Varalakshmi vs Viramulu

Srinivasa Chari, J.—This second appeal arises in a suit filed by the Respondent for restitution of conjugal rights against his wife, the Appellant. Both the Courts are concurrent and have decreed the Plaintiff''s suit. They have held that, the acts of cruelty alleged by the Appellant-wife have not been proved and that, therefore, the Respondent was entitled to a decree for restitution of conjugal rights.

The evidence has been discussed and it has been declared, to be a concocted story. The other acts alleged by the wife as the husband having taken away her jewels have also been, found against, her. In the result the Courts held in favour of the husband.

In this appeal the learned advocate for- the Appellant urged two points before us viz., that the suit of the Respondent for restitution of conjugal rights was mala fide and secondly that in view of Act 19 of 1946 of the Central Legislature - which had been applied to Hyderabad State in 1952 his client was entitled to separate residence and maintenance and as such the Plaintiff''s suit for restitution of conjugal rights should be dismissed.

Inasmuch as both the Courts are concurrent in their conclusion that the allegations made by the wife about the cruel treatment meted out toiler were not proved we do not propose to go into the same. The only points that require our consideration are the points referred to above.

As regards the first point that the Plaintiff''s suit was mala fide we do not think that there is sufficient material to show that the bringing of the suit was mala fide. This argument is based upon the fact that the wife filed an application u/s 411, Hyd. Code of Criminal Procedure (Section 483; Indian Code) for maintenance and when these proceedings were pending in the criminal Court, the present suit for restitution of conjugal rights was brought in order to prevent any decree for maintenance being passed.

We are not prepared to hold that the fact that the suit for restitution of conjugal rights was brought soon after the application for maintenance is enough to regard the suit by the husband as being mala fide. The mere sequence of by the suit by the husband being after the application for maintenance is not enough.

The suit for restitution of conjugal rights has been gone into and on the evidence led by the parties the Courts have come to the conclusion that the suit was correct and the Plaintiff was entitled to a decree and therefore the plea about the mala fides of the suit cannot stand.

At any rate the other point urged by the- learned advocate for the Appellant before us appears to be strong. Act 19 of 1946 styled "Hindu Married Women''s Right to Separate Maintenance and Residence Act" was passed by the Central Legislature as Act 19 of 1946.

In this Act the circumstances under which a wife would be entitled to separate maintenance and residence have been set out and one of the circumstances enumerated therein under Clause 4 of Section 2 of the Act is that if the husband marries again the wife would be entitled to separate maintenance and residence.

It is an admitted fact that the Respondent who is the husband has married a second wife. Relying upon this clause of the above Act the learned Advocate for the Appellant argues that inasmuch as the husband has married again, he cannot insist upon restitution of conjugal rights and the wife is entitled to have separate residence and maintenance from the husband.

The question arises as to whether under the Act the wife can claim the benefit conferred by Section 2 referred to above when the Act came into force long after the institution of the suit for restitution of conjugal rights. In other, words whether this Act would be given a retrospective effect and affect a decree that was passed long prior to its coming into force.

It is needless to state that the well accepted principle and canon of construction is that no Act shall be given retrospective effect unless there are words to that effect or such a retrospective effect is to be given by necessary implication. Bur, under the law an exception to this principle has been made in the case of enactments having regard to the nature of the Statute.

Where, therefore, the Statute and its intendment partake of the characteristics of a declaratory law then it would be considered to have retrospective effect. With regard to the question as to whether retrospective effect is to be given to this legislation there has been diversity of opinion among the different High Courts in India.

One set of High Courts is of the opinion that this should be given a retrospective effect, the Statute being is the nature of a declaratory Act while the contrary view held by the other set of High Courts is that there could be no exception to the general rule that no law shall be given a retrospective effect.

The Madras High Court in the case of - Lakshmi Ammal and Others Vs. Narayanaswami Naicker and Others, , held that the words ''marries again'' in Clause 4 of Section 2 are merely descriptive of the position of the husband as a twice married man at the date when the wife''s claim for separate maintenance is made and do not exclude a husband who had taken a second wife before the Act came into force.

This was the view held by Vishwanatha Shastry, J. but subsequently when the same question came before another learned Judge of the same High Court in - Annasami Mudaliar Vs. Ekambari Ammal, , - Krishnaswamy Naidu, J. was not willing to give the same interpretation as was given by Vishwanatha Shastry J. and he dissented from his view.

This observation of the learned Judge may be regarded as obiter. For the third time this question came before a division Bench of the same High Court in - Musunuru Nagendramma Vs. Musunuru Ramakotayya, , where it was held that the words ''marries again'' in Section 2(4) should toe regarded as merely descriptive of the position of the husband as a twice married man, and that the Act did not exclude a husband who had taken a second wife before the Act came into force.

