Basheer Ahmed Sayeed, J.
1. This appeal is against the decree of the learned City Civil Judge, granting maintenance at the rate of Rs. 20 per mensem to the plaintiff, who is married wife of the defendant. The marriage has taken place in 1943, and for a year or two the husband and wife lived amicably. Later on, when the husband was transferred to Nagpur where his employment took him, there seem to have been some differences between the husband and wifeand there has been exchange of notices. In 1947, a suit seems to have been filed by the defendant appellant for restitution of conjugal rights against his wife. It was first instituted in the Poonamallee District Munsif's Court and then on the ground that that Court had no jurisdiction, it was transferred to Nagpur and the appellant appears to have obtained a decree against his wife on 20-7-1948, for restitution of conjugal rights. The respondent filed the present suit on 12-7-1948 but in the plaint, she has referred to the filing of the suit by her husband at Nagpur for restitution of conjugal rights.
2. When the suit was pending, it transpires that the defendant appellant married a second wife on 3-2-1949. Before the trial of the suit was taken up by the learned City Civil Judge, an application was filed by the plaintiff for amending the plaint in view of the second marriage, which the defendant contracted. That amendment was allowed and the point was amended accordingly. The suit proceeded on the basis of the amended plaint.
3. The suit itself is filed under Section 2 of Act 19 of 1946, an Act which gives a Hindu married woman the right to separate residence and maintenance under certain circumstances. Section 2 of that Act is to the following effect: '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, namely:
1. if he is suffering from any loathsome disease not contracted from her.
2. If he is guilty of such cruelty towards her as renders 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. 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 a competent Court for the restitution of conjugal rights.' The learned City Civil Judge relying on the ground that the defendant had married a second lime and finding that there was no desertion, gave a decree for maintenance against the appellant. The defendant relied upon his decree for restitution of conjugal rights as a defence to the suit and contended that in so far as the plaintiff had failed without sufficient cause to comply with the decree of a competent Court for the restitution of conjugal rights she was disentitled to the claim for separate maintenance from the appellant. This contention was rejected by the learned City Civil Judge.
4. The learned counsel appearing for the appellant has raised various contentions before me to get the decree of the learned City Civil Judge set aside. The first ground taken up by him is that the learned City Civil Judge ought not to have allowed the amendment, as the amendment tantamounted to a new cause of action being substituted in the place of the one, and that it tended to change the character of the suit. I do not think that l can agree with the learned counsel for the appellant in this contention, for the reasons that the suit itself was for a separate maintenance on the ground that there was desertion on the part of the defendant, but during the pendency of the suit when a further event took place it cannot be said that it was not open to the plaintiff to take advantage of that ground, which would give rise to a further cause of action for maintaining her suit for separate maintenance. After all what she was claiming was only separate maintenance) and she could easily urge more than one ground for the purpose of establishing her claim for maintenance. It has been an accepted principle that Courts when deciding suits, could take into account events that happen either during the pendency of the suit, or even at the stage of the first or second appeal. Such being the case, it cannot be said that there was anything wrong in the learned City Civil Judge having allowed amendment sought for by the plaintiff. Even otherwise, it can be stated to be a legal ground, which was available to the plaintiff when the defendant had married during the pendency of the suit a second time and when it came to the Knowledge of the plaintiff that that event had taken place. She was entitled to make use of it as a valid ground under the law. Therefore, I do not think that any illegality has been committed by reason of the allowing of the amendment of the plaint. The amendment having been allowed and the defendant having been given an opportunity to plead against the amendment, there has also been no prejudice caused to the defendant in the proper prosecution of his defence.
