Kamani Devi v. M.D Sir Kameshwar Singh

Ray, J.:— The facts and circumstances leading to this Civil Revision are shortly these: The petitioner Shrimati Kamani Devi alias Shakuntala Devi alleges herself to be a cousin of the junior Maharani of the opposite-party the Hon'ble Maharajadhiraj Sir Kameshwar Singh of Darbhanga, and during the illness of the Maharani, she had to remain at the Darbhanga Palace at the request of the Maharani and her husband, the opposite-party, between April and July, 1939. During her stay, there grew intimacy between the applicant and opposite-party, and ultimately they married in the Gandharva form and lived as husband and wife with the result that the applicant conceived. Later, she was sent by the opposite-party, under the care of her father, to the Patna General Hospital for delivery. In February, 1940, a male child was born to her. All the while the opposite-party used to maintain her and bear all her expenses until the 1st of October, 1940. On the opposite-party's default to maintain her, with a view to enforce her right to maintenance, she filed an application for leave to sue in forma pauperis under the provisions of Order XXXIII of the Code of Civil Procedure. As required by rule 2 of the Order, the application, contained the particulars required in regard to the plaint in the suit showing the cause of action for the same. In those allegations she stated that she was the wife of the opposite-party having been married to him in the Gandharva form which is valid according to the Mithila law by which the parties are governed. The petition for leave to sue as a pauper came up for disposal before Mr. B.K Sarkar, the then Subordinate Judge, 1st Court, Patna, who by his order, dated the 30th of January, 1943, allowed the petition. Against this order, the opposite-party moved this Court in Civil Revision no. 60 of 1943, on the ground that the Subordinate Judge contravened Order XXXIII, rule 5 by refusing to hear his Counsel on the question whether the allegations in the plaint disclosed a cause of action. This Civil Revision was disposed of by the Court allowing the application, setting aside the order under revision and remanding the case to the Court below for disposal according to law. The direction given in the order was

“It is to be distinctly understood that arguments will be confined in the Court below to the question whether the allegations in the plaint disclose a cause of action as provided in Order XXXIII, rule 5, clause (d), and whether upon those allegations a valid marriage under, the Mithila school of Hindu law can be said to have been contracted. No other extraneous question shall be allowed to be raised or discussed”.

Thereupon, the Subordinate Judge, Mr. Yunus, after allowing the question referred to him to be fully heard passed the order under revision on the 11th of May, 1944, rejecting the application; and in doing so, he has come to the finding that the marriage in Gandharva form is not valid amongst Brahmins governed by the Mithila school of Hindu law, and therefore the statements contained in the plaint do not show a valid cause of action as required by Order XXXIII, rule 5(d), Code of Civil Procedure. He also rejects the alternative prayer for maintenance as a further relief based on the contention that the applicant was entitled to get maintenance even in the event of the marriage connection alleged in the plaint being found illegitimate or illegal, holding such a relief inconsistent with the plaintiff's case.

As against this order of the learned Subordinate Judge the applicant has come up in revision under section 115 of the Code of Civil Procedure. The petitioner contends, inter alia, (1) that the learned Subordinate Judge should have confined himself to the question whether the allegations prima facie show a cause of action but had no jurisdiction to dispose of the complicated case finally on merits at this preliminary stage; (2) that he acted with material irregularity in: approaching the question in the way he has done without addressing himself to the pith and substance of the allegations so far as they were relevant to the relief sought; and (3) that the Court's authority to reject an application for permission to sue as a pauper and thus to deny her a trial is derived from the statutory provisions contained in Order XXXIII, rule 5, Code of Civil Procedure and in this case he has assumed jurisdiction to reject the application on an erroneous view of law governing the question whether the applicant's allegations do not show any cause of action.

