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Amireddi Rajagopala Rao and ors. Vs. Amireddi Sitharamamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFAMILY
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1965SC1970; [1965]3SCR122
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 4, 18, 19, 21, 22, 22(1), 22(2), 22(3) and 25; Hindu Marriages Validity Act, 1949; Hindu law;
AppellantAmireddi Rajagopala Rao and ors.
RespondentAmireddi Sitharamamma and ors.
Cases ReferredIn S. Kameswaramma v. Subramanyam
Excerpt:
.....husband and goes to another man of herown varna out of love for him. we express no opinion on thequestion whether a pratiloma marriage was valid under the old hindu law, but weare satisfied that the claim of the respondents for maintenance cannot bedefeated on the ground that the first respondent was a brahmin and her paramourwas a sudra. 8. we are satisfied that the respondents were entitled to maintenance duringtheir lives out of the estate of lingayya under the hindu law as it stood in1948, when lingayya died, in december 1949, when the suit was instituted andalso in 1954, when the suit was decreed by the subordinate judge. 22.those observations were not necessary for the purpose of that case, because thewidow in that case was clearly entitled to maintenance from the estate of..........concubine in the exclusive and continuous keeping of a sudrauntil his death was entitled to claim maintenance. we express no opinion on thequestion whether a pratiloma marriage was valid under the old hindu law, but weare satisfied that the claim of the respondents for maintenance cannot bedefeated on the ground that the first respondent was a brahmin and her paramourwas a sudra. 8. we are satisfied that the respondents were entitled to maintenance duringtheir lives out of the estate of lingayya under the hindu law as it stood in1948, when lingayya died, in december 1949, when the suit was instituted andalso in 1954, when the suit was decreed by the subordinate judge. the questionis whether this right is taken away by the hindu adoptions and maintenance act,1956, which came into.....
Judgment:

Bachawat, J.

1. The first respondent, Seetharamamma, is a Brahmin woman. She was marriedto one Ramakrishnayya. During the life-time of her husband she became theconcubine of one Lingayya, a Sudra by caste. From 1938 until the death of Lingayyain February, 1948, she was the permanently kept concubine of Lingayya, andlived with him. During this period and thereafter, she preserved sexualfidelity to Lingayya. The second, third and fourth respondents are the sons ofthe first respondent by Lingayya. The husband of the first respondent is stillalive. The appellants are the brothers and brothers' sons of Lingayya. Lingayyawas separate in estate from his brothers and brothers' sons. The parties areresidents of Choragudi, Bapatla, now in Andhra Pradesh and governed by theMitakshara school of Hindu law. In the plaint, as originally filed, therespondents claimed that they were exclusively entitled to the estate left byLingayya. The Subordinate Judge and the High Court found that as the firstrespondent was and continued to be a married woman while she lived withLingayya and bore him children, she was not the lawfully wedded wife ofLingayya and the children born of the union were not his legitimate sons, norwere they Dasiputras and as such entitled to his properties. The suit wasoriginally dismissed by the Subordinate Judge, but on appeal, the High Courtgave the respondents leave to amend the plaint by making suitable averments forthe award of maintenance, and remanded the suit for trial on the question ofmaintenance. At the subsequent trial on the amended plaint, the SubordinateJudge decreed the respondents' claim for maintenance and consequential reliefsand awarded to them maintenance during their lifetime out of the estate of Lingayya.The Subordinate Judge passed his decree on September 20, 1954. During thependency of the appeal preferred by the appellants before the High Court, theHindu Adoptions and Maintenance Act of 1956 (hereinafter referred to as theAct) came into force. The main controversies in the appeal before the HighCourt were (1) whether the provisions of the Act are retrospective; and (2)whether a married woman who left her husband and lived with another as hispermanently kept mistress could be regarded as an Avaruddha Stree. In view ofthe importance of these questions, the appeal was referred to a Full Bench ofthe High Court. On the first question, the High Court held that the relevantprovisions of the Act applied only to the estates of Hindus dying after the commencementof the Act, and that the right of the respondents to maintenance during theirlifetime under the Hindu law in force at the time of the death of Lingayya wasnot affected by the Act. On the second question, the High Court held that thefirst respondent was an Avaruddha Stree of Lingayya, and was entitled tomaintenance from his estate, though her husband was alive and the connectionwith Lingayya was adulterous. The High Court agreed with the Subordinate Judgewith regard to the quantum of maintenance.

