Davurupilli Venkataramana vs Davurupilli Nookalamma

Vishwanatha Sastri, J.—These are two connected appeals that arise out of disputes between a husband and wife. A. S. No. 272 of 1950 is an appeal from an order of the Subordinate Judge of Vishakapatnam in O. P. No. 23 of 1949 filed by the husband for dissolution of marriage on the ground that his wife, had, without, just cause, deserted, him for a continuous period of three years before filing of the petition. The petition which was filed under s. 5(1) of Madras Act 6 of 1949 was dismissed by the Subordinate Judge and the husband has preferred A. s. No. 272 of 1950 under S. 5(5) of the Act.

A. S. No. 835 of 1950 is an appeal preferred by the husband against the decree in O. S. No. 97 of 1949 filed by the wife for separate maintenance on the ground that her husband had been guilty of desertion, that is to say, abandoning her without her consent and against her wish and that he had been living with a concubine. The learned Subordinate Judge believed the case of the wife and decreed separate maintenance to her. The husband''s appeal against the decree is A. S. No. 835 of 1950.

The appellant was a Police Head Constable who has now retired from service. His matrimonial life has been far from normal. According to him, he married three wives, the third of whom has been living separately from him. The respondent is the second wife. There have been differences and disputes between the husband and wife for some years past into which it is now unnecessary to enter. It is common ground that the husband had been keeping a woman of the name of Danayamma as his concubine for many years. In para 3 (c) of his petition, O. P. No. 23 of 1949, the husband stated as follows:

Long prior to the said marriage (with the respondent) one Danayamma came to live with the petitioner with considerable properties and continued to live with him as his wife ever since.

In his evidence as D. W. 1, the husband stated as follows:

I have been keeping Danayamma even till today. I and she are living together in one house. I married Chittemma five years after I married the plaintiff. She is alive.

The wife also gave evidence as follows:

The defendant is my husband. Our marriage took place 30 years back. For two or three years the defendant was liking me. Thereafter he brought a concubine by name Danayamma and was ill-treating me and driving me out. The defendant also brought another woman by name Chittemma from Kakinada and kept her. He used to keep us all in one house when he was transferred from Vishakapatnam. At Vishakapatnam he was keeping the two concubines in his own house and he was leaving me in my mother''s house. The defendant left Chittemma eight or nine years back, but he is still keeping Danayamma and is living with her.

In this state of the evidence, I find that the husband has been habitually residing with his concubine Danayamma and he also kept her in his house for some period.

Under S. 2(6) of Act 19 of 1946 (Central) a Hindu married woman is entitled to separate residence and maintenance from her husband if he keeps a concubine in the house or habitually resides with a concubine. It is argued for the appellant that as the husband took a concubine some years before he married and has been keeping her even after his marriage, S. 2(6) of the Act had no application to the case. According to the appellant, it is only where the husband takes a concubine after 23-4-1946, when Act 19 of 1946 came into operation, that S. 2(6) of the Act entitles the wife to separate maintenance.

It is urged that in the present case the concubine had entered into the life of the husband long before the wife and had been the solace of his life and the inspirer of his hopes for many years and that he could not therefore part from her. Be it as it may. The only question with which I am concerned is whether S. 2 (6) of Act 19 of 1946 entitles the wife to separate maintenance. Reliance is placed for the appellant on the observations of Krishnaswamy Nayudu J. in Annasami Mudaliar Vs. Ekambari Ammal, where the learned Judge differed from the interpretation, I put on the words "marries again" occurring in S. 2(4) of Act 19 of 1946 in my judgment in Lakshmi Ammal and Others Vs. Narayanaswami Naicker and Others, . Krishnaswamy Nayudu J., was of the opinion that the words "marries again" in S. 2(4) could only refer to a future marriage, that is to say, a marriage contracted after Act 19 of 1946 came into force, while I took the view that the words had no reference to a particular point of time, but merely described the husband''s position as being twice married, whether before or after the Act.

