1. This is a suit by a childless Hindu widow claiming arrears of maintenance and future maintenance out of certain property, which the defendant has inherited from his father and her father-in-law. The defendant is a brother-in-law of the plaintiff. The plaintiff about the year 1870 married one Nabadip, who died in 1872. Nabadip and the defendant were the sons of one Buddun, who died in 1888, and the defendant was his heir and inherited his ancestral property. There is no question as to its having been self-acquired estate. There is some dispute as to what occurred after the death of Nabadip; The plaintiff says that she was a dependent member of Buddun's family up to the time of the death of the latter in 1888; that, for about two years after that she was supported by the defendant; that she was then turned out of her father-in-law's house, and that she now lives in her father's house.
2. The defendant says-that the plaintiff left Buddun's, that is her father-in-law's house, about two years after her husband's death; that would be about the year 1874; that she had received during Buddun's life all the property to which she was entitled, and that she ceased to be a dependent member of her father-in-law's family after she went to reside with her father and that she had separated from her husband's family.
3. There is a conflict of evidence upon these questions of fact, and upon the evidence I am disposed to take the view that the plaintiff left her father-in-law's house probably some two or three years after the death of her husband, and that she never returned to it afterwards. Looking to her age and to the circumstances of her husband's family this action on her part cannot be considered as blameworthy: at least this is the view taken by the Judicial Committee of the Privy Council in the case of Raja Prithee Singh v. Rani Raj Koer (1873) 12 B. L. R. (P. C.) 238. The case is governed by the Bengal School of Law. The question we have to decide is whether, under these circumstances, the plaintiff is entitled to maintenance out of the estate, which has been inherited by the defendant from his father. The Court below decided that the plaintiff was not a continually dependent member of her husband's family, and that she did in fact sever herself from that family, and that she was not entitled either to past or future maintenance. Hence this appeal.
4. The authorities establish, and it has not been disputed, that a moral obligation exists on the part of a father-in-law to maintain his dependent daughter-in-law, and that obligation ripens into a legal one as against the heir who has inherited his ancestral property, nor has it been disputed that a Hindu widow does not lose her right to maintenance by reason of her leaving her husband's house, provided she does not leave for the purposes of unchastity or for any other improper purpose [see the cases of Raja Pirthee Singh v. Rani Raj Koer (1873) 12 B. L. R. (P. C.) 238. and Kasturbai v. Shivaji Ram (1879) (1879) I. L. R. 3 Bom. 372.]. It has also been decided by the Judicial Committee of the Privy Council in the case of Narayanrao Ram Chandra Pant v. Ramabai (1879) I. L. R. 3 Bom. 415; L. R. 6 I. A. 114. that by the Hindu common law the right of a widow to maintenance is one accruing from time to time according to her wants and exigencies. The authority for these three propositions has not been. disputed, but it is contended that the cases, which establish them, are cases governed by the Mitakshara School of Law, and further that at the date of Buddun's death his moral obligation to maintain his daughter-in-law had ceased, and consequently that there was nothing which could ripen into a legal obligation as against his heir, the defendant.
5. No authority has been cited in support of the view that there is a difference on this head between cases governed by the Mitakshara as opposed to the Dayabhaga School of law, nor in principle do I see why this should be so, nor do I think that it can be successfully urged that, under the circumstances of this case, there was no moral obligation on Buddun's part to maintain the plaintiff existing at the date of his death. This subject generally has been dealt with in a very careful and learned exposition of the law by Mr. Justice Mahmood in the case of Janki v. Nand Ram (1888) I. L. R. 11 All. 194. and the principles of Hindu law there laid down do not appear to support the defendant's present contention on the two points I have last mentioned; on the contrary they appear to be against him. Applying those principles to the present case, I find it difficult to say that at the time of his death Buddun was not under a moral obligation to maintain the plaintiff. For example, after the plaintiff had gone to her father's house, and her father through some change of fortune had become unable to maintain her, could it be fairly contended that the moral obligation of her father-in-law to maintain her had ceased, bearing in mind what has been laid down by the Privy Council in the case of Narayanrao Ram Chandra Pant v. Ramabai (1879) I. L. R. 3 Bom. 415; L. R. 6 I. A. 114., above referred to, namely, that by Hindu common law the right of (sic) to maintenance is one [accruing from time to time according to her wants and exigencies. In this view the moral obligation was still, subsisting at the time of the father-in-law's death. It is said that the plaintiff was was not a dependent member of the family at the date of Buddun's death, because she had ceased to reside in her father-in-law's house, and had gone to live in that of her father. But I am not disposed to take the view that the term 'dependent' necessarily means 'resident.' There is very little direct text or authority upon the definition of a 'dependent' as applied to the circumstances of the present case, but I think the plaintiff continued a dependent member of the father-in-law's family, notwithstanding the fact that she went to reside with her own father. In this connection, I may refer to a recent decision of this Court in the case of Mokhada Dassee v. Nund Lall Haldar (1901) I. L. R. 28 Calc. 278., which held that a Hindu widow must in the first instance look for her maintenance to her husband's family 'before applying to that of her own father. Nor do I think that the circumstances that she has received, the Government promissory note of Rs. 500 out of Buddun's estate, or the ornaments which are referred to in the written statement can affect the question of her present right to maintenance, though it may have a hearing upon the question of amount. Upon the best consideration am able to give to the case, I think that the plaintiff has not lost her right to maintenance out of the estate of her father-in-law descended to the defendant and that she is entitled to it, and that the decree of the Court below must be reversed and that the matter must go back to that Court to enquire what is an adequate' and proper sum to be allowed for past and future maintenance, and that the plaintiff must have the costs of the litigation both here and in the Court below. The arrears must go back to 1891.