In this case the view entertained by the learned Judges was that even before the Act came into force the trend of judicial decisions had been to allow separate maintenance to a wife where there was a justifiable cause for the wife refusing to live with the husband, that is to say, cruelty alone was not the ground on which the wife could claim separate maintenance and residence, and resist the suit for conjugal rights, but in other cases also the wife could be granted separate maintenance where the circumstances justified the grant of such maintenance.

Ramaswamy J. detailed at length the position of the law prior to the coming into force of this Act and came to the conclusion that the Act merely declared what the position of the law was prior to this enactment.

The same view has been subscribed to by the Orissa High Court in the latest case of - Kulamani Hota Vs. Parbati Debi, . This was a suit for maintenance by the wife based on two grounds (a) cruelty of the husband and (b) taking a second wife.

The first Court held that cruelty was not proved and dismissed the suit. The second Court applied Act 19 of 1946 and granted a decree and on appeal to the High Court the learned Judges held that although the marriage had taken place prior to the application of the Act to Orissa by The Administration of Orissa State''s Order, 1943, the law that would apply to the proceeding would be the law that had been, applied and included in the Schedule to that order.

They held that the trial Court should have disposed of the suit on the basis of the law which bad been already applied to Orissa on 16-6-1943, and the case was disposed of by the trial Court only on 29-11-1948, that is to say, long after the application of the law.

Same was the view taken in an earlier case of the same High Court in - Anjani Dei Vs. Krushna Chandra and Another, wherein Panigrahi, C. J. applied the provisions of the Act to a case where the second marriage took place before the coming into force of the Act. As against this view of the Madras and Orissa High Courts the view of the Bombay, Nagpur and Allahabad High Courts is to the contrary.

The Bombay High Court has been clearly of the opinion that no retrospective effect could be given to this enactment and this enactment was no exception to the general rule that retrospective effect should not be given to a statute unless expressly made to affect transactions prior to the date of the enactment.

In this connection the case reported in - Laxmibai Wamanrao Vs. Wamanrao Govindrao, is in point. It has to be observed that even in the Bombay High Court when this matter was considered in 1950 the Chief Justice Chagla and Tendolkar J. held that before a Hindu woman becomes entitled to separate maintenance she must satisfy the Court that she had a justifying cause to live separately.

This observation was made by the learned Judges irrespective of the fact whether the Act of 1946 applied to the case or not. The learned Judges go to observe with reference to this Act:

This Act does not merely amend the Hindu Law but is also to a certain extent declaratory of Hindu Law as it existed before the Act was passed.

It would therefore follow that the learned Judges in this case agreed with the view expressed by Vishwanatha Shastry, J, in - Lakshmi Ammal and Others Vs. Narayanaswami Naicker and Others, ''. Vide - Mallawa Shiddappa Ujjannavar Vs. Shiddappa Bhimappa Ujjannavar, .

The other case to which reference may be made of the Bombay High Court is the case of Laxmibai Wamanrao Vs. Wamanrao Govindrao, . Two questions were raised before the High Court, viz., whether Plaintiff in the case could claim benefit of the Act (Act 19 of 1946) which came into force after the institution of the suit and (2) whether the facts of the case entitled the Plaintiff to the relief which she sought where the Defendant had married a second and a third time long before the Act came into force.

While discussing as to whether the Act should be given a retrospective effect, the learned Judges stressed on the well accepted principle that no retrospective effect could be given to any law. They also held that by giving it a retrospective effect it would be imposing a liability upon one party and conferring a fresh right on the other which is not allowed in law.

They were of the opinion that the wife would be entitled to claim separate maintenance and residence unless the state of things or the course of conduct mentioned in the Act existed at the time of the wife making the claim.

They further held that the clauses of the new enactment contemplate the doing of a certain act by the husband such as "marrying again". Where, therefore, there was no marriage subsequent to the coming into force of the Act the wife would not be entitled to separate maintenance and residence. In the result they refused to give retrospective effect to the provisions of the Act.

In so far as the Nagpur High Court is concerned we have two decisions, one of 1949 and the other of 1955. The first case is the case of - Sukribai v. Pohkal Singh AIR 1950 Nag 33 (H) wherein Hidayatullah J. as he then was and Kaushalendra Rao, J. held that Act 19 of 1946 could not be invoked in a case where the marriage by the husband took place before the coming into force of the law.