A later Division Bench of the Madras High Court in Musunuru Nagendramma Vs. Musunuru Ramakotayya, accepted the correctness of my interpretation of S. 2(4) of the Act. I prefer to follow the decision of the Division Bench and consider it unnecessary to refer this case to a Division Bench of this Court, the more so, because the present case turns upon the interpretation of S. 2(6) of the Act. Even before Act 19 of 1946 was enacted, it had been held by the Courts in India that if the husband kept a concubine in the house the wife was entitled to separate maintenance. See - ''Lalla Govind v. Dowlut'', 6 Beng LR App 85 (D); - ''Dular Kuari v. Dwaraknath'', 32 Cal 234 (E); - Mallawa Shiddappa Ujjannavar Vs. Shiddappa Bhimappa Ujjannavar, . The decision in - ''Queen Empress v. Mannatha Achari'', 17 Mad 260 (G) turned on the language of S. 488 of the Criminal P. C. and its correctness has been doubted in many text books on Hindu Law.

In my opinion, if after marriage, the husband keeps a concubine in the house or habitually resides with a concubine, the wife is entitled to separate residence and maintenance under S. 2(6) of Act 19 of 1946 even though the concubinage had started earlier than the marriage and the husband had been living with the concubine before his marriage. Living with a concubine is considered to be such a gross breach of the matrimonial obligations of the husband as to entitle the wife to separate residence and maintenance. It makes no difference whether the husband took the concubine before he married or whether he began to live with her after the marriage. The duty of the husband is to live with his wife and he is also bound to maintain his wife so long as she is willing to live with him.

If, however, by reason of the husband habitually living with a concubine the wife is unable to continue cohabitations and to live with him consistently with her self-respect and her position as a wife in the household, the law entitles her to separate residence and maintenance. While the Hindu Law texts prescribed the wife''s duty of obedience and service to her husband, the texts also required the husband to be loyal to the wife and treat her with honour and respect and make her feel happy and contented at home. It would be pedantry to cite the relevant texts of Manu at this date.

I therefore, hold that the court below was justified in awarding separate maintenance to the wife under S. 2(6) of Act 19 of 1946. The further question whether the husband had abandoned and deserted the wife does not require discussion, though the Court below has found this point in favour of the wife.

The quantum of maintenance that has to be awarded to the plaintiff is largely a matter of discretion, depending upon the reasonable needs of the wife having regard to her position and status in life and the resources of the husband. The maintenance of a wife by her husband is a matter of personal obligation. The Court below has found that the husband in addition to his pension earns some income as a writer of documents. It has also been found that after the issue of registered notices of suit by the wife, the husband transferred his house properties in favour of his concubine Danayamma and his sister-in-law. The court below has estimated the rental income of these properties at Rs. 30/- per month, and has held that the sale of these properties was not bona fide. Having regard to the strained feelings between the husband and the wife and to the relationship between him and the alleged vendees of the house properties, it is likely that the husband transferred the house in order to defeat the wife''s claim for maintenance.

The court below has awarded Rs. 20/- per month for residence and maintenance from the date of suit. It has also awarded Rs. 15/- per month for the three years preceding the institution of the suit. The learned Advocate for the appellant argued that the claim for arrears should be deemed to have been waived or abandoned, but there is no suggestion in the written statement of any such plea of waiver or abandonment. The husband let in evidence of a few persons to the effect that he had been asking his wife to return back to him, but this evidence has rightly been discredited by the court below. For these reasons A. S. No. 835 of 1950 should be dismissed with costs.

As regards the husband''s claim for dissolution of his marriage under S. 5 of Madras Act 6 of 1949, it has to be observed that his petition was filed on 19-7-1949 five months after the wife had instituted her suit for separate maintenance and three months after the husband had filed written statement in the suit. The question that arises for decision is whether in the circumstances of the case it could be said that the wife had deserted the petitioner for a continuous period of not less than three years preceding the petition without just cause under S. 5(1) (c) of the Act.

I have already found in A. S. No. 835 of 1950 that the wife was entitled to separate residence and separate maintenance from the husband as the latter had been habitually living with a concubine. The Court below has also found that the husband has been guilty of deserting his wife.

In these circumstances, O. P. No. 23 of 1949 was properly dismissed by the court below. A. S. No. 272 of 1950 is therefore dismissed.

In the result, both the appeals are dismissed with costs.