1. This appeal arises out of a suit for maintenance. The defendant is the Zamindar of Kangundi and the plaintiff is his third wife (the first and the second being dead).
2. It is common ground that in or about May, 1929, when the plaintiff was pregnant, the defendant took her to Bangalore and arranged for her staying in a bungalow there belonging to the Kangundi estate. In the course of this suit, the defendant tried to make it appear that the plaintiff preferred to stay away at Bangalore. We are unable to accept that suggestion. The correspondence that has been exhibited in this case and particularly the defendant's reply (Ex. A-1) make it clear that it was by reason of the defendant's resolve that the plantiff had to stay alone at Bangalore.
3. What exactly are the circumstances which led the defendant to come to that resolve is left in some obscurity. It appears that some time before taking this lady to Bangalore the defendant has for reasons of his own been arranging to marry another wife. In Ex. J it is stated that arrangements for that contemplated marriage had been entered into in February, 1929. Whether that alone was the cause for the defendant desiring to put the plaintiff aside or whether there was more behind it we are left to infer from a very laconic statement in Ex. A-1 read in the light of a plea now put forward in the written statement. Ex. A-1 is the reply which the defendant sent through his counsel in answer to a notice from the plaintiff through her pleader asking for maintenance. In paragraph 2 of that letter it is stated:
My client does not want to disclose in this reply the circumstances under which he has been obliged to ask his wife to live away from him.
4. In paragraph 3 of the written statement filed in this suit the defendant states:
Shortly before the time of departure to Bangalore the defendant suddenly and accidentally came by proofs of the want of fidelity on the part of the plaintiff. It was thereupon that the defendant resolved in the interests of everybody concerned to take her to Bangalore.
5. Whether this was an untrue statement merely made for the purpose of this case or whether he had some such lurking suspicion and that led to the idea of his arranging for another marriage or for other reasons he wanted to take another wife and therefore he had to find some excuse for putting away the plaintiff seems to us immaterial for the purpose of the decision of this case. It is fairly clear from the correspondence that when he left the plaintiff at Bangalore in the middle of 1929 he had no idea of taking her back. On the other hand, he candidly states that he made arrangement for her maintenance. His learned Counsel no doubt now puts it that it was only a temporary arrangement and not a permanent arrangement. But having regard to the fact that alongside this arrangement he was arranging to marry another wife and even his reply Ex. A-1 does not suggest that the proposed arrangement was temporary, we cannot agree that the idea at the time was that she should be temporarily staying away.
6. Reference was made in this connection to a statement by the defendant himself in Ex. E, a letter addressed by him to the plaintiff's brother on 17th September, 1929. That letter begins by stating that the addressee's sister (i.e., the plaintiff) wants to live separately at Bangalore. This is obviously a false statement. It may be euphemistic because he did not want to let the brother know that he had decided that the plaintiff should live away from him. In his deposition the defendant as D.W. 1 admits that the plaintiff never told him that she wanted to live away from him. Mr. Srinivasa Aiyangar also relied upon a statement in the plaint that in or about September, 1929, the defendant entered into mutual arrangement with the plaintiff that she should live permanently separate in that house at Bangalore and that the defendant would attend to all her comforts and needs and maintain her and her child suitably to her rank and position in life. This certainly does not bear the interpretation that the plaintiff either desired or was even willing that she should live away from her husband. In the context it only means that when, the husband left her no choice in the matter of where and how she was to live, she thought it best that there should be an arrangement about her maintenance. Ex. A-1 fully supports this interpretation.
7. It is in circumstances above set out that in October, 1929, the defendant sent to the plaintiff a sum of Rs. 250 by money order. It is admitted that the plaintiff declined to accept it and returned it. It is now suggested on her behalf that she did so because she considered the amount inadequate, but there is nothing on record to show that that was given as the reason. This apparently irritated the defendant with the result that the subsequent correspondence shows even more unfriendliness on his part towards the plaintiff. The marriage which he had proposed to contract with another lady for some reason fell through and it is obvious that that must have added to his worries. But it is clear even from the notices that passed between the parties that at the time of his reply notice the defendant had no idea of offering to take the plaintiff back or resist her right to maintenance on the basis that she had no right to live separately. The only dispute between the parties at that time related to the amount that should be paid to the plaintiff for the purpose of her maintenance.
8. When this suit was instituted, it unfortunately happened that allegations of cruelty ranging over some years prior to the trip to Bangalore were made in the plaint and naturally they were denied in the written statement. If we had to decide the case only on the ground of cruelty, we should have had great hesitation in finding that such cruelty has been proved. Though we are substantially confirming the decree of the lower Court, we do not wish to be understood as concurring in all the observations of the learned Subordinate Judge or even in the general tenor of his reasoning. We prefer to base our conclusion on the ground that this is not a case in which the wife left her husband but one in which for reasons of his own the husband chose to put the wife away from him. The covert suggestion in his reply notice and his more open allegation in the written statement as to the circumstances under which or reasons for which he so resolved have only added insult to injury. In these circumstances we would treat the case as one of abandonment of the wife by the husband.
