P.C. Misra, J.
1. The sole plaintiff is the appellant in this appeal. The defendant is the husband of the plaintiff and the plaintiff's suit is for a decree against the defendant (a) for maintenance of Rs. 60/- P.M., (b) for Rs. 1220/- towards arrear of maintenance and (c) for Rs. 500/-for separate residence.
2. The plaintiff's case in brief is as follows :--
The plaintiff is the legally married wife of the defendant and after their marriage, they lived as husband and wife for some time. The defendant thereafter ill-treated her and she left his house and is residing separately for which she brought the suit registered as T. S. No. 51/57 in the Court of the Sub Judge, Bolangir for restitution of conjugal rights, the said suit was decreed. The plaintiff alleges that in spite of the decree, the defendant did not take her to his house in accordance with the custom governing the parties and the defendant, instead, married a second wife namely Kunjabati daughter of one Jogeswar Pradhan of Ranikata. The plaintiff further alleges that the defendant has got two childern through the second wife. She claims that in the aforesaid circumstances the defendant is bound to maintain her by providing maintenance and u separate residence. It is stated in the plaint that the defendant owns about 10 acres of land, the annual income wherefrom would not be less than Rs. 10,000/-, according to the plaintiff she is entitled to the maintenance as prayed for.
3. The defendant in his written statement has admitted the plaintiff to be his legally married wife. He also admits that a suit for restitution of conjugal rights was decreed as alleged by the plaintiff. He further alleges that though he has been all through ready and willing to take the plaintiff to his house it is the plaintiff who does not intend to join him. The defendant strongly denies that he has married for the second time and also denies to have owned 10 acres of land as alleged by the plaintiff. According to him he has only 3 to 4 acres of land, the annual income of which would not exceed Rs. 400/-. It has been further stated in the written statement in view of his pecuniary condition, the maximum he can afford to pay is Rs. 2/- p.m.
4. The trial Court after receiving the evidence tendered by the parties came to the conclusion that the plaintiff has failed to establish the factum of second marriage between the defendant and Kunjabati. It also found that the defendant is not guilty of desertion and as such the plaintiff cannot claim maintenance on the ground of desertion. The trial Court, therefore, came to the conclusion that the suit is not maintainable and, accordingly, the same was dismissed.
5. In this appeal, the plaintiff has challenged all the findings of the trial Court. Mr. G. Rath the learned Counsel appearing for the appellant, has urged that in view of the evidence available on record it should be found that the defendant-respondent is guilty of desertion, for which the plaintiff is entitled to separate-residence and maintenance. He has further urged that the evidence led on behalf of the plaintiff is sufficient to hold that the defendant has married for the second time as alleged in the plaint and thus the plaintiff is entitled to live separately from her husband and claim maintenance. He has further argued that irrespective of a finding that the plaintiff has got justifiable cause to live separate from her husband, her right to maintenance being absolute Under Section 16 of the Hindu Adoptions & Maintenance Act, 1956, the present suit is bound to be decreed.
6. Before dealing with the factual questions involved in this case, we would like to deal with the legal questions raised by Mr. Rath, the learned counsel for the appellant. As already indicated his contention is that irrespective of any justification for the plaintiff to live separate from her husband, the husband is bound to maintain the wife as provided under Section 18 of the Hindu Adoptions and Maintenance Act, 1956.
7. Section 18 of the Hindu Adoptions & Maintenance Act. 1956 runs as follows :
18. 'Maintenance of wife.-- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.-
(a) if he is guilty of desertion that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from virulent form of leprosy :
(d) if he has any other wife living;
(e) If he keeps a concubine in the same house in which his wife is living, or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion ;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.'
