The Judgment of the Court was as follows:
Laik, J.:— This is a husband's appeal against an order passed by the learned Additional District Judge, Alipore allowing the wife's two applications, both in part, one— claiming for maintenance pendente lite and the other for costs of the proceedings.
1. The parties are Hindus. They were married according to Hindu rites on November 28, 1959. They have no issue. They are yet young. The husband is a Chartered Accountant, a permanent employee in the paper ‘Statesman’. The wife, according to her own statement, is a “B.A of the Calcutta University and diploma-holder in music and an artist of repute”.
2. In July, 1962, the application was filed by the respondent wife, for judicial separation, under Section 10 of the Hindu Marriage Act, 1955 (Act XXV of 1955), hereinafter referred to as the Act. It was rested on the grounds of the appellant husband's desertion, neglect and cruelty. The wife stated that she had no income to maintain and support herself. She claimed a sum of Rs. 400|- per month from the husband, to meet her maintenance of separate residence, her educational expenses for continuing the study at the All India Institute of Social Welfare and Business Management and also for legal expenses in respect of the said application. She also claimed for the return of ornaments and other movable articles stated in Schedule ‘A’ of the application. For the purpose of this appeal, it is unnecessary to go into full details of the various acts of ill-treatment, as alleged by the wife, on which the complaint of cruelty is based. The husband appellant however denies the whole of it. It is particularly stated by him, that the wife suffers from extreme and unnatural pride and prejudices. She exhibits false prides and superiority complex. She is not only full of vanity and egoism but has an over-bearing manner and unlimited conceit. Not only the husband but his family is being looked down upon by her. The wife's parents and her brother have interfering habits. The introlerable domineering character of the wife's mother created further troubles in the marired life. The wife created a scene even on the street on October 4, 1960 which led to the immediate parting. The charge of desertion was specifically denied by the husband. It was stated that he paid a good amount to his wife. He further paid Rs. 100|- on two occasions in August and October, 1961. She was stated to be also earning a substantial amount from the tutorial college. Except a few, he denied the retention of the articles, mentioned in the Schedule. The husband admits that his gross salary per month is Rs. 760]-and not Rs. 1200|-. In the additional written statement, containing many blank paragraphs which the court below should have noticed, the husband further stated that the wife obtained a search warrant against him on February 1, 1963 by making a false and reckless allegation. After continuous searches for more than six hours, she took away all her articles which were lying at the husband's place.
3. After the execution of the said search warrant by the wife, the first application under Section 24 of the Act was filed on the next day, i.e, on February 2, 1963. She claimed a sum of Rs. 1000|- towards the cost of the litigation. Within a week, the second application under the said Section, was filed by the wife claiming a sum of Rs. 400|- per month to meet her maintenance pendente lite as well as her educational expenses, as already stated. These form the subject-matter of the instant appeal.
4. The husband filed objections to both the applications. It was specifically stated that both the husband and the wife lived together at the husband's place from the first of December, 1962 till January 24, 1963 except for a few days and both of them co-habited, during the pendency of the application for judicial separation. It is therefore asserted as a special defence that the wife has condoned the alleged matrimonial offence, if any. As she therefore has no prima facie case to pursue her main and parent application for judicial separation, the instant applications are also not maintainable.
5. The husband deposed but the wife not. Her only witness is her father Sri Sushil Kumar Chatterjee, a lecturer.
6. The learned District Judge by his order dated May 18, 1963 allowed both the applications in part and directed the interim maintenance at the rate of Rs. 175|- per month and a lump sum of Rs. 500|- for meeting the costs of the proceedings. He finds: “It cannot be considered that the petitioner in this case has condoned the alleged cruelty to her by going to her matrimonial home and living with the respondent as husband and wife for about two months during the pendency of this proceeding,” The instant appeal of the husband is against the said order. There is no cross-objection by the wife.
7. Mr-. D.N Dos, the learned Advocate appearing on behalf of the wife-respondent takes a preliminary objection. He contends that no appeal lies against the impugned order. He repeats the same arguments, noticed in the Single Bench decision of P.N Mookerjee, J., in the case of (1) Go-pendra Nath v. Prativa Rani, 66 C.W.N 388 : A.I.R 1962 Cal. 455 which is brought to our attention. The principle laid down therein has however been expressly overruled by my learned brother, sitting in a Division Bench of this Court, in the case of (2) Pratima Bose… v. Kamal Kumar Bose…., 68 C.W.N 316 following another Bench decision of this Court, in the case of (3) Sobhana Sen v. Amar Kanta, A.I.R 1959 Cal. 455 to which decision, the attention of P.N Mookerjee, J., was not, unfortunately drawn. Mr. Dos, of course, is right in his submission that another Bench decision of this Court in the case of (4) Minarani Majumdar… v. Dasarath Majumdar…Opposite Party., A.I.R 1963 Cal. 428 cannot be taken as laying down any principle on the maintainability of the appeal. The observation on the said point ia obiter.
