Chagla, C.J:—
[After narrating facts the judgment proceeded]
Now, with regard to the right of plaintiff No. 1 to claim maintenance it is perfectly true that before a Hindu wife becomes entitled to separate maintenance she must satisfy the Court that she had a justifying cause which compelled her to leave her husband and live separately. What a justifying cause would be would depend upon various circumstances. It would depend upon the particular period in history when the incident happened. It would depend upon the habits and ideas of people living at the particular time. It would also depend upon the social statuts of the parties. It may be as the learned judge points out that 50 or 100 years ago concubinage was not looked upon with disfavour by members of the Hindu community but the position is clearly different when we are dealing with the period of this suit namely 1944. It is impossible to suggest that a Hindu wife is not fully justified in leaving her husband's house if he brings a concubine to live with him permanently and transfers his affections from his wife to the concubine and because of the concubine there are continuous quarrels and disputes between the husband and the wife. In order to justify a Hindu wife leaving her husband's house it is not necessary that there should be physical cruelty; even mental cruelty would be sufficient to justify the wife in living separately and it cannot be stated that a wife does not suffer mental cruelty when she finds her husband transferring his affection from her to which she is entitled to another woman whom he has brought to live with him. As far as the case decided in Appalamma v. Yellayya the test that was there laid down was that the question in each case would be whether the conduct of the husband was such that the wife, consistently with her self-respect and with due regard to her position as a wife, can live in the house of her husband. In our opinion it cannot be said certainly not in the year in which the suit was filed that a wife can, consistently with her self-respect and with due regard to her position as wife live with her husband when her husband has brought a concubine to live with him. Mr. Madbhavi has drawn our attention to the fact that the only authorities which are available on this point merely go to show that a wife is justified in leaving her husband if a concubine is brought to live in the same house in which the wife is living and Mr. Madbhavi says that the Defendant has shown sufficient consideration in not bringing the mistress to live in the same house but in a separate house. These decisions merely give one justifying cause which would entitle a wife to leave her husband but it is not possible to argue that one can draw an inference from these cases that the converse of it is true viz., that in a case where a husband has brought a concubine and made her live in a separate house the wife would not be justified in leaving her husband's house and claiming separate maintenance. Mr. Madbhavi has also drawn our attention to a recent piece of legislation which confers important rights upon a Hindu wife viz., Act XIX of 1946. Section 2 of that Act sets out the grounds which would entitle a wife to claim separate residence and maintenance and the sixth ground therein mentioned is if a husband keeps a concubine in the house or habitually resides with a concubine. It is clear therefore that under this Act habitual residence with the concubine by the husband would entitle a wife to separate residence and maintenance. Now Mr. Madbhavi argues that this is Hindu law after this Act was passed but it was not the Hindu Law before the passing of the Act. We are not prepared to accept that contention. This Act does not merely amend the Hindu law but it is also to a certain extent declaratory of Hindu law as it existed before the Act was passed. The first part of the sixth ground that if a husband brought a concubine in the house the wife would become entitled to separate maintenance was already a part of Hindu law when the Act was passed. I see no reason why it should be suggested that the second part of the sixth ground “if he habitually, resides with a concubine” was not also a part of Hindu law when this Act was passed. We are therefore of the opinion that the learned trial Judge was in error when he came to the conclusion that the plaintiff was not entitled to claim separate maintenance on the ground that it was impossible to live with her husband as he habitually resided with a concubine.
[The rest of the judgment is not material to the report.].
Order accordingly.
M.W.P