Subba Rao, J.
I have had the advantage of perusing the judgment prepared by ray learned brother. I agree with the conclusion arrived at by him. But I do not propose to express my opinion on the question whether the first wife living apart from her husband on the ground that he married a second wife is entitled to maintenance by reason of the second marriage alone; nor is it necessary to express my view on the second question whether such marriage in itself would be a sufficient ground before Act 19 of 1946 for awarding maintenance to the first wife. I agree with my learned brother on the interpretation of the provisions of Act 19 of 1948. But if the plaintiff is entitled to maintenance only under the Act, I would confine her right to maintenance only from the date of the Act. But on the finding of my learned brother that she was abandoned by her husband, with which I agree, she would be entitled to arrears of maintenance for the period before the Act also.
1. This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of Tenali in O. S. No. 17 of 1948.
2. The facts are:-- The first defendant Ramakottayya is a substantial Kamma ryot of Yadlapalli. He married the plaintiff Musunuru Nagendramma in 1929. This Musunuru Nagendramma herself is the daughter of a substantially wealthy ryot of Angalakuthura. The father of the plaintiff is said to be a nit-wit, and can only sign his name and he is said to have been assisted in the management of the family affairs by his wife. This plaintiff joined her husband in 1932. She was married when she was eleven years of ago and she joined her husband when she was 13 or 14 years old. The plaintiff and defendant have been living together up to March 1942. The marriage proved issueless. It is stated that the married life of the plaintiff and the defendant had not been a success owing to the defendant, the husband of the plaintiff, coveting the properties of his wife's parents and has been resenting her barrenness. It is stated that these bickerings between the husband and wife culminated in her being driven out of the house in March 1943 and after this the wife took her residence with her parents and some attempts were made to patch up the differences but they did not succeed. The first defendant, the husband put an end to all possibilities of reconciliation by marrying a second wife by whom he is said to have now procreated a respectable sized family.
3. The plaintiff has then filed the suit for recovery of maintenance at the rate of Rs. 1800 per year, for the recovery of past maintenance for five years prior to suit at the above rate, for provision for plaintiff's residence in the family house or for recovery of Rs. 1200/- in lieu thereof; for a charge over all or any portion of the properties of plaint A-1 schedule for the reliefs of maintenance granted in favour of her, for recovery of the movables shown in D schedule of the plaint or their value of Rs. 3950/- and for directing the 1st defendant to render an account of the income from the E schedule lands, which was paid to the 1st defendant for the benefit of the plaintiff during the 11 years from 1932 to 1942.
4. The suit was originally filed against three defendants. The 2nd defendant is the elder brother of the 1st defendant. The third defendant is the mother of defendants 1 and 2. When the suit was part-heard defendants 2 and 3 were given up on a memo filed on behalf of the plaintiff on 17-8-1949 and the suit was dismissed against defendants 2 and 3.
5. At the time of the filing of the suit there was a suit O. S. No. 20 of 1947 in the trial court filed by the 2nd defendant and his sons against defendants 1 and 3 in the present suit and others for partition of the family properties of defendants 1 to 3 and for other reliefs. It was on account of the pendency of that suit that defendants 2 and 3 were added as parties to the present suit. Subsequently the dispute in O. B. No. 20 of 1947 was compromised and after the compromise the plaintiff herein amended plaint.
6. The contentions raised by the defendants are reflected in the following issues:
1. Whether the 2nd defendant is a necessary or proper party to the suit?
2. Whether the C schedule properties belong to the family of which 1st defendant is a member or whether they are the properties of 3rd defendant?
3. Whether Act 19 of 1946 is retrospective and whether the second marriage of 1st defendant which took place in 1943 gives cause of action for a claim of separate maintenance?
4. Whether the plaintiff was treated cruelly and abandoned by the 1st defendant and whether plaintiff is entitled to separate maintenance on that score?
5. To what rate of maintenance, past and future, is plaintiff entitled? 6. To what provision for residence is plaintiff entitled?
7. Whether the plaintiff entrusted the income of E schedule properties to the 1st defendant and is the latter liable to account for the same?
8. Whether the plaintiff ever owned items 4 to 6, 8 to 10, 15 to 29 of D schedule?
9. Whether items 1 to 29 of D schedule were entrusted by plaintiff to 1st defendant and if so, what is their value?
10. Whether items 2 and 3 of D schedule were gifted to 1st defendant by the father of the plaintiff and
11. To what charge is plaintiff entitled in respect of her maintenance?
7. The real point of contest in this ease is with regard to entitlement of the plaintiff to separate maintenance and it has been negatived by the learned Subordinate Judge. The other two points relating to D schedule movables and accounting for the profits derived from E schedule lands need not detain me because as pointed out by the learned Subordinate Judge, both these points can easily be disposed of against the plaintiff. The evidence in regard to these matters consisted of merely oral evidence and the learned Subordinate Judge found that in regard to D schedule movables he disbelieved the evidence of P. W. 1 and 5 and believed the evidence of D. W. 1 and held that the plaintiff had not proved her case in regard to any of the articles in D schedule. He disbelieved the evidence of the plaintiff and her mother in regard to the payment of the income from E schedule lands to the defendant and his liability to account for the same.
I have been taken through the entire evidence once again and I have no hesitation in stating that nothing has been placed before me to come to the conclusion that the appreciation of evidence is either inadequate or incorrect. In fact the learned and experienced trial Judge who had an opportunity of seeing the witnesses in the box has disbelieved the testimony of P. Ws. 1 and 5 and has accepted the evidence of D. W. 1 and this circumstance is entitled to great weight at my hands. Therefore on the short ground that I see no reason whatsoever to differ from the appreciation of the oral testimony in regard to D schedule movables and the profits of E schedule lands this appeal relating thereto has got to be dismissed and is hereby dismissed.
8. The controversy before me resolves into a consideration of three points for determination, namely:-- (a) Is it settled Hindu law whether marrying a second wife will not entitle a first wife who is superseded, to claim separate maintenance, (b) whether the plaintiff cannot put forward this ground for the equitable relief of separate maintenance being granted to her on the principle that the grounds which would be available to a wife to defeat a suit for restitution of conjugal rights would also entitle the superseded wife to live apart from her husband and claim separate maintenance and (c) whether the Hindu Married Women's Right to Separate Residence and Maintenance Act of 1946 which came into effect on 23-4-1946 is declaratory and retrospective or remedial and prospective.
9. Mr. Venkatasubramania Iyer, the learned advocate for the appellant has brought to my notice the following collection of texts on the right of a wife to claim separate maintenance on her husband marrying a second wife.
10. Placitum 75 of Book IV of Colebrook's Digest (p. 134 of the 2nd Volume of 3rd edition, 1865) Manu:-- If a wife, legally superseded shall depart in wrath from the house, she must either instantly be confined or abandoned in the presence of the whole family. 'Culluka Bhatta':-- That wife again who being superseded departs in wrath from the house, should be instantly chastised with a rope or the like and compelled to stay, or if her resentment cannot be repressed she must be abandoned in the presence of her father and the rest of her family. The abandoning of her in the presence of her family is a repudiation proclaimed to all, in this form 'she is now rejected by me' and afterwards offences committed by that woman do not affect the man. The above is a verbatim reproduction of placitum 75 of Book IV of Colebrooke of the Law laid down in the Manusrurithi and the comment on Manu by Culluka Bhatta which has led to the enunciation of the rule by Strange, Mayne and others, that a Hindu wife has no right to leave her Husband's house when the husband marries again, but must meekly submit to the authority of the husband.
11. It is urged by Mr. Venkatasubramania Iyer that Colebrooke's authority on matters of Hindu law was very great in the nineteenth century, especially in the earlier half of it, and is considerable even today. So Mayne supported by Strange and Colebrooke must have seemed unanswerable to Judges like Scotland, C. J. and Bittlestone, J. 'Viraswami Chetty v. Appaswami Chetty', 1 Mad H C R 375 (A), but that the authorities which will not be referred to will show that the meaning of Manu's text (IX, 83) and Culluka Bhatta's comment on it, was completely misunderstood by Colebrooke.
