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1962 Supreme(AP) 112
Andhra Pradesh High Court
Judges : A.GOPAL RAO, NARASIMHAM, P.CHANDRA REDDY
Kopparthi Satyanarayana - Appellant
Versus
Smt.Kopparti Seetharamamma - Respondent
Decided On : 07-11-62
Clause (4) of Section 2 of the Hindu Womens Right to Separate Residence and Maintenance Act, 1946 applies only to marriages that took place subsequent to the Act.
Headnote:
HINDU MARRIED WOMEN RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE ACT - SECTION 2(4) - APPLICABILITY - MARRIAGE BEFORE ACT - WHETHER SECTION 2(4) APPLIES TO MARRIAGES THAT TOOK PLACE BEFORE THE ACT OR WHETHER THE WORDS MARRIES AGAIN ARE MERELY DESCRIPTIVE OF THE POSITION OF THE HUSBAND AS A TWICE MARRIED MAN AT THE DATE WHEN THE PROCEEDINGS ARE TAKEN UNDER THE ACT.
Fact of the Case:
The question referred to the Full Bench is whether Clause (4) of Section 2, Hindu Womens Right to Separate Residence and Maintenance Act (19 of 1946) (hereinafter referred to as the Act) is applicable only if the husband contracts a marriage after the Act or whether the words marries again are merely descriptive of the position of the husband as a twice married man at the date when the proceedings are taken under the Act, and they do not exclude from their operation the husband, who has taken a second wife before the Act.
Finding of the Court:
Clause (4) of Section 2 of the Act governs only marriages that took place subsequent to the Act.
Issues: Whether a wife, whose husband had taken another wife before the commencement of the Act, could obtain the benefit of that section.
Ratio Decidendi: 1. The tense used in Clause (4) is the present one. This clause refers to an act done by the husband, namely, marrying again. It is not a continuous act, though the state of marriage might continue. This, in the opinion of the Court, gives an indication that it has reference to a future act. 2. The words marries again do not convey the thought that the right for separate maintenance flows even from the second marriage of the husband performed before the Act. 3. The language of Clause (4) is not appropriate to refer to an act which had already been done. 4. The Legislature intended to restrict the operation of this section to future marriages could also be seen by contrasting it with the language of Section 18, Hindu Adoptions and Maintenance Act, Sub-section (2) (d) of which reads; "a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance. XXXX XX (d) if he has any other wife living." 5. The statute conferred a new right on Hindu married woman for separate maintenance in the eventualities envisaged by the various clauses. That this is so is apparent from the preamble and also from Section 2. The non-obstante clause notwithstanding etc. in Section 2 is a pointer in the direction of the Act superseding the principles of Hindu law on the subject of maintenance. 6. Clause (4) makes another marriage by the husband per se a ground for claiming separate maintenance. This has brought about a fundamental change in the Hindu law of maintenance as it obtained prior to the Act. 7. The Act affects the rights of a Hindu to take a second wife without subjecting himself to the liability of giving separate maintenance to the wife. It confers substantial rights on a wife and corresponding obligations on the husband and it does not deal merely with matters of procedure. 8. A statute, which touches existing rights should be construed prospectively, and nor retrospectively.
Final Decision: The appeals were allowed and the decree of the lower court was set aside.
( 1 ) THE question referred to the Full Bench is whether Clause (4) of Section 2, Hindu Womens Right to Separate Residence and Maintenance Act (19 of 1946) (hereinafter referred to as the Act) is applicable only if the husband contracts a marriage after the Act or whether the words marries again are merely descriptive of the position of the husband as a twice married man at the date when the proceedings are taken under the Act, and they do not exclude from their operation the husband, who has taken a second wife before the Act. This point arises in all these appeals, some preferred by the wives and others by the husbands. For the sake of convenience, we will refer to the husbands as appellants and the wives as respondents.
( 2 ) THE answer to this question turns upon the interpreation of Clause (4) of Section 2 of the Act. That section is in these words;"2. Notwithstanding any custom or law to the contrary, a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely: 1. If he is suffering from any loathsome disease not contracted from her, 2. If he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him; 3. If he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish; 4. If he marries again; 5. If he ceases to be a Hindu by conversion to another religion; 6. If he keeps a concubine in the house or habitually resides with a concubine; 8. For any other justifiable cause: Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by change to another religion or fails without sufficient cause to comply with a decree of competent Court for the restitution of conjugal rights. "
( 3 ) IN this enquiry, we are called upon to interpret the expression if he marries again occurring in Clause (4 ). So, the problem to be solved is whether a wife, whose husband had taken another wife before the commencement of the Act, could obtain the benefit of that section.
( 4 ) THERE has been a divergence of opinion on the construction of this clause, some Judges expressing the opinion that the clause if he marries again would apply to marriages that took place before the Act came into operation while others had taken a narrower view that it would only govern future marriages.
( 5 ) WE will first discuss the question with reference to the terms of the clause unhampered by decided cases. Although we are concerned here only with clause (4), it is useful to read the whole of the section, as it throws considerable light on the controversy that ranges here. Clauses (1) to (3), (5), (6) and (7) give a clear indication that they apply to a state of affairs that prevail at the time the claim for separate residence and maintenance is made and after the commencement of the Act and do not qualify events that existed be-fore the Act. Let us first look at Clause (1 ). It is obvious that that clause requires proof of the husband suffering from a loathsome disease at the time the claim for maintenance is made. The fact that the husband suffered from a loathsome disease in the past would not be a ground for claiming separate maintenance unless he continues to be suffering at the relevant date. The wife cannot maintain such a claim if the husband was cured of the disease by the date the claim is put forward. Similar remarks may be made as regards Clauses. (2), (3) or (6 ). None of these clauses have any relation to me antecedent conduct of the husband. These clauses leave no mm for doubt that it is only things done by the husband subsequent to the Act that would invest a Hindu married woman with a right to claim separate maintenance; in other wards, a Hindu married woman could not take advantage of this clause in regard to things that occurred before the Act came into operation.
( 6 ) COULD a diff
