accepted by a Full Bench of the Calcutta High Court as will be seen by a perusal of the case. The question before the Full Bench consisting of ten learned Judges was where under Hindu law a widow who had once Merited the estate of her husband was liable to forfeit the estate by reason f her subsequent unchastity. The view taken by majority of the Bench was that subseguent unchastity did not divest the estate which had already vested in the widow, and the contrary view expressed by Mitter J., was not accepted. The view expressed by the learned Judge that a widow once unchaste must remain unchaste for ever, even if there be expiation does not, I may say with great respect appeal to me; it appears to be opposed to some of the texts of the Hindu Law. Yajnavalkya says:

A woman gaulity of unchastity shall be deprived of her position and possessions, shall wear dirty cloths, shall live upon starving maintenance, shall be humiliated and made to sleep on bare ground : (see Golappchandra Sarkar Sastri's Hindu Law, 1933 edition, p. 664

9. Aparaka, Anandashrama Series, Vol., 1 p. 98, puts the law as follows : 'She who has performed expiatory rites becomes fit for conjugal and social association' Manu (verse No. 72, Mitakshara, Moghe's edition p. 18 says : 'A wife who has become purified after degradation shall not be consured'. It is therefore clear to me that the ruling cited by the learned consel for the appellants do not support his contention. As pointed out by me the rulings reported in Valu v. Ganga (1883) 7 Bom. 84 and Vishnu Shambog v. Mangamma (1885) 9 Bom. 108 related to the case of a widow who did not reform. Coming to the cases which are opposed to the contention raised by the learned Counsel for the appellants we find that the first is Honamma v. Timannabhat (1875) 1 Bom. 559. In that case it was held that

a Hindn widow was entitled to bare or starving maintenance and was not to be deprived of it by the fact that she had since become unchaste.

10. The view expressed in this case that an unchaste widow in spite of her unshastity was entitled to a bare allowance was dissented from by the two rulings reported in Valu v. Ganga (1883) 7 Bom. 84 and Vishnu Shambhog v. Magamma (1885) 9 Bom. 108, to which reference has been made above. Now for the purposes of the case before us it is unnecessary to enter into this controversy. We are not considering the case of a Hindu widow claiming a bare maintenance though she is unchaste, but what we have to decide is whether a reformed widow who has given up leading an immoral life is entitled to a bare maintenance. This question was considered by Chandavarkar, J., in Parami Ramaya v. Mahadevi (1910) 34 Bom. 278, and he expressed the view that a Hindu wife could not be absolutely abandoned by her husband if she was leading an unchaste life. He was to provide her with food and raiment's just sufficient to support life; she was entitled to no other right; but if she ever repented, returned to purity and performed expiatory rites she would become entitled to all conjugal and social rights. The question which we have to decide came up for decision before the Madras High Court in Sathyabhama v. Kesavacharya A.I.R. 1916 Mad. 464. A Bench of two learned Judges of that Court held that in a suit by a Hindu widow, who had been leading an unchaste life, but had 1 reformed her ways at the time of the suit for maintenance she was entitled to starving allowance. Seshagiri Aiyar, J., who delivered the judgment considered the various texts of Hindu law on the Q subject and came to the conclusion that there was no direct authority upon the question. In his opinion the text of Manu in Chap. 11, Section 189 applied to all women entitled to maintenance. He held that under that text if a woman became unchaste she was entitled to a starving allowance. It was argued in that case that the above verses only apply to the case of a woman who had committed sins other than immorality. In repelling this argument the learned Judge made the following observations:..but the concluding portion of the commentary of Vijnaneswara on the Smrithi makes it clear that the two verges are intended to cover eases of unchaste women. The commentary is this: To those women, who have suffered degradation (from caste) and for whom the rite of presenting (disconnecting) water libations, etc., have boon performed, accommodation, (that is), a small cottage built of straws and leaves should be given in the proximity of the main building of the house. Similarly food that is just sufficient for the maintenance of life and also raiment of a low description along with the (protection) of preventing her from being enjoyed again by another man should be given.' This last sentence makes it clear beyond doubt that the commentator had in mind the case of a fallen woman. The text and the commentary, it is conceded, apply to all women alike whether they be wives, widows of coparceners or mothers. Therefore according to Manu and Yagnavalkya women who have gone wrong should be given some maintenance. The punishment for their unchastity is that they lose their right to the ordinary rate of maintenance. As against these two texts, the well-known text of Narada has been quoted which says that if a widow of a coparconer is guilty of immorality, her maintenance should be resumed. This statement is quoted and commented upon by all the Smrithi writers (Mayukha, Section 8, placitum 6; Smrithichandrika, Ch. 11, Section 34 and Viramitrodaya, Ch. 3, part I, Section 10). But in none of these texts is there any provision for a woman who had repented and was subsequently leading an honest life. It is not to be presumed from the omission to provide for such a contingency, that the resumption once made is to be irrevocable and that the fallen woman who had reformed is to be denied even a starving allowance.

11. This ruling is a clear authority for the proposition that reformed widow is, in any case, entitled to a starving maintenance allowance. The question also came up for consideration in the ruling reported in Rama Nath v. Rajonimoni Dasi (1890) 17 Cal. 674, but the point was left undetermined. The learned Judges made the following observations in the case:

We do not decide in this case what her rights would be if she were to give up her present way of living and begin to lead a moral life; we do not say that she would not, even in that case, be entitled to claim a starving maintenance. All that we say now is, that under the existing state of things she is not entitled to maintenance of any sort.

12. The latest ruling on the subject is Bhikubai v. Hariba A.I.R. 1925 Bom. 153. The various texts of Hindu law bearing on the subject were considered by Shah, Ag. C.J., in a very well considered and elaborate judgment, and it was held that where a Hindu widow who had been unchaste was proved to have given up the life of unchastity she was entitled to a bare maintenance. Kincaid, J., agreed with the view taken in the rulings reported in Sathyabhama v. Kesvacharya A.I.R. 1916 Mad. 464 and Parami v. Mahadevi (1910) 34 Bom. 278, and held that a Hindu widow who becomes unchaste but subsequently reforms herself is entitled to what is called starving allowance from the persons who are in possession of the estate which was jointly held by them and the deceased husband of the widow. I follow the view taken in these two rulings.

13. The learned Subordinate Judge has found that the estate held by the defendants pays a land revenue of Rs. 3,500 yearly and he has allowed the plaintiff a sum of Rs. 15 monthly as bare maintenance. In my opinion this amount is quite reasonable. I do not see any reason for increasing the allowance to Rs. 60 per month as claimed by the plaintiff in her cross objections.

Niamatullah, J.

14. I concur.


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