1. This is a plaintiff's First Appeal against the judgment and decree dated 14-5-1949, of Sri B.S. Patnaik, Additional Subordinate Judge of Cuttack, in a suit brought by the plaintiff for recovery of arrears of maintenance, for future maintenance, and for recovery of the value of gold and silver ornaments alleged to have been forcibly kept back from the plaintiff by the defendants. Defendant No. 1 is the husband of the plaintiff and defendant No. 2 is the father of defendant No. 1. Admittedly the plaintiff and defendant No. 1 married in the month of Baishakha, 1943. The plaintiff left the defendant's house in Ashardha, 1944 and has not gone to her husband's place since then. The further admitted feature of the case is that defendant No. 1 married another wife in Ashardha, 1945. The plaintiff's case is that she comes of a fairly well-to-do family, her father being an Union President and also a contractor. The defendants are also sufficiently rich owning properties valued at rupees fifty thousand and defendant No. 1 is also serving under the Government of Orissa on a salary of nearly seventy rupees.
At the time of her marriage, her father gave her dowry of gold and silver ornaments and other articles described in Schedule A of the plaint and also presented valuable articles to the groom including wrist watch and gold wristband. The further story of the plaintiff as to the origin of differences between the two families is that the plaintiff's father possesses about four acres of land in mouza Kolasahi adjoining to the lands of the defendants. The defendants pressed the father of the plaintiff to make a gift of those four acres of land in favour of defendant No. 1 Plaintiff's father, however, agreed to part with one acre only. The defendants put pressure upon the present plaintiff to persuade her father to accede to the aforesaid request of the defendants. The plaintiff having refused, the dissension between the husband and the wife started.
The plaintiff thereafter was looked upon with hatred and was neglected in all respects. Even she was not given food and drink properly and was to do all menial work in the household including cleaning of the cowshed and the utensils, etc. She was also physically tortured, slapped and kicked by the mother-in-law. Her husband joined hands with the parents in harassing her. She was also deprived of all the pleasures of a married life. She found it impossible to continue in the house of the defendants any longer and therefore left the house in Ashardha, 1944. While she left the house of the defendants, all the ornaments described in the schedule were forcibly kept back by the defendants. The plaintiff therefore prays for past maintenance at the rate of fifty rupees from Ashardha, 1944 amounting to a sum of Rs. 1475/-. She claims future maintenance at the rate Rs. 50/- per month and charges for separate residence at the rate of Rs. 10/-. She valued the Articles in schedule A at Rs. 4084/-.
2. The defence taken by the husband is that the plaintiff is an ill-bred and quarrelsome lady who has no fine sentiment for her husband and has no conception of a wife's duty towards her husband, and the only thing that she expected was the satisfaction of her physical needs, particularly her sexual satisfaction for which the husband was not fully capable since he had constant attacks from colic soon after his marriage. His further case is that she voluntarily left the defendants' house in Ashardha, 1944 and is not coming back in spite of repeated requests. The defendant, therefore, had married for the second time in Ashardha, 1945. The defendant asserts that as his parents were responsible for this unhappy marriage with the present plaintiff, soon after the marriage he is living away from his parents. He is drawing a salary of Rs. 64/-. In the circumstances, he is not liable for any separate maintenance claimed by the plaintiff.
He has taken the further plea that the amount charged is excessive. Both the defendants deny the fact that the plaintiff's father gave dowry of the ornaments of the value as alleged by the plaintiff. They further deny that no ornaments were forcibly kept back while the plaintiff left their house. On the contrary, their allegation is that the plaintiff went with all the ornaments on her body and has never come back.
3. The learned Court below has dismissed the plaintiff's case for recovery of past maintenance and for future maintenance, but has passed a decree for a sum of Rs. 577/- as the value of the silver ornaments and furniture which were kept back by the defendants. In coming to his conclusions regarding the case of the pltf. claiming separate maintenance, the learned Court below after discussing the oral evidence on record, finds 'that the plaintiff has not been able to prove such physical cruelty as will entitle her to separate residence and separate maintenance. He finds that the only evidence on the point of physical cruelty is that of P. W. 3, that is, the plaintiff herself, which is to the effect that for the first six months she lived, comfortably in her husband's place and after that she was being tortured. The only occasion on which she was assaulted was by the mother-in-law and in his opinion that cannot be taken to be sufficient reason for holding that there was such physical cruelty as to entitle her to live apart from her husband.
