1. This First appeal has been brought by the defendant husband against the judgment and decree dated 18th September 1956 of the Subordinate Judge of Mayurbhani arising out of a suit brought by the plaintiff, who was the married wife of the defendant, claiming maintenance, past and future, and for recovery of ornaments. She has also claimed a sum for her separate residence. The marriage between the plaintiff and the defendant had taken place in the year 1944, The present suit has been brought on the basis of cruelty and desertion. The plaintiff's version is that the defendant along with his parents had been torturing the plaintiff ever since the time of her marriage and made her life unsafe and intolerable. So she wrote letters to her father. On the 5th September 1945 her father was compelled to take recourse to law and by an order of the Sub-Divisional Magistrate her father obtained police help and rescued the plaintiff. Thereafter the defendant in February 1948 had taken the second marriage.
The present suit has been brought on 3rd March 1955 wherein she has claimed future maintenance at the rate of Rs. 50/- p. m. She has also claimed Rs. 1200/- for constructing a separate house or in the alternative Rs. 20/- p. m. for separate residence. She had claimed arrears of maintenance for three years prior to the institution of the suit. She has made an allegation in her plaint and also prayed for recovery of ornaments valued at Rs. 2500/- on the assertion that her ornaments were taken away and kept by the parents-in-law in their own house while she was rescued. She came to her father's place without ornaments. It may be noted that the trial court had, dismissed the plaintiff's claim for recovery of the ornaments Or the value thereof. There is no cross appeal by the plaintiff against that decree and the decree to that extent must be taken to be final. The Court below has granted relief to the plaintiff in respect of three years arrears of maintenance at the rate of Rs. 50/- p.m. He had also allowed a decree for future maintenance at the rate, that is Rs. 50/- p.m. and had allowed to recover a sum of Rs. 1200/- for constructing a new house for her separate residence.
2. The defence is a denial of cruelty and desertion. On the contrary, the defence takes the stand upon the position that it is the plaintiff who had deserted the husband and abandoned him for which he (the defendant) was compelled to go in for the second marriage. The learned Court below believed the evidence adduced on behalf of the plaintiff in proof of her assertion of cruelty and desertion and having negatived the defence version gave a decree as indicated above. Against this decree the present first appeal has been brought.
3. We may make it clear at the outset that in the meantime there has been a legislation (Hindu Adoptions and Maintenance Act, (No. 78 of 1956)) which provides in Section 18 that if the husband has any other wife living, the wife on that ground alone will be entitled to separate maintenance and separate residence. This Act came into force on the 25th December 1956. The position is clear that this provision is not retrospective, but nevertheless it must apply to the claim of the plaintiff after 25th December, 1956. The learned counsel, appearing on behalf of the husband appellant concedes and on the basis of this Act, therefore, the plaintiff's claim for maintenance after 25th December 1956 is irresistible. His point is confined to the attack of the judgment in respect of the claim of the plaintiff regarding the periods of maintenance and also future maintenance up to the date 25th December 1956 when the Act came into force. In this connection, it was argued before the Court below and it was also argued before us regarding the retrospective character of the Hindu Married Women's Right to Separate Maintenance and Residence Act, 1940.
Section 2, clause (iv) makes provisions that if the husband marries again, notwithstanding any custom or law to the contrary, the Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the arounds. As I have indicated above, the second marriage had taken place in February 1948. But the parties are coming from Baripada within the ex-State area of Mayurbhanj and the above Act of 1946 came into force in Baripada in the year 1949. Thus arises the question whether the provisions of the Act of 1946 are retrospective in character or not. That is to say, when the marriage had taken place prior to the coming into force of this Act in Baripada in the year 1949 whether the plaintiff can solely rely upon the provisions of the Act to prove her claim for maintenance. It is well known that this position had been the subject matter of conflicting decisions of several High Courts. Indeed there is a decision of this High Court reported in Kulamani Hota v. Parbati Debi, ILR (1955) Cut 354: ((S) AIR 1955 Orissa 77) giving retrospective effect to this Act.
In a subsequent decision of this Court reported in Sashimukhi Dasiani v. Brundaban Das, 25 Cut LT 119; (AIR 1959 Orissa 132) even though their Lordships were inclined to agree with the previous decision of the year 1955 left the question open. But subsequently there are two Full Bench decisions of the other High Courts taking the contrary view, that is to say, that the Act comes into force only from the date when it is made operative and it does not really affect the second marriage which had taken place prior to the coming into force of the Act; the main reasoning being that before the Act came into force, under the Hindu law the husband was entitled to take a second marriage and he had no liability for maintaining the wife, simply because he had taken the second marriage. In our view, it is needless to determine this controversial point for the decision of the present appeal.
