Manikyabai vs Venkateswara

Kunhi Raman, C.J.—This appeal & memorandum of cross-objections arise from the decision of the Temporary Addl. Dist. J. of Anjikaimal in O. S. No. 88 of 1120 M. E. on the file of his Ct. The pltf. in the suit is the wife of the deft. They belong to the Gowda Sarawath community the members of which are governed by Hindu law. The parties quarrelled & husband admittedly removed the thali from the neck of the wife and drove her out of his house. This was on 14-4-1120. On the day following, he married another wife. The 1st wife who was discarded thereupon filed the suit from which this appeal arises claiming separate maintenance at the rate of Rs. 50 p. m. She also claimed refund of Rs. 301 given as dowry at or before her marriage & return of gold ornaments weighing 120 sovereigns. The trial Ct. held that the allegations of cruelty were proved & that the wife had made out a case for separate residence and maintenance. The suit was accordingly decreed for refund of Rs. 301 negativing the deft''s contention that the amount was only Rs. 150 & for maintenance at the rate of Rs. 50 per month with proportionate costs. The claim for the return of the jewels was disallowed. The Ct. below also refused to create a charge on the properties of the deft, which are described in the schedule to the plaint in respect of the maintenance decreed.

The pltf. has filed this appeal from the refusal of the Ct. below to make the decree a charge on the properties of the deft. The deft, filed a memorandum of cross objections in respect of the dowry which, according to him, was only Rs. 150 & not Rs. 301, as also in respect of the order for costs.

The memo of cross objections can be easily disposed of. The trial Ct. believed the witnesses for the pltf. who swore to the fact that Rs. 301 was paid as dowry, especially in view of Ex. II which showed that the pltf''s brothers had taken a loan of Rs. 380 a few weeks before the wedding. The oral evidence of witnesses was read out to us at the hearing of the appeal. This supports the finding of the trial Ct. which does not, therefore, call for interference. The memorandum of cross objections must in the circumstances, be dismissed with costs.

The point raised in the appeal, however, calls for more detailed examination, both the learned Advocates who appeared before us having addressed interesting arguments in support of their respective contentions.

It must be mentioned at the outset, that in respect of the charge claimed by pltf. the reasoning of the trial Ct. as set forth in the judgment cannot be supported. The learned Judge stated that the right of a Hindu wife for maintenance is against the husband personally & that she cannot claim a charge for such maintenance against his properties. According to the trial Ct. such a charge can be created only by statute or by act of parties, Since there is neither any statute nor any contract entitling the pltf. to a charge on the deft''s properties, the issue should according to the trial Ct., be found against the pltf. In our judgment, the first reason based on the assumption that a Hindu wife cannot ever claim a charge for maintenance against her husband''s properties, cannot be supported. The second reason is obviously incorrect & does not call for any further comment.

One of the decision relied upon by the trial Ct. is the case reported in Narayana Ayyar V. Krishna Iyer 27 KER 576. This is cited in support of the proposition that the right of a Hindu wife to maintenance is purely a personal right against her husband & that she cannot claim a charge for such maintenance against joint family properties or even her husband''s share in such properties. On a scrutiny of the judgment, we find that the learned Judges did not definitely decide the question, because the right of the wife to claim separate maintenance was not the subject matter of any issue in the suit from which the appeal went up to the Cochin H. C. & it was not tried in the suit. Therefore, they expressly left the question open. This judgment, in the circumstances, cannot be relied upon as an authority in support of the rule propounded by the learned trial Judge.

In the other case relied upon by the trial Judge which is reported in Suppayyan Pillai V. Renganatha Ayyar 22 KER 26 all that the learned Judges stated in their judgment was that during the lifetime of a husband, the wife is not entitled to claim any charge on the properties belonging to him in respect of her maintenance, because she has to look to him for maintenance which is described as a personal obligation; but the question of a wife''s right to maintenance which is sought to be defeated by fraud by the husband or the case of a wife who has become entitled to claim separate maintenance from the husband has not been considered or dealt with. The case before us is not a case in which the husband & the wife are living together amicably & the wife claims a charge on the properties belonging to the husband for safeguarding her right to maintenance. It is a case in which the trial Ct. has found that there is adequate reason for, entitling the wife to claim separate maintenance & separate residence. It is a case in which the husband had discarded the wife & driven her out of his home. The right of a wife who is living in harmony with her husband cannot be compared to a case of this description where the wife''s right for separate maintenance has been recognised by the Ct.

There is ample authority to support the view that in a case like the present, the wife is entitled to claim that her right to maintenance should be made a charge on the properties belonging to her husband. In one of the early cases decided by the Cochin H.C. reported in Vadiya v. Karuppan 1 Select Decisions 210, where a Hindu wife had obtained an order for maintenance from the Dis. Mag. against her husband & she sued him to have maintenance charged upon his properties or for a lump sum of Rs. 800 in lieu of her maintenance, the Ct. held that she had a right to claim such a charge. The decision reported in Mansha Devi v. Jiwan Mal 6 ALL 617 : 1884 A. W. N. 192 was followed by the learned Judges. In that case, a Hindu husband during the life time of his wife, embraced the Muhammadan religion A married a Muhammadan woman whom he took to live with him. Thereupon his Hindu wife & her minor daughter instituted a suit against him claiming, inter alia, an allowance by way of maintenance & claiming that the maintenance may be fixed as a charge on specific properties belonging to the husband. The H. C. held that the right of the wife & daughter to be maintained out of the husband''s & father''s property was undoubted, & that when the Ct. has made an order directing a sum to be paid by way of maintenance, it has undoubtedly the power to ensure the enforcement of its order & this could best be done by fixing the allowance to be a charge on specific property.