We are perfectly aware that the learned Court below trying the suit had the special advantage of examining and seeing the witness himself which advantage of course is denied to us; and further the only evidence adduced on behalf of the parties is the oral evidence of a few witnesses examined from either side. But we are compelled to observe that the learned Court below has completely misdirected itself in not considering at all whether in view of the circumstances transpiring from the written statement and the evidence of the defendants themselves, a case of legal cruelty has been made out to justify the plaintiff for a claim for separate maintenance & residence. Apart from the question of physical cruelty, torture or assault by the mother-in-law or by any other member of the family if the circumstances are such that it is (Sic-not?) possible for her to live as a wife with self-respect and dignity in the house of the husband, indeed she is entitled to separate maintenance and residence.
In this connection, we will refer to some passages in the written statement filed by defendant No. 1. In para 22 of the written statement he avers as follows:
'That soon after the marriage when there was such conjugal difference between the plaintiff and the defendant, this defendant accused his parents and cut off all connections from them because it is for their choice that this defendant was put to such suffering since they had no business to select such an illiterate overbearing and in every sense undersirable lady like the plaintiff for ruining the life and pleasure of this defendant and soon after his marriage this defendant separated from his parents and has no concern with the parents or the family properties.
'That the plaintiff is an illiterate, ill-bred and quarrelsome lady who has absolutely no fine sentiment for a husband and had no conception of a wife's duty towards her husband and the only thing that she expected from this defendant was the satisfaction of her physical needs for which this defendant was not fully capable since he had constant attacks from colic soon after his marriage and so much was her displeasure that she went back to her fathers house and never returned back to this defendant in spite of this defendant's strenuous efforts to get her back. Having forced a second marriage on this defendant and the burden of maintaining another wife the plaintiff is not entitled to get any maintenance.'
From these averments, it is clear to us that almost from the beginning of their married life he had an abnormal sort of aversion for this girl. The aversion was to such an extent that, for this marriage, which he considers to be unhappy from the very beginning, he had to live away from his parents as the parents were responsible for this marriage. He calls this girl as illiterate and illbred. It is also clear from this written statement that he was not able to give sexual satisfaction to the girl. This position transpires also from the written statement filed by defendant No. 2.
Paragraph 6 runs thus:
'That the real facts are that soon after the marriage the plaintiff and defendant No. 1 had differences and this defendant found that neither plaintiff likes the defendant No. 1 nor the defendant No. 1 likes the plaintiff. However this defendant wanted to patch up the differences but the plaintiff was too obstinate to mend matters. Thereafter the defendant No. 1 accused this defendant and remained separate from this defendant since the later part of 1943.
That the defendant is in possession of about 25 acres of ancestral land with another son and an unmarried daughter and besides 4 married daughters and his wife.
The defendant had to maintain himself, his Wife, a younger son and a daughter and he is required to maintain them and bear the education expenses of the minor son who is now in the Ravenshow College.
Besides this defendant has to meet the expense of occasional presents and partly maintenance of the married daughters and her children.'* * * * *
It appears therefore from the case of both the defendants themselves that defendant No. 1 developed this aversion as against the plaintiff soon after the marriage and that on account of this unhappy marriage, as he calls it, he went to the extent of cutting off all connections with his parents since the later part of 1943. Defendant No. 1 in his examination admits that from the last part of 1943 to July 1944 he was seldom meeting the plaintiff in the same bed.
4. The further circumstance which has been completely overlooked by the learned Court below and which appears to be an important one is that there is no explanation coming forth from the defendant's side as to why she is not coming back to her husband's place which she left in Ashardha 1944 except that the conjugal life between the parties is extremely unhappy. We have got to take into consideration the social habits of the people of the rank, status and caste of the parties that it was not really open for the plaintiff to contract a second marriage while defendant No. 1 was free to have a second wife even during the lifetime of the plaintiff.