They further held that the Act was not a mere declaratory Act and that Clause 4 of Section 2 of the Act should be interpreted to apply prospectively, They laid emphasis on the fact that the cardinal principle of construction is, that all statutes affecting rights must be construed prospectively and inasmuch as this Act affected rights not in procedure no retrospective effect could be given to it.

The subsequent decision of the Nagpur High Court is a Full Bench decision of a Bench consisting of Hidayatullah, C.J. Kaushalendra Rao and Sen, JJ. In this judgment the original texts of Hindu Law have been referred to and the previous case law also has been reviewed and the learned Judges were not prepared to subscribe to the view that the words ''if he marries again'' occurring in Clause 4 of Section 2 of the Act were merely descriptive of the position of the husband as a twice married man at the date when the claim for separate maintenance was made.

They were of the opinion that the language of the Act did not warrant such a construction being put upon the same. They said that they were distinctly of the opinion that the right to claim separate maintenance accrued to the wife only where the husband married after the Act came into force.

It may be mentioned that in this case they expressed that they were not persuaded to depart from the decision of their own High Court in - ''Sukribai v. Pohkal Singh (H)'', referred to above and they also found from the particular facts of the case that the wife in that case voluntarily went away from her husband and that therefore she was not justified in living apart from him merely because he married again.

Under the above circumstances they held that she could not invoke Clause 4 of Section 2 of the Act. Vide - ''Kasubai v. Bhagwan'' (S) AIR 1955 Nag 210 (I).

The Allahabad High Court had occasion to deal with this question in the case of - B. Ratan Chand Vs. Mst. Kalawati, , This was a case where the wife claimed maintenance and pleaded cruelty.

The Courts held that cruelty was not established but because the husband married again applying the provisions; of Act 19 of 1946 the Plaintiff was given a decree for maintenance.

Against this judgment an appeal was preferred: to the High Court and Gurtu, J. was of the opinion that the reasoning of the Bombay High Court, in - Laxmibai Wamanrao Vs. Wamanrao Govindrao, was sound and lie concluded that upon a construction of Act 19 of 1946 the words ''if he marries again'' have a reference to a marriage which was solemnised subsequent to the passing of the Act.

This matter had to be considered by the Judicial Commissioner of the Vindhya Pradesh also in the case reported in Baijnath Dharamdas v. Hiraman Ram Rasik'' AIR 1951 V. P. 10 (K). The learned Judicial Commr. agreed with the view held by the Madras and Orissa High Courts.

These are the two different views held by the High Courts in India. In so far as Hyderabad is concerned this Act, Act 19 of 1946 was applied in 1952 by Act No. 48 of 1952. Admittedly the Respondent in this case had taken a second wife long; before the Act came into force in Hyderabad in 1952.

We have to decide as to whether we could permit the Appellant to invoke the provisions of Section 2 Clause 4 of the Act here in second appeal. It has to be observed that this appeal is against a decree passed in favour of the Respondent for restitution of conjugal rights as against, the Appellant.

The question, therefore, is whether in a suit for restitution of conjugal rights the wife, could resist the suit by insisting upon separate maintenance and refuse to render conjugal rights.

Marriage according to Hindu Law is a sacrament. The husband is bound to support the wife so long as she is faithful and it is stated that, if he did not, there was chastisement by the King. The wife''s duty is obedience to her husband. According to Manu a wife could be superseded by the husband and he might marry under the following circumstances: (a) when she is barren, (b) if the children whom she bore died and (c) where she happened to be one given to alcohol drinking etc. But oven if she was superseded she should be maintained by the husband -Yajnavalkya-1, 74.

It would appear that even before the Act came into force although taking a second wife would not by itself have entitled a wife to separate maintenance, the trend of judicial opinion has been, to decline to pass a decree for restitution of conjugal rights where the husband kept a concubine. Vide in this connection the case of - ''Dularkoer v. Dwarkanath 34 Cal 971 (L).

The principle on which this decision is based is that where a husband brings in a concubine it would justify the wife living separate and resist the suit for conjugal rights. The test laid down has been ''Can the wife consistently with her self respect and due regard to her position as wife live with the husband along with the other wife or concubine?

The same principle was recognised as early as 1896 in the Full Bench case of the Madras High Court in the case of - ''Gantapalli Appalamma. v. Gantapalli Yellayya 20 Mad 470 (FB) (M). It, would, therefore, follow that the conditions that have been mentioned to entitle the wife for separate maintenance are not exhaustive.

It has also to be observed that equity also would, require that a wife should not be compelled to stay with her husband under those circumstances. The cruelty of the husband which would entitle the wife to claim separate maintenance is not necessarily physical cruelty.

