1. The plaintiff is the wife of the defendant. The suit originally comprised two claims, a claim for maintenance and a claim for recovery of certain articles set out in schedule A to D to the plaint or their value. Soon after the institution of the suit, most of the articles claimed were delivered to the plaintiff and she has not pressed her claim as regards the rest. The trial was therefore confined to her claim for maintenance. The suit was instituted on the 24th January, 1947. The plaintiff claims arrears of maintenance at Rs. 200 a month from 1st October, 1944, up to the date of the institution of the suit and future maintenance at the same rate. The plaintiff is the daughter of a retired Assistant Surgeon in the medical department of the Government of Madras and she is a Graduate. The defendant is the only son of a retired medical officer employed by the Corporation of Madras. He received medical education in Great Britain and at the time of the suit he was employed as a medical officer to the Madras Electric Supply Corporation, Ltd., and the Madras Electric Tramways, Ltd. The parties are Hindus.
2. The plaintiff was married to the defendant on 3rd July, 1942. She joined her husband and commenced living with him in his house from August, 1942. It is common ground that she continued to live with her husband in his house till June or July 1943. In June or July, 1943, she went to her father's house which according to the evidence is about two furlongs from her husband's house and she never again returned to her husband's house to stay with him. In June 1943, the defendant's mother fell seriously ill and she was admitted into the Stanley Hospital, Royapuram, where she remained for nearly a month. The plaintiff went with her husband to visit her mother-in-law once in the hospital but admittedly she did not stay with her husband in his house during the time her mother-in law was in the hospital. From July 1943, till about the end of December, 1943, the plaintiff and the defendant did not live together as man and wife. In January, 1944, it is again common ground that on account of the intervention of P. W. 2, Mr. Venugopal Naidu, a pleader practising at Erode and the husband of the plaintiff's cousin, the defendant began to regularly visit the plaintiff in her father's house. According to the evidence the defendant did not remove himself from his house and go to live with his wife in her father's house but he admits that he was meeting the plaintiff practically every day and sleeping every night in her father's house. He was also taking his food there almost regularly though he kept most of his clothes and other belongings in his parents' house. This state of affairs went on till about October 1944, when there was certainly a quarrel between the plaintiff and the defendant. There is conflict of evidence as to why and over what the plaintiff and the defendant quarrelled, but it is admitted by both sides that after October, 1944, the defendant ceased to visit the plaintiff in her house. Some time in January,1945, the plaintiff did go once to her father-in-law's house. She went with her uncle and aunt of whose object there can be no doubt, namely, to invite the defendant and his parents to a marriage. The plaintiff left with her uncle and aunt and did not stay away in her. husband's place. Thereafter she never left her father's place up to date. On 1st September, 1946, the defendant married again. On 11th October, 1946, under instructions from the plaintiff her advocate called upon the defendant to pay her maintenance, past and future, and return the articles set out in the notice. The defendant appears to have met the plaintiff in person after the receipt of this notice ; but the parties are not agreed as to what exactly happened at the interview. On the 1oth November, 1946, the defendant replied through his advocate to the demand made in the plaintiff's notice of the nth October, 1946. In his reply he stated that the plaintiff was at liberty to take the articles together with a pass book belonging to her and that he was ready and willing to take her back if she would come and live with him and if she was not willing to that course, he would provide her with residence and arrange for her comforts and was prepared to pay her Rs. 50 a month from 1st November, 1946. On the 27th November, 1946,the plaintiff's advocate acknowledged this reply by the defendant's advocate and stated under instructions from the plaintiff that the offer made as regards maintenance was inequitable and not fair and that the plaintiff was compelled to seek redress in a Court of law. The defendant was also called upon to deliver the articles to the advocate on behalf of the plaintiff. After the exchange of these notices, on the 23rd December, 1946, the defendant addressed directly a letter to the plaintiff in which he withdrew his offer of Rs. 50 per month as well as the offer to deliver the articles claimed by her. The plaintiff replied to this letter on the 8th January, 1947, reiterating her claim and finally the suit was instituted as already mentioned on the 24th January, 1947.
3. The plaintiff's claim for maintenance was based on three grounds. She alleged cruelty on the part of the defendant and his parents, abandonment and desertion by the defendant and the second marriage of the defendant. Paragraph 12 of the plaint sums up her case as follows:
The plaintiff therefore states that by reason of acts of cruelty against her so as to render it unsafe or undesirable for her to live with the defendant and by reason of her being completely neglected and deserted by the defendant at any rate from October 1944 if not earlier, without her consent and against her wish and ultimately by reason of the defendant taking another wife, the plaintiff is entitled to claim separate maintenance against the defendant.