12. It will be noted that the word which Cole brooke has translated as 'chastised' is (Baddhwa) bound and connotes not punishment but protective restraint. The abandonment referred to in Colebrooke's translation corresponds to in the original which connotesaccording to the commentaries below release ofthe woman from conjugal relations and sendingher to her parents with an arrangement for hermaintenance roughly corresponding to judicialseparation under English law.
13. In order to understand the sequence of the legal reasoning it will be convenient to begin with Yajnavalkya and manu later: Yajnavalkya I, 73.
'The liquor drinker, the deceased, the wicked, the barren, the waster of wealth, the one who is harsh of speech, the one who bears female children only, these deserve to be superseded. Also one who is hostile to her husband.' (14) Vijnaneswara, in his comment on Yajnavalkya, introduced this text with the words 'The law-giver now mentions the causes which justify the taking of the second wife.' The implication that a man is not at liberty to marry a second wife, whenever he chooses, is confirmed by other authorities. See below: --
'The husband who abandons an obedient and competent, son-bearing and pleasant speaking wife, should be made to give one-third of his property to the superseded wife. If he has no property he must maintain her.'
The commentator Vijnaneswara introduces this text of Yajnavalkya with the comment.
The law giver lays down the law with reference to the husband who marries a second wife without the causes justifying a second marriage. Yajnavalkya I, 74.
''The Adhivinna (Superseded wife) should be maintained, otherwise great sin is the result. When the husband and wife are in harmony the three vargas, Dharma, Artha, and Kama prosper.'
Setlur's edition of the Mitakshara p. 50. She, the superseded wife, is to be maintained as before with gifts, honour and good treatment. Otherwise, that is to say, by not maintaining her the husband incurs great sin and is liable also to punishment as will be shown later (the allusion is to 1-74 quoted) which requires the King to take one-third of the husband's property and give it to the wife. In this connection the learned advocate pointed out that the husband's obligation to maintain her and see that there is no diminution in the respect and consideration shown to her when she was the only wife, is universal but in addition where the second marriage is an act of caprice not justified by the special causes required by law the husband is made to be punished by the King by deprivation of one-third of his property to be given to the wife being the danda or penalty.
15. In Apararka's commentary on Yajnavalkya see Vol. I, p. 101 of Ananda Sarma Sanskrit series Edn. referring to the obligation to maintain the wife referred to in Yajnavalkya I, 74 (see text 4 above) the Commentator says:
'Living in the husband's house or her parents' house'. These words are to be added to the text to bring out its full import. That is to say, the Adhivinna superseded wife has the right to be maintained by the husband irrespective of whether she lives with her husband in his house or in the house of her parents.
16. The view of Apararka, that Adhivedanna or supersession leaves the right of the wife to maintenance intact, but releases her from her duty to live with her husband is supported by the commentators with reference to Manusmrithi, IX, 83 quoted below.
17. Referring to a wife who has been guilty of Vyabhichara, unfaithfulness to the husband and her right to maintenance, Yajnavalkya says:
'Yajnavalkya I, 70:-- Deprived of authority, unadorned, living on food barely sufficient to sustain herself, rebuked, sleeping on the floor, thus he shall make the unfaithful wife dwell in his house.' Vijnaneswara's comment on the above text says:
He shall make her reside in his own house. (Setlur's Mitakshara, p. 57. That is to say, the wife is entitled to have maintenance in the husband's house. She is not entitled to live separately and claim maintenance.
18. Thus according to the learned advocate the contrast between the mfaithful wife's claim to maintenance as a matter of mercy subject to the obligation to reside in the husband's house and the superseded wife's right to maintenance as a matter of right living either in the husband's house or with her 'parents has an obvious significance especially when taken with Manu IX 83 and the comments on that text of the commentator.
19. In the Viramitrodaya commentary on the Yajnavalkya Smrithi by Mitra-Misra commenting on the text I, 74 of Yajnavalkya (see 4 above) tne Commentator after giving the first half of Yajna-valkya's text says:
In short as pointed out by Mr. Venkatasubramanla Iyer, the Rogini or the deceased wife may be superseded but Manu requires her consent to be asked for and obtained. Other texts lay down that this rule applies to all cases where the liability of the wife to be superseded is the result, not of her misconduct but of her misfortune, such as absence of male issue etc. The requirement of consent may not be a legal condition precedent to a valid second marriage but it throws light on the humanity and tender regard of the law for the feelings of the unfortunate woman. It is an utter travesty of the Hindu law of the Dharmasastra to say that it recognises the right of a man to marry as often as he likes. Even Strange, who accepts the view that Hindu law recognises polygamy, says that a second marriage is illegal except in the special eases where it is justifiable or admissible. 'Manu IX, 83'.
'If the wife who is superseded leaves the house in anger she should be immediately restrained or given her separation and sent to her relations.'
The translation given above according1 to Mr. Venkatasubramania Iyer is in accordance with the interpretation put on Manu's test by the commentators Madhava in the Parasara Madhaviyam and Devana Bhatta in the Smriti Chandrika and that a comparison of Colebropke's version with these other authorities will show how seriously the purport of Manu's text has been distorted by Cole-brooke who was accepted by Strange and Mayne as the guiding authority in this and other matters.
20. Medhatithi's comment on Manu IX, 83 Gharpure's collection of Hindu law texts. Medhatithi p. 743. The text of Manu has been given above see item 10.
'Of the woman who owing to the affliction caused by the supersession leaves the husband's house Thyaga and Sannirodha are prescribed. Sannirodha means placing the woman in charge of protecting attendants. Thyaga has been already explained.'
This is an allusion to the commentary on an earlier text. Manu IX, 78 where Parithyaga has been explained by Medhatithi as withdrawal from Or cessation of conjugal intercourse.) 'Sambhogasyaiya Parithyagah'.
In accordance with the meaning given earlier, Thyaga is here explained. Thyaga is Asambhoga, refraining from sexual intercourse; Sahashayyavarjana, abstaining from sleeping together. Jayaswal in his Tagore lectures on Manu and Yajnavalkya p. 230 says
'Thyaga is a technical term denoting separation from conjugal intercourse as opposed to 'Mossha' the technical divorce. In other words she remained a legal wife according to Manu Dharma sastra though given up by the husband.'
21. Thus says Mr. Venkatasubramania Iyer that the Thyaga referred to in the case of the superseded wife is a Judicial separation using a rough adaptation of the phrase from English law, which leaves her right to maintenance Intact as shown by the Smrithi Chandrika.
22. Madhava in the Parasara Madhaviya, Bombay Sanskrit series Vol. I Part II p. 115 quotes the text of Manu IX, 83 and says commenting on the Tnyaga referred to there
'Thyaga referred to here means the sending of the woman to the house of her parents.'
23. Smrithi Chandrika (Mysore Oriental series) Vyavahara Kanda Part II p. 574 says after quoting Manu IX, 83
'The Thyaga in her Kula means handing her over to her parental relations. Though she is handed over to her parental relations the husband himself is to provide for her maintenance by proper arrangement for that purpose.' So according to Mr. Venkatasubramania Iyer the Smrithi Chandrika puts it beyond all possibility of doubt that the Thyaga referred to by Manu is not abandonment in the ordinary sense, a renunciation of his relationship and consequent responsibility by way of punishment for her impertinence in challenging his right to remarry as Colebrooko appears to have thought, but an arrangement of amicable separation making amends for the injury to the feelings of the woman by allowing her to live with her parents with reasonable provision for her comfort and maintenance. The idea, as Vijnaneswara points out, is to secure for the unfortunate woman the provision which consistently with the second marriage will put her in the position which she had previously.
24. Kulluka's comment on Manu IX, 83.
'She who having been superseded out of resentment leaves the husband's house is to be restrained by being bound with ropes until her anger subsides, or she should be handed over to her parental relations.'
