1. This is a defendant's appeal against the appellate judgment of the Subordinate Judge of Cuttack Dhenkanal reversing the judgment of the Munsif of Athmallik and decreeing the plaintiff's (respondent's) suit for maintenance against her husband, the defendant. The parties are Hindus residing in Athmallik which, is one of the former Orissa States which merged with the Dominion of India by the well-known Merger Agreement which came into force from 1-1-1948. The plaintiff alleged that she is the legally married wife of the defendant and that a daugther was born to them. Later on, however, the defendant took a second wife, ill-treated the plaintiff by giving her shoe-beating and by other kinds of assault and eventually drove her out of his residence. The exact date of the second marriage of the defendant was not given but it was said to have taken place about sixteen years before the date of the filing of the plaint (23-9-1946).
The main defence, taken was that the defendant was compelled to take a second wife as the plaintiff did not give him a son. The allegations of ill-treatment were emphatically denied and it was further stated that the plaintiff of her own accord left his protection and went to stay with her mother. Both parties led evidence on the question of cruelty and ill-treatment of the plaintiff by the defendant. The trial Court held that though the defendant might have given shoe-beating to his wife occasionally, such an act on his part would not amount to cruelty as required by Hindu Law so -as to entitle the plaintiff to claim separate residence and maintenance inasmuch as there was no danger to her personal safety.
The lower appellate Court, however, disagreed with the trial Court on this point and held that after the coming into force of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) (hereinafter referred to as the Act) and its application to Athmallik and other merged areas on 16-6-1948 it was not necessary for a Hindu wife claiming maintenance from her husband to show that the cruelty towards her was such as to endanger her life and that it was sufficient if it was established that on account of his ill-treatment it was undesirable for her to live with him. It further held that the other provisions of the Act would also apply tothe present case and hence it decreed the plaintiffs suit.
2. Mr. Misra on behalf of the appellant raised the following two contentions:
(i) The lower appellate Court erred in applying the provisions of the Act to the present case;
(ii) The lower appellate Court's view as regards legal cruelty was also wrong.
3. The suit under appeal was instituted on 23-9-1946 when Athmallik was one of the Native States of India. The Act came into force in the territories formerly known as British India, on 23-4-1946 but it did not apply 'proprio vigore' to Athmallik State. After the merger of Athmallik with British India with effect from 1-1-1948 the Government of Orissa as the delegated authority of the Central Government and exercising powers under the Extra Provincial Jurisdiction Act, 1947 made an Order known as the Administration of Orissa States Order, 1948 for the purpose of governing the merged areas including Athmallik State. By para 4 of that order, several enactments then in force in British India as specified in the Schedule to that Order were applied throughout the merged areas and it was further provided that the enactments so applied would prevail in the merged territories notwithstanding anything to the contrary in the laws that were in force in those territories prior to the coming into force of that order. Amendments were made from time to time to the schedule to that order-
The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) was thus applied to Athmallik State on 16-6-48 by an amendment made to the Schedule to that Order. On that date the trial of this case was pending in the Court of the Munsif of Athmallik though a substantial portion of the evidence had been adduced by the parties. The judgment of the Munsif was delivered only on 29-11-48. The trial Court completely ignored the provisions of the Act and disposed of the suit on the assumption that the law applicable was as it stood on the date of the institution of the suit in September, 1946. It is title that under the general principles of statutory construction when a law is altered during the pendency of an action the rights of the parties should be decided according to the law as it existed when the action was begun. But the new statute may either by express provision or by necessary implication, indicate a clear intention to affect pending actions also. Clause (c) of para 12 of the said Order is to the following effect:
'All appeals, revision petitions and other proceedings that were pending before any civil, criminal or revenue Court on 31-12-1947, shall be heard and disposed of by the appropriate civil, criminal or revenue Court constituted or continued by or under this Order and exercising jurisdiction which, as far as may be, corresponds to the jurisdiction of the Court before which such appeals and petitions were filed and such proceedings were commenced:
Provided that the law to be followed by such Courts shall be the law applied or continued in force under para 4,'
The expression 'proceedings' in the said clause is wide enough to include pending suits also. Theproviso to that clause makes it clear that in respect of pending suits the law to be applied by the Court is not the law as it was on the date of the institution of the suit; but the law that was applied by para 4 of that Order, namely, the statutes that were included in the Schedule to that Order. Hence, on a construction of the relevant provisions of the Administration of Orissa States Order, 1948, it should be held that the trial Court should have disposed of the suit not on the basis of the law as it stood in 1946 in Athmallik State but on the basis of the provisions of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946.
4. Section 2 of the Act specifies seven grounds for which a Hindu wife would be entitled to claim separate residence and maintenance from her husband. Those grounds are as follows;
'Section 2. Grounds for claiming separate residsence and maintenance. 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,--
(1) if he is suffering from any loathsome disease not contracted from her;
(2) if he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;
(3) if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish;
(4) if he marries again;
(5) if he ceases to be a Hindu by conversion to another religion;
(6) if he keeps a concubine in the house or habitually resides with a concubine;
(7) for any other justifiable cause: Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by change to another religion or fails without sufficient cause to comply with a decree of a competent Court for the restitution of conjugal right.'
