1. This is a suit to recover 12 years' arrears of maintenance. The 1st defendant, who was the Zamindar of Vallur, died after the institution of the suit and his sons were brought on the record, as 2nd and 3rd defendants. He married two wives, who were sisters of each other. The plaintiff is the senior wife. She bore two sons and a daughter, but the sons died young. She claimed maintenance at the rate of Rs. 500 per month, for the last 12 years. She was living apart from her husband, for the last 23 years; but, as her claim for more than 12 years' maintenance is barred under Article 128 of the Limitation Act, she makes no claim for the remaining eleven years.
2. It appears from Exs. G, G-2, G-3, G-4 and G-9, which are letters written by the Zamindar, that he was fond of his wife at first and grateful to her for letting him marry her sister. In 1890, she went away to Cocanada from Pangidigudem, her husband's residence, but returned. In November 1894, she and her sister both went away to Cocanada taking their children with them. By that time, the Zamindar had brought a concubine named Mahalakshmi to Pangidigudem and, during his absence at Hyderabad, they found poison in the food that was cooked for them, which was the immediate occasion for their leaving the protection of his house. The learned Subordinate Judge regards the poisoning story as a myth. I see no reason to suppose that it was unfounded. It is not proved that the Zemindar, who was absent in Hyderabad, ordered poison to be put in his wives food, but that there was poison is proved by the uncontradicted fact that a dog which ate the curry died soon afterwards. The plaintiff, in her evidence, taken on commission has told the story, as to the poisoning, and her daughter in her evidence, as D.W. 1, corroborates it; and the truth of the story is not discounted by the Subordinate Judge's observation, 'it is not known how the pills did not dissolve in the curry,' for nothing is known or attempted to be proved about the composition of the pills. Anyhow, the presence of a concubine in the Pangidigudem Port and the poisoning incident were quite sufficient to make the women go somewhere, where they would not run the risk of being poisoned and were sure of being kindly treated.
3. After the wives had gone to Cocanada, the Zemindar sued them both for the custody of the children and obtained a decree, but the decree, Ex. VII was not executed. Attempts were made to take the children by force, in which the plaintiff's brother received injuries. The Zemindar accused his wives and his brother of stealing estate jewellery. The District Magistrate, Mr. Boddie, dismissed the complaint in his order, Ex. A. He found that the jewellery taken by the plaintiff and her sister consisted only of those jewels, which they were wearing and that they acted without any dishonest intention, and he observed that the ' complainant had not allowed any of the accused one pie for their maintenance, since they left Pangidigudem.' The High Court in dealing with an appeal, Ex. Z, inferred from the Zemindar's conduct that the estate jewels were really secreted by him and that, the criminal proceedings instituted against his senior wife were a mere blind. After this, the Zemindar made peace with his junior wife and took her back together with her children. She was plaintiff's sister and his third wife, the second wife having died in the first year of her marriage, After this, the plaintiff was continually demanding maintenance from her husband and she came occasionally to Pangidigudem and asked him to let her stay there and live with him as before, but he was constantly putting her off, with some excuse or promise that he would make arrangements. Exs. III(m), III(11) and J(I) show that the plaintiff was occasionally going to Pangidigudem, and D.W. 5 admits seeing her there; but in a letter Ex. N and a telegram Ex. N(1), the Zemindar said that he had no desire to see her and that she should not come. In Ex. K. a notice sent to the 1st defendant before the suit, she mentions that he finally told her not to entertain any hope of befog taken into the fort and when she went in person to visit him and besought him to take her back, he gave her a lodging outside the fort only and treated her with much indignity.
