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M. Vasuntharadevi Ammah v. Dr. C.M. Ramakrishna Naidu

Madras High Court

Sep 3, 1947

Judgment

Subsequent
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Factual and Procedural Background

The plaintiff is the wife of the defendant. The suit, instituted on 24 January 1947, originally claimed (a) maintenance and (b) recovery of certain articles listed in schedules A to D; most articles were delivered to the plaintiff soon after institution and the trial was confined to the maintenance claim. The plaintiff sought arrears of maintenance at Rs. 200 per month from 1 October 1944 to the date of suit and future maintenance at the same rate.

Key factual sequence drawn from the opinion:

The parties married on 3 July 1942 and initially lived together from August 1942 until about June or July 1943.
In June/July 1943 the plaintiff went to her father's house (about two furlongs away) and thereafter did not return to live with the defendant; from July 1943 to about the end of December 1943 they did not live together as man and wife.
From January 1944, through the intervention of P.W.2 (Mr. Venugopal Naidu), the defendant began to visit and sleep at the plaintiff's father's house regularly until about October 1944, when a quarrel led the defendant to cease visiting.
In January 1945 the plaintiff once went to her father-in-law's house in connection with a marriage invitation visit and thereafter remained at her father's house.
The defendant married again on 1 September 1946.
On 11 October 1946 the plaintiff's advocate demanded maintenance and return of articles; the defendant, by reply dated 10 November 1946 via his advocate, offered the articles and Rs. 60 per month from 1 November 1946, and later withdrew the offer by a letter dated 23 December 1946. The plaintiff reiterated her claim on 8 January 1947 and instituted suit on 24 January 1947.
The plaintiff's claimed grounds for maintenance were cruelty by the defendant and his parents, abandonment/desertion by the defendant, and the defendant's second marriage.

Socio-economic and other background facts given in the opinion: the plaintiff is a graduate and daughter of a retired Assistant Surgeon; the defendant is the only son of a retired medical officer, received medical education in Great Britain, and by April 1946 had an approximate average income of about Rs. 400 (basic salary Rs. 300 with allowances). The plaintiff had monetary gifts (Postal Certificates of Rs. 6,000) from her father; the defendant's father gave Rs. 1,000 at marriage to be used for a jewel (deposited in bank when unmade).

Legal Issues Presented

Whether the plaintiff was entitled to separate maintenance for the period prior to and up to the institution of the suit (specifically from 1 October 1944), on the grounds of alleged cruelty, abandonment or desertion by the defendant and his parents.
Whether, under Section 2 of Act XIX of 1946 (which the opinion states came into effect on 53rd April, 1946), the plaintiff was entitled to separate residence and maintenance from the date of the defendant's second marriage (1 September 1946), one of the grounds in that section being "If he marries again".
What quantum of maintenance should be awarded to the plaintiff if entitled, and from what date; and relatedly whether the decree should include a clause permitting future variation of maintenance by court application without a fresh suit.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff alleged cruelty by the defendant and his parents (largely consisting of being required to do menial and disagreeable household work and delayed meals).
She alleged abandonment/desertion by the defendant (ceasing to live with her as husband and wife from about October 1944).
She further relied on the defendant's second marriage (1 September 1946) as a ground for separate residence and maintenance under the recently enacted Act XIX of 1946.
The plaintiff sought arrears of maintenance at Rs. 200 per month from 1 October 1944 and future maintenance at the same rate (although most of the articles claimed in the schedules were delivered early and that claim was not pressed at trial).