6. In this case a widowed daughter-in-law claims separate maintenance after her father-in-law's death from the defendant, who has inherited (sic). It is sought to distinguish this case from many reported cases, which have settled the law in this respect, because the parties are governed by the Bengal law, whereas those cases were all under the Mitakshara. In regard to maintenance from the father-in-law, the Hindu law both under the Bengal system and under the Mitakshara is the same, and it is admitted that in both the father-in-law is under a moral obligation to, maintain her, which it has been field on his death ripens into a legal obligation on those who have succeeded to his estate. It is also settled law under the authority of reported cases that under this legal obligation the widowed daughter-in-law can claim separate maintenance that is, to be maintained independently from the rest of the, family. But it is pointed out that all those cases proceeded under Mitakshara law, which conferred a right oh the deceased son as a co-parcener with his father and thus placed the daughter-in-law in a different position from that in the present case under Bengal law, in which the father's rights in the estate were absolute. Based on such considerations, it is contended that as in the present case there was only a moral obligation to maintain the daughter-in-law, that is to give her shelter, food and raiment, the legal obligation which arose at the father's death as against the holders of his estate would confer nothing more and would not give as here claimed a right to separate maintenance.
7. There is no case that I can find that directly deals with the present case. It is therefore' necessary to consider the law as well as the cases on this subject.
8. It is admitted that the plaintiff, the daughter-in-law, he always lived with her father and his family for many years and that she left the house of her husband's family not long after his death. It has been laid down by their Lordships of the Privy Council as long ago as 1873 that a Hindu widow is not bound to reside in her deceased husband's family house and that she does not forfeit hex right to maintenance out of her husband's estate by residing elsewhere, unless she leaves her husband's house for the purpose of unchastity or for any other immoral purpose. Raja Pirthu Singh v. Ranee Raj Koer (1873) 12 B. L. R. (P. C.) 238. It is not suggested that the plaintiff had any such motive.
9. The learned Judge in the Court of first instance has found that this has disentitled the plaintiff to claim maintenance, because she ceased to be a dependent member of her husband's family by severing herself therefrom. On appeal no objection is raised regarding the finding in regard to what is termed 'severance,' though after hearing the evidence I feel bound to say that I have much doubt whether it showed more than that, without any objection on the part of her father-in-law, or, after his death, on the part of the inheritor of his estate, the plaintiff resided with her own family. The most that the evidence shows is that the plaintiff was often asked to return and that she did not do so. Her residence with her own family, was no doubt a convenient arrangement and cannot in my opinion constitute any abandonment or loss of any right, that she might have had so as to amount to a forfeiture. A forfeiture of a right to maintenance is declared by Hindu law to follow only on misconduct.
10. It is, however, said that the right to maintenance remains so long only as the widow is a dependent member on her husband's family.
11. I reserve for consideration this part of the ease, and I will first of all set out the law in respect to the right claimed by the plaintiff, I have already stated that it is a principle universally recognised by Hindu law that the father-in-law is under a moral obligation to maintain his widowed daughter-in-law, and it has been held that this does not confer on the latter any right to enforce this obligation on him. For this see Khetramani Dasi v. Kassi Nath Das (1868) 2 B. L. R. (A. C.) 15. one of the numerous cases on this subject, which is a decision of a Full Bench in 1868 and is sufficient authority. This obligation may proceed on different principles, where, as in Bengal, the father has an absolute right of property, or where he is only a coparcener with others. Still even in the latter class of cases it has been held to attach not only to ancestral, that is to joint-family property, but to self-acquired property, in which, as in Bengal, the right of the holder is absolute.