4. The Subordinate Judge has found that the plaintiff is not estopped from suing for maintenance, but he holds that she was not justified in living separately. He says he has come to the conclusion that the plaintiff voluntarily lived in Cocanada without sufficient justification and that the 1st defendant felt a sort of antipathy towards her and that he was annoyed with her, for getting their daughter married to a barrister, who already had one wife living. I am unable to find from the evidence in the case anything to justify the theory that the plaintiff waived her right to maintenance. All the correspondence that passed between the Zemindar and his daughter shows that he was very fond of his daughter; and the daughter herself, examined as D.W. 1, says that her father did not object to the barrister, but that it was her aunt who raised objections to the marriage, because she wanted to get the barrister as a husband for her daughter, Ex. P (1) is a letter written by the 1st defendant to the plaintiff in 1898, on the subject of this marriage. There is no statement in this letter to suggest that he was opposed to the bridegroom personally, but he says that he is not feeling well, said that he cannot do any business until his mind becomes more steady. The lower Court has discredited the witnesses examined by the plaintiff. The statements made by the plaintiff herself and her daughter have an air of truth about them and should not, in my opinion, have been rejected by the Subordinate Judge, without better reasons. P.W. 2, a tutor and P.W. 3, a relation of the parties, and P.Ws. 4, 5 and 6 whom the Subordinate Judge describes as 'petty servants', are persons who would be likely to know of the nature of the feelings between the parties and the fact that the plaintiff was from time to time coming to Pangidigudem and asking her husband to support her. P.Ws. 3 and 4 state that the Raja promised to consider the request after some time, but refused to take the plaintiff at once, because there were disputes between the senior and junior wives. There is no evidence that the plaintiff stayed away from her husband on account of her dislike for him. The evidence of P.W. 3 has been disbelieved as being interested. Ex. O. (1), the letter, written by the 1st defendant to him shows that he offered to correct his omission of the honorific title, and the incident of its omission was a very trivial one. On the whole, I am unable to accept the Subordinate Judge's finding that the plaintiff disentitled herself to maintenance, on account of her voluntary separation from her husband. The most probable explanation for the plaintiff's failure to sue for maintenance earlier is that she was ever hopeful of being, one day, taken back to her husband's house and that she was fearful of causing a final break from him. Meanwhile, she supported herself on the proceeds of the sale of her own jewellery.
5. It is argued on behalf of the respondents that they are not liable for arrears of maintenance, as the plaintiff's right consisted of a personal action for tort against the husband, for his neglect to maintain her. Sidlingappa v. Sidava Kom Sidlingappa 1877 2 Bom. 634 the obligation of a husband, to maintain his wife is described, as one arising out of the status of marriage. It is a liability created by the Hindu Law, in respect of the jural relations of the Hindu family. Where there is no contract between the parties to a marriage, as among Hindus, a suit for maintenance is not a suit based upon contract, but it is a suit arising out of a civil relation resembling that of a contract, which is specially provided for in Article 128 of the Limitation Act. Mr. Mayne, in his book on Hindu Law, says that the heirs of a Hindu, who is liable for maintenance, are equally bound by the obligation which binds him. I have no hesitation in holding that the plaintiff's right of maintenance was not terminated by the death of the 1st defendant and that the right survives as against the 2nd and 3rd defendants, who are his heirs-in-law, irrespective of whether they succeeded by right of survivorship or by inheritance.
6. The lower Court has found that Rs. 300 per mensem would be a suitable rate of maintenance, in case maintenance is awarded. The plaintiff as appellant does not now claim more than Rs. 300. The appeal is allowed and a decree will be passed for maintenance, at the rate of Rs. 300 per mensem for twelve years, with cost calculated thereon in both Courts.
Srinivasa Aiyangar, J.
