(Natarajan, J.)
1. The defendant, again whom a decree for maintenance was passed by the learned Subordinate Judge, Tiruchirapalli, in O.S No. 374 of 1967 on the file of his court, is the appellant and the plaintiff therein is the cross, objector. Admittedly, the defendant married the plaintiff in the year 1945 according to Hindu Sastra and they lived together as husband and wife for about three years. The plaintiff concieved through the defendant and delivered a female child and it is the plaintiff's case that about 8 months after she gave birth to the child called Jaya, the defendant beat her and drove her out of the house. The reason for the ill-treatment, according to the plaintiff, is that the defendant, sought her consent and permission to take a second wife and when she did not oblige him by giving her consent to the second marriage, the defendant became enraged with her and resorted to beating and ill-treating her. After driving out the plaintiff, the defendant is said to have married one Neelambal, as his second wife in the year 1953 at Karaikal and brought over the said Neelambal to his house in order to lead life with her. The plaintiff averred that by reason of the cruel treatment meted out to her by the defendant and by reason of his taking a second wife, it was no longer possible for her to return to her marital home and spend the rest of her life under the care and protection of the defendant, and would even go to the extent of saying that she genuinely apprehended danger to her life if she were to seek umbrage in her husband's house. The plaintiff thus justified her living away from her husband. She prayed for a decree for maintenance and raiment, and, alleging that the husband was possessed of immovable properties as well as valuable movables in the form of jewels, cattle, shares in business, etc., besides, possessing liquid cash of considerable magnitude and also having an income of Rs. 5,000 per mensem from out of two rice mills owned by him, the plaintiff wanted that she should be granted maintenance at the rate of Rs. 150 per month and Rs. 25 per month for separate residence, and Rs. 200 per month for wearing apparel.
2. Various defences were raised by the defendant to resist the action of the plaintiff. But even at the outset, it may be stated that the defendant did not deny having married Neelambal as his second wife, but only contended that such marriage did not take place in the year If 53 and at Karaikal as alleged by the plaintiff, but that it took place on 9th February, 1949 and at Seppalapatti. The defendant denied having sought the permission and consent of the plaintiff for marrying again or having ill-treated the plaintiff when she refused to give consent therefor. While denying the plaintiff's contention that he drove her out of the house, the defendant would put forth a counter-version that it was the plaintiff who, of her own volition, went away from the marital home and that she even abandoned her eight months old child, when she left the house. After making some averments to the effect that the plaintiff took away with her valuable stems of jewels provided by him, the defendant would contend that as the separation was brought about by the plaintiff of her own accord, she was not entitled to separate maintenance, and, in any event, to lay any claim for past maintenance, as, by her sustained inactivity for a long number of years, she had raised a legitimate presumption in his mind that she had abandoned her claim for maintenance. With regard to the quantum of maintenance, the defendant pleaded that, through his second wife, he had as many as eight children, and that therefore, he had to support not only the second wife, but all the eight children born through her as well as his daughter, Jaya, whom the plaintiff had abandoned when she deserted him and went away to her parents' house. The defendant also denied having a large sum of cash and outstanding payable to him and stated that if at all the plaintiff was to be granted a decree for maintenance, a grant of R. 35 per month would be a just and reasonable one, and that too, only as future maintenance.
3. The learned Subordinate Judge set the following issues for trial:—
1. Whether the plaintiff is entitled to separate maintenance for all or any of the reasons stated in the plaint?
2. If so, to what rate is she entitled?
3. Whether the plaintiff is entitled to past maintenance, and if to, at what rate, and for what period? and
4. To what relief?
4. After a careful consideration of the evidence, the learned trial Judge came to the conclusion that the plaintiff had not proved the defendant meting out ill-treatment end cruelty. On the question of the second marriage, he held that the defendant's marriage with Neelambal must have been celebrated only on 9th February, 1949, and not in the year 1933, as was contended by the plaintiff, and that by reason of such second marriage, the plaintiff became entitled to separate residence and maintenance. With regard to the quantum of maintenance, the learned Subordinate Judge awarded maintenance at the rate of Rs. 75 per month and a further sum of Rs. 10 per month for clothing. He rejected the claim of the plaintiff for provision for separate residence as she was found to be living with her parents. With reference to the claim for past maintenance, he held that the dormant attitude exhibited by the plaintiff for a period of nearly 17 years disentitled her from claiming past maintenance for any appreciable length of time, and therefore, awarded her past maintenance only for about one month from the date she issued her suit notice, Ex. A.1 A charge was also created on items 1 to 3 of the plaint B schedule for the maintenance granted to the plaintiff. It is as against this judgment the defendant has preferred the appeal. Aggrieved by the non-grant of past maintenance for a longer period and the grant of maintenance at only Rs. 75 per month instead of the sum of Rs. 150 claimed by her, the plaintiff has preferred the memorandum of cross objections.
