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Gopal Vs. Mst. Kallu - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 165 of 1953
Judge
Reported inAIR1960Raj60
ActsHindu Married Women's Right to Separate Residence and Maintenance Act, 1946 - Sections 2(4) and 2(7)
AppellantGopal
RespondentMst. Kallu
Appellant Advocate Ram Avtar Gupta, Adv.
Respondent Advocate Sagarmal Mehta, Adv.
DispositionAppeal partly allowed
Cases ReferredAnanda Kumar Bhattacharjee v. Secretary of State
Excerpt:
.....according to the text, the wife was to follow the husband as his shadow and she had no right to separate residence. giving a retrospective operation to an enactment is a serious matter as it may disturb the rights and liabilities of the parties which they had under the old law and which they enjoyed before the enactment of the new law. (2) if he is guilty of such cruelly towards her as lenders it unsafe or undesirable for her to live with him; similarly, sub-section (2) of section 2 is applicable only when the husband is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him. had the legislature intended to cover a ease of a woman whose husband had several wives, it could have employed better phraseology. instead of remanding the case to him we..........to provide for a right to separate residence and maintenance under certain circumstances to a hindu married woman. the language of the preamble suggests that the provisions of the act have been made to grant a new right to a hindu married woman. it does not suggest that the act had been enacted for the purpose of recognising certain rights. there is a great deal of controversy on the point whether a right of separate residence and maintenance on any of the grounds contained in section 2 is recognised by the hindu tests. ramaswami j. in his learned judgment in the case of air 1954 mad 713 has cited various texts to show that under the pure hindu law a superseded wife has a right of separate residence and maintenance against her husband, but the ancient writers are equally emphatic on.....
Judgment:

Bhandari, J.

1. This Civil Second Appeal has been referred by Ranawat J. to a Division Bench as it involves an important point of law relating to the interpretation of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (No. 19 of 1946) (hereinafter called the Act).

2. On the 4th of November, 1950 Mst. Kallu plaintiff-respondent filed an application to sue in forma pauperis against her husband Gopal defendant-appellant in the court of the Munsiff, Tonk with the allegations that she had been married to the defendant about 12 or 13 years back and lived with him as his wife. In 1947, she became sick and pregnant and the defendant treated her cruelly and did not make any arrangements for her treatment. On the other hand he left her with her father. Since that time the defendant had not been paying any maintenance allowance to her and also did not take her to his house.

The plaintiff filed an application under Section 488 of the Criminal Procedure Code in which the defendant by his tactics persuaded her to compromise. The defendant had since then married again. The date of marriage is not given in the application, but it may be taken that the second marriage had taken, place long before 24-1-1950 the date on which Act No. 19 of 1946 was brought into force in the State of Rajasthan. The plaintiff further stated that she was entitled to a maintenance allowance at the rate of Rs. 30/- p. m. She claimed a decree for Rs. 1170/-for the arrears of maintenance allowance for three years and three months.

The application in forma pauperis was granted The defendant denied that there had been any cruelty or desertion on his part. He admitted that he had married again as the plaintiff was not willing to reside with him. He also took the plea of limitation. The learned Munsif decreed the claim for Rs. 540/- holding that the plaintiff was entitled to a maintenance allowance of Rs. 15/- p.m. for three years. The rest of the claim was dismissed. An appeal was filed by the appellant before the learned Civil Judge, Tonk. The learned Civil Judge dismissed the appeal. Hence this second appeal on behalf of the defendant, Both the lower courts have decreed the claim on the ground that the plaintiff could claim maintenance under Section 2(4) of the Act as the defendant had married again.

3. The main point for determination in this appeal is whether the plaintiff is entitled to maintenance in spite of the fact that the second marriage of the defendant had taken place before 24-1-1950 when the Act was brought into force.

4. There is considerable divergence of judicial opinion on this point. There are the following three Full Bench decisions on this point taking the view that the Act did not apply to a case where the second marriage of the husband has taken place before the Act came into force: Ram Prakash v. Savitri Devi, AIR 1958 Punj 87; Palaniswami Gounder v. Devanai Ammal, (S) AIR 1956 Mad 337, overruling the decisions of the same High Court in the cases of Lakshmi Ammal v. Narayanaswami, AIR 1950 Mad 321; Sidda Setty v. Muniama, AIR 1953 Mad 712; Nagendramma v. Ramakotayya AIR 1954 Mad 713 and Kuppanna Goundan v. Palaniammal, AIR 1955 Mad 471, Kasubai v. Bhagwan, (S) AIR 1955 Nag 210 (FB).

