P.V. Balakrishnarao, J.
1. The plaintiff in a suit for maintenance files this appeal against the judgment and decree of Sri B. Misra, Additional Subordinate Judge, Sambalpur, dismissing her suit.
2. The plaintiff filed the suit for maintenance against her husband defendant No. 1 and father-in-law defendant No. 4 defendants 2 and 3 being the sons of defendant No. 1 by a second wife. The plaintiff, according to her case, married defendant No. 1 in the year 1936. The Bandapana or nuptial marriage was in 1938 and since that time she lived as the wife of defendant No. 1 in. his house, which jointly belongs to the defendants. Her case in the plaint is that Defendants 1 and 4 ill-treated her since some time after the Bandapana and ultimately took off all the ornaments from her person and drove her out of the house on 28-9-41.
No details of the ill-treatment were given in the plaint, but it is only stated that the ill-treatment meted out to the plaintiff went up to such a high pitch that her life was in danger; she also alleged that not being satisfied with the ill-treatment meted out, they also deserted her for ever refusing to keep her and maintain her in spite of her repeated entreaties, and of her relations and other respectable gentlemen. Defendant No. 1, according to the plaint allegations, married another wife in the summer of 1942 and has got two sons defendants 2 and 3 through her. She further alleged that on the ground of cruelty and desertion she is entitled to maintenance; and that the family derives an annual income of Rs. 7200/- as detailed in Schedule E, the properties having been described in schedules A, B, C and D.
She claimed maintenance at the rate of 15 pastamas of fine rice and 15 pastamas of common rice and Rs. 120/- per year towards residence. She also claimed arrear maintenance from 29-9-41 for 6 years 5 1/2 months at the same rate. The suit was filed on 8-3-48. She also claimed a charge on the properties described in schedules A, B, G and D for her maintenance.
3. All the four defendants filed a_ common written statement denying the material plaint allegations. They admitted that the plaintiff lived in their house after her Bandapana, but denied any ill-treatment to her, They also denied any respectable person on the part of the plaintiff entreating them to take her back or to maintain her. They put forward a positive case that some time in the year 1941 she became pregnant, went to her father's place in Saranda about 8 miles from the place of the defendants; and that she gave birth to a child after four or five months, the child having died immediately alter the birth.
They stated that since then she never came back to their place for reasons best known to herself although they sent information again and again to her and her relations and they refused to send her in spite of their requests: and that defendant No. 1 therefore, having no other alternative married again and the plaintiff, as the defendants alleged in the written statement, practically refused conjugal relationship with him.
They alleged that they were willing to maintain her if she returned to their house and resumed conjugal relationship with defendant No. 1. They denied the extent of family properties as stated by the plaintiff. They stated that the annual income was only 50 purugo of paddy and Rs. 100/- from other crops. They therefore, stated that the plaintiff was not entitled to any maintenance past or future if she lived separately.
4. On these allegations, instead of framing definite issues arising from the pleadings as to whether the plaintiff is entitled to sue for maintenance on the ground of cruelty and whether the plaintiff is entitled to separate maintenance on the ground of desertion, two general issues were framed, issues 1 and 2, to the effect whether the plaintiff is entitled to sue for separate maintenance and residence and whether she has any cause of action for the present suit.
5. The learned Subordinate Judge, after a general discussion of the case of the plaintiff in a rhetorical language using high sounding words mostly inappropriately came to the conclusion that the plaintiff was not entitled to separate maintenance as she failed to prove cruelty or desertion. He held that she was also not entitled to maintenance under Clause (4) of Section 2 of Act XIX of 1946, the Hindu Married Women's Right to Separate Residence and Maintenance Act. He did not fix the rate of maintenance allowable.
6. Mr. G. K. Misra, the learned counsel appearing for the appellant-plaintiff raised before us five important contentions, namely, (1) that the learned Subordinate Judge erred in holding that the plaintiff failed to prove cruelty; (2) that the learned subordinate Judge also erred in holding that the plain-tiff failed to prove desertion; (3) that the plaintiff is entitled to maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act of 1946 011 the ground that defendant No. 1 married again; (4) that the plaintiff is entitled to maintenance under the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956) from the date of its publication in the Gazette that is 25-12-56, even if the first three contentions raised by him are not accepted; and (5) that the learned Subordinate Judge erred in not fixing the rate of maintenance allowable to the plaintiff.
7. Taking the fourth point raised by the learned Counsel first, the plaintiff, according to him, is entitled to maintenance under the Hindu Adoption and Maintenance Act of 1956 from 25-12-56 irrespective of cruelty, desertion or the right under Act XIX of 1946. Section 18 of the Hindu Adoptions and Maintenance Act of 1956 provides;
'(1) Subject to tho 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 life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,'
X X(d) if he has any other wife living; X X X'
This Act came into operation from 25-12-56. Underthe specific provision of this section there is nodoubt that the plaintiff is entitled to maintenancefrom 25-12-1956 though she is living separate fromher husband as admittedly defendant No. 1 marriedagain and is living with the second wife. This proposition is not seriously challenged by the learnedcounsel for the respondent, Mr. B. Mohapatra. No doubt, there is a decision of the Punjab High Court in the case of Ram Parkash v. Smt. Savitri Devi, AIR 1958 Punj 87 (FB) in which Ms Lordship Bhandari, C. J. observed,
'It is undoubtedly an established rule of law that a case should be decided in accordance with the law as it exists at the time of the decision by the appellate Court, but this rule is applicable only where the statute changing the law is intended to be retrospective in its effect. If neither of these two conditions concur or if it appears that the Legislature did not intend that the rights which were acquired before the enactment of the new law should be taken away, the case cannot be regulated by the law which has intervened during the pendency of the appeal but by the law which was in force when the original judgment was delivered.