Defendant's Arguments

The defendant and his father denied the cruelty allegations, stating there was a servant maid and that household duties were performed by the mother; they said the plaintiff's description overstated discomfort.
By reply dated 10 November 1946 the defendant offered to deliver the articles and to pay Rs. 60 per month from 1 November 1946 or take the plaintiff back if she would return to live with him; subsequently he withdrew the offer.
Mr. Radhakrishnayya (for the defendant) contended that a Hindu wife who, under general law, was precluded from claiming maintenance because she was living apart without justification (i.e., had no justifiable cause for separation) could not take advantage of a supervening circumstance (the husband's second marriage) to become entitled to separate residence and maintenance. In short, prior unjustified separation should preclude reliance on the subsequent second marriage to claim maintenance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Venkapathi Nayani Varu v. Puttamma, 71 M.L.J. 499 : (A.I.R. (23) 1936 Mad. 609)	Authority refusing to insert in a decree a standing provision permitting parties liberty to apply for variation of maintenance; the Division Bench observed such a provision is not expedient and may amount to a standing invitation to apply for revision, and that the normal remedy by suit remains available.	The court relied on this authority to refuse the plaintiff's/parties' suggested provision for liberty to apply for variation in the decree and thereby declined to include any clause enabling variation without filing a subsequent suit.

Court's Reasoning and Analysis

The court conducted a step-by-step assessment, applying relevant legal principles to the facts as found on evidence:

On the cruelty allegation: the court reviewed the plaintiff's testimony that she was required to perform menial household tasks, had to eat late, and found the domestic environment uncongenial. The defendant and his father countered there was a servant and that the mother did the cooking. The court accepted that while the plaintiff may have found conditions uncomfortable and may have had meals later than she was used to, the evidence did not establish cruelty as legally relevant. The judge emphasized the Hindu law expectation that a wife ordinarily resides with her husband notwithstanding hardships, and observed that mere diminution of physical comfort or adjustment to a less affluent household does not by itself constitute cruelty warranting separate maintenance. On this basis the court rejected the cruelty claim.
On abandonment/desertion: the court considered the periods of separation. Although the plaintiff did not live with the defendant continuously after mid‑1943, there were periods (from January 1944) where the husband regularly visited and slept at her father's house, and the parties disputed the reasons for the final cessation of visits after October 1944. The court found that the plaintiff failed to establish abandonment or desertion by the defendant adequate to support an entitlement to separate maintenance for the period prior to the defendant's second marriage. Issue 1 (entitlement prior to second marriage) was decided against the plaintiff.
On entitlement under Act XIX of 1946: the court examined Section 2 of Act XIX of 1946 (quoted in the opinion) which, subject to the stated proviso, grants a Hindu married woman entitlement to separate residence and maintenance on specified grounds, one of which (sub‑clause (4)) is "If he marries again." The court noted that the Act came into effect (as stated in the opinion) on 53rd April, 1946, and that the defendant's second marriage occurred on 1 September 1946.
The court rejected the defendant's contention (advanced by Mr. Radhakrishnayya) that a wife who was living apart from her husband without justification prior to the second marriage cannot, by reason of that second marriage, obtain separate maintenance. The reasoning was that under Hindu law the wife's right to maintenance while living apart without justification is suspended but not forfeited (so long as she is not living apart for an improper purpose such as adultery). Therefore, at the time of the defendant's second marriage the plaintiff's right to maintenance was not lost and she could rely on the statutory ground of the husband's subsequent marriage to claim separate residence and maintenance.
On the date from which the statutory entitlement arose and the effect of demand: the court held the plaintiff became entitled from the date of the second marriage (1 September 1946). Although the plaintiff's formal demand was made in October 1946, the court observed demand does not create the right (though it may affect arrears), and allowed the claim for the short period from 1 September 1946 to the date of the demand (11 October 1946).
On quantum of maintenance: having regarded the defendant's approximate income (about Rs. 400 per month around the time of the suit), the defendant's family obligations (including the second wife), and the need to consider the life the plaintiff would have led had she resided with the defendant ( i.e., according to his status and manner of living, not the plaintiff's father's higher standard), the court fixed maintenance at Rs. 80 per month as reasonable and proper.
On variation clause in the decree: the court considered but declined to include a term granting the parties liberty to apply to the court for variation of maintenance without filing a fresh suit. It relied on the reasoning in Venkapathi Nayani Varu v. Puttamma (cited) which disapproved inserting such a standing provision, and concluded it would not be justified to include such liberty in the decree.
On practical modalities and costs: the court ordered the maintenance to be paid on or before the 18th of each month going forward; maintenance for the period 1 September 1946 up to the decree was to be paid in instalments of Rs. 60 per month due on or before the 15th of each month. As to costs, the court awarded costs to the plaintiff for her claim for maintenance from 1 September 1946 at the rate allowed, but directed that the plaintiff pay the defendant's costs relating to the unsuccessful claim for arrears from 1 October 1944 to 1 September 1946. For the claim to recover articles, since that claim was satisfied shortly after institution but the defendant had earlier withdrawn an offer, the court held the plaintiff was justified in instituting suit and awarded her costs on that claim on the uncontested scale.