25 To sum up now the translation of Kulluka given above is a literal one in the light of the other Sanskrit authorities, such as Medhatithi, Madhava, Smirithi Chandrika. The reference in Colebrooke's version of Kulluka's commentary (See item 1) to chastisement is unsupported by the original or any other authorities. The reference to Rakshipurasha, protecting attendants : till the anger
subsides, the statement of Madhava that Thyaga referred to means the sending of the woman to her relations and the statement of the Smrithi Chandrika and Apararka that the woman must be maintained by the husband though living with her parents, show that Colebrooke's version which Strange and Mayne followed, is a complete distortion of the law of Smrithis. It is also noteworthy in this connection that the Viramitrodaya has connected Manu IX, 83 with Yagnavalkya I, 74 which lays down that the superseded wife is entitled to maintenance and is understood by Apararka to give her as a claim to maintenance against the husband, whether living with him or with her parents.
26. On account of this misunderstanding by Colebrooke and which has been uncritically accepted by Mayne the following decisions of the Madras High Court which are cited as authority in every text book and subsequent decisions for the proposition that a superseded first wife is not entitled to claim maintenance seem to have emerged and it will be interesting to examine these decisions.
27. -- 'Sree Raja Row Boochee Tummiah v. Sree Raja Row venkata Neeladiy Rao', (1805) 1 Mad DSDSA 366 (B), is first of the decisions always referred to. In this case the second appellant was the wife of the respondent and she claimed maintenance on the ground of her being expelled from the residence. The Provincial Court for the Northern Division gave judgment against the claim. There was an appeal to the Sadar Adalat court. The Sadar Adalat court confirmed the judgment of the Provincial court observing that the wife quitted her husband's protection upon his having resolved upon contracting a second marriage and that this incensed her so highly as to leave his house of her own accord and retire to reside with her brother. There is no discussion of Hindu law and all that has been stated is that this wife was refused maintenance because her allegation that she was expelled from, her husband's house was found to be untrue. It was also found that the defendant wanted his wife to return to his house and live under his authority. Both the courts found that there was no evidence that the defendant was unwilling to receive her again provided she conducted herself in submission to his authority. On behalf of the wife it was not urged that the Hindu law allowed a superseded wife to claim separate maintenance but that the circumstance of the defendant having contracted a second marriage was itself adequate proof that he was unwilling to receive and maintain her. Therefore the present point under consideration was neither discussed nor even alluded to in that decision;
28. The next case always cited in text books is -- '1 Mad HCR 375 (A). This was a case tried on the original side of the High Court in O, S. No. 85 of 1863. The facts of this case are: All the parties were Hindus. It appeared from the evidence-of one Vijaya Ammal that she married the defendant twenty years ago that they occupied the adjoining houses at Mylapore (both of which belonged to the defendant) but in other respects had lived as husband and wife'down to the occurrence of the events which gave rise to the present action. She asked him for support he answered: 'my income from the garden has ceased; you had better borrow and support yourself' It was contended for the defence by Mr. Mayne that the express authority to borrow ceased when the wife deserted her husband that his marriage to a second wife did not justify the first wife in living with him and she had, therefore, no implied authority to bind him for maintenance or necessaries. Scotland, C. J. held:
'According to Hindu law and usage, it seems clear that whatever may be thought of the morality of the step amongst Hindus, polygamy is permitted, and that it is competent to a Hindu to have several wives.
How many wives, as Sir T. Strange observes in his Hindu Law, Vol. I, p. 56, it is competent for him, to have at one and the same time, does not distinctly appear. The prohibition which is to be found directed against a plurality of wives save under certain justifying circumstances, such as the first wife's infidelity, bad temper, barrenness, or production only of daughters, appears to be treated like so many other rules of Hindu Law, as merely directory and not imperative If, then, in the present case it was permitted to the defendant to supersede his first wife by taking another wile to live with, him--and this was her sole reason for refusing to live with him--his doing so did not, according to Hindu law, justify his first wife in separating herself and remaining apart from him of her own free will, and could not without more give her implied authority as his agent to bind him for debts incurred for necessaries. It will be seen that there was no discussion of the Hindu Law texts & in fact even the observations of Strange in his Hindu Law alluded to did not support such a conclusion as will be seen later. It is seen from the foot-note at p. 379 that the only text book which seems to have been alluded to and formed the basis of the decision was Colebrooke's digest, Vol. II.
29. The third decision commonly referred to is -- 'Arumugam v. Thulukanam', 7 Mad 187 (C) decided by Hut chins, J. In this case a Hindu wife applied for an order for maintenance from her husband. The husband offered to maintain her in his house. The wife refused the offer on the ground that her husband had without cause married a second wife. The Magistrate ordered the husband to pay a monthly sum by way of maintenance. It was held that the fact that the husband had married a second wife was not a sufficient reason within the meaning of Section 488, Criminal P. C. to justify an order. In this judgment which consists of four sentences beyond merely stating as a proposition that as a Hindu the petitioner is not debarred from marrying, a second wife and the mere fact that he has done so does not entitle the first wife to separate maintenance there was no discussion of the law and this decision can hardly be described as an authority.
But apart from this, the decision was under Section 488, Criminal P. C., where in regard to maintenance different considerations arise. The object in including the maintenance section in the Code could only have been, prevention of destitution on public grounds and that it should only be applied in cases where in the absence of these provisions or the more cumbrous process of civil law, the wife or the children would be destitute. 'Parapatti Chinna v. Sankunni Menon', AIR 1919 Mad 193 (D). The object is not to punish a parent for his past neglect but to prevent vagrancy by compelling those who can do so to support those who are themselves unable to do so and have a moral claim to be supported vide -- 'Mt. Kumli v. Emperor' : AIR1925All73 'In re Shaik Fakruddin', 9 Bom 40 (P); -- 'Gulabdas Bhaidas In re', 16 Bom 269 (G); -- 'Sardar Muhahammad v. Sur Muhammad', AIR 1917 Latv 213 (H). The object is to provide cheap and speedy but limited relief for deserted wives and children; it is by no means, however, the only or indeed the most satisfactory remedy open to them. They may file a regular suit for maintenance in the civil court but if there is real emergency the summary relief as is deemed necessary may be asked for and obtained from the Magistrate. Vide -- 'Bulteel v. Emperor', 1937 Mad W N 1127 (I).
30. These are all the Madras cases which are usually cited in the text books as authority for the proposition stated above, and though it is wholly a supererogatory task to examine the decisions of the other courts, it is enough to point out that the decisions usually cited of the other courts are of the same variety. It is enough to examine two of the decisions which are commonly cited. First is -- 'Mt. Kishen Dei v. Mangal Sen' : AIR1935All927 decided by Alisop, J. In this case the wife filed an application for maintenance and the husband countered it by filing a suit for restitution of conjugal rights. The husband had married a second wife and it was held that the husband was entitled to marry more than once-under the Hindu Law and the second marriage would not be a ground for his previous wife's refusing to live with him. In this short judgment there is no reason given for this conclusion and there is no discussion or citation of any previous decision or reference to the Hindu Law texts and can, therefore, hardly be described as authority for the proposition so badly and extremely stated. The other decision is -- 'Ude Singh v. Mt. Daulat Kaur', AIR 1935 Lah 386 (K) by Tek Chand and Abdul Rashid, JJ. The only reference in this decision to the point under consideration is the following stray sentence:
'It appears that in -- 'Seenayya Reddi v. Man-gamma' : AIR1927Mad1159 , the wife had voluntarily departed from the husband's house and separate maintenance was claimed on the ground that the husband had married a second wife which, of course, is not a sufficient reason-under Hindu law to sustain such a claim.' Once again there is no discussion and it is not shown how this is not a sufficient reason, under Hindu Law.
31. The net result of this analysis is that beyond basing their decision upon the translation of Coletarooko's digest of Manu and the adaptation of the same without critical discussion by Mayne and the earlier decisions being cited without further discussion by the later ones there is really no authoritative decision for holding that the superseded first wife is not entitled to separate maintenance under Hindu law.
32. This conclusion receives further corrobora-tion from the modern commentaries on Hindu law. The following is the extract from Sir Thomas-Strange's (former Chief Justice of Madras) Hindu law published in 1830:
'It remains to consider the doctrine of Supersession; by virtue of which, though the woman can marry but once, to the msn, a plurality of wives at the same time is competent; though not at his mere pleasure; the attempt which is Justifiable in some instances, in others only admissible, being where it can neither be justified, nor tolerated, illegal. The grounds that justify it regard the conduct, the temper, or the health of the wife; to which may be added, barrenness, or during a period of ten years, the production only of daughters. In any of these cases, cheerful acquiescence on her part entitles her to be treated with proportionable liberality; while contumacious resistance subjects her to coercion, to public exposure, nay even to the discipline of the rope.
