SARBO GOPAIN Vs. ANTA LAL GOPE

JUDGEMENT

(1.) The appellant, Sarbo Gopain, brought a suit in forma pauperis for the grant of suitable maintenance, either on a monthly or annual basis, together with a prayer for a decree for maintenance from Baisakh 1850 B. S. to the month of Jyastha 1356 B. S. at the rate of Rs. 600/- a year, alleging that she was the legally married wife of defendant No. 4. No issue was, however, born to the couple so that the plaintiff was being ill-treated by her husband as well as the other defendants who are members of a joint family with him. The matter came to such a pass that her father-in-law, defendant No. 1, actually assaulted her. Her husband also assaulted her and she was compelled to move to her maternal uncle's house for residence in the year 1347 F. S. Her husband took another wife soon after. The plaintiff, however, returned to her husband's place and wished to live in his house but her husband refused the request and she was compelled to go back to her maternal uncle's house where her mother was living, as the plaintiff's father was dead. She was being maintained by her maternal uncle. Accordingly, the present suit was instituted by her under the Hindu Married Women's Right to Separate Residence and Maintenance Act (Act XIX of 1946), on 11-7-1949. Two sets of written statements were filed on behalf of the defendants, one being on behalf of defendant Nos. 1, 2 and 3 and the other by defendant No. 4. The defendants admitted that the plaintiff was the legally married wife of defendant No. 4 but the allegation that she was ill-treated by the defendants was incorrect; nor was she turned out of the house. It was the desire of the maternal uncle of the plff. that she should live with him as he had no issue of his own. He also requested defendant No. 4 to live with him as a ghar jamai which he refused to do. The plff. then left his house at the instance of her mother & did not come back in spite of repeated requests. Defendant No. 4, accordingly, had to take another wife. It was also incorrect to say that she came back to the house of her husband again. In fact, defendant No. 4 was ever willing to take her back and maintain her but was due to her own obstinacy and her mother's influence that she would not live in her husband's house. She was, therefore, not entitled to maintenance and, in any case, the amount claimed was exorbitant.

(2.) The suit was tried in the Court of the learned Subordinate Judge, Dumka, who found that the plaintiff had failed to establish that she was turned out of the house by her husband. She was living with her maternal uncle of her own accord and on account of her mother's wishes, and not due to any ill-treatment to her by the defendants. Defendant No. 4 had, no doubt, taken another wife, but the Court below held on the main issue that she was not entitled to maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, as in view of Sub-section (4) of Section 2 of the Act such a claim could not be allowed unless the husband married another wife after the Act came into force, i.e., 23rd April, 1946. The marriage of defendant No. 4 having taken place with another woman long before 1946, the plaintiff was not entitled to any maintenance while she was living separately from her husband. On evidence, however, he decided that although the plaintiff claimed Rs. 50/- per month as the rate of maintenance, she would not be entitled to more than Rs. 20/- per month, in view of the means of her husband calculated on his share in the joint family properties. Accordingly, he dismissed the suit. The plaintiff has filed the present appeal against the decision of the learned Subordinate Judge.