Holding and Implications

Holding:

The court held that the plaintiff was not entitled to separate maintenance for the period prior to the defendant's second marriage (Issue 1 decided against the plaintiff), but that she was entitled to separate residence and maintenance under Act XIX of 1946 from 1 September 1946 (Issue 2 decided for the plaintiff).

Direct effects and orders made by the court (as stated in the opinion):

The plaintiff is awarded maintenance at the rate of Rs. 80 per month from 1 September 1946 onward. Future maintenance is to be paid on or before the 18th of each month.
Maintenance for the period from 1 September 1946 up to the date of the decree is to be paid in instalments of Rs. 60 per month, each instalment to be paid on or before the 15th of each month.
Costs: the plaintiff is entitled to costs in respect of her maintenance claim from 1 September 1946; the plaintiff must pay the defendant's costs for the unsuccessful part of her claim for arrears from 1 October 1944 to 1 September 1946.
On the claim for delivery of articles, although the articles were returned shortly after institution, the plaintiff was justified in bringing the claim and is entitled to costs on that claim on the uncontested scale.
The court declined to include in the decree a general provision giving liberty to the parties to apply for variation of maintenance without filing a suit, relying on the cited precedent.

Implications beyond the parties: The opinion contains no extended pronouncement as a new precedent. The court applied the statute (Act XIX of 1946) and existing precedent on procedural content of decrees; the practical consequence is the award to the plaintiff for the statutory ground of the husband's remarriage and the denial of the earlier arrears claim. No broader doctrinal change or newly stated legal principle beyond the application of the statute and cited precedent was articulated in the opinion.

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JUDGMENT

1. The plaintiff is the wife of the defendant. The suit originally comprised two claims, a claim for maintenance and a claim for recovery of certain articles set out in schs. A to D to the plaint or their value. Soon after the institution of the suit, most of the articles claimed were delivered to the plaintiff and she has not pressed her claim as regards the rest. The trial was therefore confined to her claim for maintenance. The suit was instituted on 24th January, 1947. The plaintiff claims arrears of maintenance at Rs. 200 a month from 1st October 1944 up to the date of the institution of the suit and future maintenance at the same rate. The plaintiff is the daughter of a retired Assistant Surgeon in the medical department of the Government of Madras and she is a graduate. The defendant is the only son of a retired medical officer employed by the Corporation of Madras. He received medical education in Great Britain and at the time of the suit he was employed as a medical officer to the Madras Electric Supply Corporation Ltd., and the Madras Electric Tramways Ltd. The parties are Hindus.