The same view is taken by a Division Bench of the Bombay High Court in the case of LaxmibaiWamanrao v. Wamanrao Govindrao, AIR 1953 Bom 342 and by the Allahabad High Court in case of Ratan Chand v. Mst. Kaiawati, (S) AIR 1955 All 364.

5. The contrary view has been taken by the Orissa High Court in the case of Kulamani Hota v. Parbati Dcbi, (S) AIR 1955 Orissa 77, by the Hyderabad High Court in (he case of Varalakshmi v. Virimulu, AIR 1956 Hyd 75 and by a single bench of the Allahabad High Court in the case of Smt. Fancho v. Ram Prasad AIR 1956 All 41. So far as this Court is concerned, there is no direct authority on this point and we are at liberty to interpret Section 2(4) of the Act in any manner that appeals to us.

6. The preamble of the Act says that it has been enacted to provide for a right to separate residence and maintenance under certain circumstances to a Hindu married woman. The language of the preamble suggests that the provisions of the Act have been made to grant a new right to a Hindu married woman. It does not suggest that the Act had been enacted for the purpose of recognising certain rights. There is a great deal of controversy on the point whether a right of separate residence and maintenance on any of the grounds contained in Section 2 is recognised by the Hindu tests. Ramaswami J. in his learned judgment in the case of AIR 1954 Mad 713 has cited various texts to show that under the pure Hindu Law a superseded wife has a right of separate residence and maintenance against her husband, but the ancient writers are equally emphatic on the duty of the wife to live with the husband. Dr. N. C. Sen Gupta in his Evolution of Ancient India Law has observed as follows:

'The mantras in the Rigveda and in the Grihya-sutras also emphasise the duty of steadfastness and fidelity of the wife. This is symbolised by the wife being made to treat on a piece of stone with a mantra signifying that she should be fixed as a stone in the house, and she is asked while taking the seven steps to follow the Vrata of the husband (mamanu-vrata bhava). She is taken to see the stars, notably the pole star and Arundhati as symbols of steadfastness and chastity'.

7. Mahamahopadhya P. V. Kane in his History of Dharmasasta Vol II Part I has referred to mutual rights and duties of husband and wife at page 556. At page 561 it has been observed as follows:

'All the smritis, puranas and the digests devote a great deal of space to the duties of a wife. It would be impossible to set them out in detail. A few striking passages alone will be cited. All are agreed that the foremost duty of a wife is to obey her husband and to honour him as her God'.

Then there is another passage at page 563:

'Manu (IX 13) adds that drinking wine, company of bad people, staying away from the husband, wandering about (to tirthas or elsewhere), sleep (by day), staying in the house of strangers--these 6 spoil married woman. Adiparva 74.12 gives expression to the popular notion that people do not like married women staying with their paternal relatives for a long time away from their husbands, since such a stay leads to loss of good name and character'.

The above quotations would suffice to show that according to the text, the wife was to follow the husband as his shadow and she had no right to separate residence. Though the ideal rule in Hindu society has always been that of monogamy yet strictly speaking according to the Hindu Law, polygamy was not forbidden. Polygamy was not practised except on the barrenness of the first wife. The evil had also penetrated the Zenana of Feudal Chiefs, but as will be clear from the Imperial Gaetteer of India Vol. I (Ed. of 1907) p. 482, although in theory polygamy is allowed, in practice a second wife is rarely taken while the first is alive and in India as a whole there are only 1011 wives to every 1000 husbands so that even it no husbands have more than two wives all but 11 per thousand most be monogamous. Since then the situation has much improved.

8. It may be taken to be a settled law whether it may be as a result of correct interpretation of texts or otherwise that if the wife resides in her father's house against the will of the husband or deserts him without sufficient cause, she cannot claim maintenance while living separate from her husband. (See Gopalchandra Sarkar, Sastri's Hindu Law, 7th Edition, page 173).