8. According to Mr. Rath, the liability of the husband to maintain his wife has been expressed in unqualified terms in Sub-section (I) of Section 18. The only exception where the wife would not be entitled to separate residence and maintenance from her husband has been given in Sub-section (3) of the said Section where it has been said that the wife would not be entitled to the same if she is unchaste or ceases to be a Hindu by conversion to another religion. According to the learned counsel for the appellant, Section 18(1) of the Act is not controlled by Sub-section (2) thereof. According to him, Sub-section (2) of Section 18 enumerates the situation which would justify the wife to live separately from her husband without forfeiting her claim for maintenance and the same does not control the operation of the provisions in Sub-section (1) of the section.
9. According to the original text of Hindu law, a Hindu wife is entitled to be maintained by her husband. The obligation of the husband to maintain the wife arises out of the status of the estate of matrimony. The corresponding duty of the wife is to submit herself obediently to the authority of her husband and to remain is roof and protection. According to the original text, she was not entitled to separate residence or maintenance unless it is proved, that by reason of the husband's misconduct, cruelty or by his refusal to maintain her in his own place of residence or for any other justifying cause, she has been compelled to live apart from him. In some cases it was found that a wife living apart from her husband without any justifying cause may return to her husband and claim to be maintained by him. In such cases her right to be maintained is not forfeited, but is only suspended so long as she commits as breach of her duty by living apart from her husband. The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) wh'ich came into force on 23rd Apr, 1946 gave a statutory recognition to the existing principle under which the wife would claim maintenance. Section 2 of the said Act enumerates the grounds which would justify a Hindu married woman to claim separate maintenance and residence from her husband. The said Act (Act 19 of 1946) has now been repealed by Section 29 of the Hindu Adoptions & Maintenance Act, 1956. Section 18 of the new Act of 1956 substantially reiterates the same pinciples and lays down that the wife whether married before or after the commencement of this Act shall be entitled to be maintained by her husband during her lifetime unless she is unchaste or ceases to be a Hindu by conversion to another religion. Sub-section (2) of Section 18 which corresponds to Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 provides for cases where the wife is entitled to live separate without forfeiting her claim to maintenance. In this subsection seven grounds have been mentioned which would justify the wife to live separately from her husband and yet claim maintenance from him. It implies that ordinarily a Hindu wife who lives away from her husband as a matter of her own choice for no justifiable reason enumerated in the said Sub-section would not be entitled to claim maintenance. In other words, this sub-section clearly lays down that the wife does not forfeit her claim to be separately maintained if she has any of the grounds justifying her separate living as mentioned in said subsection. This Sub-section does not say that the wife would not forfeit her claim for separate maintenance even if she lives separately from her husband without any justifying reason.
10. Mr. Rath appearing for the appellant relies upon a decision reported in AIR 1973 Orissa 196, Udayanath Samal v. Siri Dei, in which the controversy was as to whether the maintenance is to be made a charge on the property. In that connection, B. K. Ray, J. said that the right of a wife for maintenance is right incidental to the status of marriage and the husband is under a legal obligation to maintain his wife. The question as to whether a Hindu wife is entitled to maintenance irrespective of the performance of her corresponding duty to remain under the roof and protection of her husband was not a point for consideration in that case nor the said decision affords any answer to the problem. No other decision has been cited before us which deals with this question.
11. Under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, the right conferred by Sub-section (1) is subject to other provisions of the said section. It would therefore, not be proper to read Sub-section (1) to mean that the right of maintenance of the wife is subject to the provisions of Sub-section (3) and not subject to Sub-section (2). We are, therefore, of the view that the right conferred by Sub-section (1) of Section 18 is subject to the provisions of Sub-sections (2) and (3) of the said section. It, therefore, follows that a wife would lose her right of maintenance if she lives separate from her husband without the existence of any of the grounds or reasons mentioned in Sub-section (2). In other words, the wife would be entitled to separate residence and maintenance if her separate living is justified by one or more of the grounds mentioned in Sub-section (2). Further, she would not be entitled to any maintenance if she is unchaste or ceases to be a Hindu by conversion to another religion, though she might have sufficient justification to live separately from her husband having any of the grounds as mentioned in Sub-section (2) of Section 18.