2. On behalf of the appellants, it is contended that the respondents are notentitled to claim any maintenance from the estate of Lingayya under the Hindulaw as it stood prior to the commencement of the Act, because (a) the firstrespondent is not a Dasi and the second, third and fourth respondents are notDasiputras of Lingayya, and this point is concluded by the previous judgment ofthe High Court, which has now become final between the parties; (b) the husbandof the first husband was and is still alive, and the connection of the firstrespondent with Lingayya was adulterous during the period of her intimacy withLingayya and while she bore him children; (c) the first respondent being aBrahmin adulteress and Lingayya being a Sudra, the connection was Pratiloma andillegal.

3. Now, under the Hindu law as it stood before the commencement of the Act,the claim of a Dasiputra or the son of a Dasi, that is, a Hindu concubine inthe continuous and exclusive keeping of the father rested on the express textsof the Mitakshara, Ch. I, s. 12, V. 1, 2 and 3. In the case of Sudras, theDasiputra was entitled to a share of the inheritance, and this share was givento him not merely in lieu of maintenance but in recognition of his status as ason, see Gur Narain Das and another v. Gur Tahal Das and others : [1952]1SCR869 . But the illegitimate son of a Sudra by his concubine was notentitled to a share of the inheritance if he were the offspring of anincestuous connection, see Datti Parisi Nayudu v. Datti Bangaru Nayudu [1869] 4 M.H.C.R204 or if at the time of his conception, theconnection was adulterous, see Rahi and others v. Govind Valad Teja I.L.R [1875] Bom. 97 Narayan Bharthi v. Laving Bharthi and others I.L.R [1878] Bom. 140 Tukaram v. Dinnkar [1931] 33 B.L.R. 280 Such an illegitimate soncould not claim the status of a member of his father's family and could not geta share of the inheritance as a Dasiputra under the express text of theMitakshara. For the reason, the previous judgment of the High Court rightlyheld that the second, third and fourth respondents were not Dasiputras ofLingayya, and could not claim the inheritance. But the point whether they areentitled to maintenance out of the estate of Lingayya is not concluded by theprevious judgment. It is well recognised that independently of the expresstexts of the Mitakshara, Ch. I s. 12, V. 3, the illegitimate son of a Sudra wasentitled to maintenance out of his father's estate, though him mother was not aDasi in the strict sense and though he was the result of a casual or adulterousintercourse. It was not essential to his title to maintenance that he shouldhave been born in the house of his father or of a concubine possessing thepeculiar status therein. See : Muttusawmy Jagavera Yettappa Naicker v.Vencataswara Yettayya [1868] 12 M.I.A. 293 The illegitimate son of aSudra was entitled to maintenance out of his father's estate, though at thetime of his conception his mother was a married woman, her husband was aliveand her connection with the putative father was adulterous, see Rahi v. GovindI.L.R. [1878] Bom. 140 Viraramuthi Udayan v. Singaravelu [1877] I.L.R.Mad. 306 Subramania Mudaly v. Valu I.L.R. 1911.34 Mad.68 According tothe Mitakshara school of law, the illegitimate son a Sudra was entitled tomaintenance from his father's estate during his lifetime. Under the Hindu law,as it stood prior to the commencement of the Act, the first, second and thirdrespondents were, therefore, entitled to maintenance during their lifetime, outof the estate of Lingayya.

4. The claim of an Avaruddha Stree or woman kept in concubinage formaintenance for her lifetime against the estate of her paramour rested on theexpress text of Mitakshara, Ch. 2, s. 1, v. 27 and 28 read with V. 7. In BaiNagubai v. Bai Monghibai I.L.R. 1926.Bom. 604, where theman and the woman were Hindus and the paramour was governed by the law of theMayuka, Lord Darling said :-

'providing the concubinage be permanent, until thedeath of the paramour, and sexual fidelity to him be preserved, the right tomaintenance is established; although the concubine be not kept in the familyhouse of the deceased.'