9. This being the state of law before the coming into force of the Act, it may be taken that the Act was not declaratory in so far as it granted any right of separate residence and maintenance to a Hindu married woman in case her husband married again. In the interpretation of Section 2(4) there is thus no necessity to seek assistance of the principles relating to the interpretation of the enactments which are declaratory in their nature and then to hold that the Act is retrospective.

10. In some of the cases taking the view that the Act is retrospective, it has been said that the Act is remedial in its nature and ameliorative in its character and as such it must receive retrospective operation. In a sense the Act is remedial as it remedies the defect in the pre-existing law. The purpose of the Act is to keep pace with the views of the society. The remedial statute is to be liberally construed but it cannot be given retrospective operation unless expressly provided in the enactment. It will be going too far if the interpretation of an enactment is mainly to be based on the ground that it is remedial in character. Giving a retrospective operation to an enactment is a serious matter as it may disturb the rights and liabilities of the parties which they had under the old law and which they enjoyed before the enactment of the new law.

11. We have therefore, to interpret the law as it stands. Section 2 of the Act which gives the grounds for granting separate right of residence and maintenance runs as follows:

'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 of the following grounds namely,--

(1) if he is suffering from any loathsome disease not contracted from her;

(2) if he is guilty of such cruelly towards her as lenders 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 in the house or habitually resides with a concubine;

(7) for any other justifiable cause'.

It is mentioned in this section that the Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the grounds mentioned therein. Now the words shall be entitled are capable of only one meaning that a Hindu married woman is to have the right of separate residence and maintenance only after the coming in-to force of the Act. Sub-section (1) of Section 2 says that such right is available to a Hindu married woman if the husband is suffering from any loathsome disease not contracted from her.

This means, that the husband must be suffering from any loathsome disease at the time when a Hindu married woman claims herself entitled to separate residence and maintenance. If in the past he had suffered from any loathsome disease but he had been cured of it, Section 2(1) has no application. Similarly, Sub-section (2) of Section 2 is applicable only when the husband is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him. The relevant date to determine whether he is guilty of such cruelty is the date on which the wite considers herself entitled to separate residence and maintenance. Such date must be any date after the Act has come into force.

It cannot be any date before the Act had come into force. It may be that she may base her cause of action on the series of acts committed by the husband even at the time when the Act was not in force but this would not make the Act retrospective. We may in this connection refer to the case of The Queen v. St. Mary, Whitechapel, (1848) 116 E. R. 81.1, where it has been observed that 'the statute cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing.' The above observations were quoted with approval in the case of Ananda Kumar Bhattacharjee v. Secretary of State, ILR 43 Cal 973: (AIR 1916 Cal 446 (2)).

The same interpretation is to be given to sub-sections (3), (5) and (6) of Section 2.

12. Now we come to Sub-section (4). Here the words are 'it he marries again'. Let us examine the word 'again' first. 'Again' means once more and when the word qualifies 'marries', it means the marriage of the husband with another woman after the marriage with a woman who is claiming residence and maintenance. This sub-section as it stands gives a Hindu married woman the right o separate residence and maintenance only if her husband marries any woman after her marriage with him. If there is no marriage after the marriage with the woman chiming separate residence and maintenance she is not entitled to any relief even though there might be several other married wives of her husband and even if the marriage with any such wife had been performed after the coming into force of the Act.

In our humble opinion the word 'again' cannot have any reference to the point of time when the Act has come into force. On this interpretation of Section 2(4) even a Hindu married woman who has been married after the Act had come into force, cannot claim a right of separate residence and maintenance from a husband who had married prior to her marriage with him and even though the previous marriage had also taken place after the Act had come into force. To illustrate it further, we may take the case of a husband who married three wives A, B & C one after another after the Act had come into force. In our view it is only A and B who have a claim for separate residence and maintenance and C cannot have any claim as her husband cannot be described to have married again so far as she is concerned.

Had the legislature intended to cover a ease of a woman whose husband had several wives, it could have employed better phraseology. In this connection we may refer to the phraseology employed in Section 18(2)(d) of the Hindu Adoptions and Maintenance Act, 1956. In Section 18(2) (d) of that Act, it has been provided that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has another wife living. This phraseology leaves no doubt that a Hindu wife is entitled to a right of separate residence when there is any other wife living whether that wife's marriage has taken place before the Act came intoforce or after it had come into force and whether the husband had married that wife prior to the wife claiming separate residence or after her.

