1. The question we are called upon to decide in this case is whether a wife who, without sufficient cause, leaves her husband and lives apart from him during his life-time forfeits her right of maintenance against his estate after his death.
2. It is undoubtedly the duty of a Hindu wife to live with her husband and under his protection, and if, without due cause, she leaves him and lives apart she cannot claim to be maintained by him.
3. There is, however, no authority for saying that after leaving him she has no right to return and live under his protection.
4. Hindu Law does not recognise any divorce or dissolution of the marriage tie, and in the absence of clear authority to the contrary, I am of opinion that it is her right and also her duty to return to her husband. I am not referring to cases of unchastity which is not alleged here. If she is entitled to be maintained by her husband during his life-time on her returning to him, it appears to follow that her right to maintenance is only suspended so long as she goes on committing a breach of her duty by living away from him. After his death it is no longer possible for her to live with him and she is not committing any breach of duty in failing to do so. Consequently there is nothing to prevent her from enforcing a widow's claim to maintenance. It might not be an unreasonable rule to punish the misconduct of a Hindu wife in leaving her husband without due cause by depriving her of her right to maintenance either during his life or after his death, and if there were any such well-established rule we should, of course, be bound to enforce it. It is not, however, in my opinion, the function of this Court to create such a rule, and that no such rule now exists is clear to my mind from the failure of the respondent's Vakil to produce any direct authority in support of the same.
5. It is, however, in my opinion, open to the Court to have regard to the conduct of the widow in fixing the amount of her maintenance, and I am inclined to think that under the circumstances of this case it should be fixed at a less liberal rate than would otherwise be awarded. Under the circumstances, I think an allowance of Rs. 7/- a month will be sufficient. The decree of the lower Court must be set aside and decree given for the plaintiff from the 15th March 1903, the amount to be payable on the 1st of every month with proportionate costs throughout.
Sankaran Nair, J.
6. This is an appeal from the decree of the District Judge of Vizagapatam, dismissing the plaintiff's suit brought by her to recover arrears of maintenance from the defendant, her father-in-law, who is found by the Judge to be in possession of ancestral property, on the ground that up to the moment of her husband's death she was not in a position to claim maintenance from him as she was living apart without any sufficient cause, and that her husband's death cannot place her in a better position.
7. It is not alleged that the plaintiff was unchaste or that her conduct was otherwise improper. It is also not contended that she was bound to live with the defendant.
8. It is true that the plaintiff claims maintenance from her father-in-law on the ground that he has taken the property of her deceased husband. But I am not aware of any rule of Hindu law that a widow is entitled to maintenance out of the property in the possession of a member of her husband's family only if she would have been entitled to claim maintenance from the person whose property is now vested in such member.
9. In that case a widow who had no legal claim to maintenance against the father-in-law who had no ancestral property could acquire none against the heir who takes his assets. But it has now been held by all the High Courts that the father-in-law is under a moral obligation which ripens into a legal one against his assets in the hands of his heir to maintain his daughter-in-law.
10. In Madras it has further been held that the rule of non-liability established with reference to the self-acquired property of the father-in-law ought not to be extended to other property which may not be liable for partition at the instance of the husband as ancestral property; for instance, property acquired from a maternal grand-father--see Rungammal v. Echammal and Ors. I.L.R. (1898) M. 307. The texts collected in Savitribai v. Lukshmibai and Sadasiv Ganoba I.L.R. (1878) B. 597 seem to show that the husband is under a moral obligation to maintain his wife though living apart. If so the decision above referred to would support her claim.
11. As the father-in-law is under a moral obligation to maintain a daughter-in-law who lives apart, without any sufficient excuse but without any corrupt motives, and who may have been living apart from her husband, there is no reason why the possession of ancestral estate which converts it into a legal obligation should impose conditions on the exercise of the widow's claim. That such moral obligation at least exists cannot now be denied. See the cases referred to in Rungammal v. Echammal and Ors. I.L.R. (1898) M. 307.
12. There is also no doubt that the plaintiff would have inherited any self-acquired property of the husband. The right to maintenance is one accruing from time to time.
13. It depends upon her wants and exigencies. The liability to maintain her arises from various considerations. The right of a wife to maintenance is a matter of personal obligation. It rests on the identity arising from the marriage relations and is not dependent on the possession of any property by the husband. He is bound to support her though he should have no property at all. Her home is in her husband's house, and if she quits him without any adequate excuse, he is not in law bound to maintain her obviously for the reason that she thereby disqualifies herself from performing her duties to him. There is no reason, therefore, why the plaintiff should not have been entitled to main tenance from the husband on returning to him or offering to return.
14. A widow's right rests on different considerations. While it has been held that she is entitled to maintenance from the son even if he is not in possession of ancestral property - Subrayan v. Subbakka I.L.R. (1884) M. p. 236 - a similar right against the father-in-law is not admitted. His legal obligation to maintain her out of ancestral property is not now denied. That obligation became enforceable on her husband's death. His moral obligation is due to the fact that the plaintiff by her marriage with his son 'was born again in his family,' in the language of the Hindu lawyers, and his legal liability arises on account of his possession of joint family property.
15. That obligation cannot be discharged and her claim defeated by reason of her conduct towards her husband which might disentitle her to enforce a distinct claim arising out of a different relation, and on account of considerations peculiar to that relation she has not ceased to be a member of the family.
16. We are, therefore, of opinion that her claim to maintenance must be allowed.
17. As to the rate I am of opinion that Rs. 7 would be sufficient to provide for her in the style to which she is likely to be accustomed, and such payment would not be an undue burden on the defendant.
18. We declare her right to maintenance at that rate and award her that amount from the 15th March 1903, the date of her registered letter (Exhibit III) by which she demanded maintenance. The amount will be payable on the 1st of every month. She will be entitled to her proportionate costs throughout.