1. The plaintiff appeals from a decree in a suit for maintenance brought by her against respondent 1, her husband, and respondent 2, her husband's elder brother by birth. Her suit was based upon the allegation that both the respondents form members of an undivided family, that she had been deserted by her husband and that therefore she was entitled to future maintenance an arrears of maintenance for 12 years before the suit at the rate of Rs. 50 a month. The learned Subordinate Judge of Rajahmundry found that the defendants though brothers by birth no longer belonged to the same family because defendant 1 had been adopted away by the widow of his paternal uncle Raghavaeharyulu and that therefore the plaintiff had no claim for maintenance against defendant 2 whose father had himself been adopted away to another 'family. As against defendant 1 the learned Judge found on the first issue that the plaintiff was the second wife of defendant 1 the first wife having predeceased the second marriage, that soon after the plaintiff came of age quarrels-arose as a result of which the plaintiff was taken away by her father to his own house in or about 1909, that in 1914 the plaintiff and her father made attempts to bring her back to the protection of defendant 1 as they learnt that he was preparing to marry for a third time, that this attempt did not succeed because defendant 1 and his elder brother, defendant, 2, who was living with him were not serious and put conditions upon the proposals, that thereafter the plaintiff had all along, lived with her father and that defendant 1 had at any rate after 1914 abandoned the plaintiff. He therefore held that the plaintiff was entitled to separate maintenance. He awarded her future maintenance from the date of suit at the rate of Rs. 100 a year and three years' arrears at the same rate. He declined to give arrears for any longer period.
2. In this appeal the first question argued is that the Judge's finding as to the adoption of respondent 1 (defendant 1) is not supported by sufficient evidence; We have been taken through the evidence and it is sufficient to say that it fully supports the Judge's finding that defendant 1 was taken in adoption by Venkatamma, the widow of Raghavacharyulu, the brother of defendants' natural father Sobhanadracharyulu who* had himself been adopted away. As a result of these adoptions the family of defendant 1 and that of defendant 2. have become entirely distinct and therefore respondent 2 (defendant 2) and the properties of his family are not liable for the plaintiff's claim. To that extent the appeal fails and must be dismissed.
3. The appeal as against defendant 1 comprises two parts : first as to the rate of maintenance if any to be awarded after the suit; secondly for what period before suit the appellant is entitled to arrears and at what rate. As to the plaintiff's right to separate maintenance we agree with the learned Judge who has dealt with all the relevant facts in an exhaustive manner without condoning any of the faults of the plaintiff or her father. As he observes the marriage turned out singularly unfortunate; whether it was the fault of the parties or of their relations is not very material. Undoubtedly in the earlier years at least the fault must mainly have been on the part of the relations. Although the marriage was in 1905 and the plaintiff attained puberty in 1908 when she was 13 or 14, the parties did not live together for more than one and half years. The plaintiff's father belongs to a priestly family, her father's occupation being fulfilling the office of guru, The defendants are both graduates. Defendant 2, the elder of the two, is a M.A.L.T. and was employed during the pendency of the suit in the Pittapur Rajah's College at Cocanada. Defendant 1 who though adopted away was educated and brought up by his elder brother, is a B.A.L.T. and during the pendency of the suit was drawing a salary of Rs. 108 as a teacher in a Board School. He is now said to have risen to the position of head master of the school.
4. In 1908 he was still a student at the Vizdanagaram Rajah's College. The plaintiff (his wife) was after puberty living with his elder brother at Tuno where he was then employed as a school master. It appears from Ex. 1, a letter written by the elder brother to the younger brother dated 26th April 1909, that the girl (plaintiff) had been giving trouble to the female members of the house (meaning no doubt defendant 2's wife and mother) and that about two weeks prior to the date of the letter the plaintiff's parents arrived at Cocanada where defendant 2 then was, and took up residence in a choultry and from there made occasional visits to the house till, on the morning of 25th April the father in an irate condition came to the house, as defendant 2 was going to his college and before his return that afternoon the plaintiff had disappeared and it was afterwards intimated that she had gone with her parents. If the facts stood there, there would have been no doubt that the plaintiff had no right to separate maintenance. But as mentioned in detail by the learned Judge, they do not stop there. Defendant 1 finished his education somewhere about 1914 when aged about 27 and the plaintiff was 20. One would have thought that in the circumstances some serious attempt would have been made to compose differences and to bring back the spouses to cordiality. All that we know about it is that a male friend P.W. 5 interceded unsuccessfully with defendant 1 who it seems put conditions the exact nature of which the witness does not speak to but which apparently put a stop to further negotiations. Defendant 1 then seems to have negotiated a third marriage which reached the ears of the plaintiff's father and the plaintiff. The evidence which the learned Judge accepts is that to prevent this catastrophe the plaintiff and her father went to the house of the defendants and requested that the proposal for the third marriage might be dropped and that the plaintiff might be received back into the house. The defendant seems to have insisted on certain undertakings or conditions which made reconciliation impossible. The learned Judge states his conclusion on this matter thus:
I think it shows that defendant 1 was not eagar to live with the plaintiff. He did not show any earnestness to allow her to live with him. It was open to him to openly insist on his wile living with him and if in spite of his insistence she refused to stay with him then certainly he would not be regarded as having been at fault. I think he was quite lukewarm in his feelings when she came to him and offered to live with him. Defendant stated in his deposition that the plaintiff's father asked him to advise defendant 1 to receive the plaintiff. If he had given his consent then to the request made by the plaintiff's father there was a probability of the third marriage being adverted and of the plaintiff and defendant 1 living thereafter on amicable terms. He did not do all that he could have done under the circumstances. This in my opinion amounts to abandonment by him (defendant 1) of the plaintiff.