On a consideration of this circumstance and on a perusal of the evidence adduced on behalf of both parties and particularly having regard to the very case of defendant No. 1 that he had an abnormal sort of aversion against this girl almost from the beginning of the married life on account of the reason that she was illiterate, we are definitely of the view that this unhappy situation is mainly, if not solely, due to the fault of defendant No. 1 and not of the plaintiff. We would further observe that the learned Court below has failed to consider an important omission on the part of the defendants that the mother-in-law has not been examined even though the plaintiff made definite and specific allegation against her behaviour towards the plaintiff.
5. There is one more very important circumstance which also weighs with us, that is, the admitted second marriage of defendant No. 1 in Ashardhn 1945. This second marriage was manifestly against her sentiment. The question that then arises for consideration is that whether, in the particular circumstances of the case when defendant No. 1 on account of his abnormal aversion for the girl from the very beginning made it defficult for the girl (plaintiff) to carry on with their conjugal life in the house of her husband with dignity and self-respect and had to leave the husband's place and thereafter the husband within a year of such separation contracted second marriage without her consent and by flouting her sentiment, this itself will amount to legal cruelty. We are of the opinion that this conception of legal cruelty undergoes changes according to the changes and advancement in social concepts and standards of living.
We may refer in this connection to Central Act No. 19 of 1946 (The Hindu Married Women's Right to Separ, te Residence and Maintenance Act) which provides amongst other reasons that the mere fact of a second marriage is sufficient to entitle the wife to a separate residence and a separate maintenance. We are aware that the marriage took place in Ashardha 1945 while the Act came into operation only in April 1946. We are not here considering whether the Act is retrospective or prospective and whether the plaintiff will be entitled to her separate maintenance relying upon the provisions of the Act merely on the ground that defendant No. 1 has contracted the second marriage; but it is clear to us that with the advancement of our social conceptions, this feature has obtained the legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance.
6. On a consideration of the features, therefore, I am definitely of the view that it cannot be said that in Ashardha 1944 she left the husband's. place voluntarily and without any sufficient reason. On the contrary we find that the circumstances clearly indicate that she found it difficult to continue her conjugal life in the husband's place and that after the second marriage of defendant No. 1 in Ashardha 1945, in the circumstances discussed above, it was impossible for her to live with her husband with prestige and dignity of a wife. We are satisfied, therefore, that there is justifiable cause for her separate residence and, therefore, she is entitled to separate maintenance.
7. Mr. B. N. Das, appearing for the appellant, strongly relies upon the provisions of the new Act 19 of 1946 (The Hindu Married Women's Right to Separate Residence and Maintenance Act) which came into force on 23-4-1946, in support of his contention that, as provided in Clause (4) of Section 2 of the Act, the second marriage of the husband is itself a ground for allowing a decree for separate residence and separate maintenance.
Section 2 of the Act enumerates several grounds for allowing a decree for separate residence and separate maintenance of a Hindu. married woman, such as,
(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 to live with him;
(3) if he is guilty of desertion, that is to say, abandoning her without her consent or against her wish;
(4) if he married 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; and
(7) for any other justifiable cause.
All other clauses excepting Clause (4) are statutory codification and are declaratory of the existing law. So far as Clause (4) is concerned there were some very old decisions of the Indian High Courts that a mere second marriage of the husband during the life time of the first wife was not sufficient for the first wife to claim for separate residence and separate maintenance; but in recognition of the fast advancement in our conception of married life, and the rights of the females of the country, the legislature has provided for it as an absolute ground that in itself the second marriage during the life time of the first wife will entitle the first wife for separate maintenance.
As to whether the Act applies to a case where the husband had married for the second time prior to the coming into operation of the Act, there has been within a short time a difference of judicial opinion amongst the Indian High Courts. In the case of -- 'Lakshmi Ammal v. Narayanaswami', reported in AIR 1950 Mad 321 (A), Viswanatha Sastri J. observed that
'the words 'marries again' there in the section are merely descriptive of the position of the husband as a twice married man at, the date when the wife's claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation. Therefore, wives superseded by a second marriage of the husband before the Act also are entitled to separate maintenance under Section 2 (4) of the Act'.