There is nothing in the Act of 1956 to indicate that it was intended to operate retrospectively or to deprive husbands of the rights which had been acquired by them before its enactment. It provides merely that after this Act comes into force a Hindu wife shall be entitled to separate residence and maintenance in certain circumstances and that she will forfeit her right to separate residence and maintenance in certain other circumstances.'
But the concluding portion of his judgment was to the effect that a Hindu wife is not entitled to claim residence and maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, on the ground that her husband had married a second wife when the second marriage took place before the passing of the Act. This was the question referred to the Full Bench and it was directed by the Full Bench by the judgment of the learned Chief Justice with whom the other learned Judges agreed that an appropriate answer be returned to the Division Bench as stated above. The observation quoted above, therefore, of the Learned Chief Justice cannot betaken in my view as a decision on the effect of the Act of 1956 to pending litigation. In the case of Jaggamma v. Satyanara-yanamurthy, AIR 1958 Andh Pra 582 a Division Bench of the Andhra Pradesh High Court held,
'There can be little doubt that the Act can be applied to pending proceedings as the court should take into consideration the subsequent legislation which has altered the rights of the parties. Where, therefore, during the pendency of appeal against the dismissal of a suit by a wife for recovery of maintenance, the Hindu Adoption and Maintenance Act, 1956, was passed, the wife could invoke the provisions of Section 18(2)(d) of the Act for claiming maintenance on the ground that her husband's first wife was living although this right was not available to her at the time of the institution of the suit.'
To a similar effect is also a decision of the Patna High Court in the case of Sarbo Gopain v. Anta Lal Gope, AIR 1958 Pat 613, in which their Lordships after referring to a number of English decisions on the point and dissenting from the decision of the Punjab High Court cited above held,
'Even if not in express terms, the words 'wife living' by necessary intendment show that the Legislature intended this clause to be of a declaratory character and not merely remedial. Section 18 is retrospective in operation and will apply to the pending litigations also'.
Inasmuch as this proposition was not seriously challenged by Mr. Mohapatra, 1 do not think it necessary to go into this question in detail. In my opinion, the Hindu Adoptions and Maintenance Act of 1956 is retrospective in operation to the extent that it applies to pending litigations. I would consequently hold that the plaintiff is entitled to maintenance, though she is living separately, and separate residence from the date on which the Hindu Adoptions and Maintenance Act of 1956 came into force, that is, 25-12-56.
8. The other contentions raised by the learned Counsel for the appellant are to be considered only with regard to her right to the arrears of maintenance claimed in the suit as also maintenance from the date of the suit till 26-12-56.
9. With regard to the first contention, the plaintiff alleged in the plaint that she was habitually ill-treated after her Bandapana to such an extent that her life was in danger; and that defendants 1 and 4 drove her out of their house. In support of this contention the only witnesses examined by the plaintiff are P. W. 1 her father, P. W. 6 a distant maternal uncle and the plaintiff herself. In her evidence the plaintiff as P. W- 7 stated that her ill-treatment was also due to the fact that she was regarded squint-eyed and ugly and that her mother-in-law used systematically to harass her and to instigate her son defendant No. 1 against her. She also stated that she was being assaulted and ill-treated on the plea that she had not brought sufficient dowry from her father's place.
These details of ill-treatment were not stated in the plaint. The evidence of P. W. 1, the father, is not direct evidence, but he spoke only to what was stated by his daughter, P. W. 6, a distant maternal uncle, stated that he went to defendant No. 1's house on one occasion with fruits given by the plaintiff's mother to be given to her; and that at that time the plaintiff stated to him that she was being assaulted and ill-treated and showed him some marks of injuries. Nobody from the village of the defendants was examined as a witness in the case to prove the cruelty alleged against the defendants though her sister, her sister's husband and father-in-law are also living there. In my opinion, therefore, the plaintiff failed to make out the case of cruelty and on this ground she is not entitled to claim maintenance and separate residence,
10. The most important contention vehemently argued by Mr. Misra, is that the plaintiff's case for maintenance rests upon the allegation and proof of desertion and abandonment by the defendants. As already stated, the plaintiff was married in 1935 when she was about 13 years old. Her Bandapana took place in 1938 when she was about 16 years old. The defendant's case in the written statement is that the plaintiff went away to her father's house, but in evidence the definite case put forward and sought to be proved by the defence witnesses was that the plaintiff was pregnant in the year 1941; that people from her father's place came to take her to her father's house on the occasion of Bhai Juntia ceremony which takes place on the Sukla Astami before the Kumar Purnima: that before that the plaintiff was expressing a desire to go to her father's place, but the defendants restrained her from going on the allegation that it was forbidden to cross rivers and to go long distance especially in case of first conception by a female; that people from her father's place came on the Panchami day to take her; that defendant No. 1 and his father did not want that the plaintiff should go; that in the afternoon they found the plaintiff going away from their house along with the man who had come from her father's place; that defendant No. 1 the husband prevented it: and that the plaintiff persisted in going in spite of their objections.
Defendant No. 1 as also his father defendant No. 4 further stated that the plaintiff began to cry and to speak aloud that she would not even stay at their place but would go to her father's place; and that unless she would go to her father's place she would not have her food and drink though she was told that during the recitation of Haribansa Purana she would not go away and that seeing that she was adamant in her resolve D. W. 6, the father-in-law took her to the father's place and left her there.