There is no dispute over the position that prior to the coming into force of this Act the Hindus were, in law, permitted to take second marriage and there is nothing illegal in it and it creates no liability. But nevertheless the position is absolutely clear that the Hindu wife would be entitled to separate maintenance and residence if she makes out a case of cruelty and desertion. The position is equally convincing that in order to come to the finding about the cruelty and desertion, that is to say, what circumstances constitute the case of cruelty and desertion, we shall have to decide the case on these two relevant positions as to the cruelty' and desertion according to the present conception ot social standard.
It has been equally settled that physical violence alone is not the only feature to be proved by the wife in order to successfully claim separate maintenance and residence. Mental cruelty may also be taken to be sufficient to give wife a decree, Regarding the conception of mental cruelty and desertion, the conceptions are fast changing and we are to take cognizance of the present conceptions even amongst the Hindus as to monogamous marriage. It is quite permissible to come to a conclusion that in certain circumstances taking a second marriage and transferring all the love and affection towards the newly married wife may amount to legal cruelty which will entitle the wife to successfully claim separate maintenance and residence.
4. With these observations we will now examine what exactly are the circumstances transpiring in the case for determining whether there has been a case of desertion and cruelty. The plaintiffs evidence is to the effect that the defendant along with his parents were torturing the plaintiff from time to time since the time of her marriage, She was kept under lock and key on several occasions and she had to go without food for days. The fact is outstanding and is not denied that the plaintiff Was rescued from this torture in her husband's, place by an order of the Subdivisional Magistrate with Police help. In our opinion, this itself is sufficient to indicate a circumstance which is really extraordinary and as the evidence shows she had written several letters to her parents and as a last resort the father of the plaintiff thought it quite fit to take the assistance of the Subdivisional Magistrate for rescuing her with the aid of Police.
The evidence of the plaintiff that the defendant was also responsible for this cruelty is corroborated and proved by the other features appearing in the evidence that while after being tortured the husband would be coming to Baripada, the house of the defendant's father, she would be narrating the entire story of her torture to the husband who would express his complete helplessness. Furthermore, the husband himself would, be using filthy language as against the parents of the plaintiff. This was on account of the fact that sufficient dowries were not given to the defendant at the time of marriage. Now under these circumstances when she had been rescued with the aid of police, let us scrutinise what exactly the conduct of the defendant was thereafter.
There is no evidence worth the name that the defendant had approached the plaintiff for any re-conciliation even after she had been taken away from his father's place under the aforesaid circumstances. She had been writing letters to the husband and her father also wrote letters to the defendant, but the defendant would think it fit not to reply at all. Lastly when the proposal for the second marriage had already come, just a month or two before the marriage, according to the defence Version, D.W. 2, Pravakar Mohapatra, was sent to the house of the plaintiff's father. From the evidence of D. W. 2 it appears, he approached the parents of the plaintiff with a threat that there was already a proposal for the second marriage and if the plaintiff would not come back to her husband, the defendant would, go in for the second marriage.
In our view, this can never be taken to be a gesture for reconciliation. Rather the defendant's conduct us clear that just before the second marriage he hadthought it fit to put threat and coercion upon her and in such circumstances nobody with dignity and self respect can accede to such proposal when the fact remains that the plaintiff was rescued with the said police help by an order of the Subdivisional Magistrate. Thereafter the second marriage took place in the year 1948 and the suit was brought in the year 1955. During the course of these 7 years there had been no attempt on the part of the defendant for reconciliation. The defendant never even averred that be had written any letter to his first wife. In my view, these are convincing enough to prove the case, of desertion and cruelty on account of which the wife is entitled to get a decree for separate maintenance and residence.
5. Regarding the quantum of maintenance the materials on record show that the plaintiff is the daughter of a rich and respectable man of the locatity owning substantial properties. The defendant's father is also a fairly respectable man. The defendant is a Government servant drawing a salary of Rs. 200/- per month. Considering these features, in our view, interest of justice will be sufficiently met if we reduce the amount of maintenance to a sum of Rs. 40/- (Rupees forty) per month. The arrears of maintenance also will be calculated on the basis of this rate. The order of the lower appellate Court regarding charge for separate residence at Rs. 1200/- is confirmed. Subject to the aforesaid modification the judgment and decree passed by the Court below are confirmed and they appeal is dismissed with costs.
6. I agree.