It is quite clear that so far as the third ground is concerned, her right, if any, could only commence from the date of the second marriage, that is, 1st September, 1946, and this ground can only be supported by the provisions of Section 2 of Act XIX of 1946, which came into effect on the 23rd April, 1946. It is therefore necessary to determine whether the facts established by her entitle her to claim provision for separate residence and maintenance from 1st October, 1944, and also to determine whether under the provisions of the Act she would be entitled from 1st September, 1946.
4. It is necessary to state a few further facts to help in the proper appreciation of the evidence. The defendant returned from Britain in 1940. Though he was able to secure certain medical degrees and qualifications, he was not able to get any employment till April 1944, when with the help of P. W. 2 he got a temporary employment with the Buckingham and Carnatic Mills. This lasted only till December 1944. He was again unemployed from January 1945 to the end of March, 1945. It was only in April, 1945 that he secured an employment with the Madras Electric Supply Corporation and the Madras Electric Tramways. The defendant's father is a retired medical officer drawing a pension of about Rs. 50. The defendant was residing at all material times with his father and mother in a house which according to the evidence belonged to the defendant's: mother. There is also some evidence that the defendant's mother owned another house which fetched a rent of about Rs. 40.
5. The plaintiff's father made a gift of Rs. 5,000 to the plaintiff in the shape of Postal cash certificates which had already been purchased in her name. At the time of the marriage the defendant's father presented the plaintiff with a sum of Rs. 1,000 which sum was intended for a jewel to be made for the plaintiff's use. The jewel was not however made but the amount was deposited in the bank.
6. The cruelty alleged by the plaintiff in the plaint and deposed to by the plaintiff in her evidence consists largely in having been made to do menial work involving discomfort. The plaintiff stated in her evidence that she was made to sweep the house, cook for the family, clean the vessels and practically made to do all the work of the house. She was not able to take her food before 3 or 3-30 p.m. According to her case, there was no servant in the house. The defendant and the defendant's father on the other hand, say that there was a servant maid who did the sweeping and cleaning of the vessels and other miscellaneous work and the defendant's mother did the cooking. The plaintiff confessed in cross-examination that in her father's house she had never done any cooking though she said that she knew how to cook. It is quite probable that the defendant's mother expected the plaintiff to help her with the work of the house-hold and that the plaintiff found the work not to her taste. It is also probable that not having been used to do any work in her father's house she found that it was positively uncomfortable for her to even help her mother-in-law with the work of the household. It can also be imagined that having been brought up in her father's house in a state of comparative affluence and also having spent most of her time in her studies, she found the atmosphere of her husband's house most uncongenial. I think she is exaggerating when she says that she could not take her food before 3 or 3-30 p.m. though I am prepared to believe that she was compelled to take her food at an hour much later than she was accustomed to in her father's house. But she admitted that every one else, her husband, also took their food at the same time ; it was not as if they all had their food and she was left starving.
7. I do not think it is necessary to dwell at any length on this part of the case because even assuming all that the plaintiff says is true and not exaggerated to any extent, it cannot be said that the discomfort suffered by the plaintiff as due to cruelty on the part of either the defendant or his parents. If that were the case, every daughter of a rich man married to a poor husband would automatically be entitled to a decree for separate maintenance. Though it is true that Courts have refused to treat a wife as a chattel belonging to her husband, Courts have certainly not departed from the Hindu law, usage or sentiment in one respect, namely, that the place of a Hindu wife is with her husband in sickness as well as in health, in affluence as well as in poverty. The strict rule no doubt would go to the extent of enjoining her to be with her husband in spite of even bad treatment or even when the husband is afflicted with a loathsome disease like leprosy. But Courts have to a slight extent departed from the strictness of the rule and have permitted a Hindu wife to claim separate maintenance and residence for certain justifiable causes. But I have not come across any any case in which it has been held that diminution of physical comfort in her husband's house would be a cause justifying her to live away from her husband and claim separate maintenance. The evidence in this case, so far as this aspect is concerned does not go further.