12. Now coming to the factual aspects involved in the case, it may be noted that the marriage of the plaintiff with the defendant is not disputed. Admittedly, the plaintiff filed T. S. No. 51/57 in the Court of the Subordinate Judge, Bolangir, for restitution of conjugal rights which was decreed. The plaintiff alleges that after the decree was passed in the said suit, the defendant did not take her back to his house for which the defendant is guilty of desertion. The defendant on the other hand claims that he has made repeated efforts to take back the plaintiff but the plaintiff did not join him deliberately. It is contended on behalf of the respondent that in the facts and circumstances of the case, the desertion, if any, is by the plaintiff and she cannot be allowed to take advantage of her own wrong. Both the parties have adduced oral and documentary evidence in support of their respective pleas. The learned counsel for the respondent relies upon the decree for restitution of conjugal rights passed in T. S. No. 51/57 and a series of correspondence to establish that he was under no obligation to take the plaintiff back to his house in view of the language of the decree passed in the said suit. He has also urged that assuming for the sake of argument that he had such obligation, the same has been duly discharged by him by requesting her to join him through repeated letters and making efforts to bring her back by sending gentlemen and by himself going to her for the purpose. It appears that the defendant in response to the summons issued in T. S. No. 51/57 by the Subordinate Judge, Bolangir, appeared in Court and agreed for a decree for restitution of conjugal rights to be passed. This is evidence from Ext. A which is the order-sheet dated 20-7-1967 in the said suit. In Ext. A the Court passed the following order : --
'20-6-67. Advocate for the plaintiff files hazira. Defendants files their written statement and address memo. They have not filed a list of documents relied on. Sri L. M. Nanda, Advocate, files his power for the defendants. No document to be relied on by the defendants. In view of the consent of the respondents Nos. 1 and 2 the suit be decreed against both the respondents on contest but without cost in the circumstances of the case. Petitioner is directed to join respondent No. 1 by 31-7-67.'
Sd. J. N. Acharya
Sub Judge. '
The learned counsel for the respondent relied upon the last line of the order as quoted above on the basis of which he argues that direction was issued to the petitioner (the plaintiff in this suit) to join her husband by 31-7-1967 whereas no direction was given to the present defendant No. 1 to take her back. The aforesaid argument of the learned counsel for the respondent does not appear to us to be sound. The suit being of the year 1967 the restitution of conjugal rights could be alowed under Section 9 of the Hindu Marriage Act. The said Section provides that a decree may be passed on a petition by either spouse against the other who has withdrawn from his or her society without reasonable excuse. Thus before passing a decree for restitution, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and that there is no legal ground why the decree for restitution should not be passed. In the previous suit (T. Section No. 51/57) it appears from Ext. A that respondent No. 1 (the present defendant) and respondent No. 2 (defendant's father) both gave their consent for a decree for restitution of conjugal rights to be passed against them. It, therefore, follows that the present plaintiff (the wife) was the aggrieved party and her allegation was that her husband (the present defendant) had withdrawn from her society without reasonable excuse. The present defendant and his father consented for a decree to be passed in the said suit which means the aforesaid allegations made by the wife were not disputed rather admitted. Therefore, the Court passed an order dated 20-6-67 that in view of the consent of respondents 1 and 2 the suit be decreed against both the respondents on consent. The Court passed a decree in pursuance of the aforesaid order dated 20-6-67. The operative portion of the order dated 20-6-67 has been reflected in the decree dated 27-7-67 passed by the Sub Judge which also says 'that the suit is decreed on consent but without costs. The petitioner is to join the respondent No. 1 by 31-7-67.' The decree has been exhibited in this suit as Ex. B. It is clear from the deeree that the present plaintiff was the decree-holder in T. S. No. 51/67 and consequently the directions for restitution of conjugal rights was to be obeyed by the J. Dr. of that suit. It was not expected, either by construction of the decree of according to custom generally prevalent among the Hindus, that the wife herself would go