5. The principal point that was raised by the learned counsel for the defendant before us in this appeal is that, having regard to the case put forward by the plaintiff, the learned Subordinate Judge ought to have held that the plaintiff was not entitled to separate maintenance either under S. 18(2)(d) or S. 18(2)(e) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Central Act) and dismissed the suit. The contention of the learned counsel is that according to the plaintiff, the defendant married Neelambal only in the year 1953 and as such, the said marriage would be hit by S. 4(1) of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 (hereinafter referred to as the Madras Act), and therefore, Neelambal cannot be said to be the wife of the defendant. Consequently, he would argue that the plaintiff cannot invoke S. 18(2)(d) of the Central Act and contend that Neelambal is the wife of the defendant and by reason of the existence of the other wife, she is entitled to claim separate residence and maintenance. The further argument of the learned counsel is that since it is common ground that the defendant had married Neelambal and was keeping her as his mistress, Neelambal cannot be relegated to the position of a concubine, and therefore, the plaintiff cannot invoke the provisions contained in S. 18(2)(e) of the Central Act to sustain her claim for maintenance and separate residence. In support of his argument, the appellant's counsel placed reliance on a Bench decision of this court in Narayanasami Reddiar v. Padmanabha(1) where it was held that it is not possible in law to assign, to an unfortunate woman whose marriage is not valid according to the personal law governing the parties, a status in between that of a concubine and a wife. To appreciate the contentions of the learned counsel for the appellant, it is necessary to state certain facts and also to make reference to the relevant provisions contained in the Madras Act and the Central Act.
6. As we have already referred to above, it is the case of the plaintiff that her marriage with the defendant was celebrated in the year 1945 and about three years after that she was driven out of the house by she defendant. It is her further case (hat in or about the year 1953, the defendant married one Neelambal as his second wife. In the year 1954, the plaintiff, invoking to her aid S. 4 of the Madras Act, filed a criminal complaint against the defendant for having committed bigamy and sought for his conviction under S. 494, I.P.C Therein also, the plaintiff contended that the defendant had contracted the second marriage in the year 1953, i.e, after the coming into force of the Madras Act. One of the defences set up by the defendant to that case was that his marriage with Neelambal was celebrated even prior to the Madras Act coming into force, and therefore, he had not contracted any bigamous marriage. The defence of the defendant was accepted by the appellate court, though it is not clear which of the several defences was accepted and the defendant was acquitted of the charge of bigamy. Though plaintiff's contention that the second marriage of the defendant took place in the year 1953 was not accepted by the criminal court, and on the other hand, the defendant's contention that the marriage took place on 9th February 1949 before the Madras Act came into force was presumably upheld, the plaintiff, for some reason, took the very same stand in the present case also, and not only made averments in the plaint, but also gave evidence as P.W 1 to the effect that the defendant's marriage with Neelambal did take place only in the year 1953 and not prior to the Madras Act coming into force. The relevant portion of S. 4 of the Madras Act, wish which we are concerned in this action, reads as follows:
“S. 4: (1) Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man and a woman either of whom has a spouse living at the time of such solemnization shall be void whether the marriage be solemnized within or outside the Province of Madras;………
(2) If a party to a marriage which is void under sub-S. (1) has computed 18 years of age at the time of the solemnization of such marriage he or she shall be deemed to have committed an offence under S. 494 or S. 495 I.P.C, as the case may be…”
From the provision in the Madras Act as extracted above, it is clear that if the defendant had contracted his marriage with Neelambal subsequent to the Madras Act coming into force, the said marriage will be a void one. We may, in this context, make reference to the fact that though the plaintiff averred and also thought to prove that the defendant's marriage with Neelambal was performed only in the year 1953, and not on 9th February 1949 as was contended by the defendant, she was not able to place any material before the trial court to substantiate her plea, and no attempt was also made by the plaintiff's counsel before us to dislodge the finding of the trial court in this behalf. It has, therefore, to be held that the second marriage of the defendant did not take place subsequent to the Madras Act coming into force, but only prior to the enactment of the statute.
7. S. 18 of the Central Act reads as follows:—
S. 18(1). Subject to the provisions of this section a Hindu wife whether married before or after the commencement of this Act, shall he entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—
(a) if he is guilty of desertion that is to say of abandoning her without reasonable cause and without her consent or against her wishes, of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy,
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house In which he is living or habitually resides with a concubine elsewhere;
(f) if be has ceased to be a Hindu by conversion to another religions;
(g) if there is any other cause justifying her living separately.”