5. The next contention raised by the learned counsel for the appellant is that the learned City Civil Judge did not consider the failure on the part of the plaintiff to comply with the decree of the Nagpur Civil Court from the proper perspective. According to the learned counsel for the appellant the burden was on the plaintiff to show that she failed to comply with the decree for restitution of conjugal rights for sufficient cause and this burden not having been discharged by her and the learned City Civil Judge not having discussed this aspect of the case, the decree and judgment were vitiated and, therefore, there was ground, according to the learned counsel for the appellant for remanding this suit for further trial, after framing an issue as to whether there was or no sufficient cause for the respondent to have failed to comply with the decree for restitution of conjugal rights. I do not think that this contention of the learned counsel for the appellant could be accepted. Section 2 of Act, 19 of 1946, says that 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 grounds which are given in the next seven sub-clauses to that section. After these sub-clauses comes the proviso which says 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 a competent Court for restitution of conjugal rights. The interpretation put upon the proviso by the learnedcounsel for the appellant is that the burden, in the matter of failure to comply with a decree of a competent Court for restitution of conjugal rights is thrown upon the married woman, who claims maintenance and hot upon the persons who seeks to disentitle the married woman, who is otherwise entitled to maintenance under the main part of Section 2of the Act. I do not think I can agree with this interpretation of the learned counsel for the applt. The proviso is one, which seeks to disentitle a married woman from separate maintenance or residence, provided certain conditions exist and among those conditions one of them is failure for sufficient cause to comply with the decree of a competent Court for restitution of conjugal rights. If a married woman brings a suit against her husband, and if the husband wants that the woman should not be entitled to separate residence or maintenance, when there exists a decree for restitution of conjugal rights, then it will be open to the husband to show that she has failed to comply with that decree for restitution of conjugal rights without sufficient cause. I do not think that this proviso can be interpreted to throw the burden on the plaintiff, a married woman, who seeks to enforce her right to residence and maintenance on grounds mentioned in the earlier part of Section 2of the Act.
6. As has been pointed out by the learned counsel for the respondent it may be that the appellant has secured a decree for restitution of conjugal rights against the respondent, but the mere fact of obtaining such a decree and, in this case, it being an ex parte decree, will not 'ipso facto' disentitle the married woman, the wife of the appellant to claim maintenance. Having obtained a decree, as provided for under Order 21, Rule 32, appellant should have proceeded to execute the decree thereby giving an opportunity to the respondent to obey and comply with the decree. Though the learned counsel for the appellant would say that the decree was sought to be executed, there is absolutely no shred of evidence on record in this suit to show that there has been any such execution, or that notices have been exchanged between the parties calling upon the respondent to comply with the decree that was obtained by the appellant in Nagpur. No question appears to have been put to the appellant, when he was in the witness-box as to what stops he took in regard to the execution of the decree obtained by him, and what opportunity he gave to the respondent to comply with that decree, in order that her failure to comply with such a decree might be made a ground for disentitling her to the maintenance, which she is otherwise entitled under the law. If such an opportunity had been given and then, if a failure had arisen certainly the question of whether such failure was due to sufficient cause or otherwise, would arise. The more majore premise not having been satisfied in this case, I do not think the question of any sufficient cause or otherwise arises to justify a remand of this suit for further hearing on the question of sufficient cause for failure to comply with the decree for restitution of conjugal rights. I, therefore, think that Inasmuch as the appellant not having discharged the duty cast upon him to prove that there was failure on the part of the respondent to comply with the decree that had been obtained by the appellant against her and that such failure was without any sufficient cause, the mere obtaining of a decree for restitution of conjugal rights would not be a sufficient defence to defeat the right of the plaintiff to maintenance from her husband, the appellant. The rule laid down in -- 'Kishore Burn v. Dwarakanath', 21 Cal 784 would seem to apply to the facts of this case, and I do not think that there is any justification for me to adopt the course suggested by the learned counsel for the appellant. I am inclined to hold that the decision of the learned City Civil Judge is not wrong in having declined to consider the existence of a decree for restitution of conjugal rights operating as a defence against the claim of the plaintiff for separate maintenance. His decision has, therefore, to be upheld and the respondent will be entitled to separate maintenance from the appellant.
7. The learned counsel for the appellant has objected to the demand of the respondent to enhance the quantum of maintenance, that has been awarded to the respondent. The respondent has preferred a memorandum of cross-objection stating that the quantum awarded by the learned City Civil Judge is inadequate and meager, considering the hard days that prevail at present and the status and position of the parties to the suit. The learned City Civil Judge has taken into consideration the total income of the appellant, which is said to be Rs. 165 and taking into consideration that he has to maintain himself as also his second wife whom he has married, has fixed the maintenance allowance at the rate of Rs. 20 per mensem. There has been no evidence to show that this appellant has any other additional source of income beyond the Rs. 165 he is said to be earning by means of his employment at Nagpur. Considering the circumstances of the parties and there being also some evidence that the respondent is not really in very penurious circumstances I should say that the quantum of maintenance that has been fixed need not be revised. The rate of Rs. 20 per mensem will stand as it is.
8. The learned counsel for the respondent has also taken the ground that the finding on the question of desertion by the learned City Civil Judge is not correct. I do not think that I need go into that question because I am inclined to hold that the finding of the learned City Civil Judge is well supported on the question of desertion. On the facts as they emerge in the suit, it cannot be said that the appellant has really deserted his wife.
9. In the result, the main appeal preferredby the defendant as well as the memo of objections preferred by the respondent will bothstand dismissed with costs.