7. The circumstances, under which a Hindu wife leaves her husband's house and goes to her parents' house, to live with her parents are, generally speaking, sufficiently indicative of the cause of such an untoward act. Once, in the year 1890, both the wives of the deceased 1st defendant (plaintiff and his sister) left his house and went to their parents house. They came back. Again in the year 1894, both of them left together. It is in evidence that at any rate by that time the 1st defendant had come under the influence of a concubine called Mahalakshmi. There is considerable evidence of ill-treatment of both the plaintiff and her sister by the 1st defendant, which, if believed would undoubtedly be sufficient to justify the plaintiff in living apart from her husband and claiming separate maintenance. The cruelty of a husband towards his wife varies in kind and degree according to the customs and habits of the people and the status of the family. When the women of a particular family observe a kind of quasi gosha, as they do in most Zamindari families, it is not possible to obtain such direct evidence of ill-treatment or cruelty, as may be possible in other cases. Further, the ill-treatment is not likely to be open or brutal, but insidious and much more galling. It has been suggested that both the wives left the husband's house in 1894, in order to help their husband's brother to institute against their husband a suit for partition. It may be that the discontented wives, leaving their husband's house to take refuge in their parents' house were accorded some sympathy and possibly some help, by the discontented brother of their husband. It is incredible that the plaintiff's sister the younger wife of the 1st defendant, who had sons born to her of the 1st defendant, should have acted from any such motive. What followed puts the matter beyond all doubt. A criminal prosecution with the inevitable search warrants and other terrors is launched by the 1st defendant against both his wives, and a suit is also instituted by him for the recovery of his children. The story of the execution of the decree obtained by him in that suit is itself sufficiently harassing. It seems to me that till this point, it must be conceded that there was abundant justification for the plaintiff staying away from her husband. If thereafter there was any change in the attitude of the husband, so as to change the situation and take away the justification; the burden of proving -it is heavily on those who represent the husband. The husband, failed in his attempt to got back his sons, and being afraid of another suit for partition, at the instance of his sons, makes it up with his second wife and takes her back, leaving the plaintiff alone in her parents' house. The evidence is that the plaintiff also wished to be taken back, on that occasion but the 1st defendant would not. I agree with my Lord the Chief Justice that from that time forth during all these years that succeeded, the plaintiff has been endeavouring to be taken back and hoping that some day sooner or later she would be. There is reason to believe that though after the compromise, effected by her husband with the second wife, the ascendancy of the concubine over him diminished, still the second wife had herself acquired such ascendancy and was jealously safeguarding it. Prom all the correspondence in the case and the evidence before us, I have come to the conclusion that the 1st defendant who was a master in the art of putting off, managed to put off the plaintiff and her repeated requests to be taken back or to be afforded a separate maintenance, while at the same time not finally killing in her the hope of reconciliation some day. Having regard to all the circumstances and the evidence in the case, it seems to me impossible not to come to the conclusion that the plaintiff had to stay away in her parents' house, not because she wished it or willed it, but only because she was being persistently put off, with gentle promises of some kind of satisfactory arrangement by and by.
8. I consider that the sum of Rs. 300 per mensem fixed by the lower Court is reasonable, having regard to the income of the estate.
9. Mr. Ramadoss, the learned Vakil for the respondent, argued that a suit for arrears of maintenance by a Hindu wife against her husband was in the nature of a personal action and abated on the death of her husband. The principle apparently that was sought to be applied was the rule of Civil Law 'actio personalis moritur cum persona.' The expression 'personal action' is technical and has been limited to actions in respect of what are called personal wrongs or torts. The principle underlying this rule has been much questioned and shaken in recent years. I see no reason whatever for extending the rule to an action which, as the learned Chief Justice has put it, is based on an obligation arising out of status. I may also add that the true view, of the Hindu Law would seem to be that the wives of co-parceners are also members of the joint family, though they may not be entitled to share in t he estate of the family, or to enforce any partition. The obligation of the family and of its estate to maintain all the members cannot possibly be doubted. It is true that the Hindu Law imposes an obligation on the Hindu husband to support his wife, without any reference to any property or share possessed by him, even as it imposes similar obligations on sons to maintain their mother and father. But when the joint family is possessed of property, a claim by wife against her husband need not be regarded merely as a suit for the enforcement of any personal obligation, but may well be regarded as a suit against the family itself, represented to her by her husband, through whom alone, so long as he is alive, she has to obtain the relief. On his death, the true legal representatives in the action would be the surviving co-parceners of the family, if any, or else the personal legal representatives of the deceased husband. There is also no reason to suppose, why the arrears of maintenance due and payable to a wife by her husband should not be held to be a debt, within the meaning of the Hindu Law, which has regard only to undischarged obligations and to which the distinction between debts and damages is foreign.
10. I agree with the learned Chief Justice that the appeal should be allowed and the plaintiff's suit decreed on the terms set out by him.