Upon the principle of 'Volenti non fit injuria' the first wife's assent supplies the want of a justifiable cause as may be collected from various passages', indicating the means of obtaining it, and reconciling her to the intended purpose, by a suitable settlement; the measure of which is differently defined, the most intelligible one being a compensation amounting with her previous stridhana to a value equivalent to the expenses of the second marriage. Such is the one adopted by Mr. Colebrooke; while Jagannatha, on a review of the several criteria proposed by different authors, conceiving the best to be illusory, concludes that a rule on the subject remains yet to be formed, on due consideration of the difficulties attending it. That in estimating it, account is to be taken of what she already possesses, and that the difference only is to be given her, all are agreed; and if the difference be the other way, then a trifle only, for form's sake; this present (as it is called) however, settled classes as Stridhana as has been already noticed.
Illegal supersession, is the abandoning with a view to another, a blameless and efficient wife, who was given neither cause nor assent; a conduct, for which the husband (says Narada) shall be brought to his senses by the king, with a severe chastisement the same doctrine being held by Vishnu; the Smrithi Chandrika and other authorities; the desertion of a woman by her husband for any offence whatever (less than actual adultery) having been declared by an .anonymous Smriti to be among the parts of ancient law, that were abrogated at the beginning of the present age. A wife superseded under whatever circumstances must be provided for; a benefit that is construed by the Pundits as rendering it imperative upon her to continue to re-side in the house with her husband, his fickleness not absolving her from her nuptial obligation. And, under whatever circumstances she lives apart from him, It is her duty to seek protection from his relations, and fading them, from her own. But after all (says Daksha, very feelingly) with sorrow does he eat, who has two contentious wives.'
33. Then coming to Mayne, it is significant thatthe different editions progressively deal with this matter as follows:-- Sir Murray Coutts-Trotter (Jater Chief Justice of this court) in his 'A Treatise on Hindu Law and Usage by John D. ayne'
1922 edition) states at p. 652
'The circumstance of a man's taking another wife; even without any of the reasons which are stated as Justifying such a course (see to these, Manu IX-77 to 82) does not ntitle a wife to leave her home so long as her husband is willing to keep her there. This is restated in IX Manu 83 and -- '1 Mad H C R 375 (A)'; -- '(1805) 1 Mad D S D S A 366 (B).
34. In Srinivasa Iyengar's edition of 'Mayne's Hindu Law and Usage' (1938 edition) at p. 190 it is stated thus:
'While decided cases have gone so far as tohold that taking a second wife is not by itselfa ground for refusing restitution of conjugalrights other circumstances making it very difficult for the first wife to live in the same houseas the second wife may afford ground for refusing restitution.'At p. 827 it is stated
'the circumstance of a man taking another wife even without any justifying cause does not by itself entitle her to leave his home so long as her husband is willing to keep her there. The authorities on which these propositions are rested are in the former case : AIR1935All927 and for the latter Manu IX. 77 to 83, --1 Mad H C R 375 (A)'; -- '(1805) 1 Mad D S D S A 366 (B)'. Foot-note (q) at p. 327 states: see -- 'Dular Koer v. Dwarka Nath', 34 Cal 971 (M) -- 'Mt. Lajwanti v. Bakshi Ram', AIR 1935 Lah 110 (N). 'Dular Koer v. Dwarka Nath (M)' was decided by Harrington and Mookerjee JJ. Per Harrington J.: 'It would not be safe to say that whatever is a defence to an action for restitution of conjugal rights in the case of a European would also be in every case a defence in the case of a Hindu, but the Court is not bound, in the case of Europeans and Indians alike, to order a wife to return to her husband if there is reasonable ground for apprehending that a return to that husband will imperil her safety.
Per Mookerjee, J.: The conduct of a Hindu husband, who brings a lew caste woman as his mistress in the house to live with him as a member of the family, and expels his wife and son from the family residence, amounts to cruelty within the meaning of the law, which Justifies the wife to live separate from her husband and deprives the husband or his right to a decree for restitution of conjugal rights.
The husband would not be entitled to succeed even if his conduct did not amount to cruelty but constituted a grave matrimonial offence.' In the latter case far from supporting the position mentioned by the author the Bench decision states that when the husband has deliberately forsaken his young wife and sho files a suit for maintenance the fact that the husband has married another wife is no ground for showing any indulgence to him in determining the amount of maintenance. The learned Judge repelled the argument that the appellant had to provide for the second wife also by stating that, that contention was wholly devoid of any force and that if he was foolish enough to marry another wife, there was no ground why any indulgence should be shown to him.
35. 'Mayne on Hindu Law and Usage' (11th edition) by Chandrasekhara Aiyar J. does not restate the aforesaid proposition but points out only as follows:
'As soon as the wife is mature, her home is necessarily in her husband's house. He is bound to maintain her in it while she is willing to reside with him and discharge her duties. If she quite him of her own accord, either without cause, or on account of such ordinary quarrels as are incidental to married life in general she can set up no claim to separate maintenance. Where the husband keeps a concubine -in the house or treats her with cruelty so as to endanger her personal safety, she is entitled to live apart and claim separate maintenance. But mere diminution of physical comfort in her husband's house is not a cause justifying her to live away from her husband and claim separate maintenance.
Cruelty and abandonment are not the only grounds on which separate maintenance could be allowed to a wife. Separate maintenance can also be awarded when the husband for reasons of his own chooses to put the wife away from him or the wife lives away from her husband for justifiable reasons. The grounds which will 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. Under Section 2 of the Hindu Married Women's Rights to Separate Residence and Maintenance Act 1946, which came into operation on 23-4-1946 a Hindu married woman is entitled to separate residence and maintenance from her husband on one or more of the following grounds:-- (1) 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; if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish; if he marries again; if he ceases to be a Hindu by conversion to another religion; if he keeps a concubine in the house or habitually resides with a concubine; and for any other justifiable cause. Her own unchastity, conversion to another religion or failure without sufficient cause to comply with a decree of a competent Court for the restitution of conjugal rights disentitles her to separate maintenance under this Act.
Before this Act, the circumstance of a man taking another wife, even without any justifying cause did not by itself entitle her to leave his home, so long as her husband was willing to keep her there. A wife who leaves her home for purposes of unchastity, and persists in following a vicious course of life, cannot claim to be maintained or to be taken back. A wife who has sued for maintenance on the ground that she was a chaste woman and that she has left her husband owing to his misconduct, is not entitled, when the husband proves her vicious course of life, to claim maintenance on the ground that the husband should also prove that she was living an immoral life when she filed the suit.
A wife living apart from her husband for no improper purpose may, at any time, return and claim to be maintained. Her right is not forfeited but only suspended during the time she commits a breach of duty by living apart and is revived when at his death such duty ceases to exist. Her right to be maintained out of his estate being thus existent, her husband cannot execute a will which can defeat such a right. When a wife leaves her husband's home by his consent, he is, of course, bound to receive her again when she desires to return, and if he refuses to do so, she will be entitled to maintenance just as if he had turned her out. A wife who is unlawfully excluded from her own home or refused proper maintenance in it, has 'the same right to pledge her husband's credit, as a wife in England. But the onus lies heavily on those who deal with her to establish that she is in such a position. A husband who has abandoned Hinduism is still bound to maintain his Hindu wife.'
36. In Hindu Law--A Treatise by P. R. Gana-pathi Iyer (Book I) there is the following observation regarding whether marrying a second wife is a sufficient ground for claiming separate maintenance.
