1. The substantial question of law raised in this appeal is one of some novelty and relates to a claim for maintenance put forward by a Hindu son-in-law against his mother-in-law for the maintenance of himself, his wife and children. The events antecedent to the litigation have not been the subject of controversy in this Court, and, upon the evidence on the record are clearly beyond dispute. One Radhika Mohun Das, a wealthy Hindu governed by the Dayabhaga Law and a resident of the town of Dacca, had no sons, but two daughters by name Krishna Preoshi and Brinda Rani. In August 1877, Radhika Mohan gave his second daughter in marriage with the plaintiff who at the time was an infant. The plaintiff came of a family of comparatively limited means and was taken by Radhika Mohan and his wife, the defendant Gobinda Rani, as their gharjamai, that is a son-in-law to be brought up and maintained in the family of the father-in-law. Ever since his marriage the plaintiff has lived in the family of his father-in-law, of which after the death of Radhika Mohan, his widow Gobinda Rani became the head : and not only has the plaintiff been brought up in the family, but also his wife and children, three sons and one daughter. The case for the plaintiff is that disputes have latterly broken out between himself and his mother in-law, and he alleges that the blame for these unfortunate differences lies entirely upon her; she made an attempt to obtain the consent of her daughters to certain intended dispositions of the property of her husband, and as the plaintiff advised his wife not to consent, there has been strained relations between himself and his mother-in-law. Indeed, the feeling between the parties has become so completely estranged that the plaintiff has been turned out of the house, and the maintenance of himself and his wife and children has been stopped. The plaintiff consequently asks for a declaration that he and his wife and children are entitled to be maintained out of the estate of Radhika Mohan now in the hands of the defendant, and seeks for a decree for arrears of maintenance from the 16th January 1906 up to the 18th June 1997. In the Court below the plaintiff applied for leave to sue in forma pauperis, and as it was found that he was not possessed of sufficient means to enable him to pay the institution fee, he was allowed to do so in due course. The claim was resisted substantially on the ground that there was no express contract under which the plaintiff could claim maintenance; that under the Hindu Law such a claim was not sustainable; that, in any event, he was not entitled to separate maintenance; and that as he was of bad character and irregular habits and had grossly insulted his mother-in-law, he had lost all rights of maintenance, if he ever had any. The learned Subordinate Judge has found upon the evidence that the express contract for maintenance alleged by the plaintiff has not been established, but he has held that there was an implied agreement that his father-in-law would maintain the plaintiff. In this view, the Subordinate Judge has made a decree declaring the right of the plaintiff to get maintenance at the rate of Rs. 25 a month, and entitling him to recover arrears at that rate for six months antec3dent to the suit. The defendant has appealed against this decree, and the plaintiff-respondent has asked for leave to file a petition of cross-objections in forma pauperis. In so far as the appeal is concerned, it has been sought to be supported on four grounds, namely, first, that as the case of the plaintiff was based upon an express contract which has not been proved, the plaintiff should not have been allowed to succeed on a case of implied contract for which there is no foundation in fact or in law; secondly, that even if there was an implied contract the plaintiff could claim maintenance only so long as he continued to be a member of the family, thirdly, that the right of the plaintiff, if any, has lapsed by reason of his gross misconduct ; and, fourthly, that as the plaintiff is not altogether without means of subsistence, he should either have no separate maintenance at all, or a much smaller sum than what has been decreed by the Subordinate Judge. In so far as the application for leave to file a petition of cross-objections in forma pauperis is concerned, the decision of the Court below has been assailed on three grounds, namely, first, that the decree ought to have declared the right of the plaintiff to receive maintenance sufficient to meet the needs not only of himself but of his wife and children; secondly, that the maintenance ought to have been allowed at a higher rate than Rs. 25 per month, and thirdly, that the order as to costs is unjust, as they ought to have been made payable by the defendant. These grounds have been strenuously contested on behalf of the defendant-appellant, and it has further been argued in answer to the cross-objections that they cannot be allowed to be filed in forma pauperis, and that, in any view, the application for leave to file them in forma pauperis is barred by limitation.
