1. This is a husband's second appeal arising out of his suit for restitution of conjugal rights. The wile of the appellant was defendant 1 and his parents were defendants 2 and 3. The plaintiff married the first defendant on 3-2-49. She lived in her husband's house until 19-2-49 when she left for her father's place. The plaintiff's case is that since then she is living with defendants 2 and 3. and in spite of repeated requests did not come back to his house Hence the plaintiff filed the suit on 17-2-50. The defendants in their written statement admitted the marriage of the plaintiff with the 1st. defendant, and averred that due to financial difficulties there was some delay in sending the first defendant to the house of her husband and when defendant 2, that is the father of defendant 1 was getting ready to send her to her husband, he received information that the plaintiff had married for the second time to the daughter of one Chandrakanta Beura of Cutt-ack. Accordingly, it was averred that the plaintiff was not entitled to a decree for restitution of conjugal rights under the provisions of the Hindu Married Women's Right to Separate Residence and Maintenance Act. 1946 (Act. XIX of 1946), hereinafter referred to as 'the Act.'
2. The learned Munsif who tried the suit, on a consideration of the evidence before him, came to the finding that the plaintiff married for the second time the daughter of Chandrakanta Beura of Cuttak. said to be railway employee, and this marriage undoubtedly took place after the institution of the suit. He further found that the second wife was dead by the time the suit came up for hearing, and according to the defendants, the plaintiff had taken a third wife who is a daughter of Sri Manmath Nath Chaudhury, a pleader of Balasore. Both the courts below have retrained from considering the third marriage of the plaintiff because the defendants had not filed any additional written statement after the death of the second wife. On appeal, the factum of second marriage was not challenged by the plaintiff be-fore the court of appeal below. He only confined himself to the question of law that arose for deci-'sion' in the case. The lower appellate court, in spite on a consideration of the overwhelming evidence and the documents, such as the death register, the electoral roll and the evidence of respectable persons of the locality, came to the conclusion that there was in fact a second marriage by the plaintiff. The learned Subordinate Judge also took into consideration the fact of the non-examination of the plaintiff to deny the second marriage; and accordingly, he dismissed the plaintiff's suit. It is against this decision that the present second appeal is directed.
3. Mr. S. K. Dey, learned counsel for the appellant, contended that the plaintiff, in spite of his marriage for the second time, is entitled to a decree for restitution of conjugal rights, because bv the date on which the suit was instituted, he had not married for the second time, and it is also a fact that the second wife had died before the hearing of the suit. Therefore, on the cause of action that arose on the date of the suit, he is entitled to a decree. Secondly, his contention was that there is nothing in the Act to prevent the Kissing of a decree for restitution of conjugal rights. There may be a new right conferred on the defendant 1 for claiming separate residence and maintenance, but that does not in any way, militate against the plaintiff's contention for a decree for restitution of conjugal rights.
4. Mr. Dey, to begin with, relied upon a decision of this Court reported in Anjani Dei v. Krushna Chandra ILR (1954) Cut 14: (AIR 1954 Orissa 117) (A) and very candidly conceded that the judgment does not very much support his contention. That was a case in which, unlike this case, the second, marriage took place prior to the commencement of the Act. which it may be mentioned here, came into force on 23-4-1946. It was held therein that apart from the question of physical cruelty, torture or assault, if the circumstances are such that it is impossible for a wife to live as a wife with self-respect and dignity in the house of her husband, she is entitled to separate residence and maintenance. To establish legal cruelty, it is not necessary that physical violence should be used. 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 in the circumstances of the case, it is impossible for the wife to live with her husband with the prestige and dignity of a wife. Further the husband has been guilty of abandonment for unjustifiable cause. His conduct even otherwise amounts to cruelty in law which entitles the wife to separate residence and maintenance. With regard to the question whether Section 2(4) of the Act applies also to cases where the husband married for the second time before the Act came into operation, Mohapatra, J. who delivered the leading judgment in that case, in unmistakable terms left that question open as it did not arise in the case. Panigrahi, C. J. however, while agreeing with Mohapatra J., stated that
'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.'
