P.K. Tare, J.
1. This appeal is by the defendant against the judgment and decree passed by Shri S. H. Pagare, Civil Judge Class I, Raigarh in Civil Suit No. 138-A of 1951 decided on 28-2-1955, decreeing the respondent's claim for maintenance and dismissing the appellant's claim for restitution of conjugal rights. The appellant has not filed an appeal against the decree dismissing the claim for restitution of conjugal rights. Therefore, in the present appeal we have to consider only the question of maintenance.
2. The respondent, in her plaint, alleged that she was the legally married wife of the appellant. About three) years back (i.e. in the year 1947) the appellant married a second wife and later turned out the respondent in February, 1949. It was alleged that in February 1949 a caste Panchayat was called, when the appellant refused to allow the respondent to live with him, but agreed to pay Rs. 45/- per month as maintenance. In accordance with the Panchayat agreement, the appellant paid Rs. 90/- towards the maintenance allowance of February and March, 1949, but stopped further payments. Therefore, the respondent claimed Rs. 765/-towards arrears from April 1949 to August 1950 and future maintenance at the same rate.
3. The appellant, in his defence, admitted the relationship and the fact that he had married another wife. He, however, denied that he had turned out the respondent or that he had agreed to pay maintenance in the caste Panchayat. He alleged that he was willing to allow the respondent to live with him and, therefore, he claimed restitution of conjugal rights. He denied payment of maintenance for February and March, 1949. He also denied the quantum of maintenance claimed.
4. The trial Judge held that the defendant, after marrying a second time, had turned out the plaintiff. The plea of agreement before the caste Panchayat was negatived. The plaintiff's refusal to stay with the defendant was held justifiable under Sub-section (4) of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act No. XIX of 1946).
5. The learned counsel for the appellant urged that the appellant was not liable to pay maintenance, as he was and is still willing to allow the respondent to stay with him. After his marriage a second time, the respondent left the house voluntarily and was reluctant to return, as was held by the trial Judge. We see no reason to differ from, the conclusion of the trial Court on this point. The respondent is not, therefore, entitled to separate maintenance under the general Hindu law.
6. The respondent is also not entitled to separate maintenance under Section 2 Sub-section (4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, as the Act was not applied to the former Raigarh State until 19-6-1948. It is necessary to trace, the legislative history of Raigarh State and to find out what Acts and when were applied there.
7. Upto the year 1947, Raigarh was a feudatory State in the area known as Chhattisgarh. From the list of laws in force prior to integration, we gather that Hindu law was in force in Raigarh State, but Act No. XIX of 1946 had not been applied by the Darbar. Under the general Hindu law, the respondent was not entitled to separate maintenance in the absence of cruelty. Then, extra Provincial Jurisdiction Ordinance 15 of 1947 was applied to this territory by the Central Government. Later his Ordinance was replaced by the Extra Provincial Jurisdiction Act No. XLVII of [1947. These enactments empowered the Central Government to apply Acts of the Central Legislature to the former feudatory States. But Act XIX of 1946 was still not applied to the area of Raigarh.
8. The Central Government delegated its powers of administration over the Chhattisgarh States to the (then) Provincial Government of Central Provinces and Berar under Section 4 of the Extra Provincial Jurisdiction Act 1947, which in its turn issued C. P. States (Administration) Order 1947. Therefore, Raigarh State came under the legislative control of the Provincial Government with effect from 1-1-1948. Certain Acts, which were in force in the (then) C.P. and Berar were applied to the area of Raigarh, but Act XIX of 1946 was still not applied to this territory. The Provincial Government later issued Central Provinces States (Application of Laws) Order No. 19 of 1948 (to be found at page 887 of C. P. and Berar Gazette Extraordinary dated 19-6-1948). Another Order that is, C.P. States (Application of Laws) Order 20 of 1948 (to be found at page 903 of the C.P. and Berar Gazette Extraordinary dated 26-6-1948) was issued by the Provincial Government, applying Acts in force in Central Provinces to the Chhattisgarh States. By Notification No. 1537-3045 S.T. dated 15-12-1948 Political and Military Department (to be found in C. P. Gazette dated 17-12-1948 Part I, page 843, the Provincial Government applied some other Acts to the merged States. By another Notification No. 882-361-S.T. Political and Military Department dated 1-3-1949 (to be found in C.P. Gazette dated 4-3-1949, Part I, page 114) the Provincial Government applied some more Acts to the merged territories. Act No. XIX of 1946 (Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946) was applied to the merged States of Chhattisgarh for the first time by the C.P. States (Application of Laws) Order 1948 (No. 19 of 1948) on 19-6-1948.