5. We think these observations are, having regard to the probabilities, justified. They amount to a refusal to accept the plaintiff as wife and to live with her when she and her father approached defendant 1 and defendant 2 for that purpose the plaintiff went back to her father's house and has remained there till this date. The plaintiff and defendant' 1 are both comparatively young, the former being on the date of her deposition 34 years of age and her husband 41. We agree with the learned Judge that the only conclusion to be arrived at on the facts is that after she came and offered to live with him and he refused the request he has reconciled himself to the position that he could no longer live with the plaintiff as his wife and both parties have acted accordingly. This is sufficient to entitle a wife to demand separate maintenance from her husband. There is no doubt an offer in the written statement of defendant 1 that he is willing to take back the plaintiff. This in the circumstances stated was in our opinion merely tactical, for after all that has happened we cannot believe that defendant 1 seriously desires that the plaintiff should go back to live with him and in raising the plea as stated was only anxious to avoid the legal consequences of abandoning his wife.
6. The next question is whether the plaintiff's appeal as to the rate of maintenance awarded is justified. The plaintiff claimed Rs. 50 a month in the plaint on the footing that the property of the family of defendant 2 was also liable to her claim. This being now negatived, the only person against whom she has a claim is her own husband, defendant 1, who had no family property at the date of the suit as he had sold what remained of it in 1914 for Rs. 2,000 to finance his third marriage and to pay advances made for his education by his elder brother. Defendant 1 began life as teacher on Bs. 60 and on the date of suit was drawing Rs. 108 a month. The Judge has awarded Rs. 100 a year to the plaintiff which works out Rs. 8-5-4 a month. We consider this award as inadequate in all the circumstances. The plaintiff is the senior wife of defendant 1 and is entitled, having regard to the circumstances of the family, to treatment as such. The considerations which determine the rate of maintenance to be awarded have lately been summarised by the Privy Council in Ekradeshwari Bahuasin v. Homeshwar Singh A.I.R. 1929 P.C. 128 in these terms:
Maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and the mode of living, and to the age, habits, wants and class of life of the parties. In short;, it is out of a great category of circumstances small in themselves that a safe and reasonable induction is to be made by a Court of law In arriving at a fixed sum.
7. That case was in respect of a widow, and in respect of a widow their Lordships adopted, with slight additions not now material, the following measure adopted by the Subordinate Judge in that case:
This sum (of maintenance) would enable the lady to live as far as may be consistently with the position of a widow (wife) in something like the same degree of comfort and with the same reasonable luxury of life as she had (should have) in her husband's lifetime (household.)
8. We have added the words in brackets to suit the proposition to the case of a wife. It is obvious that the plaintiff cannot live in anything like the position of defendant 1's wife on four annas a day. No misconduct of any character has been imputed to the plaintiff. Whatever faults may have been attributed to her father when she was still a minor, it has been found that when she came of mature years and offered to live with her husband and requested to be taken into his household he declined to do so. The position of a young Brahmin wife reduced by no fault of hers to the condition of a widow in her husband's lifetime needs no elaboration and it must not be made profitable for husbands deserting their wives and marrying again, so to say, in revenge in order to spite their former wives to do so. At the same time we have to remember that defendant 1 has to live by his profession and that he had at the time of the trial three children by his third wife and may have more. Taking all these things into consideration, including inter alia the present state of the economic depression through which the whole country is passing, we think we should be doing substantial justice to both parties by increasing the award to Rs. 15 a month from the date of suit.