'It has been held that merely marrying a second wife and transferring the affections to such second wife will not amount to cruelty and that the first wife cannot, on account of such second marriage, resist the husband's claim for restitution of conjugal rights. 'Jeebhodan v. Mt. Sun-dhoo', 17 W R 522 (Cal) (O); -- 'Sitanath v. Haimabatty1, 24 W R 377 (Cal) (P) and -- '34 Cal 971 (M)'. It has also been held that marrying a second wife will not entitle the first wife who is thus superseded to claim separate maintenance, gee -- '1 Mad H C R 375 (A)' 7 Mad 187 (C)'. It has, however, been pointed out in an earlier chapter that it is only when certain justifying circumstances exist that a Hindu will be entitled to supersede his first wife and take a second wife. Even though judicial decisions may have held that the prohibition in the absence of Justifying circumstances is only a moral injunction so that the absence of the justifying circumstances will not render the second marriage invalid, we cannot understand why the first wife should meekly submit and go on as if nothing had happened and be disentitled to refuse conjugal society to a husband who had unjustifiably resorted to another wife. It is absurd on the part of the courts to oblige the wife thus justifiably offended to live with the husband and with the very woman who may have been the cause of strained relations when at any rate there is no justifying cause within the meaning of the Hindu Law texts for the husband to take a second wife. It is outrageous not to take into account the feelings of the wife and to compel her to live unruffled with a husband who has violated the obligations owing to her. See Strange Vol. II pp. 51-52. As, however, the Hindu wife is proverbially meek and puts up with all insults and even cruelty the courts seem to have held that the taking of a second wife without the consent of the first and for no justifying cause does not justify her to live separately. See Strange Section 34. pp. 9 and 10. It is unfortunate that the courts should have so held.'
37. in Mulla's Principles of Hindu Law (6th edition) at p. 611 it is stated that the mere fact that the husband has taken a second wife would not justify the first wife leaving her husband's house and the foot-note sets out the decision in -- '1 Mad H C R 375 (A)' as valid authority for the proposition. N. R. Raghavachari's Hindu Law (3rd edition 1947) states at p. 222 that if a woman deserts her husband on the ground of his remarriage she will not be entitled to claim separate maintenance. The authority for this proposition is given in the decision in -- '1 Mad H C R 375 (A)' and in -- 'AIR 1935 Lah 386 (K)'.
38. C. S. Ramakrishna in his 'Hindu Law as interpreted by the Judges in India and Privy Council', Vol. I, p. 374 mentions that the fact that a husband married a second wife while his first wife was living with him cannot Justify the former in claiming separate maintenance and cites as authority -- '(1805) 1 Mad D S D S A 366(B)' and -- '1 Mad H C R 375 (A)'.
39. Dwarakanath Mitter in 'The position of Women in Hindu Law' observes at p. 317 that it was pointed out by the Madras High Court that the husband marrying a second wife does not justify desertion of the husband by the first wife and that it follows therefore that the marriage with a second wife would not be any answer in a suit for restitution and cites as authority -- '1 Mad H C R 375 (A)'.
40. Gharpure in his Hindu Law, 4th Edition, p. 345 mentions under the head 'Cases where separate maintenance was not allowed', the instance of husband marrying a second wife and cites as his authority -- '1 Mad H C B 375 (A)'; -- 'Adli v. Mt, personi', 11 All L J 161 (Q) and -- '17 W K 522 (Cal) (O)'.
41. In Commentaries on Hindu Law (3rd Edition) Vol. I, by Rajendra Nath Bhattacharya at p. 257, it is stated that the husband's marrying a second wife would not justify the first wife's leaving his house. The authority relied on for this proposition is -- '1 Mad H C R 375 (A)'.
42. In Golapchandra Sarkar Sastri's Hindu Law (Seventh Edition. 1038) at p. 172, it is merely stated that the wife is bound to reside with the husband wherever he may choose to live and the fact of the husband having another wife will not relieve her from that duty and that nothing short of Habitual cruelty or ill-treatment will justify her to leave her husband's house and reside elsewhere and the authorities for this proposition as given in the foot-note are -- '24 W R 377 (Cal) (P)'; --34 Cal 971 (M)' and -- 'Binda v. Kaunsilia', 13 All 126 (R).
43. Sir Gooroodass Banerjee, in his Tagore Law Lectures for 1878 'The Hindu Law of Marriage and Stridhana' mentions in lecture 4 at p. 159, that the fact that the husband had married a second wife is not a sufficient reason within the meaning of Section 488, Cr. P. -C. to justify an order for separate maintenance and relies as his authority upon -- '7 Mad 187 (C)'.
44. Trevelyan on 'Hindu Law as administered in British India' (Second Edition), at p. 71 mentions that a decree for restitution of conjugal rights cannot be refused on account of a second marriage by the husband and gives in the footnote as his authority for this proposition -- '7 Mad 187 (C); 17 W. R. 522 (Cal) (O) and -- '1 Mad HCR 375 (A).
45. Sir H. S. Gour in his Hindu Code (4th Edition) p. 320 in dealing with the wife's right to maintenance mentions that the fact that the husband had married another wife is no ground for leaving him and gives -- '1 Mad HCR 375 (A), as his authority for this proposition.
46. To finalise this examination of the texts and the case-law and the Commentaries: The duty of the wife is to live with her husband. The husband is bound to maintain his wife and during his lifetime he alone is subject to this obligation. If the texts are correctly understood, Hindu Law recognises that in certain cases, including supersession by second marriage, the husband and wife should be excused from cohabitation viz., when on the part of the husband he is unable to restrain or persuade the superseded wife to continue cohabitation without stultifying her former position in the house-hold and on the part of the wife when the conduct of the husband towards her is such that in the words of Sir S. Subramania Iyer J. she cannot live with him consistently with her self-respect and her position as a wife in the household.
This excusing from cohabitation was deemed a 'justifying case for the superseded wife being given compensation or separate maintenance. The cases from which the absolute proposition, that the mere fact that the husband marries a second wife would not entitle the. wife to live away from her husband and have separate maintenance are -- (1805)1 Mad DSD SA 366 (B),and --'1 Mad HCR 375 (A), which by themselves are based upon an incorrect translation of Manu Placitum 75 by Cole-brooke and adopted by Mayne and without a critical discussion of the texts or adduction of adequate reasons. Consequently, it is not surprising that subsequent case-law, though paying lip service to this dictum, has been giving the relief of maintenance on equitable principles applicable to restitution of conjugal rights, due regard being had to the new social consciousness pressing for enlarged rights for women. This is but proper because precedents, as has been well said, are only stepping stones and not halting places and the time spent could not leave Hindu Law unchanged. Therefore to this re-orientation we shall now turn.
47. Point 2:- This discussion regarding the Hindu Texts and the deductions to be drawn therefrom has merely become academic on account of the re-orientation evidenced by the case-law from 1936 onwards in this and other States. The old principle set out in -- '24 WB 377 (Cal) (P), that under the Hindu Law mere unkindness or neglect short of cruelty would not be a sufficient justification for a wife in leaving her husband's house has come to be replaced by the equitable doctrine that the grounds which would be available to a wife to resist a suit for restitution of conjugal rights would also entitle her to live apart from her husband and claim separate maintenance.
Similarly, in -- '11 All LJ 161 (Q)', it was laid down that the only cruelty which can be recognised under the Hindu Law justifying a Hindu wife to claim separte maintenance is legal cruelty i. e., actual violence of such a character as to endanger the personal health or safety of the wife --'17 WR 522 (Cal) (O). The mere taking of the first wife's jewels or the marrying of a second wife by the plaintiff cannot be set up as a bar to restitution. (No discussion or citation or reasons given). -- '24 WR 377 (Cal) (P); 'Yamuna, Bai v. Narayan Moreshvar Pendse', l Bom 164 (S); 7 Mad 187 (C): '17 WR 522 (Cal) (O)', '13 All 126 (R)', '34 Cal 971 (M), referred to.
In -- 'Rukmani Ammal v. T. R. S. Chari', AIR. 1935 Mad 616 (T), Pandrang Rao, J. held that there is no stringent rule that in every case unless actual cruelty is established, a husband is entitled to a decree for restitution of conjugal rights, As a matter of fact, Hindu Law is silent as regards the right of the husband to obtain the help of the court in securing the company of his wife. Though the Hindu Law prescribes a duty of obedience and also contains provisions, regarding the right of the wife to claim maintenance, a suit for restitution of conjugal rights is really not contemplated by the Hindu Law proper and such suits have been allowed on the analogy of similar suits in England which were dealt with originally under the Ecclesiastical jurisdiction. Whether the husband is entitled to restitution or not must be decided after consideration of all the circumstances of the case; in other words what is sought in such a suit is an equitable relief and equitable considerations cannot be ignored even when they are in favour of a Hindu wife.