Having regard to the case set out by the plaintiff and the evidence adduced in that behalf, she can base her claim for maintenance only under S. 18(2)(d) or S. 18(2)(e) of the Central Act. As we have already referred to above, the defendant's counsel propounds the theory that the plaintiff cannot base her action either on S. 18(2)(d) or (e), because, according to the plaintiff, the second marriage which, the plaintiff claims, was celebrated in the year 1953, is void by reason of the Madras Act, and therefore, Neelambal cannot be termed as the wife of the defendant; even so, he would contend that in as much as the defendant had gone through the ceremony of marriage with Neelambal, she cannot be relegated to the inferior status of a concubine. Yet another contention put forth by the learned counsel in this behalf is that even if Neelambal is to be held to be a concubine of the defendant, the plaintiff cannot invoke S. 18(2)(e) to her aid because the section imposes the requirement that the concubine and the wife must be living in the same house or the husband must be habitually residing elsewhere with the concubine, if the wife is to seek maintenance from her husband on the ground that he has got a concubine. It is in this context, the defendant's counsel relied upon the Bench decision of this court in Narayanaswami Reddi v. Padmanabha to buttress his arguments. The Bench which was presided over by Veeraswami, J. (as he then was) and Kunhamed Kutti, J. had to deal with a case where a second wife who had been admittedly married subsequent to Madras Act coming into force, sought maintenance for herself and children from her husband. The trial court gave the wife maintenance, but on appeal, the Bench held that since the second marriage had taken place subsequent to the enactment of the Madras Act, the marriage was rendered void under S. 4(1) of the Madras Act, and it further held that the second wife cannot also be granted any such status as an illegitimate wife merely by reason of the fact that her union with the husband was in pursuance of a marriage which, though valid in all other respects, was, nevertheless, one not recognisable in law. We are unable to see how this decision can have application to the facts of the instant case and how it would advance the case of the defendants in any manner. By its pronouncement, the Bench categorically held that in law a woman can be given recognition either as the wife of a man or as his concubine and that there cannot be an intermediary class picturesquely described as an illegitimate wife. Therefore, Neelambal, whose marriage with the defendant is cot in controversy, must either be held the wife or the concubine of the defendant. It is therefore, necessary to find what status she enjoys and the impact such status will have in so far as the claim of the plaintiff for maintenance is concerned.
8. It is no doubt true that the plaintiff has averred in the plaint and has also deposed in her evidence that the defendant's marriage with Neelambal took place only in the year 1953. On that score, however, it is not possible to accept the defendant's contention that Neelambal cannot be termed as wife and the plaintiff granted maintenance on the basis that he has ‘any other wife living’ as stated in S. 18(2)(d) of the Central Act. We have to take note of the defendant's stand as well on this aspect of the matter, and thereafter only decide the status that is to be assigned to Neelambal. Even as early as in the year 1954 when the plaintiff filed a criminal complaint against him, the categorical stand of the defendant was that he married Neelambal before the Madras Act came into force and having attempted to prevail upon the criminal court to accept such a defence and acquit him, the defendant cannot wriggle out of the situation. Moreover, in the present case, also, the irretrievable stand of the defendant in his written statement as well as in his evidence is that he married Neelambal on 9th February 1949 and not in the year 1953. It is needless to say that in rendering a decision upon an issue which arose for consideration in any action, the court will have to take note of the stand taken by both the parties in the action and reach its conclusion only after adverting is mind to the conspectus of the entire situation. Viewed as above, we cannot close our eves to the categorical stand of the defendant and give she verdict on the case of the plaintiff solely with reference to her pleadings and her evidence. The persistence of the plaintiff in trying to project the story that the defendant's marriage with Neelambal was celebrated only in the sear 1953, despite such a version not having been accepted by the criminal court in the earlier proceedings in 1954, may either be due to the plaintiff's lack of knowledge of the exact time when the marriage was celebrated or out of her apprehension that unless a consistent case was pleaded by her throughout she would fail in her action for maintenance. In the very nature of things, the defendant who contracted the second marriage is a more competent person than the plaintiff to say as to when exactly he celebrated the second marriage. Furthermore, the defendant cannot also be allowed to take any advantage on account of any variance in the case set up by the plaintiff with the case of the defendant himself when such variance is really of no consequence. In as much as the defendant had admitted even in his written statement his marrying Neelambal before the Madras Act came into force, the plaintiff need not have adduced any evidence in order to rest her claim for maintenance under S. 18(2)(d) of the Central Act. We have therefore, no hesitation to discountenance the arguments of the learned counsel for the appellant that the plaintiff cannot base her claim for maintenance under S. 18(2)(d) of the Central Act.
9. One other contention which was raised before us by the learned counsel for the defendant is that the trial court ought not to have directed the defendant to pay the court fee of Rs. 1,208 to the Government. We see no merits in this contention. In as much as the defendant went to the extent of even denying the claim of the plaintiff for future maintenance, the trial court rightly called upon the defendant to pay the court fee due on the plaint.