8. Mr. Dos, however, to support his contention, takes a pilgrimage from Andhra Pradesh to Jammu and Kashmir via Orissa and Bombay. The Bench decision of the High Court of Andhra Pradesh in the case of (5) Saraswathi v. Krishna Murthy, A.I.R 1960 Andhra Pradesh 30, and the Sin gle Bench decision of the Bombay High Court in the case of (6) Prithviraj Sin gji v. Bai Shiv Prabha Kumari, A.I.R 1960 Bom. 315, are directly in his fa vour. With respect, we cannot how ever persuade ourselves to hold in agreement with the said decisions. We may observe, with respect, that the earlier decision of the Andhra Pradesh High Court (delivered by Subba Rao, C.J as his Lordship then was, for the Court) in the Letters Patent Appeal of (7) Annapurnamma v. Ramakrishna, A.I.R 1959 Andhra Pradesh 49, should not and could not have been distingui shed in the way it is sought to be done in the later Andhra Pradesh decision and the said Bombay decision. The Bombay High Court refers to the con cession of the learned Advocate. The Andhra Pradesh High Court in the la ter decision relied mainly on Section 21 of the Act for the “clue to the solu tion of this problem,” which in our view, was not wholly correct.
9. The Single Bench decision of the Orissa High Court in the case of (8) Annapurna v. Nabakishore, A.I.R 1965 Orissa 72, was of no assistance to Mr. Dos, as the order of the learned District Judge appealed against in the said decision, could not be supported as passed under the Act. Moreover the impugned order was not the final order. Mr. Dos overlooked an observation in paragraph 3 at page 73 of the said Report that the same High Court held in a previous decision (not reported) “after review of conflicting authorities,” that an appeal lay “against a final order under Section 24 of the Act.” The Division Bench decision in the case of (9) Mohan Rani… v. Mohan Lal…Opposite Party., A.I.R 1965 J & K 88, as it appears from the head note, relying presumably on the said decision of P.N Mookerjee, J., in 68 C.W.N 388 (supra) refers to the case of Sobhana Sen (supra) in A.I.R 1959 Cal. 455 as appearing from the list of cases referred to therein. We cannot however take notice of the said decision as the entire judgment is not before us, the report being still not complete. The matter therefore stands, upon the weight of the authorities of this Court, against the contention of Mr. Dos.
10. Mr. Dos could not controvert the argument of the other side that the impugned order was executable according to the provisions of the Code of Civil Procedure and therefore applications arising therefrom under Section 47 of the Code, are entertainable and appeals consequently would be maintainable. It is difficult to conceive of a positon that an appeal would not lie from the original order but would be maintainable as soon as the same is executed, resulting in an or der under Section 47 of the Code.
11. Mr. Dos also could not controvert the proposition that the Presidency Town of Calcutta is a ‘District’ within the meaning of both the Codes of Civil and Criminal Procedure. It is admitted that under Rule 4 (1) of the Rules framed by this Court, an appeal lies against an order passed by a learned Judge sitting in the original jurisdiction of this court in such matters. It has been held in (10) Kedar v. Ga-nesh, 12 C.W.N 446: “when a High Court exercises its ordinary original Civil Jurisdiction, it comes within the definition of a District Court as contained in the Civil Procedure Code”. Mr. Dos therefore could not answer the other side as to why the legislature would make a difference for no reason between the original jurisdiction of this Court and the District Court.
12. Mullah in his treaties on Hindu Law is of the opinion that an appeal, in cases like the present one, lies.
13. For these reasons I hold that the instant appeal is maintainable. The preliminary objection of Mr. Dos fails.
14. Mr. Dipankar Gupta, the learned Advocate, opening the appeal on behalf of the husband, objected that the finding of the learned Judge that there was no condonation of the alleged cruelty by the wife, quoted before, was erroneous and the same should be set aside. In this context he refers us to the wife's admission on the fact of cohabitation and sexual intercourse by the parties during the pendency of the proceeding namely, between December, 1962 and January, 1963. He submits that it has amounted to condonation of the matrimonial offence, if any, which would afford the principal support of the appellant's argument in defeating the main case of judicial separation. He cites a decision of the Madras High Court in the case of (11) K. Venkata-ramaraju v. P. Rajagopala Raju, A.I.R 1944 Mad. 173.