2. The plaintiff was married to the defendant on 3rd July, 1942. She joined her husband and commenced living with him in his house from August 1942. It is common ground that she continued to live with her husband in his house till June or July 1943. In June or July 1943, she went to her father's house which according to the evidence is about two furlongs from her husband's house and she never again returned to her husband's house to stay with him. In June 1943 the defendant's mother fell seriously ill and she was admitted into the Stanley Hospital, Royapuram, where she remained for nearly a month. The plaintiff went with her husband, to visit her mother-in-law once in the hospital but admittedly she did not stay with her husband in his house during the time her mother-in-law was in the hospital. From July 1943, till about the end of December 1943 the plaintiff and the defendant did not live together as man and wife. In January 1944 it is again common ground that on account of the intervention of P.W 2, Mr. Venugopal Naidu, a pleader practising at Erode and the husband of the plaintiff's cousin, the defendant began to regularly visit the plaintiff in her father's house. According to the evidence the defendant did not remove himself from his house and go to live with his wife in her father's house but he admits that he was meeting the plaintiff practically every day and sleeping every night in her father's house. He was also taking his food there almost regularly though he kept most of his clothes and other belongings in his parent's house. This state of affairs went on till about October 1944 when there was certainly a quarrel between the plaintiff and the defendant. There is conflict of evidence as to why and over what the plaintiff and the defendant quarrelled, but it is admitted by both sides that after October 1944 the defendant ceased to visit the plaintiff in her house. Sometime in January 1945, the plaintiff did go once to her father-in-law's house. She went with her uncle and aunt of whose object there can be no doubt, namely, to invite the defendant and his parents to a marriage. The plaintiff left with her uncle and aunt and did not stay away in her husband's place. Thereafter she never left her father's place up to date. On 1st September, 1946 the defendant married again. On 11th October, 1946, under instructions from the plaintiff her advocate called upon the defendant to pay her maintenance, past and future, and return the articles set out in the notice. The defendant appears to have met the plaintiff in person after the receipt of this notice; but the patties are not agreed as to what exactly happened at the interview. On 10th November, 1946, the defendant replied through his advocate to the demand made in the plaintiff's notice of 11th October, 1946. In his reply he stated that the plaintiff was at liberty to take the articles together with a pass-book belonging to her and that he was ready and willing to take her back if she would come and live with him and if she was not willing to that course, he would provide her with residence and arrange for her comforts and was prepared to pay her Rs. 60 a month from 1st November 1946. On 27th November, 1946, the plaintiff's advocate acknowledged this reply by the defendant's advocate and stated under instructions from the plaintiff that the offer made as regards maintenance was inequitable and not fair and that the plaintiff was compelled to seek redress in a Court of law. The defendant was also called to deliver the articles to the advocate on behalf of the plaintiff. After the exchange of these notices on 23rd December, 1946 the defendant addressed directly a letter to the plaintiff in which he withdrew his offer of Rs. 50 per month as well as the offer to deliver the articles claimed by her. The plaintiff replied to this letter on 8th January, 1947 reiterating her claim and finally the suit was instituted as already mentioned on 24th January, 1947. The plaintiff's claim for maintenance was based on three grounds. She alleged cruetly on the part of the defendant and his parents, abandonment and desertion by the defendant and the second marriage of the defendant. Paragraph 12 of the plaint sums up her case as follows:

“The plaintiff therefore states that by reason of acts of cruelty against her so as to render it unsafe or undesirable for her to live with the defendant and by reason of her being completely neglected and deserted by the defendant at any rate from October 1944, if not earlier, without her consent and against her wish and ultimately by reason of the defendant taking another wife, the plaintiff is entitled to claim separate maintenance against the defendant.”

3. It is quite clear that so far as the third ground is concerned, her right, if any, could only commence from the date of the second marriage, that is, 1st September 1946, and this ground can only be supported by the provisions of Section 2 of the Act XIX[19] of 1946 which came into effect on 53rd April, 1946. It is, therefore, necessary to determine whether the facts established by her entitle her to claim provision for separate residence and maintenance from 1st October 1944 and also to determine whether under the provisions of the Act she would be entitled from 1st September 1946.

4. It is necessary to state a few further facts to help in the proper appreciation of the evidence. The defendant returned from Britain in 1940. Though he was able to secure certain medical degrees and qualifications, he was not able to get any employment till April 1944 when with the help of P.W 2 he got a temporary employment with the Buckingham and Carnatic Mills. This lasted only till December 1944. He was again unemployed from January 1946 to the end of March 1945. It as only in April 1945 that he secured an employment with the Madras Electric Supply Corporation and the Madras Electric Tramways. The defendant's father is a retired medical officer drawing a pension of about Rs. 50. The defendant was residing at all material times with his father and mother in a house which according to the evidence belonged to the defendant's mother. There is also some evidence that the defendant's mother owned another house which fetched a rent of about Rs. 40.

5. The plaintiff's father made a gift of Rs. 6000 to the plaintiff in the shape of Postal Certificates which had already been purchased an her name. At the time of the marriage, the defendant's father presented the plaintiff with a sum of Rs. 1000 which sum was intended for a jewel to be made for the plaintiff's use. The jewel was not, however, made but the amount was deposited in the bank.