In -- 'Venkatapathi Nayini Varu v. Puttamma Nagith', AIR 1936 Mad 609 (U), it was held by a bench of this court consisting of Varadachariar & Mockett, JJ. that cruelty & abandonment are not the only grounds on which separate maintenance could be allowed to a wife. Separate maintenance can also be awarded in a case where the husband for reasons of his own, chooses to put the wife away from him and the wife lives away from the husband for justifiable reasons. 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. An offer to take back a wife made during a suit has got to be carefully scrutinised to see if it is a bona fide offer and not one made for the purpose of defeating the claim for maintenance.
In -- 'Seetha.yamma v. Venkataramana', AIR 1940 Mad 906 (V), Bum, J. held that it is not necessary that a wife should prove actual cruelty in order to entitle her to a decree for separate maintenance. On the other hand it is logical that if the husband is found to be not entitled to a decree for restitution of conjugal rights (because he had virtually abandoned her) the wife should be held entitled to a decree for separate maintenance. The decision in -- 'AIR 1936 Mad 609 (U)', was relied on. In --'AIR 1935 Lah 386 (K)', it was held where a husband sues his wife for restitution of conjugal rights it is not necessary that actual physical cruelty is necessary to enable the wife to resist such suit. Nor is it necessary to prove that there has been a continued physical cruelty. A husband is not necessarily entitled to a decree in the absence of plea of cruelty of by the wife. Vide--'Bai Jivi v. Narasingh Lalbhai', : AIR1927Bom264 (W). in a suit for restitution of conjugal rights the court in each case will consider the entire conduct of the parties and if it conies to the conclusion that the husband has been guilty of continued neglect of ..the wife and has deserted her and the suit has not been instituted bona fide the suit will be dismissed. It is not. necessary to entitle a deserted Wife to prove that she has been subjected to repeated violence. Mere delay in bringing a suit for maintenance is no cause (or its dismissal.
In the same volume at p. 110 we have the decision in -- 'Mt. Lajwanti v. Bakshi Ram', AIR 1935 Lah. 110 (N), which has already been referred to where it was held that where a husband has deliberately forsaken his young wife and she flies a suit for maintenance, the fact that the husband has married another wife is no ground for showing any indulgence to him in determining the amount of maintenance.
In -- 'Sobhanadramma v. Varaha Lakshmi Narasimhaswsmi' : AIR1934Mad401 , it was held that where a husband and wife owing to disputes separated and when the wife and her relations subsequently approached the husband and requested that the wife may be allowed to live with him, the husband refused to accept her and for a number of years, the wife had to remain in her father's house, there was abandonment sufficient to entitle the wife to claim separate maintenance under the Hindu Law. The dictum in this case that the position of a young Brahmin wife (it may respectfully be added all Hindu wives) 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 is well worth attention.
In -- 'Vellayammal v. Ramaswami Naicken', 1934 Mad W N 825 (Y) lip service was paid to the hoary dictum that a husband marrying a second wife by itself is no justifying cause for claiming separate maintenance. It was pointed out that a justifying cause to entitle a Hindu wife to claim separate maintenance enumerated in Dharma Sastra might conceivably be held to be insufficient in modern times. Devala says: 'A husband may be forsaken by his wife, if he be an abandoned sinner, or an heretical mendicant or impotent or degraded or afflicted with pthisis or if he has long been absent in foreign country.' Parasara lays down: 'If the husband is missing, dead or quit the condition of a ho use-holder, be impotent or degraded in any of these five lawful calamities, it is lawful for a woman to have another husband.' Shyama Charan Suker in his Vyvasta Chandrika comments on this text as follows: 'Thus Parasara having declared it lawful for a woman to take another husband in case, her former husband be in one of the said circumstances 'a fortiori' a woman may desert husband when so circumstanced.'
in Mallawa Siddappa v. Siddappa Bhimappa' : AIR1950Bom112 , it was held that before a Hindu wife becomes entitled to separate maintenance she must satisfy the court that she had a Justifying cause which compelled her to leave her husband and live separately. It was further observed that me Question in each case would be whether the conduct of the husband was such that the wife consistently with her self-respect and with due regard to her position as a wife can live in the house of her husband.
Thus we have travelled far from -- '24 W R 377 (Cal) (P)' and -- '11 All L J 161 (Q)', where it was held that legal cruelty established alone was sufficient as a justifying cause for a Hindu wife to live separately and claim separate maintenance to ' : AIR1950Bom112 ', where it has been pointed out that the justifying cause has to be deduced from the circumstances of each case & if on equitable grounds it is found that the circumstance and conduct of the husband are such that the wife consistently with her self-respect and with due regard to her position as a wife cannot live in the house of her husband she can claim separate maintenance. On the foot of this principle, when a Hindu married a second wife apparently giving his parents-in-iaw to understand that he had abandoned his first wife and then subsequently took back his first wife it has been held in --'Mancharamma v. Satyanarayana' : AIR1950Mad356 that the second wife has justifiable cause to claim separate maintenance although sub-clause (4) of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, (Act 19 of 1946) does not apply.
Though, for the purpose of not seeming to disturb the ratio so badly set out in -- '(1805) 1 Mad D S D S A 366 (B)', lip service has continued to be paid by Judges to the proposition that a Hindu husband marrying a second wife is by it self no justifying cause for the superseded first wife to claim separate maintenance, in practice by the extended application of the term 'justifying cause' and by making it to cover all equitable considerations every aggrieved wife including a superseded wife has been given the relief asked for by her, of separate maintenance.
48. Therefore applying the principles to the facts of the instant case it is found that this appellant is entitled to the relief asked for by her. There is no dispute in this case that the wife coming from a good family was virtuous and well behaved. On account of her being childless within the first decade of her marriage which took place when she was 11 years old and which was consummated when she was 14 there have been bickerings between the husband and the wife. This has been aggravated by the fact that the husband looking upon himself as the illatom son-in-law of his parents-in-law was coveting their properties and was trying to realise the fruits thereof. So the two powerful motives which could wreck married life, the feeling of frustration that the marriage might prove issueless and the financial differences have operated to bring about the separation of the husband and the wife.
There is nothing to doubt the testimony of the plaintiff's witnesses in the case that it was the conduct of the husband which drove the wife from her home to reside with her parents, that subsequently the husband made no attempts to take her back, and that as a matter of fact all efforts at patching up the differences were made impossible by the husband marrying a second wife and procreating a large family when the first wife was certainly well within the period of herself being able to bear children. In order to explain away his conduct the husband has been alleging that his wife was suffering from a disease which prevented her from conceiving and secondly that he was trying to take her back by personal appeals and through the efforts of the mediators.
On a close scrutiny of the evidence it Is found that the disease complained of, namely, 'whites' is both curable and one that will not certainly Inhibit pregnancies and in any event no medical testimony has been adduced to substantiate these allegations. It is easy for the husband to allege and difficult for the wife to refute that he has been personally asking his wife to return back and that he sent mediators for this purpose. There is no corroborative evidence worth mentioning in support of the husband's allegation. In this connection it may be pointed out that this is not a case where the question of credibility depends on the light thrown upon it by the demeanour of the witness in the box and the manner In which the witness answers and how he is affected by the questions put to him where the trial Judge has an advantage but this is a case where the views on credibility are founded upon the argumentative Inferences from, facts not disputed and the court of appeal is really in as good a situation as the trial Judge. Vide, -- 'Palchur Sankara Reddl v. Palchur Mahalakshmamma', AIR 1922 PC 315 (Z2).
The circumstances of the case clearly show that but for the compelling reasons mentioned by the wife, namely, the alienation of the husband's affections, his cruel conduct and the impossibility of her living with him, she would not have assigned to herself the position for life of a discarded wife when she was of an age when she could not have despaired of having children and bringing up a happy family. Therefore, there were justifying causes for the appellant to live apart from her husband which circumstances will entitle her to claim separate maintenance.