2. In so far as the first ground taken on behalf of the appellant is concerned, there is clearly no substance in it. The plaintiff set out all the facts in the plaint, and he put his case on the ground that these circumstances justified the inference that at the time of his marriage, the defendant and her husband had agreed to bring up and maintain him and his wife and children as members of their family. No doubt, the plaintiff sought to prove that an agreement in his behalf had been expressly made, by his father-in-law with his own father, but that part of the case has not been believed, and upon the evidence, we are not prepared to arrive at a different conclusion. It cannot, however, be suggested with any show of reason that there has been such variance between pleading and proof as to contravene the primary rule that the plaintiff shall not succeed on a case not made in the plaint. The question, therefore, arises for consideration, whether there was an implied contract on the basis of which the plaintiff is entitled to succeed. The Subordinate Judge has answered this question in the affirmative. The learned Vakil for the appellant has suggested that there is no foundation for the claim in Hindu Law or usage, and he has argued that no authority can be found in Hindu Law books in support thereof. It may be conceded that there are no express texts which sustain the right of a son-in-law to claim maintenance for himself, his wife and children from the estate of his father-in-law. But this circumstance in not, in our opinion, sufficient by itself to negative the claim. The normal condition of things contemplated by Hindu. Law is the residence of the wife in the home of her husband, and Sanskrit Works on Ritual and Law are full of rules which define the duties of a wife in the home of her husband; they also lay down elaborate rules and ceremonies to be observed when a Hindu wife leaves her paternal home for that of her husband [Churaman Sahu v. Gopi Sahu 1 Ind. Cas. 945 : 10 C.L.J. 545 at p. 553 : 13 C.W.N. 994 : 37 C. 1]. In fact it is only in very exceptional cases that we find any mention of the residence for any length of time of a son-in-law in the home of his father-in-law; as instances, we may mention the episodes of Rishya Tringa in the Ramayana and Jaratkaru in the Mohabharata. Under these circumstances, it is not a matter for surprise that institutes of Hindu Law should be silent on this subject. The system of the permanent residence of the Son-in-law in the house of his father-in-law, as a member of his family, may, in fact, have owed its origin and development to the system of Putrikaputra. It is well-known that the Putrikaputra was a son of an appointed daughter, who was given in marriage to the bridegroom with the condition that the son born of her would belong to her father; the essence of the matter was that the marriage in such a case did not operate as a transfer of dominion over the damsel from the father to the husband. It was not unnatural that a person possessed of wealth and destitute of male issue should desire to give to a grandson by daughter the position of male issue; such sons still appear to be recognized in the North-Western Provinces, and the Oudh Estates Act treats the son of an appointed daughter in all respects as one's own son. it was not unlikely that a person who had no sons, and who desired to have his grandson by his daughter as his successor, would be anxious that after her marriage she should not leave her paternal home, but that his son-in-law together with the children of his daughter, when born, should be reared up as members of his family. If the system of gharjamai is thus one of comparatively recent growth, it is not strange that the texts to be found in ancient Hindu Law books do not deal with his position and rights in the family of his father-in-law; and the absence of texts does not necessarily show that he has no rights at all. If a Hindu, who has no sons, gives his daughter in marriage on the understanding that the son-in-law should be brought up and maintained as a member of his family with his wife and his children, there is no conceivable reason why he should subsequently be allowed to turn him out without any provision for their maintenance. It may be conceded, as laid down by this Court in the case of Tekait Monmohini v. Basanta Kamar 28 C. 751 that an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove his wife from her paternal-abode, will not be enforced by a Court of justice on the ground that it is contrary to the rules of Hindu Law which impose a duty upon a Hindu wife to reside with her husband wherever he may choose to reside. It need not also be disputed that such an ante-nuptial agreement on the part of the husband is opposed to public policy, and consequently, the father-in-law will not be assisted by any Court in his endeavour to enforce it. It does not follow, however, that if the son-in-law is willing to abide by the arrangement, the father-in-law or his representative is at liberty to resile from the position deliberately adopted, and to refuse to maintain him, his wife and children. In our opinion, there is nothing in Hindu Law or in public policy to render such an implied agreement unenforceable. If, as we have just explained, the system owes its origin to the institution of Putrikaputra, one of the twelve kinds of sons recognised by the Hindu Law, there is no reason why a Court of justice should refuse to recognize it. On the other hand, when regard is had to Hindu social customs and manners, it becomes obvious that if the contrary view were maintained, considerable hardship might needlessly result. It is the father on each side who celebrates the marriage; the bride and bridegroom are infants and are merely passive agents in the transaction. In the case before us, the father of the girl selected the bridegroom, and settled the terms with the father of the latter. After marriage, the bridegroom came to his father-in-law's, house on the understanding that he should be brought up as a member of that family, and further, that not only he himself but also his wife and children when born, would be suitably maintained by his father-in-law, to whose wealth his wife and his children by her would ultimately be entitled to succeed. Under circumstances like these, we are not able to hold that the father-in-law or his representative should be held entitled to resile from the position deliberately taken up by him. If he were allowed to do so, the son-in-law would, in our opinion, have a substantial grievance; he would have ground for just complaint that the understanding, on the faith of which he was joined for life with the daughter of a rich man whom he could not possibly maintain in a manner suited to her condition, had not been carried out, while if there had not been such arrangement, he might have married a girl of an humbler , family, better suited to his own means and station in life. We may, further, point out that the text of Maim cited in the Commentary of Sere Krishna on the Dayabhaga (Chapter II para. 23), by which 'a poor dependant' is declared as a person entitled to be maintained, may be interpreted as comprehensive enough to cover the present case. It is not necessary, however, to deal with this aspect of the matter, because, in our opinion, the Subordinate Judge rightly held that there was an implied agreement on the basis of which the plaintiff was entitled to succeed. The first ground urged on behalf of the appellant consequently fails.