With regard to the plaintiff leaving the house of the defendant after leading a married life for about two years, according to the plaintiff's case, it was on account of ill-treatment when she was compelled to leave and according to the defendants' case it was on account of her persistence to go to the father's house in spite of Haribansa Puran being recited for her benefit as she was pregnant in consequence of which it is the father-in-law who took her and left her at the father's place.
Even if the plaintiff's case of ill-treatment is not accepted, the fact remains, according to the defendants' case, as proved by some witnesses and as held by the trial Judge that it was defendant No. 4, the father-in-law, who took her away when she was pregnant and left her at the father's place as she disobeyed their injunction not to go and refused to take food.
11. The learned Subordinate Judge has not approached the evidence adduced on behalf of the plaintiff in the right perspective on the question of desertion. He considered the question of cruelty and desertion together without taking into consideration that they are two separate entities on proof of either of which a wife can claim maintenance and separate residence and thinking that the evidence on the two aspects is mutually destructive rejected both the grounds urged by the plaintiff. He observed,
'I should think the two above phases of the plaintiff's case are mutually exclusive of each other. If, supposing the plaintiffs life was in danger on account of brutal ill-treatment meted out to her at her husband's place, the question of abandonment and desertion of the plaintiff cannot practically arise, and it would be still more unusual and improbable on the presumption that there was ill-treatment endangering the plaintiff's life, that there would be repeated overtures made from the plaintiff's side to the defendant Nos. 1 and 4 in order herself to go back to the defendants' house. The evidence adduced from side of the plaintiff is similarly marshalled in a way so as to neutralise considerably the effect of each other. Attempt has been made to prove that there was ill-treatment endangering the plaintiffs life and also to prove by the evidence of very respectable relations of the parties that there were attempts made by the plaintiff's father to send back the plaintiff to her hushand's house after she was turned out from there.'
In this observation, the learned Subordinate Judge has entirely erred. The ground of desertion has nothing to do with that of cruelty. When the learned Subordinate Judge disbelieved the case of cruelty he ought to have independently considered the plaintiff's case with regard to desertion.
12. With regard to the case of abandonment the plaintiff examined herself, her father (P. W. 1) and P. Ws. 2, 4 and 5. The plaintiff's father stated that he went to the defendants and prayed them on behalf of the plaintiff, but defendant No. 1 said that he would not bring the plaintiff and would marry another wife; and that thereafter he again went to the house of the defendants along with Punches Giridhari Mohapatra (P, W. 4) Jagadish Rath (P, W. 5) and Damburudhar Pujari and requested the defendants to bring the plaintiff, but they refused to keep the plaintiff in their house and also refused to maintain the plaintiff.
He further stated that in 1946 he once again asked some Bhadraloks including Bharat Babu (P. W. 2) to intercede on behalf of his daughter and they requested the defendants, but the defendants refused to take the plaintiff; and that when the plaintiff was driven out, she was carrying and gave birth to a son in his house, but the son died and after the death of the child and about 1 1/2 months afterwards defendant No. 1 married another wife. P. W. 2 is Bharat Chandra Naik who is a retired Deputy Collector.
He stated that the plaintiff's father was his classmate and he knew him also when ho was serving as a Revenue Inspector; and that he also knew Giridhari Mohapatra, Mukhtar as well as Abhimanyu Das, father-in-law of the plaintiff and the defendant No. 4 in the suit. His evidence was to the effect that he had been to Daung, the village of Giridhari Babu to attend a thread ceremony there; that P, W. 1, father of the plaintiff and Abhimanyu, defendant No. 4 had also been there on invitation; that P. W. 1 informed him that the plaintiff, his daughter, had been driven away from her husband's house and as Abhimanyu was present there they should request him to take back the plaintiff; that he and others requested defendant No. 4 to take the plaintiff to which defendant No. 4 replied that the plaintiff had left their house and his son had married again and so he had no mind to bring back the plaintiff; and that he further asked defendant No. 4 to make some arrangement for maintenance of the plaintiff, but defendant No. 4 refused to do anything. P. W. 4 is Giridhari Mohapatra who is a practising Mukhtar at Sambalpur from the year 1926. He is a Sambandhi of the plaintiff's father.
Defendant No. 4's mother and his father are first cousins. He is therefore a common relation of both the families. He stated in his evidence that on many occasions P. W. I complained about the fact that the plaintiff had been driven away from her husband's house; that he, one Lakhman Sarangi deceased, Danmidhar Pujhari, Jagadish Rath (P. W. 5) and P. W. 1 himself all went to Sindurbanal on 1st or 2nd February 1942 which was also the Magh Purnima day; that they went to the house of the defendant No. 4 and requested him and also defendant No. 1 separately in order either to bring back the plaintiff or to make some arrangement for her maintenance, but none of them was found agreeable; that in 1943 P. W. 1 wanted to file a suit for maintenance of his daughter, but he requested him to wait for sometime that then he wrote a letter of request to defendant No. 4 regarding the plaintiff; and that defendant No. 4 did not respond to that letter. He also corroborated the evidence of P. W. 2 stating that his son's Brot ceremony took place in village Daung in Falgoon of 1946; and that Bharat Babu and others tried to intercede with defendant No. 4 on behalf of the plaintiff.
In cross-examination he stated that defendant No. 4 told him that the plaintiff was obstinate and idle and was not to his son's choice and so he did not want the plaintiff and that the plaintiff was pregnant and wanted to go to her father's place and even though defendant No. 4 asked her not to go she insisted to go along with her sister and in fact she went away to Saranda, her father's village, in spite of warning given by defendant No. 4. This witness's statement that he wrote a letter of request to defendant No. 4 regarding the plaintiff and that it was not responded to was not challenged in his cross-examination. P. W. 5 Jagadish Rath was a teacher in the Training School and retired from service 5 Or 6 years before he gave evidence.
