Decided on May 23,1957

SAVITRI DEVI Respondents


- (1.) THIS is a contest between a married woman and her husband concerning her right to separate residence and maintenance.
(2.) IT appears that the plaintiff Smt. Savitri Devi was married to the defendant Ram Parkash in the year 1935. The husband and wife lived happily together at various places but were unable to have a child of their own. Early in 1943 the husband became infatuated with one Smt. Samitri, a young woman who lived near his house in Delhi, and developed clandestine relations with her to the great distress of his wife. In November 1943 he took his wife to her father's house in the Hoshiarpur District on the pretence that she required a change of air and during her absence from Delhi installed in his house as mistress the woman with whom he had become infatuated. In the year 1946 the Central legislature enacted a measure known as the Hindu Married Women's Right to Separate residence and Maintenance Act which entitled a Hindu wife to live separately from her husband without forfeiting her claim to maintenance if the husband had taken a second wife. On 21st August 1948 the wife brought a suit for the recovery of a large sum of money on account of arrears of maintenance from the date of desertion to the date of the suit and on account of the price of the articles which had been given to her by her parents on the occasion of her wedding, muklawa, etc. The trial Court came to the conclusion that the husband had contracted a marriage with Smt. Samitri in April 1944, that the Act of 1946 was retrospective in its operation and that the wife's claim to separate residence and maintenance was fully justified. In this view of the case the trial Court granted a decree in favour of the wife.
(3.) THE husband preferred an appeal from this order and it was argued on his behalf that the Act of 1946 was not applicable to a case where the husband had contracted a fresh marriage before the commencement of the Act of 1946. Two sets of authorities were cited before the Division bench. In one set of authorities Kosubai v. Bhagwan. (S) AIR 1955 Nag 210 (FB) (A); palamswami Gounder v. Devanai Ammal, (S) AIR 1956 Mad 337 (FB) (B); Laxmibai wamanrao v. Wamanrao Govindrao, AIR 1953 Born 342 (C) and Rattan Chand v. Mt. Kalawati, (S) AIR 1955 All 364 (D), the Courts took the view that this Act has no application to a case where the husband had married again before the Act of 1946 was passed, in the other set of authorities such as Smt. Pancho v. Ram Prasad, AIR 1956 All 41 (E); varalakshmi v. Viramulu, AIR 1956 Hyd 75 (F); Anjani Devi v. Krishna Chandra, AIR 1954 orissa 117 (G); Kulamani Hota v. Parbati Debi, (S) AIR 1955 Orissa 77 (H) and Baij-nath dharamdas v. Hiraman Ram Rasik, AIR 1951 Vindh-Pra 10 (I), it was held that the Act operates retrospectively and applies to a case in which the second marriage was solemnised before the enactment of the statute. In view of the conflict of opinion which has manifested itself the division Bench has referred the following question to the Full Bench for decision, namely, "whether a Hindu wife is entitled to claim residence and maintenance under the Hindu Married women's Right to Separate Residence and Maintenance Act (Act No. 19 of 1946) on the ground that her husband had married a second wife when the second marriage took place before the passing of the Act?";

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