3. In so far as the second and third grounds are concerned, it is suggested that if the plaintiff has any right of maintenance, it can be enforced only so long as he resides as a member of the family of his father-in-law. It may be conceded that ordinarily this would be so, but it cannot be denied that for very special reasons, the Court is entitled to make a decree for separate maintenance. In the case before us, it is abundantly clear upon the evidence that the plaintiff has fallen out with his mother-in-law. Their temper is obviously incompatible, though it may be difficult to apportion the blame for the present strained relations between them. One thing, however, is fairly clear upon the evidence. The mother-in-law has been anxious to alienate part of the property inherited by her from her husband; whether such alienation would be justifiable in law, need not be discussed now, but she has clearly sought to obtain the consent of her daughters, who are the next reversionary heirs, to the intended transfer. Her eldest daughter, apparently with the consent of her husband, has been prepared to accommodate her in this matter, bat her second daughter, the wife of the plaintiff, under the advice of her husband, has declined to join her in the attempted alienation. The plaintiff cannot be blamed for the caution with which he has ached, obviously in the interest of his wife and children, who are the ultimate reversionary heirs. But although such passive obstruction on the part of the plaintiff may be justifiable, it cannot be denied that his conduct has otherwise been unsatisfactory. His character has certainly been not above reproach and there is little room for doubt that on more than one occasion he misbehaved in a manner calculated to cause annoyance to his mother-in-law. At the same time, the indignities, to which he has been subjected at the instance of his mother-in-law, cannot be justified. Under these circumstances, it is clear that not only would there be no advantage to the parties if the plaintiff was directed to reside as a member of the family of his mother-in-law, but if any such order was made, it might lead to constant disputes in the family circle and prove a source of unhappiness to all parties concerned. We mast, accordingly, hold that the Subordinate Judge acted properly when he decreed separate maintenance in favour of the plaintiff. The second and third grounds are consequently overruled.
4. In support of the fourth ground urged on behalf of the appellant, it has been contended that the plaintiff is not altogether without means, and that from this point of view the claim for maintenance, if allowed at all, should be decreed for a much smaller amount than what has been awarded by the Subordinate Judge. In our opinion, there is no reasonable foundation for this contention. The plaintiff has no independent means of subsistence of his own. The way in which he has been brought up in the family of his father-in-law and the life which he has been made to lead hitherto, make it practically impossible for him to earn a decent livelihood. At any rate, till he is in a position to do so, he ought not to be cast adrift. The amount decreed by the learned Subordinate Judge is barely sufficient for the maintenance of the plaintiff, and if he is obliged to take away his wife and children, the amount should, in our opinion, be increased. The fourth ground, therefore, cannot be supported.
5. We now proceed to deal with the application for leave to file the petition of cross-objections in forma pauperis presented by the defendant. It has been suggested by the learned Vakil for the appellant that an application for leave to file a petition of cross-objections in forma pauperis cannot be entertained under the Code; but this position cannot be maintained. No doubt, the cases of Rashomonee Dossee v. Chowdhry Janmejoy Mullick 9 W.R. 356; Babaji v. Rajaram 1 B. 75; Narayana v. Krishna 8 M. 214; Brojeshwari v. Guroo Churn 11 C. 735 support the view that under the Civil Procedure Code of 1859, Section 348 el sea, of 1882, Section 561, a petition of cross-objections could not be filed in forma pauperis; but since then, the Code has been amended by Act VII of 1888 by Section 48 of which a proviso was added to the effect that the provisions relating to pauper appeals were applicable to cross-objections taken under Section 561. This provision is re-produced in Order XLI, Rule 22, Sub-rule 5 of the Code of 1908. It has been argued, however, by the learned Vakil for the appellant that although the memorandum of cross-objections in this case was presented on the 9th November 1908, as it was not accompanied by an application to receive it, and as such application was not presented till the 18th February 1910, it is not competent to the Court now to entertain it. In support of this view, reliance has been placed upon the cases of Parbati v. Bhola 12 A. 79 and Sarat Chandra Dey v. Brojeshwari Dassi 30 C.790. It was ruled in these cases that the word 'appeal' in Section 5 of the Limitation Act of 1877 does not include an application for leave to appeal in forma pauperis; and that consequently a Court has no power under that Section to extend the time for the presentation of an application for leave to file an appeal in forma pauperis as provided in Article 170 of the 2nd Schedule of the Limitation Act. It may be pointed out, however, that Section 5 of the Limitation Act as re-enacted in the statute of 1903 is in wide terms than before; but apart from this circumstance, it is clear, that the principle invoked is of no assistance to the appellant, because the application before us is not for leave to file an appeal or cross-appeal in forma pauperis, bat for leave to present a memorandum of cross-objections under Section 561 of the Code of 1882; that Section , as also the corresponding provision of the Code of 1908 (Order XLI, Rule 22), entitles the Court to receive a memorandum of cross-objection at any time; consequently an application for leave to file the cross-objections in forma pauperis may be similarly received. In the events which have happened in the present case, we feel no doubt that the memorandum of cross-objections ought to be received, and the application for leave to file it in forma, pauperis granted.
