Right of wife to claim for separate residence and maintenance.

S. RAMACHANDRA IYER, C. J. :- The appellant, a twice married Hindu, contests by this appeal the right of his first wife to live apart from him and claim maintenance for herself and the children born of her. More than 20

years ago, when it was permissible under the law for a Hindu to take more than one wife, the appellant married the first respondent. Within a short time thereafter, he took another wife, who is now living with him, but who is not made a party to these proceedings. The appellant lived with them amicably, having two children by his first wife and four by the second. On 20-2-1959, his first wife left him with her children, preferring to live separately. Shortly afterwards, she made a claim on her husband for maintenance and followed it up with the suit which has given rise to this second appeal.

2. Both the courts below have granted the first respondent the relief sought, directing the appellant to pay for the maintenance and residence of his first wife and her children. The only basis for the claim, as ultimately presented to the courts, the allegation as to cruelty on the part of the husband having been given up during trial, was statutory.

3. Section 18 of the Hindu Adoptions and Maintenance Act (Act 78 of 1956) imposes a liability on the husband to maintain his wife. Sub-Section (1) thereto, which is declaratory of the right of the wife to be maintained by her husband, states :

"Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime." Under the pre-existing law, there was a personal obligation on the part of the husband to maintain his wife. But it was obligatory on the part of the wife to remain under his roof. She was not, therefore, entitled to separate residence or maintenance, except under certain circumstance, that is, unless she proved that, by reason of his misconduct or by his refusal to maintain her in his own place of residence or other justifying cause, she was compelled to live apart from him. Wide as the terms of S. 18(1) are, it cannot be held that a Hindu wife would be entitled to leave her husband for no justifiable reason and then claim maintenance. Sub-Section (1) of S. 18 is expressly made subject to the provisions of Sub-Section (2) which states :

2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance........

(d) if he has any other wife living

It is implicit from the opening words sub-section (2) that a Hindu wife will not be entitled to live separately from her husband, without forfeiting her claim for maintenance, for reasons outside those mentioned in clauses (a) to (g) of that sub-section

4. In the present case, the claim of the first respondent is rested on the ground that her husband has another wife living with him As pointed out by the learned Editor of Mullah's Principles of Hindu Law, 12th Edn. the section can apply to cases of marriages solemnised before 18th May 1955, when the Hindu Marriage Act, 1955 came into operation. The said Act by S. 5(i) introduces monogamy as the rule of law applicable to Hindus. Further, S. 17 thereof provides that any marriage between Hindus solemnised after the commencement of the Act, contrary thereto, will be void and punishable. It would, therefore, follow that Section 18(2)(d) of Act 78 of 1956 will have retrospective operation as there would be no scope for application of its provisions in respect of any future bigamous marriage such marriages being void.

5. It is, however, contended by learned counsel appearing for the appellant that the provision can only apply to cases where the marriages have been solemnised after the coming into force of the Hindu Married Women's Right to Separate Residence and Maintenance Act (Act 19 of 1946). That enactment by S. 2, provides that a Hindu woman shall be entitled to have separate residence and maintenance from her