Justifiable cause for marrying again.

The husband in a suit by the second wife for separate residence and maintenance is the appellant in the Civil Miscellaneous Appeal. He had already married one Pattammal as his first wife. There were disputes between him and his first wife. The first wife obtained a decree for maintenance against the defendant. Subsequently, there was a rapprochement between the first wife and the defendant and the first wife came and joined her husband, while the plaitniff was living with him. The plaintiff’s case is that the defendant joined his first wife Pattammal and drove her out of the house after treating her cruelly and removing the jewels from her and this incident happened on the Sivarathri Day in 1944, and that she was threatened that she would be beaten if she came and joined. The defendant denied any cruel treatment or refusal to maintain the plaintiff and stated that the suit was instituted as he had patched up his differences with his first wife and she had come and joined him and that the suit was at the instance of the plaintiff’s father, who is stated to be a wealthy man and who was insisting that the defendant should settle some property on his daughter as the defendant had done for his first wife.

One of the issues raised in the suit was whether the alleged ill-treatment of the plaintiff by the defendant was true. The learned District Munsiff held against the plaintiff on this issue and he believed the defendant’s version as more probable that on account of the defendant taking back his first wife, the plaintiff’s father resented his action and took away his daughter. In appeal, the learned Subordinate Judge of Coimbatore, while agreeing with the finding of the first Court that the allegations of cruelty were not proved, found, however, that there were quarrels in the house between the two wives and consequently the plaintiff was not able to live in her husband’s household with peace and honour due to a wedded wife, that the plaintiff was the victim of systematic unkind and unsympathetic treatment at the hands of her co-wife resulting in mental cruelty to her and that the defendant had been guilty of not protecting the plaintiff from the cruelty of his senior wife„ all of which may be considered sufficient under clause (7) of section 2 of the Hindu Married Women’s Right to Separate Residence and Maintenance Act (XIX of 1946) to constitute “justifiable cause” entitling her to separate residence and maintenance.

The evidence in the case does not support the finding of the learned Subordinate Judge that the plaintiff has been the victim of systematic unkind and unsympathetic treatment at the hands of her co-wife and the defendant did not protect the plaintiff from the senior wife’s cruelty. The plaintiff, who was examined as P.W. 5, speaks to the incident of her being driven out of the family on a particular occasion after removing the jewels and states that in respect of the jewels there was a panchayat. In cross-examination, she says that she filed a suit because the defendant had settled properties on Pattammal, that if similar property was given to her she would agree to it and that the occasion referred to was the first occasion the defendant had assaulted her and prior to that they were on good terms. Her charge is against her husband for assaulting her; but there is nothing in her evidence to show that she was treated cruelly by the co-wife. The first wife has borne two children to the defendant and there is nothing in the plaintiff’s evidence as to any ill-treatment by the co-wife. It may be that after the first wife came and lived with the defendant his affection to the second wife might have waned, especially as the first wife had given birth to children. On the evidence, therefore, apart from the plaintiff not establishing any cruelty on the part of her husband towards her, she has also not specifically alleged much less proved that she has been sub-jected to cruelty by the first wife, or that she has been t