12. The leading case on this subject is Narayanrao Ram Chandra Pant v. Ramabai (1879) I. L. R. 3 Bom. 415; L. R. 6 I. A. 114. Except that the case was governed by Mitakshara law, the facts of that case are not dissimilar to those now before us. Maintenance was claimed for several years so as to give rise to the objection that it was barred by the law of limitation relating to maintenance, which is a charge on the inheritance of an estate. This objection was disallowed. It was remarked that 'by common law the right to maintenance is one accruing from time to time according to the wants and exigencies of the widow, and a statute of limitation would do much harm, if it should force widows to claim their strict rights and commence litigation which, but for the purpose of keeping alive their claim, would not be necessary or desirable.'
13. From this I understand that the fact that a widow entitled to maintenance had not received maintenance or in any way asserted her right to maintenance would not prejudice her, when she was obliged from her wants or exigencies to demand it. So in the present case the fact that the plaintiff may for some year have been supported by her own father would not prevent hot from claiming maintenance, which otherwise she might have obtained all along from her deceased husband's family. Except a Government Promissory Note for Rs. 500, which she received in 1884, about four years before her father-in-law's death, it is g not shown that she had any property. I will again refer to this incident. I will only say in passing that it is not clear to whom the note belonged, and, though I am inclined to think that it belonged to her husband, it is not shown how it passed to him. Their Lordships of the Privy Council, however, held that a right to maintenance could always be enforced, when the wants or exigencies of the widow demanded it. That was, however, a case under the Mitakshara law. There the principle was laid down generally in regard to all claims of maintenance, and the considerations on which a right to maintenance may have arisen would not affect this principle.
14. This might be considered sufficient for the purpose of this case in respect of this part of the argument raised before us. But it would be well to deal with this matter completely, for it appears to me that the origin of the right to maintenance(sic)her the Mitakshara law and under the Bengal law amongst Hindus does not affect the present case. It might possibly do so in respect of a claim to maintenance on ancestral property. On this, however, it is unnecessary to express an opinion. But taking it for the purposes of argument that in such a case there might be a difference, it has been held that the holder of self-acquired property would not under Mitakshara law acquire it free from the liability to pay maintenance under a lawful claim. In Janki v. Nand Ram (1888) I. L. R. 11 All. 194., where the father had no ancestral joint property, but died leaving only self-acquired property, it was held that this property was liable to payment of maintenance to his widowed daughter-in-law. A similar opinion was expressed in Rangammal v. Echammal (1898) I. L. R. 22 Mad. 304. and also in Yamunabai v. Manubai (1899) I. L. R. 23 Bom. 609. I agree in these cases. The claim to maintenance in respect of self-acquired property would not depend on considerations peculiar only to Mitakshara law arising from the rights of the deceased son as a co-parcener in the joint estate.
15. There is consequently no valid ground for making any distinction Between rights of maintenance under the Bengal law and under Mitakshara law, for such rights make property not ancestral or joint family property, liable to satisfy them.
16. I now propose to consider, whether the plaintiff has in the present case lost her right to maintenance by reason of her living with her own father's family and thus ceasing to be a dependent member of her father-in-law's family. The learned Judge of the Court of first instant has stated that 'if the plaintiff severed herself from her husband's family there could have been no duty on Buddun (that is her father-in-law) to maintain her.' Now forfeiture of a right to maintenance is the result only of misconduct. In the next place, lapse of time to make a claim to maintenance would not bar it, if the right still continued to exist. I confess that I do not understand how severance, from which I understand non-residence in the house of the husband's family so as to form part of it, could affect a right to maintenance. There can in my opinion be no principle applied such as follows (sic) from a joint Hindu family in respect of the family estate or inheritance. Non-residence with her husband's family by residence with her own family does not alter her position in regard to the former. She obtains nothing except by concession from her own family, and this in most instances certainly would be regarded as a convenient arrangement for both families and the widow herself. But suppose, as I put it during argument, that her father's family became reduced in circumstances or ruined, so as to be unable to support her, or even suppose that her father's family quarrelled with her and turned her out, would she have no claim for maintenance on her husband's family? Would her husband's family be entitled to shut their doors against her and leave her to starve? That would in my opinion be contrary to the duties enjoined by Hindu law regarding the care of subordinate members of the family, persons who are incapable of inheriting and termed 'disqualified.' That a person in the position of the plaintiff has no claim for maintenance against her own family has been recently held by a Division Court of this High Court as now constituted in. Mokhada Dasi v. Nundo Lull Haldar (1901) I. L. R. 28 Calc. 278.
