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Rajonimoni Dasi for Self and as Mother and Next Friend of Jagohundo Dhur and ors. Vs. Roma Nath Alias Ramanund Dhur Poddar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal675
AppellantRajonimoni Dasi for Self and as Mother and Next Friend of Jagohundo Dhur and ors.
RespondentRoma Nath Alias Ramanund Dhur Poddar
Cases ReferredHonamma v. Timannabhat I.L.R.
Excerpt:
mahomedan law - of conjugal rights--prompt dower--stipulation as to residence. - .....and it is contended on behalf of the defendant, appellant, that whatever may be the rights of a hindu widow who has taken one false step in her life but has afterwards repented, a hindu widow who is actually leading an unchaste life is not entitled to maintenance of any sort, as against the heirs of her late husband, or those who represent his estate. on the other hand, it is contended for the respondent that if a widow is not unchaste at the date of her husband's death and becomes subsequently unchaste, the right to claim maintenance having once accrued, she is not divested of that right by her subsequent unchastity; and in support of this position the rule laid down in the case of moniram kolita v. keri kolitani i.l.r. 5 cal. 776 is cited.2. if this position of the respondent were.....
Judgment:

W. Comer Petheram, C.J. and Banerjee, J.

1. The minor plaintiffs then being out of the record, the next question that arises is, whether the widow is entitled to the maintenance that has been decreed in her favour. Upon that question the finding arrived at is that she was leading an unchaste life at the date of the suit, and it is contended on behalf of the defendant, appellant, that whatever may be the rights of a Hindu widow who has taken one false step in her life but has afterwards repented, a Hindu widow who is actually leading an unchaste life is not entitled to maintenance of any sort, as against the heirs of her late husband, or those who represent his estate. On the other hand, it is contended for the respondent that if a widow is not unchaste at the date of her husband's death and becomes subsequently unchaste, the right to claim maintenance having once accrued, she is not divested of that right by her subsequent unchastity; and in support of this position the rule laid down in the case of Moniram Kolita v. Keri Kolitani I.L.R. 5 Cal. 776 is cited.

2. If this position of the respondent were tenable, then, upon the findings of fact arrived at in this case, namely, that the unchastity of Rajonimoni during her husband's lifetime is not made out, but that she subsequently became unchaste and was leading an unchaste life at the date of the suit, her claim for maintenance would be a valid claim. But we do not think that this contention is sound. The very case cited in its favour turns out really to be an authority against the position contended for. For the Privy Council, in that case, drew a clear distinction between a claim for maintenance and a claim to inheritance. Their Lordships observe I.L.R. 5 Cal. 776 (786): 'The right to receive maintenance is very different from a vested estate in property, and therefore what is said as to maintenance cannot be extended to the case of a widow's estate by succession. However the texts cited in regard to maintenance show that when it was intended to point out that the right was liable to resumption or forfeiture, clear and express words to that effect were used, Jimutavahana in c. XI, Section 1, v, 48 of the Dayabhaga, refers to a text of Narada, in which he says: 'Let them allow maintenance to his women for life, provided they keep unsullied the bed of their lord; but if they behave otherwise, the brother may resume that allowance.''

3. It was argued for the respondent that the passage of the Dayabhaga referred to in this part of their Lordship's judgment applies not to the patni, or wife, but relates merely to women espoused, but below the rank of patni or wife. As to that I shall have a word to say presently. For the present, it is enough to say that the authority cited is really in support of the opposite view, namely, that the right to maintenance may be forfeited for subsequent unchastity.

4. That being so, and the widow not having a vested right to maintenance by reason of her having been chaste at the date of her husband's death, the next question is whether the right to maintenance is conditional upon her continuing chaste.