49. Point 3:-- On the question whether the clause 'marries again' in Clause (4) of Section 2 of Act 19 of 1946 should be construed as 'married' before the said Act came into force or 'marries again' after the date on which the act became law (23-4-1946) we have the following judicial decisions of our High Court and other High Courts.
50. In -- 'Vasunthara Devi Amman v. Rama-krishna Naidu'. AIR 1949 Mad 100 (23), which deals with a case arising under Act 19 of 1948 (Hindu Married Women's Right to Separate Residence and Maintenance Act) Rajamannar, J. as he then was had got to consider the question as the marriage in that case took place on 1-9-1946.
51. In -- 'Lakshmi Ammal v. Narayana Swaml Naicker' : AIR1950Mad321 , Visvanatha Sastri, J. has fully gone into the construction of Sub-clause (4) of Section 2. The learned Judge did not enter into the question whether the Act was remedial or declaratory. He found that all the six clauses in Section 2 of the Act are in the present tense. The words 'marries again' in Sub-clause (4) of Section 2 of the Act have not been used with reference to a particular point of time but merely as a description of the husband's position as being twice married whether before the Act came into force or after. If at the time either the wife seeks separate residence and maintenance or the husband claims restitution of conjugal rights from the wife the husband happens to be twice married Clause 4 of Section 2 will come into operation and the wife superseded by the second marriage of the husband whether before or after the Act 19 of 1943 is entitled to separate maintenance and residence. It is a direct corollary from this that such a wife cannot be compelled to go and live with her husband. In other words against such a wife no restitution of conjugal rights could be granted. The following extract from the learned Judge's observations may usefully be borne in mind:
'The rule of construction applicable to a remedial enactment like Act 19 of 1946 is stated in these terms in Vol. 31, para. 653 of Halsbury's Laws of England (Hailsham Edition). 'Judicial interpretation should be directed to avoid consequences which are inconvenient and unjust, if this can be done without violence to the spirit or the language of the statute. If the language is ambiguous and admits of two views, that view must not be adopted which leads to manifest public mischief or inconvenience or to injustice. If, however, the words are plain, the Court has no right to put an unnatural interpretation on them simply to avoid mischief or injustice. In such a case no further effect should be given to the enactment than is required for the purpose of the legislature to be achieved. In advancement of a remedial statute, everything is to be done that can be done consistently with the proper construction of it, even though it may be necessary to extend enacting words beyond their natural import and effect. The object of the Act is to crystallize- and give statutory recognition to certain parts of the judge-made law and at the same time to liberalise in other respects in favour of Hindu married women.'
Section 2 of the Act runs 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, 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 is keeping a concubine in the house or habitually resides with a concubine; (7) for any other justifiable cause.'
It is unreasonable to construe Section 2(1) of the Act as meaning that the loathsome disease therein described should have been contracted by the husband after the Act and if the disease had originated before the Act, the wife is not entitled to separate maintenance. 'Cruelty' and 'desertion' referred to in Section 2(2) and (3) obviously do not exclude cruelty and desertion which started anterior to the passing of the Act. Similarly, the reference to apostacy in Section 2(5) and to the keeping of a concubine in the house in Section 2(6) must contemplate events which had their inception before the Act came into force. With reference to Section 2(4), however, it is argued that the words 'marries again' refer to a future marriage, i.e. after the Act. I appreciate the verbal point of this interpretation but I am unable to accept it.
In my opinion, the words are merely descriptive of the position of the husband as a twice married man at the date when the wife's claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation. Reading Section 2 as a whole and the several clauses of the section together, I see no reason to hold that while all the other clauses which use the present tense refer to a state of affairs in existence at the date of a suit for maintenance by the wife, though it had its origin before the Act came into force, Clause (4) of the section 2 alone must have reference only to an event which occurs after the Act comes into force. In -- 'Dunichand v. Mst. Anarkali', AIR 1948 PC 173 (Z5), the Judicial Committee interpreted the words 'dying intestate' in the Hindu Law of Inheritance Amendment Act 20 of 1920, not as connoting the future tense but as a mere description of the status of a deceased person, not having reference to the time of his death. Section 2(4) of the Act ought, in my opinion, to receive a similar interpretation.
The Act was designed to remedy the mischief created by the state of the law which permitted a man to marry as often as he lilted but denied to the superseded wife separate maintenance. A multiplicity of wives is not conducive to domestic peace or the happiness of the spouses and in recognition of this fact, the law has now provided separate maintenance for the superseded wife who remains chaste. There is no reason why the Legislature should have made an invidious distinction between wives superseded by a second marriage of the husband before the Act & those who are so superseded by a second marriage after the Act. For these reasons I hold that the wife in the present case is entitled to separate maintenance under Section 2(4) of the Act.'
52. In -- 'Kistappa v. Parvathi Animal' : AIR1951Mad360 , the same interpretation has been placed by Baghava Rao, J. and he has held that the fact that a man has taken a second wife is sufficient ground for award of separate maintenance to the first wife under Act 19 of 1946 (Central) in the absence of any unchaste or improper conduct and reference is made to another decision, of his in -- 'S. A. No. 556 of 1947 (Mad) (Z7)', where he has held the same view and in which he has also referred to a similar decision by Mack, J. regarding the same point.
53. It is mentioned on the Notes Section of the M. W. N. No. 26 dated 17-8-1953 that on an un-reported decision in -- 'S. A. No. 1413 of 1946 (Mad) (28)' of our court it was held, that Section 2(4) gives a right whether the marriage was before or after the Act but that maintenance could not be claimed from prior to 23-4-1946 the date when the Act came into effect.
54. The decision of Visvanatha Sastri, J. has been followed in -- 'Baijnath v. Hiraman', AIR 1951 Vindh P 10 (Z9), where the learned Judicial commissioner has observed: 'Studying the Act as a- whole I would follow the Madras ruling rather than that of Nagpur. In fact Section 2 Clause (4) of the Act is a far reaching measure. The law does not go so far as to declare illegal a man's marrying again in the lifetime of the first wife. Had it done so, the disability imposed by it cannot act retrospectively. It does, what is obviously the second best. From the date the law comes into force it arms the superseded wife with a new weapon which customary Hindu law did not grant her. It enables every wife, in the status of supersession to choose, whether she would continue to live with the husband or get what virtually amounts to a judicial separation. Conversely, if a superseded wife is living separately from her husband this prevents the twice married husband from getting a decree for restitution of conjugal rights.'
55) A different note has been struck in -- 'Sidda Setty v. Munismma' : AIR1953Mad712 , by Krishnaswami Nayudu, J. In this decision he has held that on a proper construction of the language in CI. (4) of Section 2 of Act 19 of 1946 the words 'marries again' could only refer to a future marriage that is, marriage after the Act. This will be a reasonable and natural construction to be put upon the words without doing violence to the language or even to the spirit of the statute and the language does not admit of any ambiguity and is plain. To do otherwise would be to lead to inconvenient and unjust results which should always be avoided in judicial interpretation of the words of the statute. ' : AIR1950Mad321 , dissented from.
56. This point has been discussed in the case reported in -- 'Mt. Sukhri Bai v. Pokhalsing', AIR 1950 Nag 33 (ZI1), where it was held that the Act does not act retrospectively because the wording of clause 4 of Sec. 2 is to cut down the application to those cases in which the husband marries again after the date on which the Act became law. This conclusion was arrived at after an elaborate discussion whether the Act 19 of 1946 (central) is declaratory or remedial. Discussing the difference between the two types of legislation the court came to the conclusion that the said Act was not declaratory in the strict sense of the term. Before the Act came into force neither Hindu custom nor any statute allowed a Hindu wile to live separately from her husband if he married a second time. In the view of the Nagpur High Court it is this defect that the law remedies and is therefore remedial and when once it is remedial it can act only prospectively.
57. In -- 'Lakshmi Bai v. Waman Rao' : AIR1953Bom342 (212), the learned Judges came to the conclusion that the words 'If he marries again' must be interpreted as meaning 'If he marries again after the Act comes into force' and any earlier marriage of the husband prior to the coming into force of the Act will not confer upon the wife the right to claim separate residence and maintenance end Section 2(4), Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, has no retrospective operation ' : AIR1950Mad321 ', differed from; -- 'AIR 1950 Nag 33 (Z11)', agreed with.