The respondent's learned Counsel urges two points in reply.: (1) That the learned Subordinate Judge's decision that a Hindu Brahmin governed by the Mithila school of law cannot contract a valid marriage in the Gandharva form, and therefore such a marriage is illegal, is perfectly right; and (2) that even if he is wrong in his this view of law, this Court cannot interfere in revision. He very strenuously contends that the learned Subordinate Judge had jurisdiction to decide the question whether the applicant's allegations do not show a cause of action. Having such jurisdiction it is immaterial whether he decided it wrongly or rightly, and even if he decided it wrongly, he did not exercise his jurisdiction illegally or with material irregularity. For this proposition he has relied upon the case of Raja Amir Hassan Khan v. Sheo Bakash Singh(1) and certain other authorities to be noticed presently.

The question before us, therefore, reduces itself to (1) whether the Subordinate Judge is right in holding that the Gandharva form of marriage amongst Brahmins is invalid according to the Mithila school of Hindu law; (2) whether the petitioner on her allegations in the plaint has made out a cause of action for a suit for maintenance; and lastly (3) whether a revision would lie.

I shall deal with the first question as above propounded. For the purpose of appreciating the point, I should state, somewhat elaborately, the allegations made by the applicant in her application for leave to sue in forma pauperis. Her allegations which shall be assumed to be true at this stage of the case are: She and the opposite-party are Maithil Brahmins, her cousin being the junior Maharani of the opposite-party. During her stay in the Palace on the occasion of her sister's illness, she and the opposite-party entered into an agreement for marriage and celebrated the same in the Gandharva form which is valid in Mithila school of Hindu law; that both of them were majors at the time and were, therefore, competent to contract, that the marriage was followed by consummation, that is to say, the opposite-party cohabited with her as it happens between husband and wife, that as a result of this sexual intercourse which she believed the opposite-party was entitled to have with her as his wife, she conceived and ultimately gave birth to a male child, that she was being treated by the opposite-party as his wife in being maintained by him till sometime before the filing of this application. She further alleges that this marriage is valid according to the Mithila school of law, and then she claims that on account of this marital relationship, she was at least entitled to be maintained by the opposite-party.

It is well settled in law that celebration of the Gandharva form of marriage is to be attended with nuptial rites and ceremonies including homa and saptpadi for its validity, and it was conceded by the learned Counsel appearing for the opposite-party that for determining the question at this stage, it is also to be assumed that in this particular case, all those rites were in fact performed. Cause of action in the case should be limited to a bundle of facts necessary to entitle her to claim Maintenance as against the opposite-party. It has to be borne in mind that the larger question, namely, whether she has got all the Hindu law rights of a wife as against her husband and his relations, such as, right of succession and inheritance, and whether the issues born out of this wedlock would have all the rights of legitimate issues, is not in issue here. The question has to be examined from this limited aspect only. The Court in order to come to a position to hold that her allegations do not show a cause of action will have to find that she has not made out a case for enforcing a right to maintenance as against the opposite-party and nothing more or nothing less.

Unfortunately in this particular case, the learned Subordinate Judge has not kept this in view. While discussing the question of Hindu law of Mithila school in point, he has not brought his mind to bear upon deciding what is the scope of the cause of action in the suit before him. He should have borne in mind that instances are not wanting in Hindu law when a particular jural relationship is created contrary to the shastric injunctions, the relationship so created is not null and void for all purposes however invalid they be for certain purposes only. For instance, in the case of an invalidly adopted son, he may not be entitled to succeed as a validly adopted son, but lie is, all the same, entitled to maintenance. Similar is the case of an illegitimate son of a twice born caste who, though excluded from inheritance, is entitled to be maintained out of the estate of his father. So is the case of a concubine of a twice born caste under the Hindu law. The best illustration is the case of a wife married from within the prohibited degrees. Though the marriage is void, she is nevertheless entitled to be maintained by her husband (vide Treyelyan Hindu Law, p. 49).