10. In the result, we find that the appeal is devoid of any merit and deserves to be dismissed.
11. In the memorandum of cross-objections, the learned counsel for the plaintiff contends that the learned trial Judge ought to have awarded maintenance at a higher rate and should further have awarded past maintenance for at least a period of six years before suit. Learned counsel assailed the finding of the trial Judge that the plaintiff's inactivity for a long number of years must be construed as an abandonment of her claim for maintenance. He would contend that mere inactivity on the plaintiff's part in enforcing her right to maintenance ought not to be lightly construed as abandonment. He referred to the Bench decision in Guruswami Mudaliar v. Angayarkanaiammal, to which one of us was a party, where it was held that abandonment or waiver is not always one of law, and should not be deduced without reference to the pleadings and the evidence. Dealing with the question of abandonment, it was held as follows:
“A plea of abandonment or waiver is not always one of law and that is a matter which has to be expressly pleaded and proved, because, abandonment or waiver involves a conscious and deliberate act on the part of the person who has got a right to or interest in certain property which he or she deliberately and with the full knowledge of the existence of the right or interest gives up the same.”
In our opinion, mere reliance, by the learned counsel for the plaintiff, upon the dictum of law without reference to the facts of the case cannot advance the case of the plaintiff in any manner. Admittedly, the plaintiff was driven out of the defendant's house in the year 1950 and it is common ground that the defendant would not allow the plaintiff even to take away her eight month old baby. The version of the plaintiff is that she was driven out of the house, because, she refused to give consent to the defendant taking a second wife. As such, the plaintiff should have known even in or about 1950 that the gulf formed in her marital life had become unbridgeable, but still the plaintiff did not file any action to claim maintenance from the defendant. Even in the year 1954 when she filed a complaint against the defendant for the offence of bigamy, the plaintiff did not choose to call upon the defendant to pay maintenance to her, nor did she institute action against him in that behalf. When the criminal case ended in an acquittal after the defendant bad successfully contested the case and pleaded that he had married Neelambal validly prior to the Madras Act coming into force, the plaintiff failed to take advantage of the admission of the defendant and confront him with an action for maintenance. It is only after a period of about 13 years after the plaintiff filed unsuccessfully her complaint against the defendant and about 17 years after her separation, the plaintiff has come forward with her suit for maintenance. The defendant who, during the interregnum, had begotten as many as 8 children through his second wife, would have had every reason to think that the plaintiff's inactivity after the complaint filed by her in the criminal court ended in his acquittal, was clearly tantamount to abandonment or waiver of her right to claim maintenance from him. It is on account of such a mental presumption raised in his mind that the defendant has specifically averred in the written statement that by consistent conduct exhibited by the plaintiff over a long number of years, be had bona fide come to the conclusion that the plaintiff had either abandoned or waived her right to claim maintenance from him. Such a plea by the defendant has not been successfully met by the plaintiff either by way of a reply statement or by means of oral and documentary evidence, and consequently, we have to hold that in this case the defendant has successfully proved the plea of abandonment or waiver set up by him. There is, therefore, no merit in the contention of the plaintiff's counsel that the plaintiff should have been awarded past maintenance for at least a period of three years, if not for six years However, we agree with the learned counsel for the plaintiff that the grant of past maintenance by the learned trial Judge for a period of one month is indeed too short. The plaintiff is entitled to ask for maintenance at least for a period of one year prior to the filing of the suit.
12. With reference to the quantum of maintenance awarded by the learned trial Judge, the plaintiff's counsel would contend that, having regard to the status of the parties and the income of the defendant, the plaintiff ought to have been awarded maintenance at the rate of Rs. 100 per month besides a sum of Rs. 200 claimed by the plaintiff for clothing, etc. On a consideration of the evidence, we are of opinion that there is no merit in this contention. As has been pointed out by the learned trial Judge, the income derived from the lands, buildings, rice mill etc., would total only a sum of Rs. 11,000 per annum which works out to about Rs. 900 per mensum and, out of this sum, the defendant has to maintain himself, his second wife and his nine children. We, therefore, feel that the grant of a sum of Rs. 75 per mensum towards maintenance and Rs. 120 per annum towards clothing is just and reasonable and that the plaintiff is not entitled to any enhancement in respect of those amounts. However, as we have already stated above, the plaintiff deserves to be granted past maintenances for a period of one year as against her claim for six years. To this extent, the memorandum of cross-objections has to be allowed.
13. In the result, the appeal preferred by the defendant fails and is dismissed. The memorandum of cross objections preferred by the plaintiff will stand allowed in part in so far as the plaintiff is granted past maintenance at the rate of Rs. 75 per month and clothing allowance at Rs. 120 per annum for a period of one year prior of the filing of the suit. Each party will beer his and her respective costs in the appeal and the memorandum of cross-objections, but, however the appellant is directed to pay the court fee on the memorandum of cross-objections.
V.C.S