JUDGMENT-Kesarbai, the present appellant, a Hindu wife in her forties, seeks to enforce her right of separate residence and maintenance against her husband, respondent Haribhau.

2: By the impugned judgment the Assistant Judge, Akola, reversed a decree 10 her favour and dismissed her application finding that she had not proved the grounds.

3. Kesarbai had filed the application mainly seeking a relief on the plea that Haribhu had deserted her and further that he had kept a concubine by name Sulochana. The trial Court on both these matters' found in her favour inter alia holding that from February 1958, Haribhau had deserted Kesarbai; that he had kept a concubine by name Sulochana at Khambora where he has another residential house and that Kesarbai was entitled to Rs. 50/- per month as past and future maintenance. He also directed a charge against the immoveable property being Survey Nos. 1/1-A, 1/5,6/1 and 15/1 shown in Schedule B and a bungalow near Lady Harding Hospital, Akola. The appellate Court found that the evidence in the matter of desertion, as was spoken to by Kesarbai and her witnesses, was not convincing and he further found that Haribhau had admittedly kept a concubine but that was not in the same house where Kesarbai stayed with him at Khambora. He thus thought that the grounds mentioned by section 18 (2) of the Hindu Adoptions and Maintenance Act, 1956 were not made out. He did not consider the latter part of clause (e) of section 18 (2) of the Act on a view that Kesarbai had contended that Sulochana, the concubine, was kept in the residential house but that has not been established. In other words, though, in fact, it was admitted by the husband Haribhau that he had kept the concubine, only because it was not shown that she was kept in the residential house where wife was living, the appellate Court negatived the claim of Kesarbai. On the question of quantum of maintenance, he gave a finding that Rs. 75/- for past and future maintenance would meet the ends of justice. Having found on the main issues against the wife, he allowed the appeal of the husband.

4. I t is not necessary in this appeal to consider the grounds of desertion, for it is obvious and is not in dispute that Haribhau has at least been keeping Sulochana as his exclusive mistress since about 1958. He had merely added that only after Kesarbai left, he had kept Sulochana. For the purpose of the present appeal, it is not disputed that keeping of Sulochana as a mistress by Haribhau was continuous since 1958 and is continued during the trial and even till date. The only submission which will be noticed later on in some details, that is canvassed by Mr. Samudra the learned counsel appearing for the respondent, is that to satisfy the provisions' of section 18 (2) (e), it must be shown, firstly, that husband keeps a concubine in the same house in which wife is living or it must otherwise be shown that husband had shifted his ordinary residence and is residing with a keep at any other residential house. He submits that mere keeping of a mistress without change of residence is not sufficient to enable a Hindu wife to claim maintenance under section 18 (2) (e) of the Act.

5. On the other hand, the learned counsel appearing for the appellant Mr. Kulkarni submitted with great force that such a construction of the provisions of section 18 (2) (e) on the admitted facts would defeat the very statutory contemplation. His approach is that clause (e) of sub-section (2) is a prohibition against keeping a concubine and once it is established that the husband has formed a habit in that regard, the requirements of law are answered. He complained that the learned appellate Judge has erred in not granting the relief on the admitted positions in the litigation.

6. Relevant provisions of section 18 (1) and section 18 (2) (e) of the Hindu Adoptions and Maintenance Act, hereinafter called as the Act, read as under :-

"18. (1) Subject to the provision of this section, a Hindu wi

Click Here to Read the rest of this document