Back
1926 Supreme(SC) 21
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD DARLING, SIR JOHN EDGE, MR. AMEER ALI, AND LORD SALVESEN.
BAI NAGUBAI - Appellant
Versus
BAI MONGHIBAI (SINCE DECEASED) (DEFENDANTS) - Respondents
On Appeal from the High Court at Bombay.
Decided On : April 29, 1926 .
Solicitors for appellant: Lattey & Hart.
Solicitors for respondents 1, 4, 5, 6: T. L. Wilson & Co.
A Hindu concubine ("avaruddha stri") is entitled to maintenance from the deceased's estate if the relationship was permanent and she remained faithful, regardless of whether she resided in the deceased's family home.
Headnote:(A) Hindu Law - Maintenance of concubines - Right of an "avaruddha stri" to receive maintenance from the estate of a deceased Hindu man - The right to maintenance is available to women kept in concubinage, provided they preserve the bed of their lord and remain chaste.
(B) Definition of "avaruddha stri" - While historically referring to protected slaves resident in the household, the term in modern application denotes a woman kept in a permanent, exclusive relationship with one man, occupying a status above that of a harlot.
(C) Residence in family home - Common residence in the family house with the deceased's legal wife and children is not a prerequisite for maintenance, provided the concubinage was permanent and fidelity was maintained. Residence was historically a means of ensuring chastity rather than the essential basis for the right to maintenance.
Facts of the case:
A woman lived with a man for several years, bore him a child, and remained faithful to him during his life and after his death. The man, though married, lived with the woman in a separate rented house and was estranged from his legal family. Following the man's death, the woman sought maintenance from his estate. The trial court granted maintenance, but the appellate court reversed the decision, holding that the woman was not an "avaruddha stri" because she did not reside in the family home.
Findings of Court:
The woman was in the exclusive keeping of the deceased, the relationship was permanent, and she had remained chaste.
Issues: Whether a Hindu concubine is entitled to maintenance from the estate of the deceased if she lived in a separate residence from the deceased's family, provided the relationship was permanent and she remained faithful.
Ratio Decidendi: The court held that the essential requirements for a concubine to be entitled to maintenance are the permanency of the relationship and her sexual fidelity. The requirement of residing in the family house is no longer necessary, as it was originally a means to ensure chastity rather than the fundamental reason for the right to maintenance.
Result: Decree of the High Court set aside and decree of the trial court restored.
Legal Category Hierarchy
-
family law
-
maintenance
- concubinage
-
maintenance
-
hindu law
-
personal law
- maintenance
-
personal law
Judgement
Appeal (No. 156 of 1924) in forma pauperis by special leave, from a decree of the High Court in its appellate jurisdiction (August 11, 1922) reversing a decree of the Court in its original jurisdiction (November 25, 1921).
The appellant claimed that as a concubine of a deceased Hindu she was entitled after his death to maintenance out of his estate.
The facts are stated in the judgment of the Judicial Committee.
The trial judge (Kanga J.) made a decree for maintenance, and directed a reference to ascertain its amount.
On appeal the decree was set aside. The learned judges (Shah A.C.J. and Crump J.) were of opinion that the appellant was not an " avarrudha stri" of the deceased, so as to be entitled to maintenance. Their view appears from the present judgment, and fully from a report of the appeal at I. L. R. 47 B. 401.
1926. March 18, 19, 22. E. B. Raikes for the appellant.
De Gruyther K.C., Sir George Lowndes K.C. and Parikh for respondents Nos. 1, 4, 5 and 6.
[Reference was made to Khemkor v. Umiashankar (( 1873) 10 Bom. H. C. (A. C. J.) 381.); Vrandavandas v. Yamunabai (( 1875) 12 Bom. H. C. 229.); Yashvantrav v. Kashibai (( 1887) I. L. R. 12 B. 26.); Nigareddi v. Lakshmawa (( 1901) I. L. R. 26 B. 163.); Mitakshara, c. 2, s. 1, w. 7, 27, 28 (Stokes, pp. 429, 435); Mayuka, c. 4, s. 7, w. 14-19; c. 8, s. 4 (Mandlik, pp. 70, 78); West & Buhler, 1884 ed., pp. 461, 582; Maynes HINDU LAW , para. 450; Trevelyans HINDU LAW , p. 81; Sarvadhikaris HINDU LAW , p. 941 ; also, as to the rights of children by a concubine, to Muttusamy Jagavira Yettappa
v. Vencataswara Yettappa (( 1868) 12 Moo. I. A. 203.); and Roshan Singh v. Balwant Singh (( 1908
L. R. 27 I. A. 51.)]
April 29. The judgment of their Lordships was delivered by
LORD DARLING. This is an appeal in forma pauperis by special leave from a decree of the High Court dated August 11, 1922, which reversed a decree of that Court in its original jurisdiction dated November 25, 1921.
The question in the appeal is whether the appellant is entitled to maintenance from the estate of one Vasanji Madhavji, deceased.
The appellant is a member of the Gurav caste of Hindus, and at the age of twelve years was given into the keeping of a Shethia, or rich Hindu, named Gopal Mulji, and lived with him for twelve years and bore him two children, and during that time made the acquaintance of the deceased, who was a friend of his and used to accompany him occasionally when he visited her.
The deceased was a very wealthy Hindu of the Lohana caste, who was married, but on bad terms with his wife (with whom he did not cohabit) and her two sons, whom by his will he afterwards practically disinherited. He was from Guzerath and lived in Bombay, and was therefore governed by the Mayukha.
The appellant, when of the age of about twenty-six, had to leave Gopal Mulji because of ill-treatment by him. The deceased then took her under his protection, and she lived with him on terms of affection on either side for at least five years before his death, bore him a daughter, was faithful to him during his life, and has been faithful to his memory since his death. Such was the esteem of the deceased for the appellant that he would have married her had not their difference of caste made it impossible.
After his death she applied to his executors for maintenance and to his widow and issue to admit her claim thereto, and on their failure to comply with her request she instituted the present suit, claiming maintenance as a Hindu concubine of the deceased in his sole keeping till his death. The respondents put in written statements, in which they alleged that the appellant was a prostitute and was not faithful to the deceased during his life and had not led a chaste life since his death, but they did not deny that the facts alleged by her, if proved, would entitle her to maintenance.
The following were the issues framed with the findings of each Court thereon —
(1.) Whether the plaintiff (appellant) was in the