6. The cruelty alleged by the plaintiff in the plaint and deposed to by the plaintiff in her evidence consists largely in having been made to do menial work involving discomfort. The plaintiff stated in her evidence that she was made to sweep the house, cook for the family, clean the vessels and practically made to do all the work of the house. She was not able to take her food before 3 or 3-30 p.m According to her case, there was no servant in the house. The defendant and the defendant's father on the other hand, say that there was a servant maid who did the sweeping and cleaning of the vessels and other miscellaneous work and the defendant's mother did the cooking. The plaintiff confessed in cross-examination that in her father's house she had never done any cooking though she said that she knew how to cook. It is quite probable that the defendant's mother expected the plaintiff to help her with the work of the house-hold and that the plaintiff found the work not to her taste. It is also probable that not having been used to do any work in her father's house she found that it was positively uncomfortable for her to even help her mother-in-law with the work of the house-hold. It can also be imagined that having been brought up in heir, father's house in a state of comparative affluence and also having spent most of her, time in her studies, she found the atmospheres of her husband's house most uncongenial. I think she is exaggerating when she says that she could not take her food before 3-30 p.m though I am prepared to believe that she was compelled to take her food at an hour much later than she was accustomed to in her father's, house. But she admitted that every one else, her husband also took their food at the same time; it was not as if they all had their food and she was left starving.

7. I do not think it is necessary to dwell at any length on this part of the case because even assuming all that the plaintiff says is true and not exaggerated to any extent, it cannot be said that the discomfort suffered by the plaintiff was due to cruelty on the part of either the defendant or his parents. If that were the case, every daughter of a rich man married to a poor husband would automatically be entitled to a decree for separate maintenance. Though it is true that Courts have refused to treat a wife as a chattel belonging to her husband, Courts have certainly not departed from the Hindu law, usage or sentiment in one respect, namely, that the place of a Hindu wife is with her husband in sickness, as well as in health, in affluence as well as in poverty. The strict rule no doubt would go to the extent of enjoining her to be with her husband in spite of even bad treatment or even when the husband is afflicted with a loathsome disease like leprosy. But Courts have to a slight extent departed from the strictness of the rule and have permitted a Hindu wife to claim separate maintenance and residence for certain justifiable causes. But I have not come across any case in which it has been held that diminution of physical comfort in her husband's house would be a cause justifying her to live away from her husband and claim separate maintenance. The evidence in this case, so far as this aspect is concerned, does not go further. [After considering the evidence relating to abandonment and desertion his Lordship proceeded:]

8. I therefore hold that as the plaintiff has failed to establish cruelty or abandonment or desertion, she is not entitled to claim separate maintenance for the period prior to the defendant's second marriage. Issue 1 is decided against the plaintiff.

9. The defendant's second marriage by itself would not have furnished the plaintiff with a cause of action prior to the passing of Act XIX[19] of 1946. Section 2 of that Act provides thus:

“Notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds.”

10. And one of such grounds is contained in sub-cl. (4) which says “If he marries again”. Prima facie the plaintiff as a Hindu married woman would be entitled to separate residence and maintenance on the ground that the defendant has married again. Section 2 contains a proviso which is in these terms:

“Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by change to another religion or fails without sufficient cause to comply with a decree of competent Court for she restitution of conjugal rights.”

11. Obviously none of the alternative conditions is present in this case to preclude the plaintiff from claiming separate residence and maintenance.

12. Mr. Radhakrishnayya, the learned advocate for the defendant, contends that if a Hindu married woman is precluded from claiming maintenance under the general law because of the absence of any justifiable cause for living away from her husband, she cannot take advantage of a supervening circumstance like the second marriage and become entitled to separate residence and maintenance. Taking the facts of this case, the position is that prior to 1st September 1946, the plaintiff was no doubt living away from her husband for no justifiable cause and therefore was not entitled to separate I residence and maintenance. But it has not been suggested that she was living apart from her husband for any improper purpose. Under the Hindu law, a wife living apart from her husband but for no improper purpose though without justification may at any time return and claim to be maintained by her husband. Her right is not forfeited but only suspended during the time she commits breach of duty by living apart. The position therefore was that the plaintiff could have at any moment changed her mind and come back to her husband and claimed to be maintained by him. She had not lost her right to be maintained which would have been the case if she was living apart for any improper purpose, as for instance adultery. The plaintiff therefore at the time of the second marriage of the defendant had not become disentitle to be maintained by the defendant and under the Act she could rely upon this ground, namely, the second marriage, to claim separate residence and maintenance from her husband.

