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HIGH COURT OF BOMBAY
RAJADHYAKSHA, VYAS, JJ.
Laxmibai Wamanrao
Versus
Wamanrao Govindrao
First Appeal No.273 of 1949
Decided On : 26-09-1952
HINDU MARRIED WOMENS RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE ACT, 19 OF 1846 - S.2(4) - Retrospective effect - Not applicable to marriages solemnized before the Act came into force.
Fact of the Case:
Plaintiff, a Hindu married woman, filed a suit against the defendant, her husband, claiming future maintenance at the rate of Rs.100 per month and arrears of maintenance for three years preceding the institution of the suit. The plaintiff alleged that the defendant had married a second and a third time, causing her to leave him and go back to her father's house. The defendant denied the allegations of ill-treatment and stated that the plaintiff had left him of her own accord. The trial court found that the plaintiff was not entitled to separate maintenance and residence, as the only allegation against the defendant was that he behaved according to the whims and fancies of his third wife and did not treat the plaintiff with the respect due to her as a senior wife. The plaintiff appealed, contending that she was entitled to separate maintenance and residence under the Hindu Married Womens Right to Separate Residence and Maintenance Act, 19 of 1846 (the Act), which came into force five days after the suit was instituted.
Finding of the Court:
The court held that the Act was not retrospective in its operation and did not apply to marriages solemnized before the Act came into force. The court found that the second and third marriages of the defendant had taken place long before the Act came into force, and therefore, the provisions of S.2(4) of the Act, which entitled a Hindu married woman to separate residence and maintenance if her husband married again, did not apply. The court also rejected the plaintiffs argument that she was entitled to separate residence and maintenance under the residual clause of S.2(7) of the Act, which allowed for any other justifiable cause, as there was no suggestion that the defendant had entered into an understanding with the plaintiff that he would not marry a second or a third time.
Issues: 1. Whether the Hindu Married Womens Right to Separate Residence and Maintenance Act, 19 of 1846, had retrospective effect. 2. Whether the plaintiff was entitled to separate residence and maintenance under S.2(4) of the Act, which allowed for such relief if the husband married again. 3. Whether the plaintiff was entitled to separate residence and maintenance under the residual clause of S.2(7) of the Act, which allowed for any other justifiable cause.
Ratio Decidendi: 1. The court held that the Act was not retrospective in its operation, as it dealt with substantive rights of the parties and not merely with matters of procedure. The court also found that the wording of S.2 of the Act showed that it did not have retrospective effect. 2. The court held that S.2(4) of the Act did not apply to marriages solemnized before the Act came into force. The court found that the second and third marriages of the defendant had taken place long before the Act came into force, and therefore, the provisions of S.2(4) did not apply. 3. The court held that the plaintiff was not entitled to separate residence and maintenance under the residual clause of S.2(7) of the Act, as there was no suggestion that the defendant had entered into an understanding with the plaintiff that he would not marry a second or a third time.
Final Decision: The court dismissed the plaintiffs appeal and upheld the trial court's decision that the plaintiff was not entitled to separate maintenance and residence.
RAJADHYAKSHA, J. :- This appeal arises out of a suit filed by the plaintiff to recover from the defendant future maintenance at the rate of Rs.100 per month and arrears of maintenance at the same rate for three years preceding the institution of the suit.
2. The plaintiff who is the wife was married to the defendant about the year 1920. They lived together for about 15 years. But they had no issue of the marriage. In the year 1930, the defendant married a second wife and from this marriage a daughter was born to the defendant. As the defendant did not have a son, he married a third time in the year 1940 and he got a son from this marriage. The plaintiff alleged that the defendant had been acting entirely according to the wishes of the third wife and was not treating the plaintiff with the respect and courtesy that was due to her. Inspite of all this she continued to live with the defendant. But for some reason or other, the defendant brought the plaintiff back to her fathers house. The plaintiff tried to persuade the defendant to take her back and accordingly she did go back to her husband of her own accord. Even on this occasion, when the defendant was living at Mahad, she did not receive the treatment which she deserved and therefore she was compelled to go back to her fathers house. Thereafter she served a notice upon the defendant requiring him to provide her with separate residence and maintenance. As the defendant failed to do so, she filed this suit for claiming arrears of maintenance and also future maintenance at the rate of Rs.100 per month.
3. The defendant in his written-statement denied the allegations of ill-treatment and stated that the plaintiff had left him and had gone to live with her father of her own accord. Under the circumstances he contended that she was not entitled to separate maintenance. He added that he was prepared to allow the plaintiff to stay in a separate house and to give her what he considered a reasonable amount for her maintenance. 4. On these pleadings the learned Judge raised the necessary issues and came to the conclusion that the plaintiff was not entitled to separate maintenance and residence. He found that the only allegation that was made against the defendant was that the defendant behaved according to the whims and fancies of his third wife and did not treat the plaintiff with the respect which was due to her as a senior wife. In his opinion, this was not sufficient to entitle the plaintiff to separate residence and maintenance. This conclusion of the learned Judge is not assailed before us.
5. But on the date of the arguments, the learned pleader for the plaintiff applied for an amendment of the plaint seeking to base the plaintiffs claim for separate maintenance and residence on the Hindu Married Womens Right to Separate Residence and Maintenance Act, 19 of 1846. That application was granted, and the amendment made in the plaint sought to base the plaintiffs claim for separate residence and maintenance on the ground that the defendant had married again. The original suit had been filed in forma pauperis on 18-4-1946. The Hindu Married Womens Right to Separate Residence and Maintenance Act came into force on 23-4-1946, that is, within five days after the suit was instituted. The learned Judge took the view that the Act was not retrospective in its operation as it dealt with the substantive rights of the parties and did not deal merely with matters of procedure. He also thought that the wording of S.2 of the Act also showed that it did not have retrospective effect. Accordingly he held that the plaintiff was not entitled to the benefit of the provisions of the Act and could not therefore claim separate maintenance and residence. Accordingly he dismissed the plaintiffs suit with costs. Against that order the present appeal has been filed by the plaintiff.
6. The only question that we have to consider in this appeal is whether under the Hindu Married Womens Right to Separate R
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