(1) The appellant, a twice married Hindu, contests by this appeal the right of his first wife to live apart form him and claim maintenance for herself and the children born of her. More than 20 years ago, when it was permissible under the law for a Hindu to take more than one life, the appellant married the first respondent. Within a short time thereafter, he took another wife, who is now living with him, but who is not made a party to these proceedings. The appellant lived with them amicably, having two children by his first wife and four by the second. On 20-2-1959, his first wife left him with her children, preferring to live separately. Shortly after wards, she made a claim on her husband for maintenance and followed it up with the suit which has given rise to this second appeal.
(2) Both the courts below have granted the first respondent the relief sought, directing the appellant to pay for the maintenance and residence of his first wife and her children. The only basis for the claim, as ultimately presented to the courts, the allegation as to cruelty on the part of the husband having been given up during trial, was statutory.
(3) Section 18 of the Hindu Adoption and Maintenance Act (Act 78 of 1956) imposes a liability on the husband to maintain his wife. Sub-section (1) thereto, which is declaratory of the right of the wife to be maintained by her husband states:
"Subject to the provisions of this section a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime."
Under the pre-existing law, there was a personal obligation on the part of the husband to maintain his wife. But it was obligatory on the part of the wife to remain under his roof. She was not, therefore, entitled to separate residence or maintenance, except under certain circumstances, that is, unless she proved that, by reason of his misconduct or by his refusal to maintain her in his own place of residence or other justifying cause, she was compelled to live apart from him. Wide as the terms of S. 18(1) are, it cannot be held that a Hindu wife would be entitled to leave her husband for no justifiable reason and then claim maintenance. Sub-section (1) of S. 18 is expressly made subject to the provisions of sub-section (2) which states:
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.
(3) If he has any other wife living It is implicit from the opening words of sub-section (2) that a Hindu wife will not be entitled to live separately from her husband, without forfeiting her claim for maintenance, for reasons outside those mentioned in clauses (a) to (g) of that sub-section.
(4) In the present case, the claim of the first respondent is rested on the ground that her husband has another wife living with him. As pointed out by the learned Educator of Mullah's Principles of Hindu Law, 12th Edn. the section can apply to cases of marriages solemnised before 18th May 1955, when the Hindu Marriage Act, 1955 came into operation. The said Act by S. 5(1) introduces monogamy as the rule of law applicable to Hindus. Further, S. 17 thereof provides that any marriage between Hindus solemnised after the commencement of the Act, contrary thereto, will be void and punishable. It would, therefore, follow that section 18(2)(d) of Act 78 of 1956 will have retrospective operation as there would be no scope for application of its provisions in respect of any future bigamous marriage such marriages being void.
(5) It is, however, contended by learned counsel appearing for the appellant that the provision can only apply to cases where the marriages have been solemnised after the coming into force of the Hindu Marriage Women's Right to Separate Residence and Maintenance Act (Act 19 of 1946). That enactment by S. 2, provides that a Hindu woman shall be entitled to have separate residence and maintenance from her husband on the ground that he marries again. There was a conflict of views as to whether that provision would operate so as to render liable a husband who had taken a plurality of wives prior to coming into force of that enactment. (Act 19 of 1946). In Palanisami v. Devanai Ammal, AIR 1956 Mad 337 (FB) a Full Bench of this court held that the Act would apply only if the second wife was taken during the lifetime of the first, after coming into force of that Act. It must be remembered that tat that time there was no prohibition under Hindu law against bigamy. It was only subsequently that the Madras Hindu (Bigamy Prevention and Divorce) Act 1949 (Madras Act VI of 1949) for the first time prohibited bigamous marriages. That enactment had not the effect of invalidating such marriages solemnised before it came into operation.
(6) Then, a Hindu husband who had taken another wife during the life time of the first, prior to that Act, would be entitled to live with both of them and the mere fact that he had another wife living with him would not entitle the other to separate maintenance. Central Act 19 of 1946, however, declared the right of such a wife to claim that Act was only prospective. Therefore, the right of a Hindu wife, who was married to a man having another wife before the coming into force of Central Act 19 of 1946, will be governed only by the ordinary rules of Hindu law. From this it has been argued on behalf of the appellant that as the liability under Central Act 19 of 1946 arose only with respect to plurality of marriages contracted after its date, Section 18(2) of Act 78 of 1956 should be held to late to only such marriages, that is, those bigamous marriages solemnised after the coming into force of Act 19 of 1946. This construction it is said is inevitable if one were to have regard to the legislative history of Act 78 of 1956. There is, however, nothing in S. 18(2) of Act 78 of 1956 to warrant such a restricted construction.