differing from a decision of the Nagpur High Court reoorted in Mt. Sukhribai v. Pokhatsingh AIR 1950 Nag 33 (B). Mr. Dey referred me to several other decisions including a Pull Bench decision of the Nagpur High Court reported in Kasubai v. Bhag-wan, (S) AIR 1955 Nag 210 (C). All those cases are cases of marriages prior to the Act corning into force. A Division Bench of this Court in Kulamani Huta v. Parbati Debi, (S) AIR 1955 Orissa 77 (D), has taken the view following the observations of Panigrahi, C. J. reported in ILR 1954 Cut 14: (AIR 1954 Orissa 117) (A). That decision doubtless is binding on me. But those cases however, do not apply to this case as they dealt with cases of marriage prior to the Act. Further, there being evidence in this case that it was impossible for the wife to live with prestige and dignity in her husband's home, the plaintiff clearly is not entitled to a decree. Now regarding Mr. Dey's contention that the Court must restrict itself to the cause of action as arose on the date of the institution of the suit, he referred me to several decisions including a decision reported in Doorga Prosad v. Secretary of State. AIR 1945 PC 62 (E). Those decisions are of little assistance to Mr. Dey, because in all those cases. I find that the completed cause of action arose, on the date on which the suit was instituted and it was held that the subsequent happenings would not alter the nature of the relief sought for in the suit. Here, in the present case, the suit as I have stated above, was filed on the 17-2-1950. and the plaintiff married for the second time sometime in June, 1950. Defendant No. 1 filed her written statement on 6-2-51, that is to say, on the date on which defendant 1 filed her written statement, the second marriage was an accomplished fact; and the first wife had been superseded by a second wife. Hence it was open to her to take a plea that the plaintiff would not be entitled to a decree for restitution of conjugal rights. Order 8. Rule 8 of the Code of Civil Procedure confers a right on the defendant to take up a defence on any ground which has arisen after the institution of the suit. Thus, when the new ground arose before the filing of the written statement by the 1st defendant, it was open to her to take it as a defence in her written statement. Thus, the subsequent event can always be taken to mould the relief to be granted in the suit. Now I will refer to Section 2 of the Act, which reads as follows:
'Section 2. Grounds for claiming separate residence and maintenance :-- Notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely,
(1) if he is suffering from any loathsome disease not contacted from her.
(2) if he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him.
(3) if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish ;
(4) if he marries again;
(5) if he ceases to be a Hindu by conversion to another religion ;
(6) if he keeps a concubine Sn the house or habitually resides with a concubine.
(7) for any other justifiable cause.
Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by change to another religion or fails without sufficient cause to comply with a decree of a competent Court for the restitution of conjugal rights.'
Mr. Dey. relied upon this proviso and contended that he is entitled to a decree for restitution of conjugal rights by a competent court. In that case defendant-1 would not be entitled to the relief mentioned under Section 2 quoted above. The proviso to Section 2 undoubtedly contemplates of a decree by a competent court for restitution of conjugal rights existing on the date on which the wife takes action under Section 2 oi' the Act. Here, in this case in the written statement, the wife had taken the plea that she is entitled to separate residence and maintenance under the Act. Therefore, in view of the Act. it cannot be said that the husband will be en-titled to a decree for restitution of conjugal rights, and at the same time the wife will be entitled to separate residence and maintenance. The object of the Act was to give Hindu married women a right to separate residence and maintenance under certain circumstances. Thus, the circumstance as contemplated under Clause (4) of Section 2, viz., 'if he marries again' was present before the Court when the suit was taken up for hearing. Therefore, the plaintiff cannot be entitled to a decree for restitution of conjugal rights on these facts. Mr. K. K. Bose anpearing on behalf of the respondent drew my attention to a case reported in Pancho v. Ram Prasad, AIR 1956 All 41 (F), in which it was held that in view of the Act, a decree for restitution of conjugal rights cannot be passed when the husband marries again. I may refer in this connection to a case reported in Baijnath Dharam-dass v. Hiraman Ram Rasik AIR 1951 Vind Pra 10 (G). Relying on a decision of the Madras High Court in Lakshmi Ammal v. Narayanaswami Naic-ker, AIR 1950 Mad 321 (H), their Lordships held that a wife superseded by a second marriage of the husband, is entitled to the relief under Section 2(4) of the Act. Conversely, if the superseded wife is living separately, from her husband, this prevents the twice-married husband from getting a decree for restitution of conjugal rights. Thus, both the contentions raised by Mr. Dey fail, and accordingly I see no reason to interfere with the judgment of the learned Subordinate Judge.
5. In the result this appeal is dismissed withcosts.