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1958 Supreme(Pat) 82
PATNA HIGH COURT
Misra and S.C.Prasad JJ.
Sarbo Gopain
Versus
Anta Lal Gope
Appeal from Original Decree No. 437 of 1951 ;
Decided On : MAY 08, 1958
The Hindu Adoptions and Maintenance Act, 1956 (Act LXXVIII of 1956) had retrospective effect and applied to pending litigations, and a Hindu wife was entitled to maintenance under Section 18(2)(d) of the Act, irrespective of the date of her marriage.
Headnote:
HINDU MARRIED WOMEN'S RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE ACT, 1946 - SEC. 2(4) - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SEC. 18(2)(D) - RETROSPECTIVE EFFECT - MAINTENANCE - WIFE'S RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE - HUSBAND'S SECOND MARRIAGE - INTERPRETATION OF STATUTES.
Fact of the Case:
The appellant, Sarbo Gopain, filed a suit for maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act XIX of 1946), alleging that she was the legally married wife of defendant No. 4 and was entitled to maintenance from him. The defendants admitted that the plaintiff was the legally married wife of defendant No. 4 but denied the allegations of ill-treatment and turning her out of the house. The trial court dismissed the suit, holding that the plaintiff was not entitled to maintenance under Act XIX of 1946 as her husband had married another wife before the Act came into force.
Finding of the Court:
The High Court held that the plaintiff was entitled to maintenance under Section 18(2)(d) of the Hindu Adoptions and Maintenance Act, 1956 (Act LXXVIII of 1956), which had retrospective effect and applied to pending litigations. The court interpreted the phrase "if he has any other wife living" in Section 18(2)(d) as having a wider meaning than the phrase "if he marries again" in Section 2(4) of Act XIX of 1946, and held that it was intended to benefit all Hindu wives, irrespective of the date of their marriage.
Issues: 1. Whether the plaintiff was entitled to maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act XIX of 1946)? 2. Whether the Hindu Adoptions and Maintenance Act, 1956 (Act LXXVIII of 1956) had retrospective effect and applied to pending litigations? 3. Whether the plaintiff was entitled to maintenance under Section 18(2)(d) of Act LXXVIII of 1956?
Ratio Decidendi: 1. The court held that the plaintiff was not entitled to maintenance under Act XIX of 1946 as her husband had married another wife before the Act came into force. The court relied on the plain meaning of the phrase "if he marries again" in Section 2(4) of Act XIX of 1946 and the decisions of various High Courts holding that the Act did not have retrospective effect. 2. The court held that Act LXXVIII of 1956 had retrospective effect and applied to pending litigations. The court relied on the language of Section 18(1) and (2) of the Act, which provided that a Hindu wife was entitled to maintenance from her husband during her lifetime and to live separately from him without forfeiting her claim to maintenance, respectively. The court also relied on the fact that Section 4(b) of the Act provided that any other law in force immediately before the commencement of the Act would cease to apply to Hindus in so far as it was inconsistent with the provisions of the Act. 3. The court held that the plaintiff was entitled to maintenance under Section 18(2)(d) of Act LXXVIII of 1956. The court interpreted the phrase "if he has any other wife living" in Section 18(2)(d) as having a wider meaning than the phrase "if he marries again" in Section 2(4) of Act XIX of 1946, and held that it was intended to benefit all Hindu wives, irrespective of the date of their marriage.
Final Decision: The appeal was allowed, the judgment and decree of the trial court were set aside, and the plaintiff's right to maintenance at the rate of Rs. 20.00 per month was declared. She was granted a decree for maintenance from 22-12-1956, onwards.
Misra, J.
1. The appellant, Sarbo Gopain, brought a suit in forma pauperis for the grant of suitable maintenance, either on a monthly or annual basis, together with a prayer for a decree for maintenance from Baisakh 1850 B. S. to the month of Jyastha 1356 B. S. at the rate of Rs. 600.00 a year, alleging that she was the legally married wife of defendant No. 4. No issue was, however, born to the couple so that the plaintiff was being ill-treated by her husband as well as the other defendants who are members of a joint family with him. The matter came to such a pass that her father-in-law, defendant No. 1, actually assaulted her. Her husband also assaulted her and she was compelled to move to her maternal uncles house for residence in the year 1347 F. S.
Her husband took another wife soon after. The plaintiff, however, returned to her husbands place and wished to live in his house but her husband refused the request and she was compelled to go back to her maternal uncles house where her mother was living, as the plaintiffs father was dead. She was being maintained by her maternal uncle. Accordingly, the present suit was instituted by her under the Hindu Married Womens Right to Separate Residence and Maintenance Act (Act XIX of 1946), on 11-7-1949. Two sets of written statements were filed on behalf of the defendants, one being on behalf of defendant Nos. 1, 2 and 3 and the other by defendant No. 4. The defendants admitted that the plaintiff was the legally married wife of defendant No. 4 but the allegation that she was ill-treated by the defendants was incorrect; nor was she turned out of the house.
It was the desire of the maternal uncle of the plff. that she should live with him as he had no issue of his own. He also requested defendant No. 4 to live with him as a ghar jamai which he refused to do. The plff. then left his house at the instance of her mother & did not come back in spite of repeated requests. Defendant No. 4, accordingly, had to take another wife. It was also incorrect to say that she came back to the house of her husband again. In fact, defendant No. 4 was ever willing to take her back and maintain her but was due to her own obstinacy and her mothers influence that she would not live in her husbands house. She was, therefore, not entitled to maintenance and, in any case, the amount claimed was exorbitant.
2. The suit was tried in the Court of the learned Subordinate Judge, Dumka, who found that the plaintiff had failed to establish that she was turned out of the house by her husband. She was living with her maternal uncle of her own accord and on account of her mothers wishes, and not due to any ill-treatment to her by the defendants. Defendant No. 4 had, no doubt, taken another wife, but the Court below held on the main issue that she was not entitled to maintenance under the Hindu Married Womens Right to Separate Residence and Maintenance Act, 1946, as in view of Sub-section (4) of Sec.2 of the Act such a claim could not be allowed unless the husband married another wife after the Act came into force, i.e., 23rd April, 1946.
The marriage of defendant No. 4 having taken place with another woman long before 1946, the plaintiff was not entitled to any maintenance while she was living separately from her husband. On evidence, however, he decided that although the plaintiff claimed Rs. 50.00 per month as the rate of maintenance, she would not be entitled to more than Rs. 20.00 per month, in view of the means of her husband calculated on his share in the joint family properties. Accordingly, he dismissed the suit. The plaintiff has filed the present appeal against the decision of the learned Subordinate Judge.
3. Learned counsel for the parties have not argued any question of fact before us. Mr. B. C. De, for the appellant, has only contended that in view of the repeal of Act XIX of 1946 by The Hindu Adoptions and Maintenance Act, 1956 (Act LXXVIII of 1956), which has a retrospective effect, the plaintiff w