6. The first ground, urged in support of the cross-objections, is that the decree of the Court below ought to have declared the right of maintenance not merely of the plaintiff bit also of his wife and children. This contention is, in our opinion, partially well-founded. As the suit has been instituted by the plaintiff alone, a declaration cannot be made that his wife and children are entitled to maintenance from the defendant, but in the view we take of the matter, the plaintiff is entitled to a declaration that the amount of maintenance to be allowed to him should be so regulated as to suffice for the needs not only of himself but also of his wife and children, if these latter are not maintained by the defendant as members of her family. If the defendant refuses to receive back the plaintiff in her family circle, the latter is clearly entitled to take away his wife and children, and in such a contingency, the amount allowed to him must be adequate to maintain himself and his family. The qualifying words, therefore, in the decree 'only for himself' and the consequential order in the concluding part must be expunged, and a declaration substituted that if the wife and children of the plaintiff cease to reside with the defendant, the amount payable to the plaintiff will be so regulated as to suffice for the maintenance of himself, his wife and children. The first ground urged in support of cross-objections must, therefore, be allowed.
7. The second ground urged in support of the cross-objections is that the maintenance ought to have been allowed at a higher rate than Rs. 25 per month. The decree allows maintenance at this rate for six months prior to its date, and also declares that this will be the rate of maintenance in future. We are not satisfied that a case has been made out for variation of the decree in this respect, but we think that a declaration should be added in the decree to the effect that the Court may, upon application by either party, vary the amount from time to time upon good grounds alleged and proved [Ram Kullee Koer v Court of Wards 18 W.R. 74; Gopikabai v. Dattatraya 24 B 386 at p. 390].
8. The third ground urged in support of the cross-objections is to the effect that the order for costs is unjust. In our opinion, there is no doubt that this contention is well-founded. The learned Subordinate Judge has directed that the costs awarded to Government should be a first charge upon the claim decreed in favour of the plaintiff. He has further directed that the costs as between the plaintiff and the defendant should be apportioned in proportion to the victory and defeat, and the costs awarded to the defendant should be deducted from the costs awarded to the plaintiff, and if need be, from his maintenance. In the circumstances of the case, we think that this direction is not just. The proper order to make is that the costs of the first Court in respect of the portion duo to the plaintiff as also that due to the Government should be paid by the defendant.
9. The result, therefore, is that the appeal is dismissed, and the cross-objection allowed in part. The decree will be modified in the manners following:
(a) The words 'only for himself' will be expunged, and a declaration will be inserted to the effect that if the wife and children of the plaintiff cease to reside with the defendant, the amount of maintenance payable to the plaintiff will be regulated so as to suffice for the needs of himself, his wife and children.
(b) A declaration will be inserted to the effect that the amount payable as maintenance may, upon application to the Court, be varied from time to time if good grounds are established.
(c) The following words will be expunged: 'That the claim in respect of the maintenance of the plaintiff his wife and children be dismissed i.e., dismissed for want of cause of action.'
(d) The costs of the Court below due to the plaintiff as also to Government will be payable by the defendant. These costs will be calculated upon the value of the suit as stated in the plaint.
(e) A declaration will be inserted that the plaintiff will be entitled to realise future maintenance in execution of this decree and without fresh suit [Ashutosh Banerjee v. Lukhimoni Debya 19 C. 139].
10. The costs of this appeal must be paid by the appellant to the respondent. There, will be no separate order for costs in respect of the cross-objection. To avoid possibility of dispute, the decree drawn up in this Court will be self-contained.