K.B. Panda, J.
1. Plaintiff-appellant No. 1 is the mother and plaintiff-appellant No. 2 is minor son. Appellant No. 1 had brought a suit claiming past and future maintenance for herself and for her minor son against defendant No. 1 praying the same to be a charge on the property of D. 1 which has been dismissed in toto.
2. The admitted facts are that appellant No. 1 is the married wife of Bhima Sahu, defendant-respondent No. 1. Appellant No. 2 is their son born to them on 12-8-1956. Both the parties belong to Cuttack town. Defendants 1, 2 and 3 are the sons of late Jai Sahu who died on 8-10-1960. Defendant No. 4 is the widow of Jai Sahu and defendant No. 5 is alleged to be the second married wife of defendant No. 1.
3. According to the plaint allegation the defendants are members of a Mitakshara joint family and late Jai Sahu was a pros- perous business man. Defendant No. 1 is also carrying a business in Station Bazar, Cuttack and earning a profit of about Rs. 1,000/- per month. It is said that defendant No. 1 took to drinking and on her protest began abusing and assaulting plaintiff No. 1 towards the end of December, 1959. The plaintiff was thereafter neglected by defendant No. 1. She fell seriously ill towards January, 1960 and at the instance of the mother-in-law of the plaintiff she was sent to her father's place towards the end of January 1960 which was a Saraswati Puja day with her son leaving her ornaments behind. Her father spent about Rs. 150/- towards her treatment and brought her round but defendant No. 1 did not contribute a pie. After she got cured the plaintiff's father requested the mother of defendant No. 1 to take back the plaintiff but to no effect. Therefore the plaintiff issued a pleader's registered notice on 18-4-1960 asking defendant No. 1 to pay maintenance and to return her ornaments etc. To this D.1 sent a reply on 26-4-1960. Thereafter there were two Panchayatis over this matter on 31-7-1960 and 30-10-1960 but without any success. Defendant No. 1 coming to know that the plaintiff, was going to file a suit for maintenance served a notice on the plaintiff's father on 5-12-1960 to which a reply was sent on 25-12-1960. It is further alleged that defendant No. 1 married defendant No. 5 in April I960 and both are living as husband and wife. Hence she claimed separate maintenance and residence on the ground of physical and mental cruelty, continued neglect, ill treatment and desertion by defendant No. 1 and subsequent marriage with defendant No. 5. She brought the suit towards December, 1961 claiming maintenance at the rate of Rs. 100/- per month for herself and at the rate of Rs. 50/-fpr her minor son and Rs. 25/- for the educational expenses of plaintiff No. 2.
4. Defendant No. 1 filed a separate written statement from the one filed by defendant Nos. 2 to 4. Defendant No. 5 was set ex parte. The case of D. 1 was that he did not take to drinking, did not illtreat or neglect her nor has deserted her. His case was that the plaintiff wanted to live separate and persuaded the defendant to become separate. After separation the share that fell to them was a small room and so she did not like to stay there On the Saraswati Puja Day of the year 1960 she voluntarily went to her father's house with her father. She look her ornaments, wearing apparels and all her belongings. She also took her son (plaintiff No. 2) against the wishes of defendant No. 1 and did not return though her father had promised to send her back within a week. Defendant No. 1 also sent his mother and others to persuade the father of plaintiff No. 1 to send his daughter but to no effect. Finally, finding no other alternative defendant No. 1 personally went and requested the father of plaintiff No. 1 to send his wife but to no effect. Rather, the father wanted that defendant No. 1 should come and stay with him in his house because it was impossible for his daughter to stay in such poor conditions with defendant No. 1. The story of the plaintiff's illness or treatment is totally denied. The jointness of the family and the income of the family as alleged in the plaint were also denied. It was asserted that she wanted to enjoy a free life and that is why she preferred to remain with her father. He denied his marriage with defendant No. 5 and further asserted that he was ever anxious to have his son, to educate him as well as plaintiff No. I, to have a happy conjugal life, but it is the plaintiff's mischievous nature that has deprived him of both.
Defendant No. 1 denied that late Jai Sahu was a prospeous business man and that he had only a small betel shop with poor income without any landed property excepting a house in Cuttack town in a plot of three gunthas of land with three rooms only, belonging to the entire joint family.
