1. An interesting question of law is raised in this appeal. The 1st defendant is the appellant. The Plaintiff is his wife and his father is the 2nd defendant in the suit. The plaintiff filed the suit for maintenance and for recovery of jewels.
2. The plaintiff's case briefly is that the 1st defendant deserted his first wife Balanarasamma and married her in January, 1955. They lived together till 1967 when the 1st defendant began to ill-treat her and ultimately drove her out of the house. The 1st defendant denied the marriage with the plaintiff.
3. The learned District Munsif dismissed the suit holding that the 1st defendant married the plaintiff in October, 1955, after Hindu Marriage Act, 1955, came into force on 18-5-1955 and, therefore the marriage was void under Section 5 read with Sec. 11 of that Act, and consequently the plaintiff was not the legal wife of the 1st defendant entitled to any maintenance.
4. Against that decree, the plaintiff filed an appeal before the District Judge, Cuddapah. The learned District Judge held that the 1st defendant married the plaintiff in October, 1955. So it was not valid under the Hindu Marriage Act since the 1st defendant was having another wife. He further held that even asuming that the marriage between the plaintiff and the 1st defendant took place in January, 1955 even then the marriage would be invalid under the provisions of Section 5 of the Mardras Hindu (Bigamy Prevention and Divorce) Act 1949. So he held that the plaintiff was not entitled to any maintenance as the legally wedded wife of the 1st defendent. A contention was advanced before him that the plaintiff should be treated as Avarudha Sthree i.e, a permanently kept concubine of the 1st defendant and so she is entitled for maintenance under Hindu Law. The learned District Judge held that the status of the plaintiff was higher than that of Avarudha Sthree because the marriage was in fact solemnized and, therefore, she was entitled for maintenance. He awarded a sum of Rs. 80/- P.M towards her maintenance including her residential allowance and the expenses towards her clothing. He also directed that the 1st defendant should return 6 Tolas of Gold chain and 4 Tolas of gold Nanu or their Value of Rs. 2000/- to the plaintiff.
5. Aggrieved by that decree, the 1st defendant has preferred this appeal. Both the parties have not rightly canvassed before me the findings of the lower courts on questions of fact. The learned counsel for the appellant has raised before me two contentions. First, a permanently kept concubine is not a dependent within the meaning of Section 21 of the Hindu Adoptions and Maintenance Act, 1956, and, therefore, she is not entitled for any maintenance. Secondly, even assuming that the plaintiff is to be treated as an Avarudha Sthree i.e a permanently kept concubine, still she is not entitled to claim any maintenance so long as the paramour is alive and her right is only to claim maintenance after his death. In reply the learned counsel for the respondent has argued that even assuming that the plaintiff was married to the 1st defendant in October, 1955, after the Hindu Marriage Act has come into force still she would be entitled for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956.
6. Section 21 of the Hindu Adoptions and Maintenance Act has no application since it defines the dependants of the deceased who can claim maintenance from his heirs. If the plaintiff is to be treated as an Avarudha Sthree, she would not also be entitled to claim any maintenance during the life time of the 1st defendant. The next question is whether the plaintiff would be entitled for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act 1956. Section 18 of that Act to the extent it is relevant reads as follows:—
“Sec. 18(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be 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,
Clauses (a), (b) and (c) omitted.
(d) if he has any other wife living.”
7. The Act does not define a Hindu wife. Sub-Section (1) of Section 18 says that a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband. This Act came into operation on 21st December, 1956, Sub-Sec. (2) of Sec. 18 says that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living. Reading these two Sub-sections together, it is clear that a Hindu wife whether married before or after the commencement of this Act, is entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living. Both the lower courts have found that the plaintiff was in fact married to the 1st defendant in October, 1955, i.e, before this Act has come into force. It is not also disputed that the 1st defendant has another wife living. Therefore, both the requirements of Section 18 are satisfied and consequently the plaintiff is entitled for maintenance. I am not prepared to interpret the words “Hindu Wife” in section 18 as a wife whose marriage is valid according to the provisions of Hindu Marriage Act for the provisions of Hindu Adoptions and Maintenance Act do not warrant such an interpretation. Such an interpretation will render the provisions of Section 18 otiose for, after the Hindu Marriage Act has come into force, there could be no legally wedded wife if another wife is living. So reading Sec. 18 without any limitations I hold that a Hindu wife contemplated by that Section, means a Hindu wife whoso marriage is solemnized.
8. The problem can also be viewed in the light of the provisions of Hindu Marriage Act, 1955. Under Sec. 13 of that Act, any marriage solemnized, whether before or after the commencement of that Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce. A wife may present such a petition on the ground that in the case of any marriage solemmized before the commencement of that Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of her marriage provided that in either case the other wife is alive at the time of the presentation of the petition. Under Section 25 of the said Act a Court at the time of passing a decree or at any time subsequent thereto, on application made to it for the purpose by the wife order that the husband shall, while the wife remains unmarried, pay to her for her maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the wife. Under Section 27 of that Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and wife. Thus even under the provisions of the Hindu Marriage Act a wife whose marriage was solemnized before the commencement of that Act is entitled to maintenance even if her marriage is void on the ground that her husband was having another wife living by the date of the marriage and on the date of presention of the petition for divorce. Any other interpretation of Section 18 of the Hindu Adoptions and Maintenance Act will lead to startling results. An unscrupulous married man may be beguie an unwary woman into matrimony and thereafter turn her out and say “our marriage is void and I need not maintain you”. In fact there could be no better illustration than the present case. The 1st defendant has married the plaintiff in October, 1955 and has lived with her for nearly 12 years and deserted her. It could not have been the intention of the Legislature that such a woman is not entitled for any maintenance. So I do not agree with the finding of both the lower courts that the plaintiff is not the wife of the 1st defendant. I confirm the decree passed by the learned District Judge, though for a different reason.
9. In the result, this Second Appeal fails and is dismissed, but in the circumstances of the case without costs. Leave granted.