The legislature must be taken to have purposely used the words 'marries again' in Sub-section (4) ofr Section 2 of the Act only to grant relief to a wife it her husband marries any woman after her marriage with him. The legislature intentionally did not grant any relief to a wile married with a man having previous wife or wives as that wife must be taken to have married such a husband knowingly.

13. Having said so much for the word 'again', we now proceed to examine the words 'if he marries again'. It is not possible for us to take the view that these words are merely descriptive of a person having more than one wife. These words signify that the husband performs another act of marriage. We have already pointed out that the words 'shall be entitled' make the Act prospective and grant the right of residence and maintenance only from the date of its coming into force. The relevant part of Section 2 can be put as follows:

'If a husband marries again he shall be liable to the wife to grant separate residence and maintenance.'

14. Put thus it san only be interpreted as meaning that the liability of the husband shall arise only in case he does the particular act, that is, that of marrying again. Unless he does any such act, he cannot be liable under the Act. The use of present tense in Sub-section (4) does not make it retrospective. The whole of the Penal Code is drafted on these lines in defining the various offences, but it cannot be said that the provisions of Penal Code are retrospective or that a person is liable for an act committed before the Penal Code came into force. The same principle-is applicable in interpreting Sub-section (4) of Section 2 of the Act.

15. Taking that view of the matter, we fall in line with the view taken in the three Full Bench cases referred to above. We need not discuss all the cases in detail because we have given our reasons for adopting the interpretation that the husband should have married another wife after the Act had come into force in order to entitle the previously married wife to the right of separate residence and maintenance. In this case the marriage of the defendant with the second wife had taken place before the Act came into force and the plaintiff cannot claim an maintenance on that account. The learned Judge of the lower appellate court has given a finding that the husband was not guilty of any desertion or cruelty. The claim of the plaintiff cannot be sustained under Sub-sections (2), (3) and (4) of Section 2 of the Act.

16. The learned Judge of the trial court has held that the plaintiff was entitled to maintenance as after the first delivery of a child she was sick and had been incapacitated in her hands and feet. The second child was also born to her in that condition. He has also held that she was unable to work. He was of opinion that it was justifiable cause under Sub-section (7) of Section 2 of the Act for granting maintenance to the plaintiff. The learned Judge of the lower appellate court has given no opinion on this point. Instead of remanding the case to him we have also examined the evidence on record and we are satisfied that it is a fit case in which the plaintiff should be held entitled to maintenance under Sub-section (7) of Section 2 of the Act. Dr. T. M. Desai has been examined on behalf of the plaintiff and he has stated that he had treated the plaintiff some seven or eight years back after she had delivered a child.

She suffered from serious fits and this affected her hands, feet and brain. In cross-examination hestated that she suffered from eclampsia. He also stated that the plaintiff was unable to do any work. She was totally incapacitated, The plaintiff and her other witnesses have also stated that since the time of the first delivery the hands and feet of the plaintiff had been incapicitated and she was decrepit and was permanently invalid. There is no rebuttal worth the name of this evidence. Sub-section (7) of Section 2 empowers the court to grant maintenance to a wife for any other justifiable cause.

That section is to be read ejusdem generis. Section 2 being of a remedial nature must be liberally construed and Sub-section (7) should be taken to cover the case like the present. We are satisfied that we should grant maintenance to the plaintiff under Sub-section (7) of the Act, but she is entitled to such maintenance only from the 24th of January, 1950. We award the plaintiff a decree for maintenance at the rate of Rs. 15/- p.m. from the 24th of January, 1950 (the date when the Act came into force) to the 3rd of November, 1950. This comes to Rs. 155/-.

17. The result is that the appeal is partly allowed the judgment and decree of the learned CivilJudge, Tonk dated the 29th of May, 1953 are modified and the plaintiff is awarded a decree of Rs. 155/-instead of Rs. 540/-. Looking to the circumstancesof the case the parties shall bear their own coststhroughout.


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