5. The learned lower court framed as many as 10 issues. The plaintiff examined 10 witnesses out of whom P. W. 7 is a Homeopath who is said to have treated the plaintiff during her illness. P. W. 3 is a rikshaw puller who brought her to her father's place on the Saraswati Puja Day, 1960. P. W. 4 is a barber who deposed to have seen while the plaintiff came to her father's place in 1960; P. W. 2 has produced the Municipality Birth Register showing that one Bhimsen Sahu of Ward No. 12 had been blessed with a son; and P. W. 9 is a Compounder of Dr. Ahalya Kumari Devi who has stated that D. W. 5 gave birth to a son through plaintiff No. 1. On the defence side there are 5 witnesses of whom D. W. 5 is defendant No. 1, D. W. 4 is a barber and the other three are neighbours.
On an assessment of the evidence, the learned lower court did not hold that the story of illtreatment, desertion or the second marriage of defendant No. 1 has been proved and so dismissed the suit of plaintiff No. 1.
So far as the case of plaintiff No. 2 is concerned, he held that plaintiff No. 1 is incompetent to bring the suit on behalf of plaintiff No. 2 and thus dismissed it.
6. Mr. Das Gupta, learned counsel for the plaintiff-appellants contended-
(i) that the finding of the learned lower court rejecting the claim of maintenance for plaintiff No. 2 is erroneous; and
(ii) that there is ample evidence about the desertion of the plaintiff and marriage of defendant No. 1 with defendant No. 5 and so under Section 18 of the Hindu Adoptions and Maintenance Act the learned lower court should have decreed the suit for maintenance.
7. On the first point Mr. Das Gupta's contention was that plaintiff No. 2 being the admitted minor son of the contesting parties and admittedly plaintiff No. 2 being with plaintiff No. 1, and defendant No. 1 not having sent anything towards his maintenance all these years, the learned lower court should have necessarily granted maintenance for the minor child. This argument though apparently sounds plausible, yet in law, is not sustain-able. According to Section 6 of the Hindu Minority and Guardianship Act, 1956 the natural guardian of a Hindu minor in respect of the minor's person as well as the properties is The father and after him the mother, provided that the custody of the minor who has not completed the age of 5 years shall ordinarily be with the mother. In this case by the time the plaintiff brought the suit plaintiff No. 2 had already crossed his 5th year. As such, she was not competent to represent the minor as next friend against the natural guardian -- the father. Mr. Das Gupta could not site any authority for the proposition that anybody else can bring a suit for maintenance against the natural guardian on the ground that the natural guardian had not provided anything towards the maintenance of the minor who was or is in his or her custody. To me it seems, such a suit against a natural guardian, who has not been declared to be incompetent by a court of law on the grounds mentioned in Section 6 of the Act, cannot lie. In the case of Naram Singh v. Sapurna Kuer reported in ATR 1968 Pat 318 it has been held that -
'The mother has been described under Section 6(a) of the Act as a natural guardian of the Hindu minor, but that is only after the father of a minor. As long as the father is alive the mother cannot claim to be the competent natural guardian of a Hindu minor. The position was not very much different in regard to father and mother of a minor even before this new Act came into force x x x. If the mother of a Hindu minor is not a de facto guardian and if she cannot act as the natural guardian in presence of the father of the Hindu Minor, then, although Section 11 may not be attracted in terms against the transaction made by such mother, yet, she will derive no authority whatsoever to act as a guardian for the purpose of disposing of the minor's property as she will not come under any of the categories given in Section 4 of the Act.
In a case where the father refuses to act as the natural guardian or has neglected to discharge his obligations as a natural guardian in respect of a minor and his affairs and properties, another person, more so, the minor's mother, can take recourse to legal proceedings and obtain the powers to act as the guardian of the minor.'
8. In the instant case no such order has been obtained from court for the mother to act as the guardian of the child. As it appears during the pendency of the suit the father had brought a proceeding claiming the custody of the child which was resisted by plaintiff No. 1. A petition has been filed to take that as additional evidence to show that the defendant had withdrawn that proceeding. The circumstances in which it was withdrawn are not known, Yet the fact remains that the plaintiff resisted the claim. In this suit she stated that--
'I am not willing to send my son to my husband's house even if my husband is willing to meet his maintenance and education expense.'
That being the attitude of the mother hardly can she represent the minor claiming maintenance against the natural guardian -- the father. If such claims are entertained against the natural guardian, it would lead to disastrous consequences for even a stranger posing to act as the benefactor of the minor keeping such a minor in his custody can bring a claim against the natural guardian. For instance even a teacher can come up with a suit against a natural guardian the father. Law appears very clear and Mr. Das Gupta could not cite any authority to the contrary to support his contention. Accordingly, concurring with the learned lower court I would hold that in the context of facts of this case the mother, plaintiff No. 1 is incompetent to bring a suit for maintenance on behalf of the minor against the father.