9. In the year 1949, the Governor-General promulgated States Merger (Governors' Provinces) Order, 1949, whereby the Chhattisgarh States were merged in the Province of C.P. and Berar. It came into force on 1-8-1949. Till the coming into force of this Order, the Provincial Government exercised delegated legislative authority over the Chhattisgarh States.
10. The Central Legislature passed the Merged States (Laws) Act, 1949 (No. LIX of 1949), whereby the Central Acts mentioned in the schedule were applied to the merged States. The Act came into force with effect from 1-1-1950. The Hindu Married Women's Right to Separate Residence and Maintenance Act XIX of 1946 was also mentioned in the list of Acts applied to the merged States on 1-1-1950.
11. The Governor of C.P. and Berar promulgated C.P. and Berar Merged States Laws (Provincial) Ordinance No. 1 of 1950 applying certain Acts to the merged territories with effect from 1-1-1950. It was later replaced by M.P. Merged States Laws (State) Act No. XII of 1950.
12. From the process of Legislative development of the merged States, it is clear that the Hindu Married Women's Right to Separate Residence and Maintenance Act XIX of 1946 was for the first time applied to the area of Raigarh on 19-6-1948, although it was reapplied on 1-1-1950. As held by a Division Bench of this Court consisting of Hidayatullah J. (as he then was) and R. K. Rao J., in Mt. Sukhribai v. Pohkalsingh, 1LR (1950) Nag 196: (AIR 1950 Nag 33), the Act has no application to a case, where the second marriage takes place before the commencement of the Act. The view of the Division Bench was later approved by a Full Bench in Kasubai v. Bhagwan Bhagji, ILR (1955) Nag 281: ((S) AIR 1955 Nag 210). The second marriage of the appellant took place admittedly some time in the year 1947, as alleged by the respondent in her plaint. Therefore, she was not entitled to separate maintenance under Section 2(4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act XIX of 1946.
13. However, under Section 18(2)(d) of the Hindu Adoption and Maintenance Act 78 of 1956, which came into operation on 21-12-1956, a Hindu wife is entitled to separate maintenance, if the husband has any other wife living. For the purpose of this Act, the date of the second marriage is immaterial. If on the date, the Act comes into force, the husband has another wife living, the other wife becomes entitled to separate maintenance. We, therefore, hold that the respondent became entitled to separate residence and maintenance with effect from 21-12-1956.
14. As regards the quantum of the maintenance allowance, we think that the trial Judge was in error in taking the expenses of cultivation at Rs. 1000/- which was very low. It would be safe to take the figure at Rs. 2000/-, which is half of the gross yield valued at Rs. 4000/-. The net income, therefore, would be about Rs. 2000/- instead of Rs. 3000/-, the figure arrived at by the trial Court. Out of the annual income of Rs. 2000/-, appellant has to maintain himself and his second wife, with a possibility that the number is likely to increase by the addition of childern. The respondent, on the other hand, has no children, nor is likely to have any from the appellant. Therefore, it would not be unreasonable to reserve four-fifths of the income for the appellant to run his present household and to give to the respondent one-fifth of the net income towards her separate maintenance.
15. The respondent could claim separate maintenance either under the statute or the alleged agreement arrived at before the caste Panchayat. She was not entitled to separate maintenance under Act XIX of 1946. She, however, became entitled to it under Act 78 of 1956. As regards the alleged agreement before the caste Panchayat, we see no reason to differ from the conclusion of the trial Judge that the respondent failed to prove it.
16. For the reasons aforesaid, this appeal partly succeeds and is allowed to the extent that thetrial Court's decree shall be modified by directingthat the plaintiff-respondent's suit for maintenanceis decreed at the rate of Rs. 400/- per annum,with effect from 21-12-1956 onwards. The amountshall be payable in two instalments on the 21st ofJune and 21st of December of each year. In viewof the partial success and failure in this Court, wedirect the parties to bear their own costs. Thecosts of the trial Court shall be borne as directedby that Court. A fresh decree be drawn up accordingly.