A permanently kept concubine of a Hindu may be entitled to maintenance even though she is childless.

Wadsworth, J.

1. This appeal raises a question regarding the right of the permanently kept concubine of a deceased Hindu to claim maintenance when she has not had a child by the deceased. It is a question upon which authority is meagre. The only definite pronouncement is contained in an obiter dictum of Spencer, J., at page 810 in the case of Rama Raja Thevar v. Papammal AIR1925Mad1230 . The learned Judge was dealing with a case of a claim by a concubine who in fact had a daughter by her deceased paramour. In laying down the conditions upon which a concubine may be entitled to maintenance he observes:

Another condition that has been put on the right of a concubine to be maintained is that she should be the mother of illegitimate children,

2. quoting as authorities the case of Khemkor v. Umiashankar (1873) 10 B.H.C.R. 381 and Stranges Hindu Law, Chapter 8, p. 174. The other learned Judge while agreeing generally with the conclusion of Spencer, J., says nothing about the question whether the right of maintenance depends upon the existence of children by the concubine. Turning to the authorities for this pronouncement I find that the case of Khemkor v. Umiashankar (1873) 10 B.H.C.R. 381, does not lay down any rule that a concubine who has no children is disentitled to maintenance. The judgment is very short and the essential point is found in one sentence which is:

We also agree with the Judge in thinking that as the mother of the illegitimate children of Ranchor, that is, as his concubine, she is entitled to maintenance.

3. The judgment quotes as authority Stranges Hindu Law and West and Buhler. This passage may well be an indication that the essential criterion is not whether the claimant is the mother of illegitimate children but whether she was a regularly kept concubine of the deceased. When we turn to the passage in Strange, Vol. I, page 174 we find the learned author after referring to the rights of illegitimate children to maintenance adds the sentence "the mothers of such children also have a like claim." The contrary proposition that concubines who are not the mothers of illegitimate children have no claim to maintenance is not stated. I have not been able to verify the passage, in the old edition of West and Buhler quoted by the learned Chief Justice in Khemkors case (1873) 10 B.H.C.R. 381. Turning to the original texts in the Mitakshara upon which the right of a concubine to maintenance is built, we find very little assistance. Chapter II, Section 1, paragraph 27 contains the following:

It is said by Katyayana heirless property goes to the King deducting however a subsistence for the females.

4. Then in paragraph 28:

This relates to women kept in concubinage, for the term employed is females (yoshid). The text of Narada likewise relates to concubines.

5. There is nothing in these texts to indicate that the question whether or not a concubine has children has any bearing on her right to maintenance. The learned editor of the latest edition of Maynes Hindu Law p. 824 points out the lack of authority for the pronouncement of Spencer, J., to which I have referred and expresses the opinion that a barren concubine is entitled to maintenance just as much as a barren widow. In the case of Bai Nagubai v. Bai Monghibai (1926) 51 M.L.J. 577 : L.R. 53 IndAp 153 : I.L.R. 50 Bom. 604 , the Privy Council had occasion to deal at length with the question of the right of a concubine to maintenance, particularly with reference to what is required to bring a concubine within the category of avarudha stri. That was a case in which the woman in question had a child and their Lordships do not consider whether the right of maintenance is or is not affected by the existence or absence of children. But they do lay down that a woman may be an avarudha stri under modern conditions even if she is not living with the family of her paramour, thus overruling one of the conditions which Spencer, J., accepts as necessary to support the claim of a concu