In coming to this conclusion, Sastri J. has relied upon a previous decision of the Privy Council reported in -- 'Duni Chand v. Mt. Anar Kali', AIR 1946 PC 173 (B). wherein their Lordships interpreted the words 'dying intestate' appearing in the Hindu Law of inheritance (Amendment) Act 2 of 1929. This view of Sastri J, was doubted in a subsequent decision of the Madras High Court reported in -- 'Sidha Sethy v. Muniamma', AIR 1953 Mad 712 (C).
A view different from that of Sastri J. was taken in a Bench decision of the Nagpur High Court reported in -- 'Mt. Sukhribai v. Pokharsingh', AIR 1950 Nag 33 (D) wherein their Lordships observed that
'the Act, as a whole, cannot be called a 'Declaratory Act' in the strict sense of the term. Before this Act was passed, neither Hindu custom nor statute law, nor dicta of Judges allowed a wife to live separate from her husband if he married a second time. The Act now virtually allows judicial separation between husband and wife if the wife resents a second marriage. Since this law never existed before, Clause (4) of section 2 of the Act cannot be called 'declaratory' whatever one may say of the other clauses. Though the opening words of Section 2 refer to a 'Hindu woman' making it applicable to all cases, the effect of Clause (4) is to cut down the application to those cases in which the husband marries again after the date on which the Act became law.'
8. In view of my decision of the case on the grounds set forth earlier, it is not necessary to give any opinion on this question, that is, whether Section 2 (4) applies also to cases where the husband had married for the second time before the Act came into operation when he was not saddled with the obligation of giving separate allowance and maintenance to his first wife merely on the ground of the second marriage.
9. As to the quantum, the learned trial Court has found, discussing the circumstances of the parties, that if he was to allow a decree in favour of the plaintiff he would fix the allowance at Rs. 30/-; (sic) but we find that he has not taken into consideration any allowance for plaintiff's separate residence which we fix at Rs. 5/-. We therefore, find that she is entitled to maintenance at the rate of Rs. 25/- (twenty five) per month.
10. Regarding arrears of maintenance, in my view, she is entitled to the arrears from the time of the second marriage, that is, since Shraban, 1945, as with the anterior circumstances the second marriage completed the situation to make impossible for her to live with her husband. Regarding the value of the ornaments and the furniture forcibly retained by the defendant the learned Court below has allowed a decree for Rs. 577/-. We confirm the trial Court's decree to that extent and agree with the findings of the Court below on that point.
11. In conclusion, therefore, the appeal is allowed and the suit is decreed in part with proportionate costs. The plaintiff is entitled to recover charges for her separate maintenance and residence at the rate, of rupees twenty five (Rs. 25/-) per month from the date of the suit, that is, 9-4-1947 and for the future she 'is also entitled to recover arrears of maintenance and residence at the same rate from 1-8-1945 from defendant No. 1 personally. The decree will also be a charge on the coparcenary properties scheduled in the plaint as defendant No. 1 is a coparcener with his father (defendant, No. 2). The plaintiff will be entitled to interest at the rate of six (6) per cent per annum from the date of the institution of the suit till realisation. The court-fee will be realised from the defendants.
12. The primary facts & the points of law arising out of them have been set out oy my learned brother and I would only add a few words giving reasons for my concurrence with the order proposed.
13. The trial court round that cruelty had not been established and therefore dismissed the plaintiff's suit. To establish legal cruelty it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect and indifference on the part of the husband are all factors which may undermine the health of a wife. In such cases it would not be unreasonable to hold that the plaintiff may legitimately apprehend that if she goes to her husband there will be repetition of such conduct which may result in a complete breakdown of her health. Even in England the tendency of modern decisions is to widen the definition of the word 'cruelty'. Where a husband habitually insults his wife and behaves towards her with neglect and studied unkindness so as to impair her health he is held guilty of cruelty. Where evidence of physical violence is not per se sufficient to warrant a finding of cruelty the Court is bound to take into consideration the general conduct of the husband towards the wife and, if this is of a character tending to degrade the wife and subjecting her to a course of intense indignity injurious to her health the Court is at liberty to pronounce the cruelty proved.