and report to her husband at his house for restitution of conjugal rights. The present defendant was, therefore, under legal obligation to take back the palintiff as he was guilty of the withdrawing himself from the society of the plaintiff for which a decree for restitution of conjugal rights has been passed against him. The present plaintiff was the D. Hr. and she could execute a decree as provided under Order 21 Rules 32 and 33. C. P. C. Order 21 Rule 32 provides that where a party against whom a decree tor restitution of conjugal rights has been passed has had an opportunity of obeying a decree and has wilfully failed to obey it, the decree may be enforced by attachment of the property of the J. Dr. Rule 33 of the said Order 21 provides that notwithstanding anything in Rule 32. the Court, either at the time of passing a decree against a husband for the restitution of conjugal rights or at any time afterwords, may order that the decree shall be executed in the manner provided in this rule. It also makes a provision that where the Court has so directed it may order that in the event the decree not being obeyed within such period as may be fixed in this behalf, the J. Dr. shall make to the D. Hr. such periodical payments as may be just, and. if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments. In the present case while passing a decree (sic) shall be executed in the manner provided under Order 21 Rule 33 C. P. C. Therefore, fixing the time under Sub-rule (2) of rule 33 was inappropriate. At any rate the Court having fixed the period within which the decree was to be obeyed by the present defendant it was for the defendant to act in accordance with the terms of the decree. Instead of making any effort to obey the decree it appears that the advocate for the present defendant filed hazira in Court on 31-7-67. On that date Court passed an order that the petitioner (the present plaintiff) did not turn up and therefore, she may execute a decree if she so likes. As already stated, the Court has not passed an order under Sub-rule (1) of Rule 33 of Order 21, C. P. C. that the decree shall be executed in the manner provided under Rule 33. The Court had passed the decree on 20-7-67 and thus had closed the litigation. There was no direction to the parties either in the order dated 20-6-67 or in the decree passed on 27-7-67 that the parties to appear or take up any proceeding in Court on 31-7-67. Thus, there was no obligation for the present plaintiff to appear in Court on 31-6-67, and consequently her non-appearance in Court on that date would not affect her rights as a D. Hr. in T. S. No. 51/57.
13. It appears that there has been some correspondences between the parties after 31-7-67. the defendant in Ex. C dated 31-8-1967 wrote to the plaintiff complaining that she did not turn up to his house in obedience to the direction in the decree and unless, she turns up immediately after receipt of the said letter the defendant would proceed in accordance with law. It appears from the said letter that the defendant was expecting the plaintiff to report at his house by her own. In reply to the said letter the plaintiff wrote back in Ex. 2 dated 5-7-67 that she is always ready and willing to join the defendant and the defendant should take her by coming to her for the porpose in accordance with the custom prevalent in the society in which they live. In my opinion, the plaintiff was justified in expecting her husband to come and take her in the context of the circumstances narrated above. The defendant in another notice dated 27-11-67 addressed to the plaintiff marked as Ex. D says that in accordance with the plaintiffs requests, he himself had gone to bring the plaintiff and had also sent some gentleman of the village to her father's house for the same purpose, but the plaintiff refused to come. The contents of Ext. E another notice sent by the defendant to the plaintiff dated 8-2-68 are also to the same effect. The plea of the defendant that he himself as well as other gentlemen of the village had gone to the house of the plaintiffs' father, to bring her is not acceptable. The oral evidence which has been adduced by the defendant to prove the said fact, to be discussed in the succeeding paragraphs is not acceptable. Admittedly, the plaintiff and the defendant belonged to the same village and there was no necessity of correspondence being made between them for the purpose of compliance with the direction of the decree for restitution of conjugal rights. The defendant began the correspondence by Ex.C. dated. 