5. The law of the Mitakshara is in agreement with the law of the Mayuka onthis point. In the instant case, the first respondent being continuously andexclusively in the keeping of Lingayya until his death for about 10 years, theconcubinage has been found to be permanent. She observed sexual fidelity toLingayya during his lifetime, and after his death has continued to preserve herqualified chastity. In Akku Pralhad v. Ganesh Pralhad, I.L.R. 1945. Bom. 216 a Full Bench of the Bombay High Court held that a married woman who lefther husband and lived with her paramour as his permanently kept mistress couldclaim the status of an Avaruddha Stree by remaining faithful to her paramour,though the connection was adulterous, and was entitled to maintenance from theestate of the paramour so long as she preserved her sexual fidelity to him.This Full Bench decision overruled the decision in Anandilal Bhagchand v.Chandrabai I.L.R. 1924.Bom. 203 and followed the earlier decisions inKhemkore v. Umiashankar (1873. 10 B.H.C.R.381 andBingareddi v. Lakshmawa I.L.R. 1901. Bom. 163 The decision in AkkuPralhad v. Ganesh Pralhad I.L.R. 1945.Bom. 216 has been the subject ofstrong criticism in Mayne's Hindu law and Usage, 11th Edn., Art. 683, p. 816edited by Sri N. Chandrasekhara Aiyar and in a learned article in (1946) 1M.L.J., Notes of Indian cases, p. 1, but the Full Bench of the Andhra PradeshHigh Court in the instant case found themselves in complete agreement with theBombay decision. We are of the opinion that the Bombay decision lays down thecorrect law.

6. Avaruddha Stree, as understood by Vijnaneswara, includes a Swairini oradulteress kept in concubinage. While dealing with the assets of a deceasedHindu not liable to partition, Mitakshara, Ch. I, s. 4, V. 22, he says,'Swairini and others who are Avaruddha by the father, though even innumber, should not be divided among the sons'. Colebrooke's translation ofthe passage is as follows : 'But women (adulteresses and others) kept inconcubinage by the father must not be shared by the sons, though equal innumber'. In his commentary on Yajnavalkya's Verse 290 in VyavaharaAdhyaya, Ch. 24 on Stree Sangrahana, Vijnaneswara, citing Manu, explainsSwairini as a woman who abandons her own husband and goes to another man of herown Varna out of love for him. Thus, a Swairini and other adulteress kept inconcubinage could claim the status of an Avaruddha Stree. The connection was nodoubt immoral, but concubinage itself is immoral; yet it was recognised by lawfor the purpose of founding a claim for maintenance by her and her illegitimatesons. The paramour may be punishable for the offence of adultery, but theconcubine is not punishable as abettor of the offence.

7. A concubine was not disqualified from claiming maintenance by reason ofthe fact that she was a Brahmin. The claim of a concubine who was a respectablewoman of the Brahmin caste and her illegitimate sons for maintenance wasallowed in Hargovind Kuari v. Dharam Singh I.L.R. 1884. All. 329 No doubt,a Pratiloma connection is denounced by the Smriti-writers and the Commentators,and before the Hindu Marriages Validity Act, 1949 (Act XXI of 1949) Pratilomamarriages between a Sudra male and a Brahmin female were declared invalid inBai Kashi v. Jamnadas : (1912)14BOMLR547 and in Ramchandra Doddappa v.Hanamnaik Dodnaik .I.L.R.1936. Bom. 75, but even those cases recognisethat a Brahmin concubine in the exclusive and continuous keeping of a Sudrauntil his death was entitled to claim maintenance. We express no opinion on thequestion whether a Pratiloma marriage was valid under the old Hindu law, but weare satisfied that the claim of the respondents for maintenance cannot bedefeated on the ground that the first respondent was a Brahmin and her paramourwas a Sudra.

8. We are satisfied that the respondents were entitled to maintenance duringtheir lives out of the estate of Lingayya under the Hindu law as it stood in1948, when Lingayya died, in December 1949, when the suit was instituted andalso in 1954, when the suit was decreed by the Subordinate Judge. The questionis whether this right is taken away by the Hindu Adoptions and Maintenance Act,1956, which came into force during the pendency of the appeal to the HighCourt. The Act is intended to amend and codify the law relating to adoptionsand maintenance among Hindus. Section 4 of the Act is as follows :

'4. Save as otherwiseexpressly provided in this Act, -

(a) any text, rule orinterpretation of Hindu law or any custom or usage as part of that law in forceimmediately before the commencement of this Act shall cease to have effect withrespect to any matter for which provision is made in this Act;

(b) any other law in forceimmediately before the commencement of this Act shall cease to apply to Hindusin so far as it is inconsistent with any of the provisions contained in thisAct.'

9. Section 21 defines 'dependants' as meaning certain relatives ofthe deceased, and under sub-cl (viii), includes 'his or her minorillegitimate son, so long as he remains a minor'. A concubine is not openof the persons within the definition of 'dependants' given in s. 21,and an illegitimate son is not a dependant when he ceases to be a minor.Section 22 reads thus :

'22. (1) Subject to theprovisions of sub-section (2), the heirs of a deceased Hindu are bound tomaintain the dependants of the deceased out of the estate inherited by themfrom the deceased.