14. The facts alleged by the plaintiff and corroborated by her father are that she was assaulted and starved. She was constantly scolded by her husband and mother-in-law so that she was completely deprived of her peace of mind and apprehended that she would be poisoned to death either by her husband (defendant) No. 1) or her mother-in-law. The defendant-husband accuser the plaintiff as being unmannerly, ill-bred and over-sexed and complains that he was never consulted before his marriage with the plaintiff was performed. He says that three days before the marriage he informed his father that he was unwilling to be married to her as he wanted to marry after his own choice. He admitted in his deposition that from the last part of 1943 to July 1944 he was seldom meeting the plaintiff in the same bed. He further says:
'It is a fact that due to my inability I was avoiding to sleep together on the same bed during, this period.'
It is unnecessary to refer to the other evidence-in the case as I am satisfied that the home that the plaintiff expected to build in her husband's house was completely broken and that she is now a frustrated and broken-hearted girl. Her husband confesses that he had no love for her at any time and the feelings between the two have been so exacerbated that the Court will never allow itself to be instrumental in exposing the plaintiff to further cruelties on the part of the husband. If bitter waters are flowing it is not necessary to enquire from what source they spring.
15. One fact, however, which has been proved in this case and not accepted by the trial Judge is the demand by the defendants upon the plaintiff and her father to make a gift of four acres of land which are situated in the defendant's village. The plaintiff swears that the husband (defendant No. 1) threatened that he would drive her out if her father did not make a gift of the land and this, according to her, is the reason for the ill-treatment. This fact is corroborated by her father who swears that the defendants asked him to make a gift of the land to them, but that he declined to give any land from that village and said he would only give one acre of land in some other village.
According to him, this was the reason why a 'hitch began with the defendants and defendant No. 1 began assaulting the plaintiff'. He was not cross-examined on the point. Nor is there any reference to it in the evidence of defendant No. 1. I am, therefore, inclined to accept the plaintiff's version that that is the origin of the discord between, the plaintiff and her husband and the ill-treatment that followed.
16. According to Hindu law, a wife is bound to reside in her husband's house and is not permitted to live apart from him on account of petty quarrels which are incidental to married life generally. The husband, in his turn, is bound to protect her and give her the comfort & security of a peaceful, domestic life. But where the husband is found guilty of desertion or abandonment and the wife is compelled to live away from her husband for justifiable reasons, separate maintenance and residence have to be decreed. It is one of the express conditions in the nuptial vow of the Hindus that each party is to become the associate of the other, and though practically all systems of ancient law strongly favour the husband and impose restrictions on the wife it is recognised by all systems, ancient and modern, that the right of conjugal cohabitation must be mutually available to the husband and the wife.
According to Narada
'it is a crime in both if they desert each other or if they persist in mutual altercations, except in the case of adultery by a guarded wife.'
It is further said that he who abandons an affectionate wife 'shall be brought to his duty by the King with severe chastisement.' Yagnyavalkya days down:
'He who forsakes a wife though obedient to his commands, diligent in household management, mother of an excellent son, and speaking kindly, shall be compelled to pay a third of his wealth; or, if poor, to provide maintenance for that wife.'
If either the husband or the wife withdraws from 'the society of the other without reasonable excuse, either the wife or the husband may sue for restitution of conjugal rights.
The defence open in such a suit for refusing a decree for restitution of conjugal rights may be the ground for an action for separate maintenance and residence. Desertion without reasonable cause is a ground for judicial separation. This is recognised in the statutory law of India in S. 22, Divorce Act. If the wife refuses to live with her husband without sufficient reason she is not entitled to separate maintenance, but neglect on the part of the husband is a ground for awarding separate maintenance (Section 488, Criminal P. C.). The dicta of the Judicial Committee and the decisions given by Courts from time to time also labour this view.
17. In -- 'Buzloor Rahim v. Shumsoonissa Begum, 11 Moo Ind App 551 at p. 615 (PC) (E), the Judicial Committee observed:
'It seems to them clear that if cruelty in a degree rendering it unsafe for the wife to return to her husband's dominion were established, the Court might refuse to send her back. It may be, too, that gross failure by the husband, of the performance of the obligations which the marriage contract imposes on him for the benefit of the wife might, if properly proved, afford good grounds for refusing to him the assistance of the Court'.
