Tottenham and Ghose, JJ.
1. This was a suit for maintenance brought against the defendant No. 1 by his wife and his minor son, upon the ground that his cruelty and other misconduct had put her in fear of her life and driven her to take refuge with her son at her own father's house. She claimed maintenance for herself and son at the rate of Rs. 50 per mensem, and Rs. 25 per mensem was claimed for the son's education. There was a further claim for maintenance for the six months before suit.
2. The defendants 2 and 3 were made parties to the suit because they are executors appointed under the will of Junmejoy Mullick, late father of defendant No. 1, and the maintenance is claimed from the estate.
3. The Lower Court held that the plaintiffs had made out no sufficient case for a decree for separate maintenance for the future; but gave a decree for Rs. 150 in respect of the maintenance and education of the son for the six months previous to the suit. The plaintiff's having appealed, the defendant No. 1 has filed a cross-appeal against the decree for these Rs. 150.
4. The facts alleged and proved against the husband-defendant are so discreditable to him that we are astonished at his not having settled his wife's claim out of Court, rather than have his conduct exposed and condemned publicly IN the Courts of Justice. And after hearing the appeal we have abstained for some time from delivering judgment, as there was some hope that even at the last moment the defendant would offer the plaintiff such reasonable terms as she might accept, and so escape the disgrace of a decree of this Court being passed against him in such a suit. We are, however, compelled to proceed to judgment.
5. The plaintiff No. 1 has for many years been the wife of the defendant No. 1, and their son must now be about 15 years of age, for in the plaint filed on the 6th of April 1889 he is described as then being 12 years and 8 months old. In her moral conduct she has been, as far as we can judge, irreproachable; though she has, it appears, sometimes allowed her temper to get the better of her under the provocation which her husband's habitual ill treatment of her offered.
6. The findings of fact of the Subordinate Judge are not disputed by the respondent; and his last assault upon his wife is properly characterised by the Court as a most cruel, heartless and cowardly one. The husband has also been proved to be a profligate youth, addicted to drink, and one who 'behaves most shamefully by his wife', to use the words of the Subordinate Judge; still he does not think she was justified in leaving her husband's house. He thinks that, notwithstanding all that has happened, notwithstanding the violence committed a dozen times or so, and notwithstanding the last most brutal assault, still there is no reasonable apprehension of personal safety or health; and that consequently she is bound to return to her husband and is not entitled to separate maintenance.
7. It would be a matter of very great regret to us to be compelled by Hindu law, or by any other consideration, to endorse, this judgment. The Hindu law, while it enjoins upon the wife the duty of attendance on, obedience to, and veneration for, the husband, inculcates that the husband must honour the wife and treat her with affection and courtesy. The husband is no doubt entitled to restrain the liberty of the wife, and she is bound to refrain from going to any place where her husband forbids her to go; and the sages mention only certain cases where the wife may forsake the husband (see Colebrooke's Digest, Vol. II, Book IV, Chapter I, Section 2, and Chapter IV, Section 2). But it is nowhere laid down that the wife is bound to live with a husband who habitually treats her with cruelty, and so ill-treats her as to endanger her personal safety: and in this connection we may refer to Section 488 of the Code of Criminal Procedure as showing what the Legislature considered to be the correct law on the subject, as also to the observations of Garth, C.J. in Sitanath Mookerjee v. Haimabutty Dabee 24 W.R. 377. We think it amply established in this case that the defendant's violence towards his wife has been such as to create the most serious apprehension for her safety should she continue in his power: and under these circumstances we hold that she is fully justified in leaving her husband and is entitled to be maintained from his income. We reverse the decree of the Lower Court so far as it dismisses Matangini's suit, and direct that she receive maintenance at the rate of Rs. 32 per mensem from the income enjoyed by the defendant No. 1 under his father's will. She is entitled to recover at the above rate from Ashin to Falgoon 1296 (Amli) and for the remainder of her husband's life. And she will got her costs in both Courts.
8. As regards the cross-appeal, the Lower Court was, we think, in error in making any decree in respect of the maintenance and education of the defendant's son; but as the learned pleader did not press the appeal, we do not consider it necessary to make any order upon it.