Vegeslna Narayanamma vs vegesina Narasaraju and Others

Umamaheswaram, J.—This is an appeal directed by the plaintiff against the judgment and decree of the Subordinate Judge of Narasapur dismissing her suit O. S. No. 93 of 1953 for recovery of maintenance. The plaintiff is the second wife of the 1st defendant, defendants 2 to 4 are the sons by the first wife, the 5th defendant is her son, the 6th defendant is the Court-auction purchaser of C schedule properties, and the 7th defendant is the receiver in the partition suit filed by the son, the 5th defendant as against her husband, the 1st defendant. The suit was instituted for recovery of maintenance at the rate of Rs. 1200/- per year. She also claimed arrears of maintenance amounting to Rs. 8900/-. A sum of Rs. 200/- was claimed for utensils. A charge was asked for in regard to the two-thirds share of defendants 1 to 4 in the joint family properties. The Court below found that the 1st defendant was not guilty of cruelty and abandonment and that the plaintiff was consequently not entitled to claim separate maintenance. On issues 2 to 4, the learned Subordinate Judge found that if the plaintiff was entitled to maintenance, a sum of Rs. 50/- per month might be awarded to her. He also held that if she is entitled to maintenance, a charge might he created on the 1st defendant''s share of A and B schedule properties. The plaintiff has consequently preferred the appeal to this Court.

During the pendency of the appeal, the Hindu Adoptions and Maintenance Act (LXXVIII of 1956) was passed. Section 4 (a) provides that save as otherwise expressly provided in the Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. Under Sec. 4(b) it is enacted that any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. Section 18(1) which applies to the facts of this case, is in the following terms:

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." Sub-section (2) provides :

A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance

d. if he has any other wife living;

The terms of the section are quite clear that if there is any other wife living, the second wife is entitled to claim maintenance from her husband. This view was taken by a Bench of this Court in Mutyala Jaggamma Vs. Mutya Satyanarayanamurthi, . The learned Judges held that the words "any other wife living'''' in clause (d) of section 18 are words of wide connotation and include wives except the one claiming relief and cannot be limited to any particular wife. The view taken by the Punjab High Court in Ram Prakash v. Savitri Devi, AIR 1958 Punj 87 (FB) is contrary to the view taken by this Court. We follow the decision of this Court in preference to that decision. The language of the section is also quite clear and supports the view taken by us. The plaintiff will consequently be entitled to claim maintenance from the date of the passing of the Act i.e., 21-12-1968.

The next question that has to be decided is as to the quantum of maintenance that the plaintiff is entitled to. In paragraph 44 of the judgment, the learned Subordinate Judge found that the average annual yield might be fixed at 325 bags. At the rate of Rs. 20/- per bag, the learned Subordinate Judge estimated the income at Rs. 6500/- The share of the income of the husband would work out at Rs. 1300/- per annum. The first wife is living with him. So, the maintenance of the plaintiff might be fixed at one-third of the husband''s share i.e., Rs. 420/- per year. We hold that the maintenance of the plaintiff might be reasonably fixed at Rs. 35/- per month. Charge is created on the 1st defendant''s share of A and B schedule properties.

The decree of the Court below is modified accordingly. So far as the costs of the trial Court are concerned, the order will stand as on the date of the suit the plaintiff had no right to claim maintenance. It is only by reason of the passing of Act LXXVIII of 1956, that the plaintiff is entitled to maintenance. The plaintiff will be entitled to maintenance at the rate of Rs. 35/- per month from 21-12-1956. The plaintiff will be entitled only to one-fourth costs in this Court. So far as the maintenance upto date is concerned, time is granted for payment upto 1st January, 1962. So far as the future maintenance is concerned, the first payment will be made on 1st April, 1962. Future maintenance will be payable once in six months thereafter. So far as the Court-fee payable in this Court is concerned, the appellant will pay three-fourths of the Court-fee due to the Government and the 1st defendant will pay one-fourth of the Court-fee.

C. M. P. No. 8725 of 1957: Ordered.