31-8-67 with a warning that it was plaintiffs obligation under the decree to come to his house by her own in which event he would have accepted her. We have already indicated that the defendant who was guilty of withdrawing himself from the society of the plaintiff, should have made efforts to bring back the plaintiff, and restitute the marital life. It appears to me that the correspondence beginning from Ex. C were intended for the purpose of avoiding the payment of maintenance to the plaintiff and for avoiding other legal consequences. Ex. 1, Ex. F and Ex. 3 are lawyer's notices issued on behalf of one party to the other reiterating the position already stated. In the Advocate's notice Ex. F dated 29-3-1968 addressed to the present plaintiff the decree passed by the Sub Judge in T. S. No. 51/57 has been quoted and it has been further said that according to the direction of the Court the plaintiff was to come to the house of the defendant on or before 31-7-67 and there was no question of custom or traditional manner of bringing the plaintiff to the house of the defendant. In view of such an attitude it does not appear to us to be probable that the defendant had personally come with other gentlemen of the village to bring the plaintiff to his house. The defendant has examined 3 witnesses out of whom D. W. 1 is the defendant himself. In his deposition D. W. 1 has said that he had gone with some gentlemen of the village to bring the plaintiff but the plaintiff did not come. In his cross-examination he says that he cannot say as to when he first went with the bhadraloga to the house of the plaintiffs father to bring her. He has not named anybody who had accompanied him for the above purpose. The defendant has also said in his cross-examination that he has kept writings from the bhadralogs to prove that they has accompanied him to bring the plaintiff. No such paper has been proved in this case. D. W. 2 has deposed that he was one of the bhadralogs who had accompanied the defendant to bring the plaintiff but in his cross-examination he could not give the day or date when he had gone in the said mission. He denies to have given any writing to the defendant to the effect that he has gone to the house of the plaintiff D. W. 3 is another bhadralog of the same village who alleged that he had accompanied the defendant and D. W. 2 to the father's house of the plaintiff and that the plaintiff herself talked with them. He has not been named by D. W. 1 or D. W. 2 who have accompanied them for the above purpose. He denies to have given a writing to the defendant in evidence of his going as a bhadralog. In view of such oral evidence we are not prepared to accept the plea of the defendant that he had gone with bhadralogs to bring the plaintiff. D. Ws. 2 and 3 are no way related to the parties, there appears to be no reason why they were selected by the defendant to accompany him as bhadralogs. It is not understood as to why the defendant did not disclose their names at least in his deposition that he had taken D. Ws 2 and 3 with him to the house of the plaintiffs father. Thus, the oral evidence adduced on behalf of the defendant does not prove that there was any bona fide attempt by the defendant to bring the plaintiff to his house. The conduct of the defendant, therefore, amounts to abandoning the plaintiff without reasonable cause and against her will. In this view of the matter the plaintiff is entitled to claim maintenance from the defendent.
14. The plaintiff has further alleged that the defendant has married a second wife namely Kunjabati, daughter of one Jogeswar Padhan of Ranikata which allegation has been denied in the written statement. The plaintiff has examined P. Ws. 1 and 2 who are from village Ranikata to say that the defendant has married Kunjabati daughter of Jogeswar Padhan of their village. The P. W. 1 is neither related to Jogeswar nor is a man of the same caste. In his cross-examination he has said that he had attended marriage feast and that he heard about the marriage from the defendant. His evidence read as a whole cannot be relied upon for proving the alleged marriage. P. W. 2 does not speak about his competency. He deposed about the alleged marriage. He says that he was present at the time of marriage negotiation was finalised. Neither P. W. 1 nor P. W. 2 speaks of the ceremonies that were gone through in the performance of the alleged marriage. P. Ws. 3 and 4 are persons from village Lorapada and they cannot speak of the performance of the alleged marriage. All that they say is that the defendant has married a girl and has brought her to his house with whom he is residing at present. Their evidence could not prove either the factum of marriage or that defendant is living with another girl as man and wife. The evidence of all these witnesses falls far short of the requirements of Section 50 of the Evidence Act. The learned trial Court has rightly held that the plaintiff has failed to establish factum of the marriage between the defendant and Kunjabati.