5. The passage of the Dayabhaga which is quoted in the judgment of the Judicial Committee in the case of Moniram Kolita I.L.R. 5 Cal. 776 (786) is direct authority to show that the widow is entitled to maintenance only so long as she remains chaste, and that unchastity at any period of widowhood would deprive her of the right to claim maintenance. It is true that Jimutavahana, after quoting the text of Narada, observes that the text relates to women merely espoused and not having the rank of patni or wife; but on referring to his explanation of the term patni in the paragraph immediately preceding, that is the 47th paragraph of c. XI, Section 1, it would appear that the only distinction that he draws between a woman espoused and one having the rank of patni is seniority or superiority in point of caste, and that upon the death of the senior wife or wife of superior caste, the next in point of superiority in caste attains the rank of patni, or wife, without any further ceremony being gone through. That being so, we do not see any reason for restricting the rule laid down as to chastity being a condition for maintenance in the text of Narada in paragraph 48, Section 1, c. XI of the Dayabbaga, to the case of women espoused who are not of the rank of patni.

6. Of course, as regards the right to succession, there is a distinction observed, but we see nothing in reason or principle to make any distinction between women of the two classes, namely, those who are patnis and those who are merely espoused, as regards the conditions under which their claim for maintenance should be allowed.

7. This passage of the Dayabhaga is, therefore, in our opinion, sufficient authority for the position that the right to maintenance is conditional upon chaste living on the part of the widow. And this view has been followed by later writers on Hindu Law, and also by Courts of Justice. See Macnaghten's Precedents of Hindu Law, Volume 2, Chapter 2, Case 5; 1 Strange's Hindu Law, 172: 2 Strange 309, and the case of Maharanee Bussunt Koomaree v. Maharanee Kummul Koomaree 7 Sel. Rep. 168, New Edition. See also the observations of the Madras High Court in the case of Visalatchi Ammal v. Annasami Sastri 15 Mad. H.C. 150 (160)]. That being so, we think it a settled principle of Hindu law that a Hindu widow's right to claim maintenance is forfeited upon her unchastity.

8. Then there remains the further question whether, though she may not be entitled to maintenance as a source of wealth, she is not entitled to what has been termed 'starving maintenance,' that is, bare food and raiment. The Courts below have allowed her that, and the question is, whether they have done so rightly. It is true that there are texts of Hindu law which require the husband to give bare starving maintenance to a disloyal wife; see Cole-brooke's Digest, Book IV, c. I, vv. 81 to 83; see also the case of Honamma v. Timannabhat I.L.R. 1 Bom. 559. We should add, however, that this last case has been dissented from in a subsequent case by the Bombay High Court. See the case of Valu v. Ganga I.L.R. 7 Bom. 84. But though, if the facts of this case had been different, and if the woman Rajonimoni, notwithstanding that she had taken one false step during her widowhood, had been leading a chaste life at the date of suit, we should have felt inclined to take the view that the Bombay High Court took in the earlier ease, and declared her entitled to bare food and raiment from the persons who are in possession of her husband's estate, yet, having regard to the facts found in this case, we do not think there is any reason for our applying the rule laid down in the case of Honamma v. Timannabhat I.L.R. 1 Bom. 559 in her favour. The facts found, as we have pointed out above, are, that she became unchaste after her husband's death, and was leading an unchaste life at and about the date of the suit. That being so, we do not think there is anything in reason or authority to entitle her to any maintenance. The reason why bare food and raiment are directed by the Hindu sages to be given to an unchaste woman is that she may have a locus poinitentice, and that she may not be compelled by sheer necessity to continue to lead a life of shame and misery. That reason has no application to the present case, where the widow is still leading such a life and is claiming an allowance from the representatives of her husband to enable her to live comfortably. The reason of the rule, then, that prescribes a starving maintenance for an unchaste widow not being applicable to this case, we do not think that Rajonimoni is entitled to such maintenance.

9. It was said that such a decision may have the effect of confirming her in the immoral life that she is leading. We see no reason for such an apprehension. We do not decide in this case what her rights would be if she were to give up her present way of living and begin to lead a moral life; we do not say that she would not, even in that case, be entitled to claim a starving maintenance. All that we say now is, that under the existing state of things she is not entitled to maintenance of any sort. In this view of the case, the decrees of the Courts below must be reversed and the plaintiff's suit dismissed with costs.


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