It may be mental affliction which is tantamount to mental cruelty and this would warrant the wife to claim separate maintenance from a husband justifying her refusal to stay with him. The question that has been considered in these cases is as to whether there has been a justifying cause for the wife to claim separate maintenance and residence.

The taking of a second wife wherein there are good chances of'' the husband alienating his affections towards the first wife and practically forsaking her and leaving her to the Devil to take care of her would certainly be a justifying cause for insisting upon separate maintenance and residence.

With regard to the view held by the Bombay High Court I have already observed that in the case of - Mallawa Shiddappa Ujjannavar Vs. Shiddappa Bhimappa Ujjannavar, the learned Judges applied the test, viz., as to whether the wife could consistently with her self-respect live with the husband after he had taken a second wife and set aside the judgment of the trial Court which refused to grant separate maintenance.

This aspect of the case was not prominently brought before the learned Judges who decided the subsequent case of the Bombay High Court- Laxmibai Wamanrao Vs. Wamanrao Govindrao, '' and therefore with respect I would beg to differ from the view held by them.

In the Nagpur case it must be mentioned that the cases referred to by Kaushalendra Rao, J. were cases where maintenance was refused and there was a finding to say that there was no justifiable cause for the wife to stay separately.

The Privy Council case of - ''Naganna Nayudu v. Rajyalakshmi Devi'' AIR 1928 PC 187 (N) referred to in the judgment was a case where the wife was denied maintenance because she voluntarily left her husband and lived apart for a long time without justification and that case in my opinion cannot apply to the facts of the present case where there is no finding that the living separately by the wife was not justified.

Quite apart from this there is nothing to prevent the Court granting relief in view of a subsequent legislation. It is well established that the Court can take notice of subsequent events and grant relief to a party.

In my opinion it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation and to do complete justice between the parties. Vide - ''Attorney General v. Birmingham Drainage Board (1912) AC 788 (O).

In the case before the Bombay High Court - Laxmibai Wamanrao Vs. Wamanrao Govindrao, '' counsel conceded that relief could be given to a party on the basis of an enactment which came into force after the initiation of the proceedings and the learned Judges observed "Even otherwise the Court has power in proper cases to take notice of events subsequent to the suit..." - Laxmibai Wamanrao Vs. Wamanrao Govindrao, .'' If the statute cannot be regarded as a declaratory statute it is certainly a remedial Statute because the object of the Statute is to relieve women from their unhappy and miserable position in having to live with the other wife on whom lithe husband bestows all affection.

The learned Judges of the Bombay High Court further observe that it is a remedial measure. "In this sense therefore the Act undoubtedly a remedial measure". (Page 344 of Laxmibai Wamanrao Vs. Wamanrao Govindrao, :. (F): With regard to a remedial statute it is stated in Halsbury''s Volume 31, paragraph 653: "In advancement of a remedial statute everything" is to be done that can be done with a proper construction of it even though it may be necessary to extend enacting words beyond their natural import, and effect".

The Federal Court reversed the decree of the High Court and granted relief on the basis of a new legislation in the case of - AIR 1939 74 (Federal Court) .

Further even if the Appellant was not entitled to separate maintenance and residence on the date of the suit, still by reason of the subsequent legislation a fresh cause of action not available to her on the date of the suit had accrued and the Court is empowered to grant the relief taking into consideration the subsequent accrual of the cause of action.

I may also mention that in any event; the Appellant would be entitled to invoice the provisions of the Act and not to grant her the relief in this appeal and to drive her to a separate application would necessarily prolong litigation and cause hardship to the Appellant and in the interests of justice the adopting of such a course is not advisable.

After the arguments were heard and the case was reserved for judgment, the advocates stated that if there was any possibility of an arrangement being come to between the Appellant and the Respondent they would make an attempt to settle the matter amicably. Further a perusal of the petition and the counter in the case showed that the husband was willing to arrange for a separate house for the wife and pay her maintenance charges.

Taking all these circumstances into consideration we directed that the Appellant, tire wife be called and be asked as to whether she would be willing to stay in a separate house if the husband made arrangement for her separate residence and incurred the expenses of her maintenance. Both the Appellant and the Respondent appeared before- us and their respective advocates also were present.

After discussion amongst themselves, the- wife reported that she was willing if arrangements were made for her separate house and maintenance. We, therefore, modify the decree of the lower Court in the following manner:

The Respondent shall pay to the Appellant the- sum of I.G. Rs. 23/- per mensem on account of separate residence and maintenance. The Respondent will have access to the Appellant.

The decree shall be modified as above. Having regard to the fact that this ease is as between a wife and her husband we direct that each, party do bear his own costs.

The payment of maintenance shall be from 1-10-55.