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HIGH COURT OF ORISSA
R. L. Narasimham And Balakrishna Rao, JJ.
KULAMANI HOTA - Appellant
Versus
PARBATI DEBI - Respondent
Second Appeal 395 Of 1950
Decided On : JANUARY 18, 1955
HINDU MARRIED WOMEN'S RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE ACT, 1946 - SECTION 2 - APPLICABILITY TO PENDING SUITS - RETROSPECTIVE EFFECT - INTERPRETATION OF CLAUSE (4) - LEGAL CRUELTY - QUANTUM OF MAINTENANCE.
Fact of the Case:
A Hindu wife filed a suit for maintenance against her husband, alleging cruelty and ill-treatment. The trial court dismissed the suit, holding that the cruelty alleged did not amount to legal cruelty as required by Hindu Law. The lower appellate court reversed the trial court's decision, holding that the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) applied to the case and that the wife was entitled to maintenance.
Finding of the Court:
The High Court held that the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 applied to the case, even though the suit was instituted before the Act came into force. The Court held that Clause (4) of Section 2 of the Act, which entitles a Hindu wife to separate residence and maintenance if her husband marries again, has limited retroactive effect and applies to second marriages that took place prior to the commencement of the Act. The Court also held that the lower appellate court's view regarding legal cruelty was correct, as the cruelty established in the case was of the same type as was found in a previous decision of the Court and would, in law, suffice for claiming separate residence and maintenance.
Issues: 1. Whether the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 applied to the case, even though the suit was instituted before the Act came into force. 2. Whether Clause (4) of Section 2 of the Act, which entitles a Hindu wife to separate residence and maintenance if her husband marries again, has limited retroactive effect and applies to second marriages that took place prior to the commencement of the Act. 3. Whether the lower appellate court's view regarding legal cruelty was correct.
Ratio Decidendi: 1. The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 applied to the case, even though the suit was instituted before the Act came into force, because: - The Act is a remedial statute meant to give better rights as regards separate residence and maintenance to Hindu women and to clarify the law on the subject. - The Act is partly declaratory in nature, as it clarifies and puts beyond doubt the law as it was understood by the Hindu Law givers. - Declaratory Acts should ordinarily be given retroactive effect. 2. Clause (4) of Section 2 of the Act, which entitles a Hindu wife to separate residence and maintenance if her husband marries again, has limited retroactive effect and applies to second marriages that took place prior to the commencement of the Act, because: - The clause merely describes the status of the husband as a twice married man and does not restrict its application to second marriages that take place after the commencement of the Act. - The other clauses of Section 2 have clearly such retroactive effect and it would be unreasonable to hold that the Legislature intended to make a distinction between Clause (4) and the other clauses so far as retroactive operation was concerned. - The Act was purely declaratory in nature, inasmuch as under the Hindu Law as it stood prior to the commencement of the Act it could not be stated as an invariable rule that a Hindu wife was not entitled to separate residence and maintenance under any circumstance if her husband took a second wife. 3. The lower appellate court's view regarding legal cruelty was correct, because: - Clause (2) of Section 2 of the Act makes it clear that cruelty of the land which renders it 'unsafe or undesirable' for the wife to live with her husband is sufficient to entitle her to separate residence and maintenance. - The evidence established that the wife was given shoe-beating by her husband on some occasions and also assaulted by other methods, and that after taking a second wife the defendant lived in a separate house denied his company to his first wife and practically deserted her by compelling her to live as a drudge with her monther-in-law in another house. - This evidence showed that it was undesirable for the wife to live with her husband.
Final Decision: The High Court dismissed the appeal and affirmed the judgment of the lower appellate court, holding that the wife was entitled to separate residence and maintenance.
NARASIMHAM, J.
( 1 ) THIS is a defendant's appeal against the appellate judgment of the Subordinate judge of Cuttack Dhenkanal reversing the judgment of the Munsif of Athmallik and decreeing the plaintiff's (respondent's) suit for maintenance against her husband, the defendant. The parties are Hindus residing in Athmallik which, is one of the former Orissa States which merged with the Dominion of India by the well-known merger Agreement which came into force from 1-1-1948. The plaintiff alleged that she is the legally married wife of the defendant and that a daugther was born to them. Later on, however, the defendant took a second wife, ill-treated the plaintiff by giving her shoe-beating and by other kinds of assault and eventually drove her out of his residence. The exact date of the second marriage of the defendant was not given but it was said to have taken place about sixteen years before the date of the filing of the plaint (23-9-1946 ). The main defence, taken was that the defendant was compelled to take a second wife as the plaintiff did not give him a son. The allegations of ill-treatment were emphatically denied and it was further stated that the plaintiff of her own accord left his protection and went to stay with her mother. Both parties led evidence on the question of cruelty and ill-treatment of the plaintiff by the defendant. The trial court held that though the defendant might have given shoe-beating to his wife occasionally, such an act on his part would not amount to cruelty as required by hindu Law so -as to entitle the plaintiff to claim separate residence and maintenance inasmuch as there was no danger to her personal safety. The lower appellate Court, however, disagreed with the trial Court on this point and held that after the coming into force of the Hindu Married Women's Right to separate Residence and Maintenance Act, 1946 (Act 19 of 1946) (hereinafter referred to as the Act) and its application to Athmallik and other merged areas on 16-6-1948 it was not necessary for a Hindu wife claiming maintenance from her husband to show that the cruelty towards her was such as to endanger her life and that it was sufficient if it was established that on account of his ill-treatment it was undesirable for her to live with him. It further held that the other provisions of the act would also apply to the present case and hence it decreed the plaintiffs suit.
( 2 ) MR. Misra on behalf of the appellant raised the following two contentions: (i) The lower appellate Court erred in applying the provisions of the Act to the present case; (ii) The lower appellate Court's view as regards legal cruelty was also wrong.
( 3 ) THE suit under appeal was instituted on 23-9-1946 when Athmallik was one of the Native States of India. The Act came into force in the territories formerly known as British India, on 23-4-1946 but it did not apply 'proprio vigore' to athmallik State. After the merger of Athmallik with British India with effect from 11-1948 the Government of Orissa as the delegated authority of the Central government and exercising powers under the Extra Provincial Jurisdiction Act, 1947 made an Order known as the Administration of Orissa States Order, 1948 for the purpose of governing the merged areas including Athmallik State. By para 4 of that order, several enactments then in force in British India as specified in the schedule to that Order were applied throughout the merged areas and it was further provided that the enactments so applied would prevail in the merged territories notwithstanding anything to the contrary in the laws that were in force in those territories prior to the coming into force of that order. Amendments were made from time to time to the schedule to that order-The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) was thus applied to Athmallik State on 16-6-48 by an amendment made to the Schedule to that Order. On that date the trial of this case was pe
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