9. Coming to the case of plaintiff No. 1 Mr. Das Gupta conceded that there is no evidence of cruelty except the uncorroborated testimony of the plaintiff. He further conceded that evidence of such cruelty cannot be brought unless it is of such a nature that it attracted the attention of the neighbours or outsiders. Evidently that is not the allegation here. The only allegation of the plaintiff is that the defendant had bad habit of drinking and assaulted and ill-treated her for which she complained before her mother-in-law. Mr. Das Gupta urged that in the circumstances the mother-in-law should have been examined and her non-examination would lead to the presumption that there had been ill treatment. I do not think such a presumption is permissible and to that extent also. The substantial allegation against the husband is that he took to drinking and ill-treated her. The evidence regarding the drinking habit of the defendant is very poor. P. W. 5 says that he had seen the defendant in an intoxicated state 4 to 5 times and he presumes that he was drunk as he was shouting. There is no positive evidence that he had taken to such habits. That apart, law does not say that if a husband takes to drinking that would entitle the wife for separate residence and maintenance. What is material is ill treatment and cruelty, and not drinking. In this case there is absolutely no evidence of any ill treatment or cruelty either mental or physical to the plaintiff, and so that ground fails.
(i) coming to the question of desertion the evidence on the side of the plaintiff is equally shaky. Mr. Das Gupta contended that the very fact that even after 10 years defendant No. 1 had not sued for restitution of conjugal life is evidence of the fact that he has deserted the plaintiff. I do not think such a presumption can also be drawn inasmuch as restitution of conjugal right is a remedy which both the parties can afford to seek. If D.1 has not brought the suit for restitution of conjugal right, it was up to plaintiff to do the same. But she also did not choose to do so, but instead, within hardly three months of her coming away from the defendant, issued a pleader's notice (Ext. 1) which runs thus :--
'From : Shri Jugal Kishore Dutta, Pleader,Cuttack. To Sri Bhima Sahu, Shop Keeper, StationBazar, P. O. Chauliaganj, Cuttack. Dated, Cuttack, the 18th April, 1960.
Under instructions from Sobha Dei, your legal married wife, I beg to state the following :--
When about 2.1/2 years ago my client was very seriously ill and you did not take any care of her, your mother sent her to her father's place who after proper treatment got her cured. After recovery my client and her father both sent words to your mother several times and her father also directly approached your mother more than once to take her to your place but you have not taken any steps in that respect.
My client has noticed several times that you have fallen into bad habits and that is the reason why you do not like to take your wife and son. My client's father spent Rupees 150/- for her treatment and she does not press for the amount. When my client left your place, she had left at your house gold and silver ornaments of her valued at Rs. 1,000/-and gold and silver ornaments of the son valued at Rs. 400/-.
Please return those ornaments as well as pay her maintenance at the rate of Rs. 100/-per month amounting to Rs. 3,000/- (three thousand) failing which legal consequence will follow. Yours faithfully,Sd/- J. K. Dutta.'
To this a reply was given under Ext. 1/a through the Pleader Sri J.K. Dutta by the defendant No. 1 through his Advocate Sri B.C. Das Gupta, Advocate, Cuttack which runs thus:--
'From : Sri B.C. Das Gupta, Advocate, Cuttack. ToSri J.K. Dutta, Pleader, Cuttack.Dated, Cuttack, the 26th April, 1960.Dear Sir, My client Sri Bhima Sahu is in receipt of you notice dated 8-4-1960.
Under the instructions of my client I am sending this reply to the said notice.
The allegation of illness of Sobha Dei (my client's wife) 21/2 years ago is false. There was no occasion for my client or his mother to send Sobha Dei to her father's place for treatment which, if necessity arose, they were quite competent to do. Your client's father never got her treated for any malady nor did he spend Rs. 150/- on that score; these are all a series of lies.
Your insinuation about my client's falling into bad habits is equally a malicious suggestion made by your client's father.
In fact Sobha Dei went to her father's place during the last Saraswati Puja i. e. about 3 months ago and in spite of repeated requests from my clients' side, she is not being sent back by her parents for ulterior purpose.
The allegation of ornaments worth Rs. 1,000/- being left in my client's house is another malicious false-hood emanating from your client
My client is ever ready to take back his wife and child for whose absence he is much depressed.