17. The severance in the present case is found to consist in the plaintiff's invariably residing with her own family, in her insisting on the delivery to her in 1884 of a piece of Government paper with her father-in-law, as being the property of her husband, and from this it is presumed that she intended to reside permanently in her father's house as a member of his family and intended to sever and did sever herself from her deceased husband's family. Whatever may have been her intention I cannot regard her acts as amounting to the abandonment of a right founded on a duty to maintain her as one incapable of maintaining herself and having thus a right to look to those representing their own family to support her. The plaintiff by marrying entered her husband's family, so as to become a member of it, rather than of her own family. The Hindu law is clear in that respect. The obligation to maintain her, when she became a widow, was only a moral obligation as against her father-in-law. At his death it became a legal obligation as a debt enforceable against the holders of his estate. But the nature of the obligation shows its character, and from this point of view, unless the right was lost by forfeiture from misconduct, it did not cease to exist. It was as described by their Lordships of the Privy Council arising from time to time according To the wants and exigencies of the widow--Narayanrao Ram Chandra Pant v. Ramabai (1879) I. L. R. 3 Bom. 415; L. R. 6 I. A. 144. Unless, therefore, it can be shown that the widow has means sufficient to support herself, she can enforce her claim to maintenance against those liable to supply it.
18. In regard to the plaintiff being a dependent member of her deceased husband's family stress has been laid by learned Counsel for the respondent on Kamini Dam v. Chandra Pode Mondle (1889) I. L. R. 17 Calc. 373., in which Banerjee J. in remanding the case left it open to the Court' to determine, if there was anything peculiar to the circumstances of the case to show that the plaintiff was not a dependent member of her father-in-law's family within the meaning of Hindu law enjoining a moral obligation to maintain a member of his family.' From this it is argued that, because the plaintiff for many years lived with her own family, she ceased to be a dependent member of her father-in-law's family. From what I have already stated this does not necessarily follow, and I do pot understand Mr. Justice Banerjee's words in that sense. The obligation would remain. There would, however, be no obligation, if she had independent means sufficient to maintain herself, and I understand Mr. Justice Banerjee in that sense. Such considerations are recognised by Hindu law. In a partition at joint family property, if a widowed mother, who is entitled to a share, is possessed of stridhan, that is of private property, it is taken into account in determining what she should receive on a partition. But this is not a part of the case set up by the defendant. I can find nothing beyond this in Hindu law applicable to a case such as that now before us.
19. In regard to Mr. Bannerjee's argument that, inasmuch as the father-in-law was under a moral obligation only to provide his daughter-in-law, the plaintiff, with shelter, food and raiment in his own house, the legal obligation on the holders of his estate at his death would be nothing more and would not entitle her to separate maintenance, I do not find that this objection was taken in the Court of first instance. I can best point to reported cases in which a separate maintenance has been allowed. The moral obligation on the death of the father-in-law seems to have been regarded as a charge on his estate, so as to become a legal obligation. At all events this point seems to be clear on authority; In the present case too, where the right to any maintenance has been denied, there would be a good ground for allowing a separate maintenance, if the right was found to exist.
20. For these reasons I think that the plaintiff is entitled to a decree for separate maintenance. We have no means for assessing the amount. The case must therefore be remanded to the lower Court for this purpose after taking into consideration the circumstances of the plaintiff and the value of the defendant's estate liable to that charge.
21. I agree. As the result of the authorities it appears to me that the moral obligation under which the' father-in-law lies to maintain his widowed daughter-in-law subsists during his lifetime. The mere circumstance that she the taken up her residence apart from him with her own parents or relations does not annul it, though it may remain dormant be to speak, or in abeyance so long as she is supported by them. But if she should at any time fall into necessitous circumstances it will revive. It subsists continuously and is called into activity as the occasion may arise. Whether it be dormant or active at the death of the father-in-law cannot, I think, make any difference as to its binding effect upon his heirs. As a subsisting obligation it then devolves upon them, the distinction being that on its devolution it is transformed into a legal obligation, while in other respects it, I think; remains unchanged.