(3.) Learned counsel for the parties have not argued any question of fact before us. Mr. B. C. De, for the appellant, has only contended that in view of the repeal of Act XIX of 1946 by The Hindu Adoptions and Maintenance Act, 1956 (Act LXXVIII of 1956), which has a retrospective effect, the plaintiff would be entitled to maintenance even if her husband married another wife before the 23rd April, 1946, when Act XIX of 1946 had come into force. He pressed that in view of the decisions of some High Courts it was not noticed by the learned Subordinate Judge that the plaintiff, under other decisions of other High Courts, was entitled to maintenance even under Act XIX of 1946. Learned counsel has relied upon the following cases in support of his contention that even under Act XIX of 1946, Section 2, Sub-section (4), the plaintiff would be entitled to maintenance; Sm. Pancho v. Ram Prasad, AIR 1956 All 41 (A); Kulamani Hota v. Parbati Devi, (S) AIR 1955 Orissa 77 (B); Anjani Dei v. Krushna Chandra, AIR 1954 Orissa 117 (C) and Varalakshmi v. Viramulu, AIR 1956 Hyd 75 (D). Learned counsel for the respondents, however, has relied upon the following cases for the contrary view that the plaintiff would not be entitled to any relief under Section 2, Sub-section (4) of Act XIX of 1946, when her husband took another wife prior to the enforcement of that Act. Laxmibai Wamanrao v. Wamanrao Gobindrao, AIR 1953 Bom 342(E); Mt. Sukhribai v. Pohkalsingh, AIR 1950 Nag 33 (F); Kasubai v. Bhagwan, (S) AIR 1955 Nag 210 (FB) (C) & Palaniswami Gounder v. Devanai Ammal, (S) AIR 1956 Mad 337 (FB) (H). In my opinion, the decision in the case of (S) AIR 1956 Mad 337 (FB) (H), appears to be the sounder view inasmuch as it is in consonance with the wordings of Section 2, Sub-section (4) of Act XIX of 1946. That section reads as follows: "Notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely,- X X X (4) if he marries again: x x x After a full consideration of the various decisions of the Madras High Court taking the contrary view, the Full Bench decided that Sub-section (4) of Section 2 is not declaratory in nature and a Hindu wife is not entitled to claim separate residence and maintenance under the Act on the ground that her husband had married a second wife, when the second marriage took place before the passing of the said Act. Decisions of that High Court to the contrary were overruled by the Full Bench. Without taking up a fresh examination of the various considerations, I would content myself with saying that I agree with the opinion expressed by their Lordships of the Madras High Court inasmuch as the intention of the Legislature is expressed in unambiguous terms as the words used are "if he marries again", which would certainly apply to cases when the husband marries after date when the Act came into force. I am not inclined to agree with the line of decisions cited by Mr. B. C. De in support of the argument referred to above. If therefore, the present case were governed by Act XIX of 1946, the appeal would have to be dismissed. As it is, however, Mr. B. C. De, as an alternative argument, has referred to the provisions of Section 18, Sub-section (2), Clause (d), of Act LXXVIII of 1956. Section 18 is in these terms: "18(1) Subject to the provisions of this section, a Hindu wife, whether married before Or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance. x x x (d) if he has any other wife living; X X X Mr. De's contention is that the language used by the Legislature in framing Section 18 is such as to avoid the ambiguity which arose in the interpretation of Section 2 of Act XIX of 1946, as Clause (4) is, as I have mentioned above, "if he marries again", whereas Clause (d) of Sub-section (2) of Section 18 is "if he has any other wife living". The difference between the phraseology of the two provisions covering an almost identical point is well-marked. Evidently, the Legislature intended to end the ambiguity. Sub-section (1) in terms lays down the right of a Hindu wife to claim maintenance from her husband during her life-time. No doubt, this right of maintenance was available to her even before the passing of this Act, but the same is recognised in plain terms. Her right, however, to separate residence was on very limited ground. As a result of judicial interpretation, in normal circumstances, she was bound to remain with her husband. Right of separate residence was legislatively recognised under Act XIX of 1946. The present Section 18 of Act LXXVIII of 1956 has slightly departed from the language of Section 2 of Act XIX of 1946. 'Learned Counsel for the respondents has urged that the words "if he has any other wife living" in Clause (d) of Sub-section (2) should be given the same meaning as the words "if he marries again" in Sub-section (4) of Act XIX of 1946, inasmuch as the husband had vested right before the passing of Act XIX of 1946 and the present Act, not to maintain his wife if she insisted upon separate residence from him. In my opinion, the argument is misconceived. No question of vested right can arise in a matter like this as to how a husband will maintain his wife, whether on a condition of her living with him or, under certain circumstances, even when the latter insists upon separate residence as legislatively recognised.