15. To this however, answers Mr. Dos: firstly, as a matter of fact there was no co-habitation or sexual intercourse; secondly, even if it was so, it must be taken as an attempt for reconciliation only, at the suggestion of the learned Judge of the court below, which could never amount to condonation of the alleged matrimonial offence. The wife, says Mr. Dos, must, in this circumstance be deemed to be on probation, in order to see how the hus-hand might treat her. He also urges strongly that if such acts of co-habitation or sexual intercourse are taken to be the condonation of the matrimonial offence, then every attempt for reconciliation between the parties must fail. He also cites certain English decisions and passages from Halsbury's Laws of England. He reminds us that for this reason the Matrimonial Causes Act, 1963 has now been enacted in England.
16. To begin with, there is the statement by the wife in the affidavit-in-opposition, sworn to on September 23, 1963 in the connected Rule, in this Court that there is co-habitation by her with her husband. To the definite statement made by the husband in his objection to the wife's application under Section 24, that he took the wife at his place and “lived and co-habited together at his place during the period commencing from, on or about 1st December, 1962 till 24th January, 1963” (paragraph 5), there was no denial by the wife in her reply dated March 9, 1963. Further, in her own application for maintenance pendente lite, she admitted in paragraph 5 thereof that she lived with her husband for the period except a temporary absence for a few days but she did not deny the fact of co-habitation. The husband in his verbal evidence stated categorically that during the said period he “had sexual intercourse with her”. There was no cross-examination on the said point. There is no evidence by the wife as yet, of the denial of co-habitation. On this point, the evidence of the wife's father must be in the air or might be viewed, as argued, in relation to what would be seen to be a commercial point in the case. The trial court, in our view, rightly proceeded on the footing that there was intercourse. The case was properly proceeded with on the said basis. For all these, it could not be taken as an answer for the wife, that the parties had no sexual intercourse during the said period. I am certainly far from persuaded to hold that the trial court was wrong in the view it took. The contention of Mr. Dos namely, that in fact there was no co-habitation or sexual intercourse, accordingly fails.
17. The next piont answered by Mr. Dos was, that even if there was co-habitation it could not be taken to be the wife's condonation of the matrimonial offence. Here begins the desperate legal dog fight.
18. I accept the proposition, so strongly urged by Mr. Dos that the mere fact of a wife's staying in the house of the husband does not prove reconciliation. I go further and accept that mere co-habitation is not neces sarily and always a conclusive proof of condonation of matrimonial offence. In my view it cannot be held to be a universal bar to the continuance of the wife's application for judicial separa tion. But this is also correct that in many circumstances the act of sexual intercourse might be conclusive evi dence of condonation by the wife. The instant case is not of course a case, as in an English decision, that in the course of the visit for the day to the house of the husband's parents, when the husband and the wife were doing the washing up in the kitchen after a meal, a single act of sexual intercourse took place. The wife herself admitted in the present case that she lived quite happily with her husband, for a period of about two months, within which acts of sexual intercourse took place. In my opinion if the spouses live in the same house happily, after the alleged matrimonial offence and then co-habit, it must be taken to be a very strong piece of evidence of condonation particularly because of the wife's serious prejudice that may thereby be occasioned viz., having a child in sequence of it. It is important to remember that in such circumstances it will be repugnant to regard the act of submission by the wife to the husband as if it were some sort of casual commerce between two persons of opposite sexes. But it is again to be considered whether at the time of intercourse, she was reserving in her mind, or still had at the back of her mind, the cruel treatment the husband gave her. There is no evidence as yet of potent compulsion. There is no evidence either, that on refusal by the wife, the husband used to behave like a child, not having received a sweet when it wanted one.
19. Mr. Dos submitted that in the present case it did not carry the matter beyond the stage of attempted reconciliation as the quality of the act of reconciliation cannot be affected by the accident of their result viz., intercourse. They were only on trial or probation. I may accept the position prima facie that as the learned Judge in the court below proceeded with a hope that the marital home might brighten up, the Court's suggestion is to be taken as an attempt to mend the marriage, which would not necessarily involve condoning the offence.
20. Mr. Gouri Mitter, the learned Advocate, following Mr. Gupta in reply, submitted that the Court's suggestion might be an attempt; but it would be repugnant to decency to allow this wife, in these circumstances, to say, that she had sexual intercourse with her husband and yet she did not condone the offence, if any. Mr. Mitter says that the instant case is not of a usual type. There is not the same inconsistency, as in the case of adultery, between denial of the fact and alleged condonation of the fact denied. It is submitted that the husband is being forced to admire the performance, the wife is giving in the Courts though she acted as the house keeper of his client by accepting a sum of Rs. 1200|-. It seems to Mr. Mitter to be a sequel, what is said to have been a complete reconciliation and therefore condonation of the matrimonial offence.