The learned Subordinate Judge too, in my view, has, in his examination of the authorities on Hindu law bearing upon the question of validity of a Gandharva form of marriage, mixed the elementary distinction between obligatory and directory provisions. The Smriti or Dharmshastra comprise three kandas or adhyayas, that is, (1) Achara (ritual) which comprises rules for the observance of religious rites and ceremonies and social and moral duties of the different castes; (2) the Vyavahara (civil acts and rules) which embraces forensic law and practice as well as rules for private acts and contests, and (3) the Prayashchitta (expiation), the atonement or religious penalty for sin (vide Preface p. ii of Vyavastha Chandrika by Shyama Charan Sarkar). So far as Chapter I and III of the Smriti or Dharmashastras are concerned, they do not contain the substantive law governing the rights and obligations as between the parties. They are more or less social and moral codes having no binding effect. In this view of the matter the law relating to the validity of the Gandharva marriage must be sought for in the Vayvahara Kanda and unless Gandharva form of marriage is declared to be null and void by the substantive law, any direction laying down the social and moral duties for the Brahmins recommending them not to perform such marriages will not in the least invalidate it. With regard to the leading authorities governing the different schools of Hindu law, it is well settled that Mitakshara is considered as the main authority for all the schools of law with the sole exception of that of Bengal. Besides, there are certain other schools in which certain other works are respected concurrently with the Mitakshara, particularly on account of their adopting certain doctrines which are inculcated in those books. Accordingly the leading authorities of Mithila are the Vivada-ratnakar and Vivada-chintamani; concurrently with the above are of great weight in Mithila (1) Vivada-chandra by Lakshmi Devi, the treatise on inheritance by Srikaracharya, the Madana-parijata, the Smriti-sara, by Sridharacharya, Smriti-sara by Harinathopadhyaya and the Dwoita-parishishta by Keshava Misra. Of these Vivada-chintamani was composed by Vachaspati Misra who was also the author of several other works, namely, Vyavahara-chintamani commonly cited by the name of Misara; these also are of great authority in Mithila.

The learned Subordinate Judge has relied very strongly upon Kritya-Chintamani by Vachaspati Misra which is a book on Achara only and has not referred to any of the above authorities. I will have to consider presently the authority of this work.

The fundamental conception of Hindu law with regard to the relationship between husband and wife are thus expressed by Manu: The husband receives his wife from the gods; he must always support her while she is faithful. Let mutual fidelity continue until death. This may be considered as the summary of the highest law for husband and wife. (Vide Mayne p. 106). According to Manu, Gandharva form of marriage was one of the eight forms and he defines this to be the voluntary union of a maiden and her lover; this is also accepted to be a valid form of marriage by Gautama, Baudhayana, Vishnu, Yajnavalkhya and Narada. The commentators regarded the Brahma, Daiva, Arsha and Prajapatya forms of marriages as the approved or blameless forms and the other ones beginning with Gandharva as the unapproved or blameworthy marriages. The principal difference between the approved and unapproved marriages is to be found in the matter of succession to the woman's stridhan in the former case the husband and in the latter the parents family is preferred. Evidently the reason was that originally in the case of approved marriages, she passed into her husband's gotra and in unapproved marriages she did not. The difference is explained by Madhava:

“In the for it of marriage beginning with Gandharva, there is no gift of the maiden, the gotra and pinda of the father do not cease”.

Both usage and the inclusion in the Mitakshara of the wife as a sagotra sapinda have given her the gotra of her husband in all forms of marriage. Courts have also held that a wife passes into her husband's family and gotra without distinguishing between the forms of marriage (Mayne, 10th Edition, Para. 89, pp. 132 and 133).

In my view the learned Subordinate Judge has completely misdirected himself in his review of the judicial pronouncements and ancient texts of Hindu law bearing upon the question at issue. His discussion of the subject bear an impress throughout of an assumption on his part that no nuptial rites are required to be performed in a Gandharva marriage and that no such rites were performed in this particular case. At this stage of the case he cannot make an assumption of either the one or the other. It is well-settled that once it is proved that a marriage has been performed, a presumption of law arises in favour of a valid form of marriage. It follows, therefore, that if law requires [as pronounced in Brindavan v. Radhamoni] nuptial rites to be performed for a valid Gandharva marriage, it will have to be assumed at this stage not only that a marriage was performed between the parties but it was performed with due nuptial rites. The learned Counsel; Mr. P.R Das, appearing for the opposite-party, conceded with his usual candour that performance of such nuptial rites should also be assumed for the purpose of testing if the allegations make out a cause of action.