The right of a Hindu wife for such a relief was also recognised in a F. B. decision of the Chief Court of Cochin which is reported in Lekshmi Ammal v. Wiswanatha Iyer 7 KER L. R. 186 . In the case reported in A. Gopala Pattar and Another Vs. Parvathi Ammal and Others, the learned Judges held that the maintenance granted to an abandoned wife can be made a charge upon the husband''s share of the family property. They also observed that in this respect it is difficult to make any distinction between the position of a widow and that of an abandoned wife. There is also a case reported in Ramabai v. Trimbak Ganesha 9 B. H. C. R. 283, where the view was taken that although the relations of the husband of a Hindu woman, deserted by him, may not be under a personal liability to support her, yet, if they have property of the husband in their hands, the wife is entitled to be maintained out of the husband''s estate to the extent of the proceeds of one-third thereof. The view taken in Jayanti Subbiah v. Alamelu Mangamma 27 Mad 45 is not opposed to the rule that a claim for maintenance of the wife can be made a charge on the properties of the husband. In the case reported in Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu Vs. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and Another, Srinivasa Aiyangar J. considers the legal rights of wives of coparceners in a Hindu family. The learned Judge says:

The true view of the Hindu law seems to be that the wives of coparcerners are also members of the joint family, though they may not be entitled to share in the estate of the family, or to enforce any partition & as such members the obligation of the family & of its estate to maintain them cannot be doubted. Though the Hindu-law imposes an obligation on the Hindu husband to support his wife without any reference to any property or share possessed by him, even as it imposes similar obligations on sons to maintain their mother & father, yet when the joint family is possessed of property, a claim by a wife against her husband need not be regarded merely as a suit for enforcement of any personal obligation, but may well be regarded as a suit against the family itself, represented by her husband, through whom alone so long as he is alive she has to obtain the relief... The arrears of maintenance due & payable to a wife by her husband can also be held to be a debt within the meaning of Hindu law which has regard only to undischarged obligations & to which the distinction between debts & damages is foreign.

The case reported in Dandamudi Ramarayudu Vs. Dandamudi Sitalakshmamma and Another, is also relied on by the Appellant''s learned Counsel. See also the case reported in Raghunath v. Dwarkabai AIR 1941 Bom. 357 : 197 I. C. 887.

Coming now to the text books on the subject, in Sirkar Sastri''s Hindu Law, Edn. 7 p. 693, the learned author states as follows:

When the husband is alive, he is personally liable for the wife''s maintenance which is also a legal charge upon his property, this charge being a legal incident of her marital co-ownership in all her husband''s property. The maintenance of an abandoned wife even can be made a charge on her husband''s interests in the joint family A. Gopala Pattar and Another Vs. Parvathi Ammal and Others, There cannot be any doubt that under Hindu law, the wife''s or widow''s maintenance is a legal charge on the husband''s estate.

In Ghose on Hindu Law, 3rd Edn., vol. I, p. 305, the learned author summarises the ancient texts as follows:

As between the husband & the wife during coverture, both are equally entitled to the property of either. It would, therefore, follow that the wife is entitled to alienate the husband''s property during his absence, or to pledge his credit, for necessaries of life for herself & family if he refused to maintain them. If the husband, without any of the justifying causes, mentioned in the Smritis, marries a second time, the wife is entitled to receive a third of the entire property of the husband. If the husband has got no property, he is still under the obligation to maintain the wife.

In the light of these authorities, we cannot accept the contention of the resp''s learned Counsel that so long as the husband retains his property in his own possession, the wife is not entitled to claim a charge on such property in respect of her maintenance, but that her right will arise only if the husband alienates his properties with the intention of defrauding the claim of the wife to maintenance. This argument impliedly concedes that there are circumstances in which the wife can enforce her right to maintenance against the property owned by her husband. The case of an abandoned wife or wife who in the opinion of a Ct. of law is entitled to claim separate maintenance & to live apart from her husband is not in essence different from that of a wife who wants to proceed against the properties alienated by her husband with the intention of defrauding her right for maintenance. We entertain no doubt that when a decree for maintenance is granted to a wife in the circumstances which have been established in the present case, he is entitled to ask that the decree may be made a charge on the properties belonging to her husband.

In the present case, the properties owned by the husband are shown in the schedule to the plaint. It is seen from the evidence in the case that all those 7 items of properties are subject to a mtge. in favour of P. W. 6. Interest to the extent of Rs. 2000 is also said to be due on this debt. Therefore, in order sufficiently to safeguard the interest of the wife as regards her claim to maintenance, it is necessary that a charge should be created on all the properties mentioned in the schedule to the plaint & that it should operate from the date of the institution of the suit. We accordingly modify the decree of the learned trial Judge by creating such a charge. The appeal in respect of this claim is, therefore, allowed with costs.

We must make it clear that in case the deft. resp. wishes in course of time to get any of the items of properties mentioned in the sch. to the plaint released from this charge, it would be open to him to do so by obtaining the consent of the applt & by obtaining the leave of the Ct. for making such an arrangement. Seeing that all the items of property are subject to an encumbrance, if only some of these items are made liable to the charge given to the pltf. decree-holder, her rights may be easily defeated by the deft.''s creditor choosing to proceed against those items alone for obtaining satisfaction of his debt. That is why we are directing a charge to be created as against all the items of property, but when it becomes possible for the deft, to release any items from the mtge. & if such items are sufficient for satisfying the claim of the decree, holder, with the leave of the Ct. it would be possible for him to make such an arrangement. Leave to apply for amendment of the decree in the manner mentioned above is granted to the resp.