8. It is necessary to now refer, though not at great length, to the Postal cash certificates for Rs. 5000 which were presented to the plaintiff by her father at the time of the marriage. These certainly belonged to the plaintiff. There is some evidence that this amount was intended to be utilised for the purchase of a house. The house however was never purchased. The plaintiff's case is that ever since she went to live with him, the defendant (who was then unemployed) and his parents (who certainly were not in very affluent circumstances) began to coerce her to transfer the certificates to the defendant to enable him to utilise the money either to start independent medical practice or otherwise for the benefit of the defendant's family. The plaintiff was unwilling to do so and the defendant and his parents were annoyed and displeased with her and began to illtreat her. What the illtreatment was I have already dealt with. But in addition to these allegations of illtreament the plaintiff also puts forward the story that the defendant eventually abandoned her because of her refusal to comply with the demand to assign the certificates in favour of the defendant. The defendant denied the entire story. He protested in the witness-box that he had no intention of ever appropriating the amount to his own use. At the same time there is considerable force in the argument of the learned advocate for the plaintiff that having regard to the circumstances in which the defendant and his parents were placed at about the time of the marriage and for a long time thereafter, it is quite probable that they wanted to make use of this amount for the benefit of the defendant and the family. I think we get a glimpse of the truth in the evidence of the defendant who said that he wanted, if possible, a house to be purchased because the house would be a source of regular income whereas the certificates were not fetching any periodical income. One can understand the anxiety of the defendant to supplement if possible the slender resources of his family at the time, which consisted in the pension drawn by his father and the rent derived from his mother's house. It may aslo be true that the defendant and his parents were not very pleased with the attitude of the plaintiff who was unwilling to help her husband in distress. But I am quite convinced that the reason for the eventual estrangement between the plaintiff and the defendant and the consequent separation between them were not due to the Postal cash certificates.
9. Before passing on to the next ground of abandonment, I may refer briefly to an incident which is alleged to have taken place in March 1943, not specifically mentioned in the plaint, but mentioned in the first notice issued by the plaintiff's advocate-on the nth October, 1946. The plaintiff stated that the defendant took away some of the jewels belonging to her kept in a common almirah and gave them to his mother who kept them in another box and that when she complained to her father, at his intervention the jewels were returned to her. The incident in the main in not denied by the defendant, but the reason for keeping the jewels in another box is said to have been a burglary in a house near by and what the defendant and his parents wanted was to secure the jewels in a safe place. I refuse to believe that the intention of the defendant or his parents was to misappropriate the jewels or even to put pressure on the plaintiff to part with the cash certificates. I do not think that this incident has a very material bearing in deciding the claim of the plaintiff.
10. It was admitted by the plaintiff that after she went to reside with her husband in August, 1942, she was constantly going to her father's house which was not very far from her husband's house, sometimes alone, sometimes with her brother. She used to take the permission of the defendant when he was there ; but evidently when he was not there, she was not asking or taking the permission of the defendant's parents. It is obvious that the defendant did not protest against the plaintiff's constant visits to her father's house. In June, 1943, the defendant's mother fell seriously ill. The plaintiff at that time appears to have been in her father's house and though she went with her husband to see her mother-in-law in the hospital, she admits that she did not go to her husband's house either during the time that her mother-in-law was in the hospital or subsequently. The plaintiff's case is that the defendant himself left her in her father's house but according to the defendant she went of her own accord. Whatever it be there can be no doubt that the plaintiff did not choose to go back to her husband's house thereafter. The plaintiff stated in her evidence that she was left in her father's house and the defendant said that she would be taken back only if she brought the cash certificates, which had been left with her father, and made them over to the defendant. For nearly six months from July, 1943, to the end of December 1943, neither the plaintiff nor the defendant took any step to come together. In January, 1944, P.W. 2 Mr, Venugopal Naidu brought about a reconciliation between the plaintiff and the defendant. He says that he met the defendant's father also at the time and that the latter talked in a very provocative manner. But the defendant's father totally denied having ever talked to him. It is not necessary for me to decide which version is true. It is clear that as a result of P.W 2's intervention the plaintiff and the defendant came together once again. The plaintiff however did not go and stay with her husband in his house. It was the defendant who began to regularly visit the plaintiff in her house, eat there and sleep there. The impression left on my mind is that the defendant was far more anxious to have the company of the plaintiff than the plaintiff his. I find it difficult to follow P.W. 2 as to how exactly he was able to untie the Gordion knot in respect of the cash certificates. The plaintiff's case is that the reason for the difference between her and her husband