21. True, it is not impossible for a wife to complain of cruelty while still residing in the husband's house but it should be borne in mind that the principle of law is that a willing intercourse usually converts imperfect forgivness into condonation and the great proof of condonation was the recommencement of matrimonial co-habitation. The sexual intercourse cannot be brushed aside as of no sequence. It is certainly an introduction of an element of contingency into condonation. It raises, so to speak, a provisional presumption of condonation, unless the wife explains that the act was committed, when she was not a free agent or that there were extraneous circumstances. It is true that attempts to effect reconciliation do not amount to condonation, until a reconciliation is really achieved. But then again it is not easy to define the limits of the adjective ‘real,’ the addition of which involves looking more closely at the circumstances. Acts of great unkind-ness to the wife no doubt revive condoned cruelty in certain cases but in my opinion wives in general should not be treated less strictly than husbands with regards to sexual intercourse as proof of condonation, as laid down in some of the English decisions. Owing to so-called emancipation of women in modern times, the conditions of condonation laid down in several old English decisions should not be too readily applicable. To say this however, is not to direct that the instant case might be reconsidered by the learned Judge free from all constraint of judicial authority on the piont. The question in my judgment still would remain with the Court below, whether the wife had carried her forgiveness into effect by voluntary sumbitting to the embraces of her husband and allowing him in renewing the closer relationship.
22. I am aware that it might not be possible for the spouses to recapture the mutual devotion which exsited when they were first married, but to judge the fact of condonation, it should be considered whether the relationship was restored by the mutual consent, “to a settled rhythm in which the past offences, if not forgotten, at least no longer rankle and embitter ‘their daily lives’. In other words, whether on the one hand there was continuance of strained relation between the parties and whether the act of co-habitation was induced by some kind of pressure or fraudulent mis-statement; or whether on the other hand the wife in the background, was her own mistress and that she had the option of going away from her husband's house, had other places to go to, had persons to receive her and fund to support her and whether as a matter of practical politics she could or could not avoid co-habitation.
23. To say that an innocent misrepresentation negatives consent in all cases would, in my judgment, open the door dangerously wide and the court below would guard itself against the same. Matter which bears heavily in such cases, is the quality of consent. It should be considered therefore whether the wife was persuaded by the dominant husband to do the wifely duty against her better judgment or being an ardent wife she had encouraged or initiated her husband to pursue the manly duty. It is better to be reminded that husbands and wives differ enormously in their attitudes to the matters of real reconciliation, perfect forgiveness, complete submission and conclusive re-instatement. What seems to me to be chiefly important on this issue is, that it varies from person to person, as an appeal may be much more effective in the case of some wives than force-blows or duress.
24. Granted the view points thus outlined, I see no reason to accept the argument of either of Mr. Mitter that there was condonation or to accept the argument of Mr. Dos that there was no condonation. There is here, I respectfully think, no anaylsis by the court below of the said necessary elements of an effective condonation or the said rigid requirements in displacing condonation. The finding of the Trial Court that there was no condonation, must therefore be set aside. In the absence of fuller details this question cannot be disposed of forthwith. The learned Judge of the court below is thus put on enquiry to see, to consider and to find out the plain sensible thing at the final hearing of the main case.
25. Mr. Mitter forcefully submits that there is enough evidence in this case to show that there is condonation of the alleged cruelty. The submission cannot be accepted, as already discussed. Similarly the extreme contention of Mr. Dos that the question of condonation cannot at all be raised, in an application under section 24 of the Act, is only stated to be rejected.
26. Coming to the next submission, it is said on behalf of the husband appellant that the learned Judge is wrong in allowing the educational expenses to the wife. Under Section 24 of the Act, says the learned Counsel, she is entitled to the maintenance necessary only for her ‘support’, that is to say, her bare subsistence. He draws our attention that the language in Section 25 of the Act, is maintenance and support, which is not so in Section 24. He further submits that the legislature was aware that the educational expenses might be necessary to be paid, but only in certain eases viz., in the case of children, for which Section 26 of the Act provides for maintenance and education. He accordingly submits that there is no scope for allowing educational expenses to the childless wife on an application under Section 24 of the Act. Dictionaries of all types, ordinary, legal and judicial, short, stout and bulky were placed before us by the learned Advocates on both sides in support of their respective contentions of the meaning of the words ‘maintenance’ and ‘support’. Mr. Dos cited a decision of the Allahabad High Court in the case of (12) Faqir Mohammad v. Mt. Abda Khatoon, A.I.R 1952 All 127, where Malik, C.J, had given a wider meaning to the expression “support” than the expression “maintenance”.