(2) Where a dependant has notobtained, by testamentary or intestate succession, any share in the estate of aHindu dying after the commencement of this Act, the dependant shall beentitled, subject to the provision of this Act, to maintenance from those whotake the estate.

(3) The liability of each of thepersons who takes the estate shall be in proportion to the value of the shareor part of the estate taken by him or her.

(4) Notwithstanding anythingcontained in sub-section (2) or sub-section (3), no person who is himself orherself a dependant shall be liable to contribute to the maintenance (2) orsub-section (3), no person who is himself or herself the value of which is, orwould, if the liability to contribute were enforced, become less than whatwould be awarded to him or her by way of maintenance under this Act.'

10. Sub-section (1) of s. 22 imposes upon the heirs of a deceased Hindu theliability to maintain the dependants of the deceased defined in s. 21 out ofthe estate inherited by them from the deceased, but this liability is subjectto the provisions of sub-s. (2), under which only a dependant who has notobtained by testamentary or intestate succession, any share in the estate of aHindu dying after the commencement of the Act is entitled, subject to theprovisions of the Act, to maintenance. Specific provision is thus made in s. 22with regard to maintenance of the dependants defined in s. 21 out of the estateof the deceased Hindu, and in view of s. 4, the Hindu law in force immediatelybefore the commencement of the Act ceases to have effect after the commencementof the Act with respect to matters for which provision is so made. In terms,Sections 21 and 22 are prospective. Where the Act is intended to be retrospective,it expressly says so. Thus, s. 18 provides for maintenance of a Hindu wife,whether married before or after the commencement of the Act, by her husband, s.19 provides for the maintenance of a Hindu wife, whether married before orafter the commencement of the Act, by her father-in-law, after the death of herhusband, and s. 25 provides for alteration of the amount of maintenance whetherfixed by a decree of Court or by agreement either before or after thecommencement of the Act. Now, before the Act came into force, rights ofmaintenance out of the estate of a Hindu dying before the commencement of theAct were acquired, and the corresponding liability to pay the maintenance wasincurred under the Hindu law in force at the time of his death. It is awell-recognised rule that a statute should be interpreted, if possible, so asto respect vested rights. See Craies on Statute Law, 6th Edn. (1963), p. 397.We think that Sections 21 and 22 read with s. 4 do not destroy or affect any rightof maintenance out of the estate of a deceased Hindu vested on his death beforethe commencement of the Act under the Hindu law in force at the time of hisdeath.

11. On the death of Lingayya, the first respondent as his concubine and thesecond, third and fourth respondents as her illegitimate sons had a vestedright of maintenance during their lives out of the estate of Lingayya. Thisright and the corresponding liability of the appellants to pay maintenance arenot affected by Sections 21 and 22 of the Act. The continuing claim of therespondents during their lifetime springs (out of the original right vested inthem on the death of Lingayya and is not founded on any right arising after thecommencement of the Act.

12. In S. Kameswaramma v. Subramanyam : AIR1959AP269 , theplaintiff's husband had died in the year 1916, and the plaintiff had enteredinto a compromise in 1924 fixing her maintenance at Rs. 240 per year andproviding that the rate of maintenance shall not be increased or reduced. Thequestion arose whether, in spite of this agreement, the plaintiff could claimincreased maintenance in view of s. 25 of the Hindu Adoptions and MaintenanceAct, 1956. It was held that, in spite of the aforesaid term of the compromise,she was entitled to claim increased maintenance under s. 25. This conclusionfollows from the plain words of s. 25, under which the amount of maintenance,whether fixed by decree or agreement either before or after the commencement ofthe Act, may be altered subsequently. The decision was therefore, plainlyright. No doubt, there are broad observations in that case to the effect that theright to maintenance is a recurring right and the liability to maintenanceafter the Act came into force is imposed by s. 22, and there is no reason toexclude widows of persons who died before the Act from the operation of s. 22.Those observations were not necessary for the purpose of that case, because thewidow in that case was clearly entitled to maintenance from the estate of herdeceased husband dying in 1916 under the Hindu law, as it stood then,independently of Sections 21 and 22 of the Act, and in spite of the compromisefixing the maintenance before the commencement of the Act, the widow could inview of s. 25 claim alteration of the amount of the maintenance. The decisioncannot be regarded as an authority for the proposition that Sections 21 and 22 ofthe Act affect rights already vested before the commencement of the Act. We,therefore, hold that the claim of the respondents to maintenance for theirlives is not affected by the Act.

13. We see no reason to interfere with the concurrent finding of the Courtsbelow with regard to the quantum of maintenance.

14. In the result, the appeal is dismissed with costs.

15. Appeal dismissed.


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