Finally I would request you to kindly advise your client's parents to send back Sobha Dei and her son to my client's house so that the cordial relationship may not be broken. Yours faithfully,Sd. B.C. Dasgupta,Advocate,The 26th April, 1960.'
(ii) Thereafter a pleader's notice was sent to the father of the plaintiff No. 1 by defendant No. 1 through his Advocate Sri A.K. Das (Ext. 1/b dated 5-12-1960). It was substantially to the effect to return Sobha Dei (plaintiff No. 1) and her son (plaintiff No. 2) to D.1 The relevant portion of the letter is thus :
'.........by this notice I request you to send my client's wife Sobha Dei and his minor son Debendranath Sahu to his house within ten days of the receipt of this notice, without fail, failing which he (my client) will be forced to take legal action and you will be held responsible for the consequences which will follow.'
To this a reply through pleader Jugal Kishore Dutta was sent to the Advocate A. K. Das to the effect that-
'.........there were repeated attemots by him (Banamali) and ultimately there were two Panchayatis one on 31-7-1960 and one on 30-10-1960 when your client Bhima Sahu publicly declared that he wont take his wife to his house. This is simply to avoid the effect of legal remedies which are open to his wife.
Your notice is simply an eye-wash and does not represent the real intention of your client.
Yours faithfully, Sd/- Jugal Kishor DuttaAdvocate.'Cuttack,
The 15th Dec., I960.
(iii) From these exchanges of registered notices it seems that the relationship had become strained by the end of 1960. One significant aspect of these notices is that there is no allegation from the wife's side that the husband had re-married and so his invitation to take back the wife and the son was an 'eye-wash'. This assumes importance in view of the fact that evidence has been led to the effect that defendant No. 1 was not willing to take back his wife and son and had expressed in Panchayati held in that connection that he would not take them as he has already married. The witnesses who referred to such admission of D.1 in the Panchayati are P. Ws. 6 and 8. The parties belong to oil-man cast. The alleged Panchayati was not before any caste head-man and the proceedings are not there. From this scanty evidence it cannot be said that the plaintiff has proved desertion and in that respect I concur with the finding of the learned lower court.
10. What remains for consideration is if the plaintiff has succeeded in proving the second marriage of the D.1 Evidence has been led that this' second marriage of D.1 with D.5 was held on 5-4-1960. Mr. Das Gupta contended that this marriage having been performed in a clandestine manner to evade the law, there could not be any better and positive evidence about the same. In fact the evidence on this aspect of the case is very weak. Nobody says when or where the marriage was performed. Some indirect evidence has been led in this respect by P. Ws. 1, 5, 6 and 8 and I do not think that would be sufficient to establish the factum of marriage which ought to be established like any other fact. Much reliance was placed on the alleged admission of D.1 in the Panchayati and an evidence of distribution of some sweets said to have been made on the occasion but I do not think that establishes the second marriage. The other thing relied on is the Municipal Birth Register showing the birth of a child in the clinic of Dr. Ahalya Devi on 6-6-1963 and the father of the said child was Bhimsen Sahu of Ranihat. The learned lower court has discussed this evidence and has rejected the same on the ground that Bhimsen Sahu mentioned in this exhibit 2 cannot be identified with D.1 inasmuch as the ward numbers differ. Be that as it may, most significant is the non-mention of this alleged marriage in the pleaders' notices issued to D.1 although specific allegations of cruelty, ill treatment and desertion were there. In Ext. 1 dated 18-4-1960 it is stated-
'When about 2.1/2 years ago my client was very seriously ill and you did not take any care of her, your mother sent her to her father's place who after proper treatment got her cured.'
It is the admitted case of the parties that on the Saraswati Puja Day of 1960 which is towards the last week of January that the plaintiff left for her father's place with her child. Thus this assertion of leaving the house of D.1 2.1/2 years back is false. From Ext. 1 it appears as though the plaintiff was more anxious for return of her ornaments and for maintenance. Even in the second letter dated 15-12-1960 there is no whisper about the second marriage though the Panchayati is said to have been held on 30-7-1960 and 30-10-1960 where D.1 is alleged to have refused to take back his wife to his house 'as he had married again.' So concurring with the learned lower court I would hold that the plaintiff has also signally failed to establish the second marriage of D.1 with D.5.
In the result, therefore, both the contentions of Mr. Dasgupta on behalf of the appellants having failed, the appeal is dismissed but in the circumstances without costs.