was her refusal to transfer the cash certificates to him. She was also emphatic that the defendant refused to take her back unless she consented to do as was demanded of her. It is then difficult to understand how without any further agreement as regards the cash certificate the plaintiff and the defendant agreed to be on cordial terms again. P.W. 2 spoke about an alternative investment which he suggested and which found acceptance though the suggestion was never carried into effect. But I fail to see how an alternative investment in the plaintiff's name could solve the problem. I am inclined to hold that the reconciliation was brought about not with reference to Post office cash certificates but with reference to the place at which the plaintiff was to reside. The defendant stated that the plaintiff was always persuading him to live separately apart from his parents but that he was unwilling to desert his aged parents particularly as he was their only son and as his father had spent his life savings on his education. I believe that this was the origin of all the trouble and it explains the conduct of the parties from January 1944,' onwards. The plaintiff had decided not to live with the defendant's parents but I am willing to assume she was quite willing to live with her husband. In January, 1944, the defendant was unemployed and it was therefore clear that he could not set up a separate establishment for himself and the plaintiff, even if he wished. With the help of P.W. 2 therefore a solution was reached which was agreeable to the plaintiff because the plaintiff was not compelled to go and live with the defendant's parents and was to a certain extent agreeable to the defendant who could get the benefit of the company of the plaintiff. The arrangement however was one which could not obviously be permanent. The defendant must have felt unhappy at the state of affairs and equally the plaintiff could not have been satisfied. Things came to a head in October, 1944. It is common ground that there was a quarrel as a result of which the parties took their ways separately. But there is divergence of evidence as to what exactly happened. According to the plaintiff it was again the old question of cash certificates. It is difficult however to accept the story that after about ten months the defendant took up a very unreasonable attitude about the certificates. It is particularly so if one remembers that from April, 1944 the defendant was not unemployed. He was getting about Rs. 100 a month. He was not therefore in such a need for money as might be said he was in January, 1944 when he did agree to be on amicable terms with the plaintiff, though nothing was done about the cash certificates. It was only in December, 1944 that he ceased to be employed. I think it is far more probable that what the defendant says is true, namely, that the plaintiff was not willing that the state of affairs should go on in this manner interminably and that she insisted upon the defendant setting up a separate establishment or otherwise quitting her father's place. One thing is clear that the parties had definitely disagreed and were not willing even to continue the state of affairs which existed from January to October, 1944. From October, 1944, till September, 1946, the plaintiff never came to the house of the defendant except on one occasion in January, 1945. I do not accept the plaintiff's evidence that she came to the defendant's house to stay away. She obviously came along with her people and whatever her intention was, it was certainly not to stay away in the defendant's place. The plaintiff and the defendant are not agreed as to what exactly happened on that occasion. According to the plaintiff she was treated with contempt, whereas according to the defendant she refused to stay, though she was persuaded by his mother. After this casual visit the plaintiff did not admittedly go to the house of the defendant. But she says that she wrote letters to the defendant and sent relations to him to bring about a reconciliation. The defendant denies having received any letters and having been approached by any relations. In view of the defendant's denial, there are no letters forthcoming, even if the plaintiff did write any. But the plaintiff could have examined the relations whom she sent on her behalf. No such relation has been examined. It was not suggested that even the father of the plaintiff ever made any attempt to bring about a reconciliation. He has not given evidence of any such thing. Evidently the plaintiff was quite prepared to stay away in her father's house. It is true equally the defendant was not anxious to go to the plaintiff and beg of her to come and live with him. In these circumstances I do not think it can be held that the defendant abandoned or deserted the plaintiff. If the plaintiff and the defendant had not lived together since October, 1944, it was because neither party was anxious to so live and not because against the plaintiff's wish she was compelled to stay away from the defendant's house.
11. In September, 1946, the defendant married again. It was only thereafter that we find any demand for maintenance made by the plaintiff.
12. I therefore hold that as the plaintiff has failed to establish cruelty or abandonment or desertion, she is not entitled to claim separate maintenance for the period prior to the defendant's second marriage. Issue I is decided against the plaintiff.
13. The defendant's second marriage by itself would not have furnished the plaintiff with a cause of action prior to the passing of Act XIX of 1946. Section 2 of that Act provides thus:
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.
And one of such grounds is contained in Sub-clause (4) which says ' If he marries again.' Primafacie the plaintiff as a Hindu married woman would be entitled to separate residence and maintenance on the ground that the defendant has married again. Section 2 contains a proviso which is in these terms
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 competent Court for the restitution of conjugal rights.