27. As I read Section 24 of the Hindu Marriage Act, 1955 along with Sections 25 and 26 thereof, it seems to me to be reasonable to hold that the childless wife is not entitled to add her educational expenses in an application under Section 24 of the Act for maintenance pendente lite. If it was the intention of the legislature to provide also for educational expenses for the wife, it could have said so in clear terms in the said section 24, as it has been expressly provided for in Section 26 of the Act. The decision of Malik, C.J, rested on a different Act viz., the Wakf Validating Act where the word ‘support’ had been used in a different context. Even if it is not so I would like to observe that I respectfully disagree with the reasons given by the learned Chief Justice in the said decision.
28. I therefore hold that the learned Judge was not justified in adding the educational expenses of the wife (which is admitted by both parties, approximately to be Its. 75|- per month) in granting a total sum of Rs. 175|- per month to her. I like to observe that the status of the husband should be looked into, in considering the amount of maintenance and not the status of the wife's father. In that view, the sum of Rs. 100|- per month, towards the maintenance of the wife pendente lite, after knocking off the said sum of Rs. 75|- per month for educational expenses, appears to me to be just and reasonable. As not necessary to be decided in this appeal, I reserve my opinion on the question as to whether the wife is entitled only to the bare subsistence.
29. The next submission of the appellant is, that the learned Judge is wrong in allowing the maintenance for the period from September, 1962, as the application for maintenance is filed only in February, 1963. There cannot be any grant of maintenance, Mr. Mit-ter submits, of an earlier period. Mr. Dos however points out the said Bench decision of this Court in Subha-na Sen (supra) and a decision of the Madras High Court in the case of (13) Mahalingam Pillai v. Amsavalli, 1956 (2) M.L.J 289 (296-7) where their Lordships relied on the general rule, namely that the maintenance is granted after the summons have been served on the defendant in such cases. In the instant case, as the summons has been served on the husband, on August 4, Mr. Dos submits that it is possibly for this reason that the maintenance has been granted from the month of September, 1962. Though the guiding principle of the general rule has been taken from the Matrimonial Causes Acts in England, what is the source of the “General Rule” is not known to any one of the learned Counsel appearing before us and they are frank to admit the same.
30. On the provisions of the act however I am of opinion that there is no warrant for holding that the Court cannot pass a valid order for arrear maintenance from the date of the original application for judicial separation, though the application for maintenance might be made later. Section 24 of the Act does not lay down that the Court's discretion to pass an order for maintenance must be either from the date of the said application under Section 24 or any period subsequent thereto. It depends in our view upon the facts and circumstances of each case, having regard to which, the discretion under the said Section is to be exercised. Moreover as the wife is not specific in her application in the present case as to from which date she is claiming the maintenance and as there is no appeal or cross-objection by the wife, the order of the learned Judge that the wife would get the maintenance from the month of September, 1962 is affirmed.
31. It is admitted by the learned Counsel on both sides that the wife is now an employee under the State of West Bengal and is so appointed from September, 1964 and she is earning about a sum of Rs. 200|- per month from the said date. As she has the said independent income, sufficient for her maintenance, I hold that she would be allowed maintenance, only up to and for the month of August, 1964, at the said rate of Rs. 100|- per month but not thereafter.
32. As there is no challenge on behalf of the applicant as to the award of the sum of Rs. 500|- towards costs, the order granting the same is affirmed.
33. This appeal is accordingly allowed in part.
34. The judgment is modified to the following effect. The finding that there had been no condonation by the wife of the alleged cruelty of the husband, is set aside. The wife respondent would be entitled to the maintenance pendente lite from the husband appellant at the rate of Rs. 100|- per month from September, 1962 up to and for the month of August, 1964. The respondent would be entitled to the sum of Rs. 500|- as costs of litigation. On the prayer of the appellant, it is directed that if any amount is already paid or deposited by the husband, the same would be adjusted towards the claim thus allowed to the wife. The balance, if any, would be paid or deposited by the husband within two weeks after the re-opening of the Court after the long vacation. If the parties apply before the learned Judge for amendment of the pleadings he would consider the same and pass appropriate orders. We direct that the evidence of the wife, if possible, should be made available to the Court at the final hearing, necessary for the decision on the point of condonation in the main case. In default, the Court might draw a legal inference keeping in view the above principles. The main case should be heard out early.
35. The circumstances justify that the parties should bear and pay their own and respective costs in the instant appeal.
D. Basu, J.:— I agree.
P.N.C
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