He stated that he knew the plaintiffs father and defendants 1 and 4; that eight years ago in the month of Magh P. W. 1 called him and others to Sindurbhahal saying that they should go to prevail upon defendant No. 4 to take back the plaintiff that he along with P. VV. 4 and some others went to Sindurbahal; that both defendants 1 and 4 were unwilling to bring back the plaintiff; and that they then asked them to make some arrangements for maintenance of the plaintiff, but they did not listen to their words.
He is related to P. W. 1. P. W. 7 is the plaintiff. She stated that her father went to her husband's place for requesting her father-in-law to take her back; that they denied to take her back; that her father took Jagadish Rath (P. W. 5) and Giridhari Mohapatra (P. W. 4) to the defendants' place, and that they could not succeed in their mission because defendants 1 and 4 refused to accept her. She also stated that when she came in the month of Dussera she was pregnant; that she gave birth to a child in the month of Falgoon who died soon after; and that defendant No. 1 had remarried. She denied defendant No. 4 ever coming to take her in Dussera and definitely stated that after she came to her father's house, none from her husband's place came to take her.
13. This evidence clearly shows that after the plaintiff was taken and left at her father's house when she was pregnant, the father along with P. Ws. 4 and 5 interceded and requested defendants 1 and 4 to take his daughter back, but in vain. This request was made immediately after the plaintiff was left at the house of her father. The learned Subordinate Judge did not accept this evidence on the ground that the evidence of P. Ws. 4 and 5 appears to present rather a motley assortment with the case of the alleged assault and cruelty which went to endanger the plaintiff's life at the defendants' place.
The learned Subordinate Judge observed that P. Ws. 4 and 5 were respectable witnesses, but did not accept the evidence as in his opinion their evidence was inconsistent with the case of the plaintiff regarding assault and cruelty. He observed,
'P. Ws. 4 and 5, and more especially the former must undoubtedly be said to be persons whose respectability and position in life cannot but be taken into account by anybody for purpose of assessing the strength of their evidence'.
But rejected their testimony simply observing,
'The circumstances of the case are however too patent and conspicuous to be lost sight of, and I should think, these circumstances indeed go to turn the scale against the plaintiff's case even in spite of the fact that witnessed like P. Ws. 2, 4 and 5 lend the weight of their evidence to the side of the plaintiff.
As seen already, the case of ill-treatment and assault endangering the very life of the plaintiff would itself preclude the idea that overtures would be made from the plaintiff's side in order to enable the plaintiff to go back to the defendants' house. Then also, as it is the admitted case of both the sides the plaintiff was carrying some months by the time she either left her husband's house or was driven out from there some time in the month of September 1941.
It is also the admitted case of both the sides that the plaintiff was delivered of her child in the womb, near about Falgoon Purnima next, that is some time in about the month of March 1942. As it is evident from the evidence of P. Ws. 4 and 5, they went to the defendant's house on the request of the plaintiff's father on the 1st or 2nd February 1942, and as admitted by P. W. 4 in his cross-examination, the plaintiff was still carrying when they went to Sindurbahal, the defendants' village, in order to request the defendants either to take back the plaintiff or to provide for the plaintiff's maintenance.
Thus it would be evident from the above, the P. Ws. 4 and 5 must have gone on their mission to Sindurbahal about 5 months after plaintiff had come and stayed in her father's place and before the child in her womb had been born, and as a matter of fact, they must be said to have gone just a month before the birth of the plaintiff's child was due. It can be stated without fear of contradiction that the plaintiff's father is also a man of good condition financially.
In that case, would it be likely that the plaintiffs father could think of sending back the plaintiff to her husband's house at such an advanced stage of pregnancy of the plaintiff, even though she had been there in his house for about four months past? Then also there was no knowing as to what would be the issue, whether a son or a daughter, that the plaintiff would give birth to such being the case, would it not be most uncommon and unreasonable that at such an opportune time when the plaintiff very well stood the chance of bearing a son to her husband, that her relatives would come down to the extent of entreating the defendants to make provisions for the plaintiff's maintenance?'
These reasons of the learned Subordinate Judge do not appear to me to be cogent for rejecting the evidence of P. Ws. 4 and 5. As already stated, this discussion of the evidence was made by the learned Subordinate Judge in viewing the case in general with regard to cruelty and desertion and not when considering the case of the plaintiff with regard to desertion. In so doing he mixed together the case of cruelty and desertion and made these general observations. The wrong idea that the case of desertion was inconsistent with the case of cruelty was weighing like a dead weight round the neck of the learned Subordinate Judge throughout. He admits the respectability of P. Ws. 4 and 5.
It is the definite case of the defendants which was accepted by the trial Court that as the plaintiff was obstinate and was persisting to go to her father's house during the period when Haribansa Puran was being recited in their house on account of her pregnancy when she could not leave the house, the father-in-law took her to the father's house and left there. There is nothing unnatural in the father of a girl who on account of her obstinacy was taken and left at his house, going to intercede on behalf of his daughter and requesting the father-in-law to take her back or in the alternative to give her maintenance.
The fact that she was pregnant at that time does not in any way militate against the evidence of the plaintiff with regard to the overtures of the father to take his daughter back, especially when she was brought away on account of her obstinacy and left by the father-in-law in his house. The learned Subordinate Judge himself admitted that the evidence of P. Ws. 4 and 5 is credible evidence and he was not justified in rejecting that evidence only on the ground of improbability of P. W. 1 approaching at such a juncture which I have already observed is not a correct view to be taken in the case.
