Gurtu, J.:— This is an appeal by the defendant-husband. The suit was brought by the respondent-wife and she claimed to recover Rs. 900 as arrears for past maintenance and claimed future maintenance at Rs. 50 per month. She alleged her husband's cruelty and she also alleged that he had re-married on or about July, 1935.
2. The husband denied cruelty. The trial court framed an issue on cruelty and also an issue on the question whether the plaintiff was entitled to live separately and to get maintenance. On the issue of cruelty, the trial court came to the conclusion that the entire story that the husband was guilty of cruelty towards the wife was totally false. The trial court, however, held that since the husband had re-married, the wife was entitled, under the Hindu Married Women's Right to Separate Residence and Maintenance Act (Act No. XIX, of 1946,) to live separately and to receive maintenance. Accordingly, the suit was decreed for future maintenance at the rate of Rs. 25 per month. The rest of the suit was dismissed.
3. Cross-appeals were filed and the lower appellate court has endorsed the finding of the trial court that the allegation of legal cruelty had not been made out. It held that the plaintiff was not entitled to past maintenance, though it held that the Hindu Married Women's Right to Separate Residence and Maintenance Act (Act No. XIX) 1946 was applicable and she was entitled to future maintenance. Both the appeals were, therefore, dismissed.
4. The husband has preferred this appeal. It is contended on his behalf that the wife was not entitled to separate residence or maintenance under the Hindu law merely on the ground of re-marriage of the husband.
5. On behalf of the husband, reliance is placed on Mulla's Principles of Hindu Law, 11th edition, Sec. 555 and Mayne on Hindu Law and Usage, 10th edition, paragraph 688 for the contention that no separate right’ of residence and maintenance cornels into existence under Hindu law merely because the husband has taken a second wife. Attention was invited, in this connection, to the case of Bommadevara Naganna Nayudu Bahadur v. Bommadevara Rajya Lakshmi Devi Amma Garu A.I.R 1928 P.C 187.. The contention of learned counsel for the husband appellant is correct that under pure Hindu law, the mere second marriage of a husband does not entitle the wife to separate residence and maintenance.
6. Learned counsel for the husband appellant then argued that inasmuch as the second marriage took place in or about 1935, the wife could not claim the benefit of Act XIX of 1946 which was not in force in 1935. That Act sets out, among other grounds for claiming separate residence and maintenance, a ground in the following words:—
“(4) If he marries again (The reference is to the marriage of the husband).”
7. It is contended that Act XIX of 1946 will only apply to a case where the second marriage has been solemnised after the coming into force of Act XIX of 1946 and not to a case where the marriage was solemnised before the coming into force of that Act. This contention of learned counsel is supported by the Division Bench case of Laxmibai Wamanrao Dalvi…(Original Plaintiff), v. Wamanrao Govindrao Dalvi…(Original Defendant), .* A.I.R 1953 Bom. 342.. There it was held that sub-clause (4) of Sec. 2 of the said Act was remedial in character and imposed a new liability on one parity and conferred fresh rights on another and it was not retrospective. It was held that the words “If he marries again” meant “If he marries again” after the Act comes into force”.
8. The same view was taken in Sukhribai v. Pobkalsing A.I.R 1950 Nag. 33..
9. In the Madras High Court, there is a difference of opinion. In Lakshmi Ammal v. Narayanaswami Naicker A.I.R 1950 Mad. 321., the opposite view was taken, but this decision did not find favour with the learned Judge of the same court who decided the case of Sidda Setty v. Muniamma A.I.R 1953 Mad. 712..
10. The matter has also been discussed in Anjani Dei v. Krushna Chandra A.I.R 1954 Orissa 117., Mr. Justice Mohapatra, who was one of the members of the Division Bench in that case, did not express himself on the question whether Sec. 2, Sub-clause (4) would apply to a case where the husband had married for the second time before the Act came into operation because the finding of both the learned Judges was that the husband had been guilty of abandonment for unjustifiable cause, and his conduct even otherwise would amount to cruelty in law which entitled the wife to separate residence and maintenance. The learned Chief Justice, Panigrahi, C.J, however, did consider the question whether Sec. 2, sub-clause (4) of the Act applied in the case of a second marriage solemnised before the Act. He seemed to be of the view that the view expressed in the Nagpur High Court as quoted here after was not correct. Their Lordships of the Nagpur High Court in Lakshmi Ammal v. Narayanaswami Naicker had remarked as follows:—
“It is obvious that before this Act was passed neither Hindu custom nor statute law, nor the dicta of Judges allowed the wife to live separate from her husband if he married a second time.”
11. The learned Chief Justice expressed his inability to accept this statement of the position as made by their Lordships of the Nagpur High Court and he thought that the contrary was established by the cases referred to in his own judgment. It appears that none of the cases so referred to by this learned Chief Justice are pure cases merely of a husband re-marrying. Therefore, the learned Chief Justice's observation that “The Hindu Women's Right to Separate Residence and Maintenance’ Act, 1946, merely gave statutory recognition to the previous dicta of Judges who had on several occasions applied this principle to the facts of individual cases” does not with all respect seem to the quite accurate. The relevant discussions in Mulla's Principles of Hindu Law and Mayne on Hindu Law and Usage have already been referred to by me. Moreover, since the decision in the Orissa case was based on another point, the observations of the learned Chief Justice in regard to the retrospecture nature of Sec. 2 sub-clause (4) of the Act appear to be in the nature of an obiter dictum.
12. In Baijnath Dharamdas v. Hiraman Ram Rasik,7 a view, opposite to that taken by the Bombay High Court, has been taken. Reliance was placed on the Madras High Court's case of Lakshmi Ammal.
13. As pointed out earlier, this latter view has not found favour with another learned Judge of the Madras High Court in Sidda Setty v. Muniamma.
14. In my view, with respect, the reasoning of the Bombay High Court, in Laxmibai Wamanrao Dalvi…(Original Plaintiff), v. Wamanrao Govindrao Dalvi…(Original Defendant), .*, is sound, and it must be held, upon a construction of Act XIX of 1946, that the words “If he marries again” have reference to a marriage which is solemnised subsequent to the passing of the Act.
15. On behalf of the wife respondent, it was urged that even if a second marriage prior to the Act could not be availed of under Sec. 2, sub-clause (4) of the Act such a re-marriage did constitute a ‘justifiable cause’. On the other hand, it is contended that when the Legislature enacted that only a second marriage subsequent to the coming into force of the Act would afford a ground for claiming separate residence and maintenance, then it must be held that a second marriage prior to the coming into force of the Act by itself would not be a ‘justifiable cause’ for granting the wife separate residence and maintenance. There seems to be force in this contention. Sec. 2, sub-clause (7) of the Act must be read keeping in view the other sub-clauses of that section. Further as I have already pointed out, pure Hindu Law did not give the wife a right of separate residence and maintenance in a case where the husband had re-married. The contention of learned counsel for the wife respondent must, therefore, be rejected.
16. The result, therefore, is that I allow this appeal and set aside the judgments and decrees of the courts bellow and dismiss the suit. In the circumstances, parties will bear their own costs throughout. I consider that this is a case in which leave to file a special appeal should be, granted and I order accordingly.
17. Appeal allowed.