1953 Supreme(Mad) 279

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Mr. Justice Subba Rao and Mr. Justice Ramaswami, XJ.
Musunuru Nagendramma
Versus
Musunuru Ramakotayya
Appeal No. 732 of 1949.
Decided On : 03 September 1953

Headnote:

Hindu Married Women’s Rights to Separate Residence and Maintenance Act, 1946 (Act XIX of 1946) - Section 2(4) - Construction - Whether retrospective or prospective - Whether a Hindu wife is entitled to separate maintenance on the ground that her husband married a second wife before the Act came into force - Held, yes - The words “marries again” in Section 2(4) are merely descriptive of the position of the husband as a twice-married man at the date when the wife’s claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation.

Fact of the Case:

The plaintiff, a Hindu wife, filed a suit for recovery of maintenance at the rate of Rs. 1,800 per year, for the recovery of past maintenance for five years prior to suit at the above rate, for provision for residence in the family house or for recovery of Rs. 1,200 in lieu thereof; for a charge over all or any portion of the properties of plaint A-1 schedule, for the reliefs of maintenance granted in favour of her, for recovery of the movables shown in D schedule of the plaint or their value of Rs. 3,950 and for directing the first defendant to render an account of the income from the E schedule lands, which was paid to the first defendant for the benefit of the plaintiff during the 11 years from 1932 to 1942.

Finding of the Court:

The plaintiff is entitled to separate maintenance on the ground that her husband married a second wife before the Act came into force. The words “marries again” in Section 2(4) are merely descriptive of the position of the husband as a twice-married man at the date when the wife’s claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation.

Issues: 1. Whether the 2nd defendant is a necessary or proper party to the suit? 2. Whether the schedule properties belong to the family of which 1st defendant is a member or whether they are the properties of 3rd defendant? . Whether Act XIX of 1946 is retrospective and whether the second marriage of 1st defendant which took place in 1943 gives cause of action for a claim of separate maintenance? 4. Whether the plaintiff was treated cruelly and abandoned by the 1st defendant and whether plaintiff is entitled to separate maintenance on that score. 5. To what rate of maintenance, past and future, is plaintiff entitled? 6. To what provision for residence is plaintiff entitled? 7. Whether the plaintiff entrusted the income of E schedule properties to the 1st defendant and is the latter liable to account for the same? 8. Whether the plaintiff ever owned items 4 to 6, 8 to 10, 15 to 29 of D schedule? 9. Whether items 1 to 29 of D schedule were entrusted by plaintiff to 1st defendant and if so, what is their value ? 10. Whether items 2 and 3 of D schedule were gifted to first defendant by the father of the plaintiff; and 11. To what charge is plaintiff entitled in respect of her maintenance ?

Ratio Decidendi: The court held that the words “marries again” in Section 2(4) of the Hindu Married Women’s Rights to Separate Residence and Maintenance Act, 1946 (Act XIX of 1946) are merely descriptive of the position of the husband as a twice-married man at the date when the wife’s claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation. The court further held that the plaintiff was entitled to separate maintenance on the ground that her husband married a second wife before the Act came into force.

Final Decision: The decree and judgment of the learned Subordinate Judge are set aside and the plaintiff is awarded maintenance past from February, 1943, of 25 bags of paddy per annum and future at the rate of 50 bags of paddy and this is made a charge on a portion of the immoveable properties of the 1st defendant as set out above and the suit is decreed to the plaintiff to this extent. The parties will give and receive costs in the measure in which they have succeeded and failed.