The learned Subordinate Judge sums up the result of the decisions of the Court as tending to show that Gandharva form of marriage is obsolete except amongst the warrior castes. Whether any form of marriage which was recognised as valid by the Smriti-writers has subsequently become obsolete amongst classes of people other than warriors is more or less a question of fact. The applicant who avers that this marriage is valid according to Mithila law is entitled to adduce evidence to show that it is not so obsolete in the area governed by Mithila school. It is not necessary to plead that such marriage has grown up by custom. It has simply to be shown that it has not died out. This can be established either by adducing evidence of instances of such marriages being still prevalent or by showing that they were held valid by the commentators of great repute in the Mithila, school or by both. I shall presently show from Vivada-Chintamani and Vivada-Ratnakar, the two highest authorities in Mithila school that Gandharva marriage was prevalent in Mithila when their authors flourished and was considered in respect, at least, of certain disputes to be as good as the four approved forms of marriage. In my view, in his review of the decisions of the British Indian Courts he has missed the real point.

With regard to his review of the judicial decisions, Brindavana v. Radhamoni stands good law notwithstanding what has been said in T.B.K Visvanathaswamy Naicker v. Kamu Ammal(2) and Maharaja of Kolhapur v. S. Sundram Ayyar(3). In the case of Visvanathaswamy the observations of Abdur Rahim, J. relied upon by the Subordinate Judge are obiter dicta, inasmuch as in that case the alleged marriage was not proved. Besides, Abdur Rahim, J.'s view is influenced probably by his opinion that no nuptial rites are required to be performed in Gandharva form. The learned Chief Justice in the case of Maharaja of Kolhapur defines the marriage without nuptial rites to be Gandharva marriage. It is clear from his decision that if a marriage proceeding from reciprocal desire is attended with or followed by the essential nuptial rites he should not regard it as an invalid marriage. In the case of Bhaoni v. Maharaj Singh, the learned Judges deciding the case have also considered a case of marriage without nuptial rites and, therefore, they said that the marriage was nothing more nor less than concubinage. Kishan Dei v. Sheo Paltan simply follows the earlier Allahabad case and Daniel, J., described it as unregulated indulgence of lust, evidently, dealing with the case where no nuptial rites had been performed.

In short, none of these cases support the view that where a Gandharva form of marriage is associated with performance of appropriate nuptial rites the marriage would still be invalid amongst the Brahmins. It is, therefore, wrong to say that Brindavan's case(4) has been modified by the subsequent decisions of that Court.

With regard to his review of ancient Hindu law texts, the one error which pervades, and thus vitiates it, is that he makes no distinction between those that deal with Vyavahara, i.e, the Hindu forensic law and practice and those that are Achar and Prayashchitta. The latter two kandas are merely moral and social codes and thus they are merely directory but not obligatory. Had he kept this distinction in view, he would not have held what is said by Vachaspati Misra in Kritya-chintamani as conclusive on the subject. In this mistaken view he has brushed aside what is said by the said learned author in Sradh-chintamani wherein he recognises the validity of a Gandharva marriage wherein marriage by cohabitation is followed by nuptial rites. His reconcilation of the apparent contradiction by reference to Devala who is a Smriti writer and who propounds the necessity of essential nuptial rites in Gandharva marriage and its validity for all castes makes it clear that he (Misra) recognises Gandharva marriage as valid marriage and, therefore, Shradha-chintamani is in conflict with Kritya-chintamani. Besides, I have shown already that Kritya-chintamani is also in conflict with Vivada-chintamani which is the real authority in the Mithila school of law. Kritya-chintamani can he explained on the ground that it is an Achar Kanda and as such is only recommendatory.