Obviously none of the alternative conditions is present in this case to preclude the plaintiff from claiming separate residence and maintenance.
14. Mr. Radhakrishnayya the learned Advocate for the defendant contends that if a Hindu married woman is precluded from claiming maintenance under the general law because of the absence of any justifiable cause for living away from her husband, she cannot take advantage of a supervening circumstance like the second marriage and become entitled to separate residence and maintenance. Taking the facts of this case, the position is that prior to 1st September, 1946 the plaintiff was no doubt living away from her husband for no justifiable cause and therefore was not entitled to separate residence and maintenance. But it has not been suggested that she was living apart from her husband for any improper purpose. Under the Hindu law a wife living apart from her husband but for no improper purpose, though without justification, may at any time return and claim to be maintained by her husband. Her right is not forfeited but only suspended during the time she commits breach of duty by living apart. The position therefore was that the plaintiff could have at any moment changed her mind and come back to her husband and claimed to be maintained by him. She had not lost her right to be maintained which would have been the case if she was living apart for any improper purpose, as for instance adultery. The plaintiff therefore at the time of the second marriage of the defendant had not become disentitled to be maintained by the defendant and under the Act she could rely upon this ground, namely the second marriage, to claim separate residence and maintenance from her husband.
15. I therefore hold that from the date of the second marriage, at the earliest, the plaintiff was entitled to separate residence and maintenance. The demand was actually made only in October, 1946. But it has often been held that it is not the demand that confers a right on the wife or the widow to maintenance, though the date of the demand might be taken into account in granting a decree for arrears. In this case having regard to the short time which elapsed after the date of the second marriage before she made the demand through a lawyer, I see no reason to disallow her claim for the period between 1st September, 1946, and 1 1th October, 1946. On issue 2 I hold that the plaintiff is entitled to separate residence and maintenance under Act XIX of 1946 from 1st September, 1946.
16. The next question is what is the rate of maintenance to be allowed to the plaintiff. From April, 1946 the defendant has been in receipt of a basic salary of Rs. 300 and varying amounts for dearness and other allowances. He has also been in receipt of special allowances for visits made by him to the patient's houses. At about the time of the institution of the suit the approximate average income of the defendant might be put at Rs. 400. But the defendant says that on account of the taking over of the Madras Electric Supply Corporation by the Local Government his salary is likely to be affected as he would hereafter be the medical officer for the Madras Electric Tramways only, though the defendant is unable to say how exactly. The amount allowed to him for dearness and other allowances may also be subject to variation. In fixing the quantum of maintenance I must have regard not to the life which the plaintiff was accustomed to lead in her father's house but to the life which she would have led if she had resided with the defendant according to his status, social habits and manner of living. Whether the addition of the second wife can or cannot be taken into consideration in fixing the maintenance, it is reasonably clear that provision will have to be made for the contingenrcv of the defendant having a family. Having regard to all the circumstances I consider that an amount of Rs. 80 a month would be reasonable and proper.
17. Mr. Radhakrishnayya suggested that the decree might provide for liberty to the parties to apply to the Court for variation of the rate of maintenance in the event of change of circumstances. I myself was inclined to make such a provision as it would obviate the necessity of filing a suit by either side for the purpose but I find that in Venkatapathi Nayani Varu v. Puttamma Nagith : (1936)71MLJ499 a Division Bench of this Court refused to insert such a provision in the decree The learned Judges say:
we are by 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.
18. Having regard to these observations of the learned Judges I will not be justified in making such a provision in the decree.
19. The plaintiff will therefore be entitled to a decree for Rs. 80 a month from 1st September, 1946. The amount of maintenance shall be paid hereafter on or before the 15th of each month. The maintenance payable to the plaintiff for the period from 1st September, 1946, up to the date of the passing of the decree shall be paid in installments of Rs. 60 each month to be paid on or before the 15th of each month.
20. As regards costs, the plaintiff will be entitled to her costs in respect of her claim for maintenance from 1st September, 1946, at the rate allowed to her But as I have held against her claim for arrears of past maintenance from 1st October, 1944, till 1st September, 1946, she shall pay to the defendant the costs as regards this part of her claim.
21. So far as the claim for the delivery of articles is concerned, the claim was satisfied immediately after the institution of the suit ; but having regard to the defendants letter, dated 23rd December, 1946, it cannot be said that the plaintiff was not justified in instituting a suit to obtain relief in respect of the articles. The plaintiff will be entitled to her costs on this claim but on the uncontested scale.