58. On a careful consideration of Section 2(4) and the relevant decisions, there can be no doubt that the words 'marries again' are merely descriptive of the position of the husband as a twice-married man at the date when the wife's claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation. In this view it is unnecessary to discuss at great length the other aspect of the matter viz., whether the law is remedial and prospective or declaratory and retrospective. It will be noticed however that the Nagpur and Bombay decisions proceed on the assumption that neither the Hindu Law Texts nor judge-made law excuses cohabitation in the case of a superseded first wife. That categorical and unqualified assumption has been found upon critical examination to be largely unfounded. Therefore, the better construction seems to be that this 1946 legislation only declared and put beyond doubt what was already the Judge-made law. Hence Section 2(4) does not exclude a husband who had taken a second wife before the Act from its operation.
59. Finally, the rate of maintenance and the period for which it has to be granted have to be considered. In regard to the period, the plaintiff claims arrears for five years from 1942 and the 1st defendant contended that she would not be entitled to claim arrears. The learned Subordinate Judge found that the plaintiff left the 1st defendant in February 1943, some days prior to the second marriage. The date adjudged by the learned Subordinate Judge can be accepted. The question of arrears is allied to that of quantum of maintenance and it falls within the range of the right to maintenance. It is a legal right not depending upon any demand and refusal for its enforcement, although a demand may show that the person demanding is in necessitous circumstances and is insisting upon her rights. -- 'Venkopadhyaya v. Kavari Hengasu', 2 Mad H. C. R. 36 (Z13); --'Panchakshara Chetty v. Pattammal' : AIR1927Mad865 'Seshamma v. Sutabarayadu', 18 Mad 403 (ZI5); -- 'Rathinasabapathy v. Gopala Odayar', AIR 1929 Mad 545 (Z16); -- 'Raja Yarlagadda v. Raja Yarlagadda,', 24 Mad 147 (PO (Z17); --'Ramarayudu v. Sitalakshmamma' : AIR1937Mad915 'Subhsdramma v. Venkatachalam', 1935 Mad WN 846 (Z19).
A person against whom a claim for arrears is made has to prove waiver or abandonment 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 meeting it, out of his annual income: -- 'Subramania Iyer v. Mut-tammal', 21 Mad LJ 482 (Z20); -- 'Krjshnaniachariar v. Chellammal' : AIR1934Mad401 'Rangathayi v. N. M. Chetty', 21 Mad LJ 70S (Z22); -- 'Pushpa-valli Thoyarammal v. Raghavaiah Chetty', AIR 1914 Mad 451 (Z23); -- 'Srinivasa Ayyar v. Lakshmi Ammal', AIR 1928 Mad 216 (Z24).
It is now well settled that mere delay in prefer-ring a claim for maintenance does not disqualify a person otherwise entitled to arrears. The High Courts in India have however been divided on the question of the nature and extent of the discretion residing in a Court of law in dealing with arrears. But in Madras a long series of decisions have held that the right to arrears is an absolute right, defeasible only on proof of waiver, abandonment, estoppel or limitation; in other words, that apart from these considerations, a Court has no discretion either to disallow arrears totally or to cut down the period for which they are to be granted. : AIR1927Mad865 .
Thus, a wife is entitled to claim arrears provided her right is not either barred by time or is not waived or impliedly abandoned. But arrears may be fixed on a lower scale than future maintenance. -- 'AIR 1928 Mad 216 (Z24)', -- 'Venkataratnamma v. Seetaratnam' : AIR1932Mad408 . The plaintiff may therefore be held to be entitled to arrears from February 1943 as found by the learned Subordinate Judge in para. 23 of his judgment.
60. In regard to the rate of maintenance, it is la question of fact and the various circumstances which have to be considered in determining the amount have been comprehensively set out by their Lordships of the Privy Council in the well-known decision of -- 'Mt. Ekradeshwari v. Homeshwar Singh', AIR 1929 PC 128 (Z26) thus: Maintenance depends upon the gathering together of all the facts of the situation (i) the amount of free estate, (ii) the past lives of the married parties and the families; (iii) 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 (a) scale, (b) mode of living and to the (c) age (d) habits, (e) wants and (f) class of parties. In short it is out of a 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.
61. This Privy Council decision no doubt related to the amount of maintenance to be awarded to a widow. But the tests they have laid down for determining the amount appear equally applicable to a superseded wife. We can no longer follow Yagnyavalkya who indicated the maximum that may be awarded to a forsaken wife as a third part of the husband's wealth. In -- 'AIR 1935 Lah 110 (N)', one third of the husband's income was granted. This is a too rough and ready test for application under modern conditions. In fixing the amount of a wife's maintenance the Court has to consider also the manner of life to which she has been accustomed and an amount sufficient to enable her to lead such a life may be granted, provided no injustice is done to her husband or the rest of her family. In -- 'Appibal v. Khimji Cooverji', : AIR1936Bom138 (Z27) and in : AIR1934Mad401 , it was held that the criteria laid down in -- 'Ekradeshwari v. Homeswar (226)', apply generally to the case of a wife also.
62. Applying these principles to the facts of the instant case, first of all the resources of the husband have got to be assessed; secondly, it has to be decided whether the property owned by the wife can be taken into consideration. In regard to the former the learned Subordinate Judge has elaborately analysed the evidence regarding the income of the husband and has come to the following well substantiated and correct conclusion: 'I have no hesitation in coming to the conclusion that the wet lands of the 1st defendant fetch easily a rent of 18 bags per acre, (wet lands of the first defendant arc found roughly to be 25 acres of dry land 5 acres I am not satisfied that the yield of the dry lands including the turmeric growing lands is as claimed for the plaintiff. I hold that the dry lands of the first defendant yield a rent of about Rs. 600 per year.' The controlled rate per bag of paddy from 1943, could at no time have been less than Rs. 12 per bag, and subsequently has been averaging about Rs. 20 per bag.
The learned Subordinate Judge found that first defendant was not indebted to any extent and had outstandings of Rs. 21,000.
63. There can be no rebate by reason of the properties owned by this wife. The decision in --'Annapoornamma v. Veeraraghava Reddi', AIR 3940 Mad 547 (Z28) is authority for the position that on the question of maintenance due to a widow the Stridhanam property owned by her ought not to be taken into consideration. The decision in -- ' : AIR1936Bom138 (Z27)' Is authority for the position that when a wife claims maintenance the property owned by her can be taken into consideration. The view of the Bombay High Court in respect of widow's maintenance is that the property owned by the widow can be taken into consideration. That view runs contrary to the view of the Madras High Court as stated in --'AIR 1940 Mad 547 (Z28)'. Therefore, it must be taken that so far as the Madras High Court is concerned, even in respect of the maintenance claim of a wile any property owned by her ought not to be taken into consideration.
64. On the foot of these resources of the first defendant, and taking into consideration the fact that subsequently a son has been born to him and that that son's share should be excluded from our purview and that the first defendant has also to maintain a second wife and four daughters raised through her and the other incidental obligations incumbent on him, the rate of maintenance under all heads can be safely fixed on an average rate of 25 bags of paddy for past and 50 bags of paddy for future per annum. The past maintenance on my finding of abandonment will be from 1st February 1943. I would have dated it from 23rd April 1946 if I had found that the appellant was entitled to maintenance by reason of Act XIX of 1946 only. This will be made a charge on an adequate portion of the immoveable properties of the first defendant, shown in the plaint schedule, liberty being given to the parties to file lists of the lands to be so charged and which on agreement will be incorporated in the decree of this court. Future maintenance made payable on the 15th January of every year and the value of past maintenance to be calculated at the rates of paddy only on the dates in which the payments became due.
65. In the result, the decree and judgment of the learned Subordinate Judge are set aside and the plaintiff is awarded maintenance past from February 1943 or 25 bags of paddy per annum and future at the rate of 50 bags of paddy and this is made a charge on a portion of the immoveable properties of the first defendant as set out above and the suit is decreed to the plaintiff to this extent. The parties will give and receive costs in the measure in which they have succeeded and failed.