14. With regard to the evidence of P. W. 2 also about the request made in the year 1946, the learned Subordinate Judge does not discredit the witness. On the other hand he says,
'But evidence has been arrayed from the plaintiff's side by the examination of a very respectable witness, viz., P. W. 2, that some time in the year 1946 the witness, who is a retired Deputy Collector and who is intimately known to both the father and father-in-law of the plaintiff, was requested by the plaintiff's father and accordingly, he interceded with the father-in-law of the plaintiff in order to make him agree to take back the plaintiff to their house. The above evidence though coming from the mouth of a person whose respectability etc., is beyond question, does not in the least fit in with the plaintiff's case, inasmuch as, by the year 1946 the defendant No. 1 must be said to have married his second wife and to have begotten one or two of his issues from this wife, and accordingly, where could there be an occasion for the plaintiff's father to make an entreaty to the plaintiff's father-in-law through P. W. 2 for taking back the plaintiff in 1946?'
I fail to understand the reasoning of the learned Subordinate Judge. Even if the defendant No. 1 married a second time there is nothing improbable in P. W. 1 requesting a respectable person like P. W. 2 to intercede in seeing that his daughter is taken back. Every father wishes that the married daughter should not be abandoned by the husband and should live with the husband. The fact of the second marriage does not militate against the desire of the father to send his daughter who was the first wife, to the house of the husband. The learned Subordinate Judge having accepted the respectability of P. W. 2 is not justified in simply rejecting his evidence on the ground of supposed improbability.
In my opinion, therefore, the grounds on which the evidence of P. Ws. 2, 4 and 5 relating to the case of desertion and abandonment were rejected are not tenable. It is quite natural and reasonable for a father when his daughter was brought and left at his house by the father-in-law on account of his having been dissatisfied with her conduct in persisting to go to her father's place, to request respectable persons to intercede and persuade the father-in-law and the husband to take her back. The fact that she was in advance stage of pregnancy at that time also does not militate against the desire of the father to see that the husband and the father-in-law take back his daughter.
15. With regard to the evidence of the defendants on this case of abandonment, the learned Subordinate Judge himself opined that the defendants magnified the immaculate nature of their own conduct and attempted to present an overdrawn picture of the thing. In their written statement it is simply stated that some time in the year 1941 the plaintiff, while she was pregnant, went to her father's place and did not come back to the defendants' place for reasons best known to her and although the defendants sent information again and again to the plaintiff and her relations the plaintiff did not come back to their house.
But the evidence adduced in the case show that there is no abandonment in contrary to this allegation in the written statement. D. W. I, the husband went even to the extent of saying that the plaintiff in her resolve to go to her father's house even threatened to commit suicide, but this fact was not alleged in the pleadings and no question was put to the plaintiff during her cross examination regarding this, D. W. 4, the father-in-law of the plaintiff, who was examined as D. W. 6 while stating of the first attempt made by him to bring back the plaintiff to their house went to the extent of saying that he also tried to persuade the plaintiff to come back to their house by having a personal talk with her and during such talk the plaintiff went to the extent of saying that she would not go back to the defendants' house and defendant No. 1 could marry even a second wife.
This fact had not been put to the plaintiff during her long cross examination and therefore, on these facts the learned Subordinate Judge observed,
'It is easy to see how far the defendants' side evidence has been served out in a rather overdrawn and exaggerated manner.'
The learned Subordinate Judge also commented upon the conduct of the defendants not to have brought to the knowledge of the plaintiff's father about their attempts to bring her back. Defendant 4 as D. W. 6 stated that the plaintiff went on persisting and crying that she would go to Saranda and she baffled all his attempts for consoling her; that he sent for some persons to intercede and persuade-her to remain, but their attempts also failed and as she refused to take food, he and one Khedu Acharya (D. W. 3) took the plaintiff to her father's house and left her at Saranda when the father was not present in the house.
He admitted that at that time he was informed at the plaintiff's father's house that she would be sent back after some days. He further stated that in the following Kartik on Dassera day of the bright fortnight he sent Bishnu Das (D. W. 4) to bring back the plaintiff, but she did not come; that when the plaintiff gave birth to her son he also went to Saranda to see her by which time her son expired; that he sent afterwards one Prayakar (D. W. 2) with cart to Saranda but the plaintiff did not come as she was then at Sambalpur; and that he went to Saranda two days before the Ram-Navami to bring the plaintiff and asked h:'s Samanduni to leave the plaintiff.
He admitted that even on that occasion also P. W. 1 was absent. He also stated that he met P. W. 1 at Bargarh about two days prior to Chitra Purnima and informed him about what had happened on his attempting to bring back the plaintiff. This fact was not corroborated by any witness and as already observed, it was not even put to P. W. 1 in his cross-examination. Bashnu Das and Khedro Acharya were examined, but in the light of the evidence of D. W. 6 their evidence cannot be accepted. They are also interested witnesses.
It is curious to note that on all the occasions defendant No. 4 said he went to bring back the daughter-in-law, P. W. 1 was absent. P. W. 1 is the father of the girl and if really the defendants wanted to bring back the plaintiff one would expect them to go to get her back when P. W. 1 was in the house. The learned Subordinate Judge himself having come to the conclusion that the evidence of the defendants was very much overdrawn, in my opinion, their evidence to the effect that they tried their best to get back the plaintiff cannot be accepted, especially in view of some other circumstances which I will note presently.