As I understand this passage, the husband is not entitled to a decree for restitution of conjugal rights if he is found guilty of failure to discharge his marital obligations. 'A fortiori', a wife is entitled to live separate and claim maintenance if the husband is found guilty of abandonment. It is not essential, therefore, that physical violence on the part of the husband should be proved in order to entitle her to a decree for separate maintenance. Even if the conduct of the husband does not amount to cruelty but constitutes a gross moral offence such as habitual ill-treatment the wife would be entitled to separate residence and maintenance, see -- 'Dular Koer v. Dwarka Nath', 34 Cal 971 (F).
In -- 'Venkatapathy v. Futtama', AIR 1936 Mad 609 (G), Varadachariar J., held that cruelty and abandonment are not the only grounds on which separate maintenance could be allowed to a wife. Where a wife declined to live with her husband, on the ground of his being a leper, she was held entitled to get maintenance -- 'Sheenappaya v. Rajamma', AIR 1922 Mad 399 (H). In another case reported in -- 'Seethayyamma v. Venkataramana', AIR, 1940 Mad 906 (I), it was held that if the husband is found to be not entitled to a decree for restitution of conjugal rights, the wile should be held entitled to a decree for separate maintenance. According to Manu: She who is averse from a mad husband, or a deadly sinner, or an eunuch, or one without manly strength, or afflicted with such maladies as punish crimes, must neither be deserted nor stripped of her property (Ch. IX v. 79).
Kuluka Bhatta explains the text thus:
'But she who attends not a husband whose mind is alienated by the effect of air or other constitutional ailment, or a deadly sinner (as described in the Eleventh Chapter) or un-mannered or destitute of manly strength (from the obstruction of seminal juice or the like), or degraded, because he is afflicted with leprosy or similar disease must not be deserted nor deprived of her property'.
These are not exhaustive of the reasons which would justify a wife living separate from her husband. The principle is stated thus:
'Other causes, as well as infidelity operating to destroy the primary object of marriage lead to separation such as confirmed barrenness in the woman and corporal imbecility in the man, with loathsome and incurable diseases in either'. Strange's Hindu Law (Vol. I. p. 47).
In -- 'Kondal Rayal v. Ranganayaki Animal', AIR 1924 Mad 49 (J), the husband took a second wife and had no marital relations with his first wife for period of more than 7 or 8 years. There were allegations similar to those in the present case of acts of violence and cruel treatment. The Court held that these circumstances were sufficient to make out cruelty disentitling the husband to a decree for restitution of conjugal rights. Their Lordships observed:
'Hindu law does not recognise any divorce. It permits the husband to have as many wives as he likes. The husband in this case had no marital relations with his wife for a period of more than 7 or 8 years and it would be cruel now to force the wife to go back to her husband against her will.'
In -- 'Rukmini Ammal v. T.R.S. Chari', AIR 1935 Mad 616 (K), the husband had brought about the marriage with his wile by a false statement that he was a bachelor. This was held to be a ground for refusing the plaintiff a decree for restitution of conjugal rights. It was also found that though evidence that the wife had actually been abandoned was lacking, the treatment to which she was subjected was held to be cruel. In -- 'Baburam v. Mt. Kokla', AIR 1924 All 391 (L), it was found that the wife had been turned out of doors, and the woman was living with her uncle. The Court refused to execute the decree for restitution of conjugal rights on the ground that the wife had reasonable apprehension of bodily injury if she returned to her husband.
18. One principle running through all these reported decisions is that the Court primarily looks to the wife's safety and the impossibility of fulfilling the duties of matrimony in a state of constant dread. And if she is systematically subjected to pressure or force whether physical or mental, to such a degree as to injure her health, she would be justified in keeping away from her husband. The Court has no scale of sensibilities by which it can assess the quantum of injury done and felt but it does not require much imagination to hold, in the instant case, that it is impossible to restore normal relations between the plaintiff and her husband even if they were forced to live together as her husband has married a second wife and has practically deserted the plaintiff.
What amounts to desertion, in a particular case, depends upon the circumstances and the mode of life of the parties. But there can be no doubt that an active withdrawal from cohabitation and breaking off of marital relations is an indication of an intention of the husband to forsake his wife.
