Decided on January 21,1966

KASHAWWA Appellant


- (1.)The appellant is the second wife of the respondent. She married him in 1946 when he already had a first wife living. This was before the coming into force of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946. After the Bombay Hindu Divorce Act of 1947 was passed subsequently, the appellant filed against her husband Divorce Suit No. 31 of 1951 on the file of the Court of the First Joint Civil Judge Junior Division, Belgaum praying for a decree for judicial separation and permanent alimony One of the grounds on which judicial separation could be granted under Section 4 of the Bombay Hindu Divorce Act of 1947 is that the husband had married again before the coming into force of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946. The Bombay High Court in a decision reported in Laxmibai v. Wamanrao, AIR1953 Bom 342 , (1953 )55 BOMLR357 , ILR1953 Bom 1031 had taken the view that the benefit of this provision could be taken only by a first wife and not by a second wife. On account of this decision, the appellant's Divorce Suit No. 31 of 1951 came to be dismissed. She appealed to the District Judge at Belgaum in Civil Appeal No. 93 of 1953. The District Judge, While holding that in view of the above decision the appellant could not be granted any relief under the Divorce Act, proceeded to examine her case in the light of the Hindu Married Women's Act of 1946(Central Act 19 of 1946). On examination of the evidence he came to the conclusion that the evidence did disclose justifiable cause within the meaning of sub-section(7) of Section 2 of the Central Act for the wife to be entitled to separate residence and maintenance. He allowed the appeal and made a decree in the following terms:-
"The Appeal is allowed. The decision of the lower Court is set aside and the plaintiff is granted a decree for judicial separation. The defendant shall pay to her Rs. 300 per year as permanent alimony from the date of suit and so long as the plaintiff remains chaste and unmarried."
The other terms of the decree are not relevant for our present purpose except the direction for payment of the appellant's costs of the proceedings by her husband respondent.
(2.)This decree was passed on 23-5-1954. Something thereafter the appellant went back to her husband resumed cohabitation and bore him a daughter. Once again misunderstanding having arisen between the parties, the wife went away and put into execution the decree mentioned above in Regular Darkhast No. 443 of 1956 before the Court of the Civil Judge Junior Division Belgaum seeking to recover a sum of Rs. 1983 7-0 being arrears of alimony payable to her under the said decree by attachment and sale of moveables.
(3.)The respondent pleaded that the decree has become annulled and therefore incapable of being executed by reason of the resumption of cohabitation after the decree. He also look out separate proceedings before the Deputy Commissioner under sub-section (2) of Section 8 of the Bombay Hindu Divorce Act of 1947 to obtain an annulment of the decree. In those proceedings he was not possible to make any order on the application made under sub-section (2) of Section 8 of Act. The learned Judge however, observed that it was open to the respondent to raise the plea in execution that the decree has ceased to be executable.

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