16. The plaintiff was left at her father's Rouse in the month of September 1941. Admittedly she was pregnant at that time and a son was born to her about 4 1/2 or 5 months afterwards in the month of Falgoon and died after birth and soon afterwards within 1 1/2 months the husband takes a second wife in the month of Baishakha. The husband even does not care to come and see the wife when the son was dead. There is no reliable evidence that any intimation was given to her of the proposed second marriage. Defendant No. 1 in his evidence admitted that the plaintiff used to frequent the house of her sister and as he once found her talking to her sister's husband, he forbade her from going to their house. He also admitted that he never went to Saranda to bring back his wife and that none went to bring back his wife in the Dussera month after she went away.
He stated that so far as he knew, he raised objections to the plaintiff's visiting her sister's husband's house in their village and for that she was unwilling to come back to their house and he categorically admitted that he felt some suspicion in his mind when he found the plaintiff intimate with the husband of her sister and he felt suspicious about his wife's character. This evidence of the plaintiff's husband coupled with the fact that defendant No. 1's father took her away and left her at her father's house and the evidence regarding defendant No. 4 going to bring back his daughter-in-law not being acceptable clearly go to make out a case of abandonment.
17. Mr. Mohapatra drew our attention to a particular statement in the plaintiff's evidence in cross-examination and contended that that statement clearly shows that it was the plaintiff who had no idea of coming back to the husband's house and therefore there could be no case of abandonment. The plaintiff, in her cross-examination, stated.
'Before my husband's marrying the second wife I wanted to go to my husband's place and I had no objection whatsoever to go there I am not prepared to go to my husband's place even though he may be willing to take me back at present because my husband has married again, had two sons through her and I will have a co-wife if I go there.'
On the strength of this statement Mr. Mohapatra contends that ever since the second marriage of the husband the plaintiff had no desire to go back to her husband's house and consequently the plaintiff's evidence regarding the entreaties made in 1942 and 1946 should not be believed, I cannot accept this contention. In the passage quoted above, the plaintiff clearly stated that before her husband's marrying the second wife she wanted to go to her husband's place.
The next question, put to her in cross-examination was with regard to the willingness to go at the time of cross-examination and to this question she replied,
'I am not prepared to go to my husband's place even though he may be willing to take me back at present because my husband has married again.'
In fairness to the plaintiff another question ought to have been put to her whether she had any intention of returning back to the husband's house after the second marriage of her husband. No such question was put to her. The only two questions put to her were her willingness or otherwise to return before the marriage and her willingness or otherwise to return at the time of putting the question to which she replied that she was not willing to go as her husband has remarried. Consequently the answers given by the plaintiff do not support the contention of Mr. Mohapatra. She might have stated at the time of giving evidence in Court that at that time she had no intention of going back as he had remarried. But that does not show that ever since the second marriage she had no intention of returning back to the husband.
18. For all the reasons stated above, I am of opinion that the plaintiff has made out a case of abandonment and desertion so as to entitle her to claim maintenance from the date of such abandonment.
19. 'Separate maintenance can also be awarded when the husband for reasons of his own chooses to put his wife away from him, or the wife lives away from her husband for justifiable reasons'. (Mayne on Hindu Law and Usage, Eleventh Edition, Para 688 at P. 819). In the case of Sidlinagapa v. Sidaya ILR 2 Bom 634, a Division Bench of the Bombay High Court consisting of Westropp, C. J. and Kemball, J. held,
'Although by Hindu Law a husband is bound to maintain his wife, she is not entitled to separate maintenance from him, unless she proves that, by reason of his misconduct or other justifiable cause, she is compelled to live apart from him.'
In the case before us the plaintiff, as already held, succeeded in proving that the husband had refused to maintain her or take her back. Therefore on the authority of this decision, she is entitled to maintenance under the Hindu Law. In the case of Venkatapathi Nayani Varu v. Puttama Nagith, 71 Mad LJ 499: (AIR 1936 Mad 609) a Division Bench of the Madras High Court consisting of Varada-chariar J. (as he then was) and Mockett, J. held,
'Cruelty and abandonment are not the only grounds on which separate maintenance could be allowed to a wife. Separate maintenance can also be awarded in a case where the husband for reasons of his own chose to put the wife from him and the wife lives away from the husband for justifiable reasons. It is reasonable to hold that the grounds which would be available to a wife to defeat a suit for restitution of conjugal rights would also entitle her to live apart from her husband and claim separate maintenance'.
In the course of the judgment, Varadachariar, J. observed at p. 502 (of Mad LJ): (at p. 611 of AIR).
'When this suit was instituted, it unfortunately happened that allegations' of cruelty ranging over some years prior to the trip to Bangalore were made in the plaint and naturally they were denied in the written statement. If we had to decide the case only on the ground of cruelty, we should have had great hesitation in finding that such cruelty has been proved. Though we are substantially confirming the decree of the lower Court, we do not wish to be understood as concurring in all the observations of the learned Subordinate Judge or even in the general tenor of his reasoning. We prefer to base our conclusion on the ground that this is not a case in which the wife left her husband but one to which for reasons of his own the husband chose to put the wife away from him. The covert suggestion in his reply notice and his more open allegation in the written statement as to the circumstances under which or reasons for which he so resolved have only added insult to injury. In these circumstances we would treat the case as one of abandonment of the wife by the husband.'
They accordingly held that the plaintiff in that suit was entitled to claim maintenance. In the case of Anjani Dei v. Krushna Chandra, ILR 1954 Cut 14: (AIR 1954 Orissa 117) a Division Bench of this Court consisting of Panigrahi C. J. and Mohapatra, J. held,
'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.