(7) The Hindu Adoptions are Maintenance Act 78 of 1956 is part of the attempt to codify the various branches of the Hindu law. The Hindu Marriage Act, 1955 codified the law relating to marriage amongst Hindus, its outstanding feature being the enforcement of monogamy, notwithstanding any custom to the contrary. Section 10 of that enactment provides for a judicial separation between the spouses, and S. 13 for divorce. Sub-section (2) of the latter section says that a wife may present a petition for the dissolution of her marriage on the ground:
(i) in the case if any marriage solemnized before the commencement if this Act, that the husband had married again before such commencement was alive at the time of the solemnisation of the marriage of the petitioner.
Provided that in either case the other wife is alive at the time of the presentation of the petition.
These provisions gave purported to give effect to trends of what is claimed to be progressive thought in this country of placing women on a par with men in the matter of their marital rights. But, divorce is not always an efficacious remedy, for the right to obtain it may be lost by laches, delay or condonation. The Legislatures, evidently thought that it should be open to the wife to claim to live separately from her husband, in case he has got another wife living. Where, therefore, the wife does not want to seek divorce or, where she could not, by reason of some conduct on her part, obtain such divorce or where she could not by reason of some conduct on her part, obtain such divorce or where she only desires to live separately from her husband, she could by applying under S. 18(2) of Act 78 of 1956, claim from him maintenance and provision for separate residence. If that be the true principle behind S. 18(2) as indeed we conceive it to be, its operation cannot be restricted to marriages which took place subsequent to the year 1946.
(8) It has been argued for the appellant that as plurality of marriage prior to 1949, in this State, was valid, the husband will always have a right of enforcing a claim for restitution of conjugal rights against his wife, and therefore, it would not be competent to any one of them to live separately and claim maintenance. This, it is said, is another reason why S. 18(1) of Act 78 of 1956 should not be held to apply to marriages that took place prior to the year 1946. We are unable to accept the argument as, in our view, the right to claim separate maintenance by the wife will not, in case where the plurality of marriages is valid, be inconsistent with the husband's right to claim restitution of conjugal rights.
(9) To deal with this contention it is first necessary to refer to the scope of the right conferred on the wife under S. 18(2)(d) of Act 78 of 1956. Although that provision entitles the wife to claim to live separately from her husband where he has another wife living with him and be maintained, it will be plain that such separate living is not the same thing as judicial separation under S. 10(1) of the Hindu Marriage Act, 1955. A judicial separation permits the parties to the marriage to live apart and under the terms of S. 10(2), if a decree for such a separation has been passed "it shall no longer be obligatory for either party to cohabit with the other". The right to live separately from the husband given to the wife under S. 18(2)(d) of Act 78 of 1956 is not and cannot be of the same character, e.g. if he abandons the other wife, he would certainly be entitled to call upon his previously separated wife to live with him. To respond to such request will be a duty which she owes to him as her husband. To hold otherwise will lead to inconvenient, if not unintended, results. For example, the section says that a Hindu wife shall be entitled to live separately from her husband if he has any other wife living. If the word "living" is to be given its ordinary interpretation, then all the wives that a man had married at a time when such marriages were lawful, can live without him and yet claim maintenance. Therefore, the term "any other wife living" mentioned in the section must be given a restricted meaning like "any other wife living with him". It would perhaps be open to the husband to provide separate residence and maintenance for that wife and come back to the first abandoned wife and make her separate residence his own home. In other words he can at his option live with any wife but in so doing he cannot insist on the other wife living with them but should provide a separate maintenance for her. There can, therefore, be no contradiction between the rights of the husband, in a subsisting marriage, to have restitution of conjugal rights and the right in one wife to live separately, so long as her husband is living with another wife. We are, therefore, of opinion that the view taken by the lower courts that the first respondent would be entitled to separate maintenance is correct.
(10) Objection is then taken to the provision for the maintenance of the children. Section 29(1) of the Hindu adoptions and Maintenance Act, 1956 creates an obligation on a Hindu to maintain his minor children and unmarried daughters. The contention is that as under the law the father is the natural guardian of his minor children, he should have their custody and they would not be entitled to be provided with separate maintenance if, they were to be taken away by their mother. It is admitted, however, that the father is not in actual custody of the minor children born of his first wife. They are, with the father. We are not concerned in this case with any proceedings taken under S. 25 of the Guardians and Wards Act, for the custody of the minors by the father as against the mother. If such proceedings were taken it will be for the court to decide what the welfare of the first wife's children to be with their mother, rather than with their father. We do not, however, propose to embark upon an enquiry into the matter, as to where the welfare of the minor children lies in the instant case. Suffice it to say that they are in factual custody of their mother which cannot in any way be the duty of the father to provide for their maintenance as well.
(11) The decree passed by the lower courts cannot, therefore, be assailed. This second appeal fails and is dismissed with costs.
(12) Appeal dismissed.