Wife held entitled to maintenance for husband.

This appeal is against the decree of the learned City Civil Judge,, granting maintenance at the rate of Rs. 20 per mensem to the plaintiff, who is married wife of the defendant. The marriage has taken place in 1943, and for a year or two the husband and wife lived amicably. Later on, when the husband was transferred to Nagpur where his employment took him, there seem to have been some differences between the husband and wife and there has been exchange of notices. In 1947, a suit seems to have been filed by the defendant appellant for restitution of conjugal rights against his wife. It was first instituted in the Poona-mallee District Munsiff’s Court and then on the ground that that Court had no jurisdiction, it was transferred to Nagpur and the appellant appears to have obtained a decree against his wife on the 20th of July, 1948, for restitution of conjugal rights. The respondent filed the present suit on the 12th of July, 1948, but in the plaint, she has referred to the filing of the suit by her husband at Nagpur for restitution of conjugal rights.

When the suit was pending, it transpires that the defendant appellant married a second wife on the 3rd of February, 1949. Before the trial of the suit was taken up by the learned City Civil Judge, an application was filed by the plaintiff for amending the plaint in view of the second marriage, which the defendant contracted That amendment was allowed and the plaint was amended accordingly. The suit proceeded on the basis of the amended plaint.

The suit itself is filed under section 2 of Act XIX of 1946, an Act which gives, a Hindu married woman the right to separate residence and maintenance under certain circumstances. Section 2 of that Act is to the following effect:

“Notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled1 to separate residence and maintenance from her husband on one or more of the following grounds, namely:-

(1) if he is suffering from any loathsome disease not contracted from her;

(2) if he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;

(3) if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish;

(4) if he marries again;

(5) if he ceases to be a Hindu by conversion to another religion;

(6) if he keeps a concubine in the house or habitually resides with a concubine;

(7) for any other justifiable cause:

Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by change to other religion or fails-without sufficient cause to comply with a decree of a competent court for the restitution of conjugal-rights.”

The learned City Civil Judge relying on the ground that the defendant had married a second time and finding that there was no desertion, gave a decree for maintenance against the appellant. The defendant relied upon his decree for restitution of conjugal rights as a defence to the suit and contended that in so far as the plaintiff had failed without sufficient cause to comply with the decree of a competent Court for the restitution of conjugal rights she was disentitled to the claim for separate maintenance from the appellant. This contention was rejected by the learned City Civil Judge.

The learned counsel appearing for the appellant has raised various contentions before me to get the decree of the learned City Civil Judge set aside. The first ground taken up by him is that the learned City Civil Judge ought not to have allowed the amendment, as the amendment tantamounted to a new cause of action being substituted in the place of the old one, and that it tended to change the character of the suit. I do not think that I can agree with the learned counsel for the appellant in this contention, for the reasons that the suit itself was for a separate maintenance on the ground that there was desertion on the part of the defendant, but dur