15. We may, however observe that the learned Court below is not justified in observing that no case has been made out that the defendant is residing with Kunjabati as concubine as her case is that Kunjabati is the 2nd married wife of the defendant. It is no doubt correct to say that after Hindu Marriage Act came into force a 2nd marriage during the lifetime of the 1st. wife would be void and the lady who undergoes through ceremonies of marriage (during the subsistence of the 1st, marriage of the husband) would not have the status of a wife. Therefore, what was alleged in the plaint amounts to saying that the defendant was living with Kunjabati as man and wife after undergoing the processes of the ceremonies of marriage. Had it been found as a fact that the defendant has kept Kunjabati as a concubine there would have been enough justification for her living separate from her husband within the meaning of Section 18(2) of the Hindu Adoptions and Maintenance Act.
16. The learned Additional Sub Judge has not recorded any finding as to the quantum of maintenance the plaintiff is entitled to saying that the same deserves no consideration in view of his finding that the plaintiff is not entitled to any maintenance at the rate of Rs. 60/- p.m. and has claimed a sum of Rs. 1220/- as arrear maintenance and Rs. 500/- for her separate residence. According to the plaintiff the respondent is a man of means having 10 acres of land and the yearly income wherefrom is about Rs. 10,000/-. In his written statement he denied the said allegations and alleged that his family altogether own about 3 to 4 acres of land. The annual income wherefrom would not exceed Rs. 400/-. It was alleged that he is an agricultural labourer and maintains himself and his old parents out of his income. In para 8 of his written statement he has said that he is not in a position to pay maintenance more than Rs. 2/- p.m. The plaintiff has examined P. W. 3 who has deposed that the defendant has got 8 to 10 acres of land and he gets 100 pudugs of paddy therefrom. He also says that the defendant gets about Rs. 2000/- a year from the robbi crops. P. W. 4 has corroborated P. W. 3 in this respect and has added that besides the paddy the defendant raises sugarcane on his lands and also some vegetables. Besides these witnesses the plaintiff examined herself as P. W; 5 has deposed similarly. The defendant examined as D. W. 1 has stated that he owns only 2 acres of land though in his written statement he has stated that he owns 3 or 4 acres of land. D. W. 2 came to depose that the defendant has got 2 acres of land and he gets about 5 pudugs of paddy. In his cross-examination he has admitted that he has got 4 to 5 acres of land from which he gets 35 pudugs of paddy. D. W. 2 had stated that defendant makes his livelihood on cultivation and carpentary though the defendant did not disclose that he earns money by carpentary work. It may be noted that in the written statement of the defendent it has been specifically mentioned that the defendant is an agricultural labourer and not a carpenter. The defendant has filed no documents to substantiate that he has only 2 acres of land. From the aforesaid evidence, we do not think that the claim of Rs. 60A per month as maintenance by the plaintiff is unreasonable. The aforesaid amount of Rs. 60/- p.m. in the present times can be called as starving maintenance. We therefore, hold that the plaintiff is entitled to maintenance at the rate of Rs. 60/- p.m.
17. So far as arrear of maintenance is concerned, the plaintiff has claimed maintenance at the aforesaid rate from 24-7-67, the date on which the decree for restitution of conjugal right was passed till 24-1-69 which on calculation comes to Rs. 1080/- and not Rs. 1220/- as claimed. Thus the plaintiff is entitled to a decree of Rs. 1080/- as arrear of maintenance for the aforesaid period. The plaintiff has led no evidence to support her claim of Rs. 500/- for her separate residence. Accordingly, we are not inclined to allow the said claim.
18. In the result, the appeal is allowed, in part to the extent indicated above. The impugned judgment is set aside and the suit be decreed to the extent as mentioned above. There would be. however, no order as to costs.
G.B. Patnaik, J.
19. I agree.