Doubtless, if Clause (4) be held to apply to the present case it is obvious that the plaintiff's suit must be decreed even though she might not have proved cruelty as required by Cl, (2). Mr. Misra relied on. -- 'Sukhribai v. Pohkalsing', AIR 1950 Nag 33 (A); and -- 'Laxmibai v. Wamanrao', AIR 1953 Bom 342 (B), in support of his contention that Clause (4) of Section 2 of the Act would not apply where the second marriage of the husband has taken place prior to the commencement of the Act. On behalf of the respondent, however, Mr. Mohanty relied on -- 'Lakshmi Animal v. Narayanaswami', AIR 1950 Mad 321 (C), in support of the opposite view that the Act has limited retroactive effect. It is true that the correctness of the aforesaid Madras decision was doubted in the Nagpur and Bombay decisions mentioned above and also in a Single Judge decision of the Madras High Court reported in -- 'Sidda Setty v. Muniarama', AIR 1953 Mad 712 (D). But in a recent Division Bench decision of the Madras High Court reported in -- Nagendramma v. Ramakotayya', AIR 1954 Mad 713 (E),the entire law on the subject has been exhaustively reviewed and the previous view taken in 'AIR 1950 Mad 321 (C)', has been reiterated.
5. We are inclined to adopt (with respect) the view taken by the Madras High Court in 'AIR 1950 Mad 321 (C)'; and 'AIR 1954 Mad 713 (E)'. The Act is clearly a remedial statute meant to give better rights as regards separate residence and maintenance to Hindu women and also to clarity the- law on the subject. It is true that there are no express provisions in the Act giving it even limited retroactive effect. But it should receive beneficial construction so as to suppress the mischief and advance the remedy and extended meaning may be given to the words in the Act if they are fairly susceptible of it. Doubtless, the construction must not be strained to include cases plainly omitted from the natural meaning of the words (Maxwell on Statutes Edn. 10 p. 68).
The Madras view is that Clause (4) of Section 2 merely describes the status of the husband as a twice married man and though the present tense 'marries' is used in that clause 'it should not be so construed as to restrict the application of the clause to those second marriages which take place after the commencement of the Act. In taking his view, the learned Judges have been influenced by two factors. Firstly the other clauses of Section 2 have clearly such retroactive effect and it will be unreasonable to hold that the Legislature intended to make a distinction between Clause (4) and the other clauses so far as retroactive operation was concerned. Thus, Clause (6) says that if the husband keeps a concubine in the house the wife is entitled to separate residence and maintenance. It will be fantastic to say that this clause would apply only where the keeping of the concubine commenced after the commencement of the Act. The Legislature was fully aware that the law regarding the right of a Hindu woman to separate residence and maintenance should be somewhat liberalised and though, on general principles of statutory construction, there is nothing illegal in giving retroactive effect to some of the clauses of a section of a statute and prospective effect to the remaining clauses, yet considering the mischief which was sought to be remedied by the Act and the various grounds mentioned in Section 2 it will be unreasonable to attribute such an intention to the Legislature.
6. The second reason given in 'AIR 1954 Mad 713 (E)', seems to be equally convincing. The learned Judges pointed out that the Act was purely declaratory in nature, inasmuch as under the Hindu Law as it stood prior to the commencement of the Act it could not be stated as an invariable rule that a Hindu wife was not entitled to separate residence and maintenance under any circumstance if her husband took a second wife. They have referred to some texts of Manu and Yajnavalkya and pointed out that there was sufficient scriptural authority for the view that under some circumstances a Hindu wife was entitled to separate residence and maintenance when her husband married again.
The contrary view that prevailed so long was held to be due to a wrong translation of Manu Placitum 75 by Colebrooke. With respect, I am inclined to agree with the reasonings given by thelearned Judges in the Madras case and to hold that it was not a new law which the Legislature brought into effect for the first time when it enacted Clause (4) of Section 2 of the Act but that partly, at any rate, it clarified and put beyond doubt the law as it was understood by the Hindu Law givers. In taking the contrary view the Nagpur High Court and the Bombay High Court '(AIR 1950 Nag 33 -(A) and AIR 1953 Bom 342 (B))', have assumed that the Act was not a declaratory one so far as Clause (4) of Section 2 of the Act was concerned inasmuch as under the ordinary Hindu Law a wife had no right, under any circumstance, to claim separate residence and maintenance merely because her husband took a second wife. The relevant scriptural texts were not fully examined. Now that in the latest Madras decision this question has been clarified the main ground for holding that the Act is not declaratory has disappeared. It is well settled that declaratory Acts should ordinarily be given retroactive effect (Maxwell on Statutes, Edn, 10 p. 222).
7. I would, therefore, following the Madras decision hold that Clause (4) of Section 2 of the Act would apply even if the second marriage had taken place prior to the commencement of the Act, In a recent decision of this Court reported in -- '-Anjani Devi v. Krushna Chandra', AIR 1954 Orissa 117 (F), a similar view was taken by one of the Judges though perhaps, it was not necessary for the decision of that case.
8. Hence the plaintiff's suit must succeed on the admitted position that her husband had taken a second wife and any discussion about the evidence of cruelty may become somewhat academic. But I should point out that the appellate Court's view regarding legal cruelty is correct. Clause (2) of Section 2 makes it clear that cruelty of the land which renders it 'unsafe or undesirable' for the wife to live with her husband is sufficient to entitle her to separate residence and maintenance. The evidence of the plaintiff's witnesses was to the effect that she was given shoe-beating by her husband on some occasions and also assaulted by other methods and that after taking a second wife the defendant lived in a separate house denied his company to his first wife and practically deserted her by compelling her to live as a drudge with her monther-in-law in another house. Doubteless, this evidence may not show that her life was endangered. But the lower appellate Court was justified in holding that it was undesirable for her to live with her husband. The cruelty established in this case is of the same type as was found in -- 'AIR 1954 Orissa 117 (F), and would, in law, suffice for claiming separate residence and maintenance.
9. As regards the quantum of maintenance, the finding of the lower appellate Court was not challenged.
10. I would, therefore, affirm the judgment of the lower appellate Court and dismiss the appeal with costs.
Balakrishna Rao, J.
11. I agree.