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 co-habitation and breaking off of the marital relations is an indication of an intention of the husband to forsake his wife'.
The plaintiff is, therefore, entitled to claim maintenance on the ground of desertion and abandonment from the date on which she was taken away by the father-in-law and left at the father's house, that is, 28-9-41.
20. Mr. Misra, the learned counsel for the appellant next contended that the plaintiff is entitled to maintenance from the year 1941 under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 which came into force on 23-4-1946, under Section 2 of the Act, a Hindu Married woman is entitled to claim 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 act contacted from her:
2. If he is guilty of such cruelty towards her, as renders it unsafe or undesirable for her to live with kim;
3. if he is guilty of desertion, that is to say, abandoning her without her consent or against her wish;
4. if he is 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;
7. for any other justifiable cause.
Mr. Misra contends that under Clause (4) of Section 2 of the said Act, she is entitled to maintenance without proof of desertion or cruelty by virtue of the statutory right given under that Act. Mr. Misra's contention is that the expression 'marries again' has not been used with reference to any particular period of time. It is merely a description of the position of the husband as twice married man at the date when the wife's claim for separate residence or maintenance is made. There is a conflict of view amongst the various High Courts as to whether this Act is given any retrospective effect. He relies upon two decisions of this Court as supporting his claim for maintenance under the Act. In the case of ILR (1954) Cut 14: (AIR 1954 Orissa 117) already cited above, Panigrahi C. J. observed,
'Clause (4) of Section 2 of the Hindu Married Women's. Right to Separate Residence and Maintenance Act (XIX of 1946) 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 for the purpose of the 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.'
But Mohapatra, J, disposed of the case on the ground of desertion and cruelty. In the case of Kulamani Hota v. Parbati Debi, ILR (1955) Cut 354: ((S)AIR 1955 Orissa 77) a Division Bench of this Court to which I was a party along with Narasimham, J. (as he then was) held,
'The Act is clearly a remedial statute meant to give better rights as regards separate residence and maintenance to Hindu Women and also to clarify the law on the subject. It is true that there are no express provisions in the Act giving it even limited retrospective 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.
On general principles of statutory construction there is nothing illegal in giving retrospective 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'.
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.
The Act was purely declaratory in nature and it is well settled that declaratory Acts should ordinarily be given retrospective effect.
Consequently, Clause (4) of Section 2 of the Act would apply even if the second marriage of the husband had taken place prior to the commencement of the Act.'
Narasimham, J., as he then was, who delivered the judgment with which I agree, followed the cases of Lakshim Ammal v. Narayanaswami, AIR 1950 Mad 321; Nagendramma v. Ramakotayya, AIR 1954 Mad 713 and the observations of Panigrahi, C. J. in ILR (1954) Cut 14: (AIR 1954 Orissa 117) cited above and did not follow the cases of Sukhribai v. Pohkal Sing, AIR 1950 Nag 33, and Laxmibai v. Wamanrao, AIR 1953 Bom 342, which decided contra. Subsequent to these two cases which are binding on us, as contended for by Mr. Misra, the Madras High Court in a Full Bench decision reversed the Madras cases cited above and held in the case of Palaniswami Gounder v. Dgvanai Ammal, AIR 1956 Mad 337 (FB).
'Clause (4) of Section 2 is not declaratory in nature and a Hindu Wife is not entitled to claim separate residence and maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act on the ground that her husband had married a second wife, when the second marriage took place before the passing of the said Act.'
The Nagpur High Court also in another Full Bench case in Kasubai v. Bhagwan, (S) AIR 1955 Nag 210 (FB), held,
'Under Section 2(4), Hindu Marred Women's Right to Separate Residence and Maintenance Act, 1946, a wife is not entitled to separate residence and maintenance by reason only of a second marriage by husband, effected before the Act came into force, and approved of the prior decision of the said High Court in AIR 1950 Nag 33, and dissented from the decision in ILR (1954) Cut 14: (AIR 1954 Orissa 117) and AIR 1954 Mad 713. In the case of AIR 1958 Pat 613, a Division Bench of the Patna High Court held,
'The plaintiff would not be entitled to any relief under Section 2, Sub-section (4) of the Act XIX of 1946 (The Hindu Married Women's Right to Separate Residence and Maintenance Act 1946), when her husband took another wife prior to the enforcement of the Act' and dissented from the cases reported in Sm. Pancho v. Ram Prasad, AIR 1956 All 41, ILR 1955 Cut 354: ((S) AIR 1955 Orissa 77) and Varalakshmi v. Vira-mulu, AIR 1956 Hyd 75. In the case of AIR 1958 Punjab 87 Full Bench of the Punjab High Court held,
'Clause (4) of Section 2 is rot designed to operate retrospectively. A wife is not at liberty to take the benefit of the Act even though the second marriage took place before the commencement of the Act. On a plain interpretation of the language, the words 'if he marries again' in Clause (4) are conditional and prospective and not descriptive or retrospective. Thus, a Hindu wire is not entitled to claim residence and maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, on the ground that her husband had married a second wife when the second marriage took place before the passing of the Act'. In the case of AIR 1956 Hyd 75, a Division Bench of the Hyderabad High Court held,
'The well accepted principle and- canon of construction is that no Act shall be given retrospective effect unless there are words to that effect or such a retrospective effect is to be given by necessary implication. But where the Statute and its intendment partake of the characteristics of a declaratory law then it would be considered to have retrospective effect.