9. The cases to which our attention has been drawn do not suggest that cruelty and abandonment are the only grounds on which separate maintenance could be allowed to a wife. These two grounds are no doubt enumerated but it is also recognised that wherever the wife lives away from the husband for justifiable reasons she is entitled to separate maintenance. In the circumstances we have set out above there can be little doubt that the plaintiff was obliged to live away from her husband and justifiably did so. It has not been suggested that she has done so for any improper purpose.
10. During the pendency of the suit however an offer was made on behalf of the defendant that he is willing to take the plaintiff back and it is argued that on that ground her right to maintenance should be negatived. Decided cases have recognised that an offer of this kind has got to be carefully scrutinised with a view to determine whether it was a bona fide offer. The circumstances we have already adverted to and the allegation in the written statement about defendant's suspicion as to the plaintiff's fidelity make it difficult for us to believe that it is a bona fide offer. As we have said before no such offer was made even in Ex. A-1 and in fact at no time before the written statement was filed. This clearly suggests that the offer is now made only for the purpose of defeating this claim for maintenancE.After the contemplated marriage fell through, it is admitted that the defendant has married two other wives. In these circumstances we are not prepared to take the defendant's offer seriously nor treat it as a reason for denying separate maintenance to the wife.
11. As the determination of a question of this kind largely depends upon the facts and circumstances of the case, we do not think it necessary to advert at length to the cases cited before us. On behalf of the appellant Mr. Srinivasa Iyengar relied upon the judgment of the Privy Council in Bommadevara Naganna Nayudu Bahadur v. Bommadevara Rajya Lakshmidevi Amma (1928) 55 M.L.J. 242 , but their Lordships proceeded in that case on the footing that it was the wife that voluntarily left the husband's house and if anything it was the husband who had very legitimate grounds to complain of her conduct. They found that for more than twenty years she never wished to go back to the husband's house. On the other hand she brought forward a false story that she was attempted to be poisoned by the husband. The circumstances of the present case are not by any means analogous. The other case referred to by Mr. Srinivasa Iyengar, viz., Krishna Aiyar v. Balammal I.L.R (1910) 34 Mad. 398, is no doubt authority for the proposition that an agreement between a husband and wife to live separate must be regarded as opposed to public policy and not enforced. Such is not the purpose of the present suit. The circumstances under which the plaintiff was made to live at Bangalore and the defendant agreed to maintain her are relied on only to support the plea of abandonment and to answer the defendant's present offer to take her back.
12. Our attention was drawn to the observations in Mayne's Hindu Law, and to certain observations in Yamunabai and Narayan Jaganath Bhide v. Narayan Moreshvar Pendse I.L.R (1876) 1 Bom. 164 with reference to the nature of the cruelty that must be proved. These observations have formed the subject of comment in later cases but, as we have already said, we are not basing our decision on cruelty, it is unnecessary to say more about that point. We may however refer to the observations of Venkatasubba Rao, J., in Sheenappaya v. Rajamma : AIR1922Mad399 that it is reasonable to hold that the grounds which would be available to a wife to defeat a suit for restitution of conjugal rights would also entitle her to live apart from her husband and claim separate maintenance. If we may regard the defendant's present offer to take her back as analogous to the institution of a suit for conjugal rights, there are several authorities which will justify the Court in refusing the relief by way of restitution of conjugal rights to a person in the position of the defendant even though cruelty may not be proved. See Musammat Maqboolan v. Ramzan I.L.R(1927) 2 Luck 482, Husaini Begam v. Muhammad Rustam Ali Khan I.L.R(1906) 29 All. 222, Kondal Rayal Reddiar v. Ranganayaki Ammal : (1923)45MLJ186 , Bai Jivi v. Narsingh Lalbhai I.L.R (1926) 51 Bom. 329 and Ude Singh v. Mst. Daulat Kaur I.L.R (1934) 16 Lah. 892. We accordingly see no reason to interfere with the decision of the lower Court that the plaintiff is entitled to claim separate maintenance.
13. Coming next to the question of the rate of maintenance, we cannot help thinking that the rates awarded by the lower Court are excessive and unduly onerous to the defendant.
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14. Their Lordships discuss the evidence and hold that they think that the proper direction will be that from 1st June, 1930, to the date of the lower Court's decree, the plaintiff should get maintenance for herself and her daughter together at the rate of Rs. 250 per mensem and that from the date of the lower Court's decree, the maintenance should be at Rs. 350 per mensem. But we do not think that on this ground we should interfere with the award of costs in the lower Court. So far as this appeal is concerned, as the principal ground of appeal has substantially failed, the appellant will pay the respondent's costs.
15. The memorandum of objections is dismissed.
16. Mr. Srinivasa Iyengar invited us to add a provision in the decree reserving liberty to the appellant to apply for a revision of the rate of maintenance in the execution department itself, in the event of circumstances justifying a change of the rate of maintenance. Some Bombay cases were relied on as justifying such a direction; we are by no means sure that this will be strictly in accordance with the provisions of the Civil Procedure Code. But even apart from that consideration, we do not think it expedient to insert any such provision in the decree, because it will merely be a standing invitation to the parties to avail themselves of that liberty. If really either party thinks that there has been such a change of circumstances as to justify a revision of the rate of maintenance, the remedy by way of suit will always be available.