9. We next come to the question of arrears. The learned Judge has awarded arrears for three years, 1923 to 1926. In 1923 there was a lawyer's written demand for maintenance and as we shall show presently from the authorities the plaintiff was clearly entitled to arrears at least as from that date. But it has been argued that the plaintiff is entitled to arrears for the whole period of twelve years for which the suit was brought. In this connexion numerous authorities have been cited on both sides. For the respondent the contention has been that in awarding arrears of maintenance the Court has a discretion to limit the period, and the lower Court having so limited it to three years this Court will not interfere with that discretion. For the appellant the argument was that the Court has no such absolute discretion irrespective of circumstances which might prove abandonment, waiver or estoppel, to limit the period of arrears of maintenance, but can only, if so satisfied, reduce the rate. We have been referred to numerous authorities in this discussion. The respondent's argument has been supported by the decision in Karbasappa v. Kallava : AIR1918Bom122 followed by Ramesam, J., in Lakshmamma v. Venkatasubbiah A.I.R. 1925 Mad. 795 and to a certain extent by the Allahabad High Court in Mt. Jamwati v. Mt. Maharani : AIR1931All227 , and the unreported decision of this Court in Appeal No. 75 of 1922. On the other hand the appellant's argument is sought to be supported by the decision of the Privy Council in Rajah Yarlagadda Mallikarjuna v. Rajah Yarlagadda Durgaprasada (1901) 24 Mad. 795, Panchakshara v. Pattamammal : AIR1927Mad865 , to which one of us was a party; Srinivasa Ayyar v. Lakshmi Ammal A.I.R. 1928 Mad. 216, a decision of another Bench of this Court; Pushpavalli Thoyarammal v. Raghaviah Chetty A.I.R. 1914 Mad. 451, a decision of Wallis, J., as he then was, now a member of the Privy Council; Subramania Iyer v. Mutthammal (1911) 9 I.C. 614; Bangathayi Ammal v. Munuswamy Chetty (1911) 10 I.C. 110 and Krishnamachariar v. Chellammal A.I.R. 1928 Mad. 561. We think the better view is that to be deduced from the latter catena of cases. In the leading case of the Privy Council in Raja Yarlagadda Mallikarjuna v. Rajah Yarlagadda Durgaprasada (1901) 24 Mad. 147 it was held by the Court that
although the withholding maintenance did not necessarily give a right to sue for the arrears there was therein a prima facie evidence of wrongful withholding, and that such evidence, supported as it was in that case by evidence of the zamindar's unwillingness to pay for their maintenance and his denial of their rights, led to the conclusion that the withholding was proved to be wrongful. The arrears, for the period within limitation, were accordingly claimable, and were decreed.
10. No question of abandonment or waiver arose in the case. But at p. 157 their Lordships state that
it may well be that, if he (the zamindar) had been misled into the belief that the claim for maintenance was abandoned, and had in consequence not set aside any portion of his annual income to meet such a claim, he would have had a good defence to the present action.
11. The principle of this and the subsequent decisions appears to be that the claim to maintenance which arises when it is unlawfully withheld is a legal right. A demand and refusal is not necessary to create the right. They are only of evidentiary value to show that afterwards the withholding must have been wrongful or that there could not be any support for the theory of abandonment or waiver. In the same way mere non-payment of maintenance, though by itself it does not constitute the withholding wrongful, is still evidence to show that the withholding was wrongful. The only legal answer to such a claim is either abandonment or waiver or such conduct on the part of the plaintiff as may have misled the defendant into thinking that such a claim would not be made thereby inducing him not to make any provision for it specially as maintenance is a provision to be made out of the current income of the estate or of the person liable. For the rest the discretion of the Court when applied to the grant of arrears of maintenance will be found to have either been exercised in adjusting the rate at which the arrears have been awarded or in limiting the period by inference from facts of an implied waiver or abandonment or conduct such as above mentioned. The language of the authorities is not in all cases careful to make this distinction clear. But the judgments read as a whole can be reconciled on the principles suggested. In : AIR1927Mad865 the principle of the Privy Council decision was followed and repeated where it is stated that:
There is no doubt that the plaintiff's claim for past maintenance is a legal right, and unless adequate grounds are shown for inferring that she has waived or abandoned that claim, the defendants cannot escape liability.
12. To the same effect is Srinivasa Ayyar v. Lakshmi Ammal A.I.R. 1928 Mad. 216. At p. 541 (of 54 M.L.J.), it is stated that the authorities are clear that unless there was any waiver or abandonment of her right to maintenance by the widow, she is entitled to maintenance from the death of her husband and also that the waiver cannot necessarily be inferred from the circumstance that she is living in her paternal home. In P. Thayarammal v. Raghaviah Chetty A.I.R. 1914. Mad. 451, Wallis, J., said:
Arrears will be refused only in oases where the person liable to make the payment had justifiable grounds for inferring that the claim was abandoned.
13. He cites Rangathayi Ammal v. Munuswamy Chetty (1911) 10 I.C. 1110. To the same effect is the decision of another Bench in : AIR1928Mad561 .