Thus where the husband had taken a second wife long before the Central Act. 19 of 1946 came into force in Hyderabad in 1952 and the question was whether the High Court could permit the wife to invoke the provisions of Section 2, Clause (4) of the Act in second appeal against a decree passed in favour of the husband for restitution of conjugal rights, it was held,
In any event the wife would be entitled to invoke the provisions of the Act, and not to grant the relief in second appeal and to drive her to a separate application would necessarily prolong litigation and cause hardship in her and in the interests of justice the adopting of such a course was not advisable.'
In this decision the Hyderabad High Court followed the decisions of this Court in ILR 1954 Cut 14: (AIR 1954 Orissa 117) and ILR 1955 Cut 354: ((S) AIR 1955 Orissa 77). In the case of AIR 1956 All 41, a single Judge of the Allahabad High Court held,
'Reading Section 2 as a whole, and the several clauses of the section together there is no reason to hold that while all the other clauses which use the present tense refer to a state of affairs in existence at the date of a suit for separate maintenance a Clause (4) of the Section 2 must have reference only to an event which occurs after the Act comes into force. The words, 'marries again' in that clause 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 was made under the Act and they do not exclude a husband who has 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).
The Act was designed to remedy the mischief created by a state of law which permitted a man to marry as often as he liked but denied to the superseded wife separate maintenance. A multiplicity of wives is not conducive to the domestic peace or the happiness of the spouses and in recognition of this fact the Law has now provided separate maintenance for the separated wife who remains chaste. There is therefore, no reason why the Legislature should have made an invidious distinction between the wives superseded by a second marriage of the husband before the Act and those who are so superseded by a second marriage after the Act'.
In the case of Ratan Chand v. Mt. Kalawati, (S) AIR 1955 All 364, a contrary view was taken by another Bench of the same High Court. This is the present state of conflict on this question amongst the various High Courts about the retroactive character of Section 2, Clause (4). Mr. Misra, the learned Counsel for the appellant contended that as far as this Court is concerned there is no divergence of opinion and according to the decisions of this Court, the appellant is entitled to claim maintenance under the statutory right given by that Act alone.
Mr. Mohapatra, the learned Counsel appearing for the respondents on the other hand contended that in view of the two Full Bench cases of Madras and Nagpur High Courts where the two decisions of this Court also were referred to, it is a fit case which we should refer to a Full Bench of this Court for consideration of the decision in ILR 1955 Cut 354: ((S) AIR 1955 Orissa 77).
This question no doubt requires a considered view by Full Bench of this Court in view of the numerous conflicting authorities of the various High Courts. But, in my opinion, it is not necessary to make such a reference in this case as I have already found that the plaintiff is entitled to maintenance on the ground of desertion and abandonment. Further the decision of this question is relevant only for determination of her right to arrears of maintenance as also maintenance pendente lite up to December 1956.
I have already held that the appellant is entitled to maintenance from 25-12-56 by virtue of the Hindu Adoptions and Maintenance Act of 1956. On the ground of desertion and abandonment I have already held that she is entitled to maintenance commencing from 1941 upto the institution of the suit and from the date of institution of the suit upto 25-12-56. For these reasons, I do not think it necessary that this case should be referred to a Full Bench.
21. The last question which is to be considered is with regard to the rate of maintenance to be awarded to the plaintiff. The plaintiff is entitled as of right to arrears of maintenance as also maintenance from the date of institution of the suit till 25-12-56 as also subsequently. The learned Subordinate Judge unfortunately did not go into this question and did not decide this issue, as in his opinion as the plaintiff was not at all entitled to get any separate residence and maintenance, it would appear unnecessary to enter into any detailed consideration of the points involved under the two issues 4 and 5 for determination of the rate of maintenance.
After saying so he made some general observations on the nature of the evidence adduced on this point and stated that he decided the issue against the plaintiff and held that the income of the defendants had been immensely inflated in the plaint and consequently the rate of maintenance claimed by the plaintiff must also be deemed to be very high in case she was entitled to any separate maintenance at all. The learned Subordinate Judge is not justified in recording this finding when at the beginning of the discussion about this question he stated that a detailed consideration was unnecessary in view of his finding that the plaintiff was not entitled to get any separate residence and maintenance.
The learned Subordinate Judge being the trial Judge ought to have recorded definite findings on all the issues in the case. In many decisions of High Courts it had been observed that it is the duty of the trial Judge to record a finding on all the issues though according to his decision on some of the issues the findings on other issues might not be necessary for disposal of the case.
The trial Judge should have been conscious that his findings on the right to claim maintenance might be set aside in appeal when for a final disposal of the appeal the finding on the rate of maintenance becomes necessary. The failure of the learned Subordinate Judge in determining the amount of maintenance allowable to the plaintiff has resulted in prolonging this litigation which is already more than ten years old.
As conceded to by both the parties, it is not possible for us now to go into the question about the income of the husband from the properties described in the schedules of the plaint or about the amount of maintenance to be awarded to the plaintiff. The plaintiff is entitled to arrears of maintenance after decree. As it is not possible for us to determine this question, the only alternative is to remand the case to the learned Subordinate Judge for fixing the rate of maintenance to which the plaintiff is entitled to in view of our decision that she is so entitled to maintenance.
The learned Subordinate Judge will decide and fix the rate of maintenance and dispose of the suit according to law. The parties may be allowed to adduce any fresh evidence if they so desire. The learned Subordinate Judge after fixing the rate of maintenance, will make it a charge on the share of the properties belonging to defendant No. 1.
22. The appeal is accordingly allowed, the judgment and decree of the trial Court are set aside and the case is remanded to the trial Court for disposal according to law in the light of our findings and observations. The appellant will have her costs throughout.
S. Barman, J.
23. I agree.