19. The admitted fact that defendant No. 1 cut off matrimonial relations with the plaintiff would itself constitute abandonment with the intention of forsaking her. This constitutes desertion. The defendant himself admits that he is not going to have anything more to do with the plaintiff, and the plaintiff protests that she seriously apprehends that she might be poisoned if she lived with her husband. In a similar case reported in -- 'Sitabai v. Ramachandra Rao', 6 Ind Cas 525 (Bom) (M), Chandavarker J. held that if a woman has been unjustifiably abandoned or forsaken by the husband she would be entitled to separate maintenance even if cruelty is not proved. See also -- 'Appi Bai v. Khimji Kooverji', AIR 1936 Bom 138 (N), which is a case of abandonment without just cause.
There is, therefore, ample justification for the view that where a husband deliberately insults his wife or behaves towards her with unkindness and neglect, and brings about a cessation of matrimonial intercourse she would be justified in living separate from him and claiming maintenance.
'Married women must be honoured and adorned by their fathers and brethren, by their husbands, if they seek abundant prosperity. (Manu).'
This is as much a moral precept as a legal obligation. The husband is bound to give his wife the security and comfort of his house and she is entitled to the society and protection of her husband. If neither of these is present and if cohabitation which is the first object of marriage fails, separation is the only expedient which can be resorted to.
I would, therefore, in agreement with my learned brother, hold that the first defendant has been guilty of abandonment for unjustifiable cause, and his conduct even otherwise would amount to cruelty in law which would entitle the plaintiff to separate residence and maintenance.
20. It was strenuously contended by the appellant that apart from these considerations the plaintiff would be entitled to separate residence and maintenance under the provisions of Act 19 of 1946 (The Hindu Married Women's Right to Separate Residence and Maintenance Act.) Learned counsel for the respondent argued that the plaintiff is not entitled to any relief under the Act as the second marriage with the first defendant (husband) took place before the Act came into operation. The question raised is one of intricacy owing in part to the language of the Act and in part to the conflicting decisions given under it.
21. strong reliance was placed upon a decision of the Nagpur High Court in -- AIR 1950 Nag 33 (D)'. It was held in that case that Clause (iv) of Section 2 of the Act was not declaratory and was, therefore, not retrospective whatever might be said of the other clauses of the Act. A decision to the contrary effect is that reported in --'AIR 1950 Mad 321 (A)', where it was held that the words 'marries again' occurring in Clause (iv) of Section 2 of the Act are merely descriptive of the position of the husband as a twice-married man at the date when the wife's claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation.
According to this view the wife superseded toy the second marriage of the husband before the Act is entitled to separate maintenance under Section 2 of the Act. Their Lordships of the Nagpur High Court assumed:
'It is obvious that before this Act was passed neither Hindu custom nor statute law, nor the dicta of Judges allowed the wife to live separate from her husband if he married a second time.'
I regret my inability to accept this observation as an accurate statement of the pre-existing law. As I have shown above Courts have held from time to time that a wife would be entitled to separate maintenance and residence if the husband abandons and breaks off marital relations. The very fact that a husband transfers his affections to another woman, whether married or not, is a justifying reason for not compelling the first wife to live with her husband.
The Hindu Women's Right to Separate Residence and Maintenance Act 1946, merely gave statutory recognition to the dicta of Judges who had on several occasions applied this principle to the facts of individual cases. This clause, therefore, like other clauses, uses the present tense and is descriptive of the status of the person against whom the suit is brought. An Act does not become retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing -- 'Queen v. St. Mary's White Chapel', (1848) 12 QB 120 (O). The clause is general and applies to all husbands who take a second wife. The Act is prospective in its direct operation as suits based on a statutory right for separate residence and maintenance can be laid only after the Act came into operation.
We cannot ignore the fact that the Act was intended to cure an existing evil and to afford to married women a remedy for separate residence and maintenance against a twice-married man, whether such marriage took place before or after the Act, provided it continued on the date of the suit. It is enough therefore as has been observed in the latest Edition of Mulla's Hindu Law, at page 641, for the purpose of this Section that
'the grounds are in existence at the date when the claim for separate maintenance or residence is made by the wife, no matter whether they started before or after the passing of the Act.'
In my judgment, this correctly interprets the intention of the Legislature, besides being equitable.