14. As against this course of decisions which lays down a principle which is logical and easy to follow, there are two decisions of this Court following the decision in Karabasappa v. Kallava : AIR1918Bom122 which seem to hold that there is some other and paramount discretion in awarding or refusing arrears of maintenance. The decision in Karabasappa v. Kallava : AIR1918Bom122 opens with the remark that on the point of arrears of maintenance the case law yields no definite principle upon which all cases of this kind can be decided. In the next paragraph the Court affirms the award of three years' maintenance instead of six years' which bad been demanded on a ground which is described as the balance of the most general and shifting considerations, arrived at on what must be called rather commonsense than any other conclusion upon the point before us.
15. We must observe that as that judgment itself says we fail to find any definite principle on which it is founded. It is possible to uphold the actual decision upon the ground that by the widow having been actually maintained in her father's house and not making any demand during that period the Court drew the inference as a fact that the widow abandoned her claim. If so, the principle is quite intelligible although whether the inference was justified on the facts or not is a matter of opinion. This case was followed by Ramesam, J., in Lakshmamma v. Venkatasubhiah A.I.R. 1925 Mae. 795.
16. That decision is also intelligible and explicable upon the facts stated by the learned Judge. The facts were that a widow whose husband had died 27 years ago had made a demand for maintenance only three years prior to the suit. In those circumstances said the learned Judge:
I think a discretion remains with the courts, while not disallowing totally the arrears claimed by the plaintiff, to cut down the period for which arrears may be granted.
17. All the exception we can raise to this language is that although the facts may have been sufficient from which a Court might infer abandonment of arrears for a period before a formal demand, even as to which there is considerable room for doubt in view of the decision of the Privy Council already referred to, yet the authorities do not establish the foundation for any discretion in the Court, in the absence of proof of abandonment or waiver or conduct estopping the plaintiff to cut down, in other words to deny, relief to a plaintiff who is entitled to it. Reference is made in this decision to the unreported case, A.S. No. 75 of 1922. We have examined that decision in which no authorities are referred to, but the facts were that the plaintiff went away from the family about 9 years prior to the suit. But there was no satisfactory evidence that she ever made a demand for this maintenance until she filed the suit and then the Court said that considering the long time that she kept silent and the fact that she was being adequately maintained in her parent's house she should not be allowed the whole of the arrears claimed although they added that that was not a sufficient reason for disallowing her claim in toto. Another ground stated in that judgment is that if a demand is made for arrears for a very long period the claim may be refused on the ground that the payment would be a very heavy burden on a family which has not made any provision for the expenditure. We beg respectfully to differ from this because the family might have omitted to make any provision for maintenance although it had been demanded and hardship to the defendant in meeting a lawful claim can hardly by itself be made a ground for refusing a right. But the decision itself is to be explained and was probably intended to be founded upon the inference that by the silence and omission to demand, the Court was in a position to infer implied waiver or abandonment. These are all the cases which have been cited on this point and on the best consideration we can give to the subject we are of opinion that the principle as to arrears is as we have stated in the earlier part of this paragraph and as laid down in the several cases to which we have referred.
18. The really important point in the case is how to apply the principle to this case. It is the case that the defendant upon whom lies the burden of alleging and proving waiver or abandonment on such conduct on the part of the plaintiff as to lead to estoppel did not raise the point in explicit terms nor for that ground is there any decision upon the point by the learned Judge. But the facts are undisputed that the plaintiff, no doubt under the advice of her father who is described as person in affluent circumstances by the lower Court, has lived away from her husband, practically during all her married life without making any claim for maintenance against him who has no property which jean be charged with the maintenance and whose only income is his salary earned by his profession. It is not unreasonable in these circumstances to infer, though we are not prepared to say that such an inference is necessary in other such cases, that the plaintiff has either impliedly abandoned or waived the claim for the greater part of the period for which arrears are now claimed or at least that her conduct has been such as to lead defendant 1 to believe that he would not be called upon to meet suddenly a claim for a large sum of money which he would not reasonably be able to pay and which ordinarily he ought to have found from the current income and the enforcement of which would only lead to the result disastrous alike to him and to his wife, of making him a pauper. We have therefore come to the conclusion that although the principle for which the appellant has contended is sound, the application of it to the facts leaves us in the position that the learned Judge arrived at a substantially just conclusion when he awarded the plaintiff only arrears of maintenance from the date of the demand, that is 1928. But having regard to what we have said as to the rate of future maintenance the arrears will also be at the rate of Rs. 15 a month.
19. In the result, the decree of the learned Judge is modified to the extent stated above, the date of payment to remain as ordered by the lower Court, 1st June 1929. The appellant must pay respondent 2's (defendant 2's) costs. The relationship between the appellant and respondent 1 being wife and husband they will suffer their respective costs of the appeal.