13. I therefore hold that from the date of the second marriage at the earliest the plaintiff was entitled to separate residence and maintenance. The demand was actually made only in October 1946. But it has often been held that it is not the demand that confers a right on the wife or the widow to maintenance, though the date of the demand might be taken into account in granting a decree for arrears. In this case having regard to the short time which elapsed after the date of the second marriage before she made the demand through a lawyer, I see no reason to disallow her claim for the period between 1st September 1946 and 11th October, 1946. On issue 2, I hold that the plaintiff is entitled to separate residence and maintenance under Act XIX[19] of 1946 from 1st September 1946.

14. The next question is what is the rate of maintenance to be allowed to the plaintiff. From April 1946 the defendant had been in receipt of a basic salary of Rs. 300 and varying amounts for dearness and other allowances. He has also been in receipt of special allowances for visits made by him to the patient's houses. At about the time of the institution of the suit the approximate average income of the defendant might be put at Rs. 400. But the defendant says that on account of the taking over of the Madras Electric Supply Corporation by the Local Government his salary is likely to be affected as he would hereafter be the medical officer for the Madras Electric Tramways only; though the defendant is unable to say how exactly. The amount allowed to him for dearness and other allowances may also be subject to variation. In fixing the quantum of maintenance I must have regard not to the life which the plaintiff was accustomed to lead in her father's house but to the life which she Would have led if she had resided with the defendant according to his status, social habits and manner of living. Whether the addition of the second wife can or cannot be taken into consideration in fixing the maintenance, it is reasonably clear that provision will have to be made for the contingency of the defendant having a family. Having regard to all the circumstances, I consider that an amount of Rs. 80 a month would be reasonable and proper.

15. Mr. Radhakrishnayya suggested that the decree might provide for liberty to the parties to apply to the Court for variation of the rate of maintenance in the event of change of circumstances. I myself was inclined to make such a provision as it would obviate the necessity of filing a suit by either side for the purpose. But I find that in Venkapathi Nayani Varu v. Puttamma Nagith, 71 M.L.J 499 : (A.I.R (23) 1936 Mad. 609), a Division Bench of this Court refused to insert such a provision in the decree. The learned Judges say:

“We are by no means sure that this will be strictly in accordance with the provisions of the Code of Civil Procedure. But even apart from that consideration, we do not think it expedient to insert any such provision in the decree, because it will merely be a standing invitation to the parties to avail themselves of that liberty. If really either party thinks that there has been such a change of circumstances as to justify a revision of the rate of maintenance, the remedy by way of suit will always be available.”

16. Having regard to these observations of the learned Judges I will not be justified in making such a provision in the decree.

17. The plaintiff will, therefore, be entitled to a decree for Rs. 80 a month from 1st September 1946. The amount of maintenance shall be paid hereafter on or before the 18th of each month. The maintenance payable to the plaintiff for the period from 1st September 1946 up to the date of the passing of the decree shall be paid in instalments of Rs. 60 each month to be paid on or before the 15th of each month.

18. Aa regards costs, the plaintiff will be entitled to her costs in respect of her claim for maintenance from 1st September 1946 at the rate allowed to her. But as I have held against her claim for arrears of past maintenance from 1st October 1944 till 1st September 1946, she shall pay to the defendant the costs, as regards this part of her claim.

19. So far as the claim for the delivery of articles is concerned, the claim was satisfied immediately after the institution of the suit; but having regard to the defendant's letter dated 23rd December, 1946 it cannot be said that the plaintiff was not justified in instituting a suit to obtain a relief in respect of the articles.

20. The plaintiff will be entitled to her costs on this claim but on the uncontested scale.

C.R.K/G.N

21. Order accordingly.