Besides the above, certain other glaring errors have crept into the learned lower Court's review of the texts of ancient Hindu law givers. He assumes as against the decision in Kamla Prasad v. Murli Manohar that Sulapani is an authority in the Mithila school. Sulapani is an author of two different treaties. His commentary on Yagnyabalkya called Dipakalika which is apparently a Code of Hindu forensic Law, and Practice, to use the words of Colbrooke in his preface page XV,

“is in deserved repute with the Gauriya school”

while treaties on penance and expiation is in great repute with both schools, namely Gauriya and Mithila (Colbrooke Preface xx). This is confirmed by reference to Morley's Digest CCXIII by Dhavle, J., in Kamla Prasad's case wherein it is said that Sulapani's treaties on penance and expiation are regarded as an authority in Bengal and Mithila; but we are not concerned here with penance, expiation and rituals but with Hindu law or Jurisprudence. Therefore, the learned Court's reliance on Sulapani quoted from Colbrooke's Digest Book III, p. 605 is completely misconceived, because if that is a part of his commentary on Yagnyabalkya it may be good law in Gauriya's school but not so in Mithila school. If on the other hand it is a quotation from his treaties on penance and expiation which though highly regarded in Mithila school is of no use for the purpose of deciding the question of law.

The learned lower Court while dealing with the subject has failed to notice show Colbrooke treats the subject in his 4th Edn. p. 614, etc. In this part the author shows on interpreting the texts bearing upon the question that Gandharva is one of the unblamable forms of marriage and the stridhan of the wife married in this form is inherited by her husband. Reference is also made therein to Manu, Narada, Yama and other Smriti-writers as being of the same opinion. As I have said above the learned lower Court's mistake is due to his misconception as to fundamental difference between Achara, penance and expiation (rituals and moral injunctions) on one hand and Vyavahara (forensic law and jurisprudence) on the other. In one part of his judgment the learned Subordinate Judge has brushed aside the law given by Manu, the first Smriti-writer, and Kulakbhatta, a commentator of Manu, observing that they refer to a stage of civilisation which is a thing of the past and gives preference to what Mitakshara says on the subject. But it has been laid down by the Privy Council in Bhugwandeen's case (vide Mayne p. 138).

“Mithakshyar cannot prevail against such of the smriti texts as are unequivocal specially where all the leading commentaries of all the schools are agreed amongst themselves.”

I shall presently show that Vivada-ratnakar of Chandeswar and Vivada-chinlamani of Vachaspati Misra are agreed in accepting the texts of Maim to the effect that the Gandharva form of marriage is one of the higher forms in which the wife's stridhan goes to the husband. In my view, therefore, the conclusion to which the trial Court comes to on review of decisions of Courts and texts of Hindu law givers and commentators is wrong or at any rate inconclusive. I shall presently show how the authorities stand in favour of validity of Gandharva marriage while there are some which though not irreconcilable are apparently against it. This will clearly demonstrate that the question is too complicated and complex to be dealt with in this summary manner at this preliminary stage as has been done by the learned Subordinate Judge. It may be noticed here that how summarily the lower Court disregards the discussion of the subject in the Edition of Mayne on Hindu Law by Srinibas Iyangar observing that he is not an authority on Hindu Law, but Iyangar has based his discussion on ancient texts and standard authorities on Hindu Law. His edition, therefore, does not deserve this scant treatment.

Next I shall proceed to show somewhat elaborately though not exhaustively how the validity of Gandharva marriage stands with reference to Hindu law Texts of unquestioned authority including those which are regarded as of very high repute in the Mithila school. It is clear, therefore, that according to the Mitakshara the relationship of wife and husband is established, even, by a marriage in Gandharva form.

Shyam Charan Sarkar in his Vyavastha Chandrika, Vol. II, page 443 of the Vyavastha part, says:

“Jagannatha, however, has very justly said that it present the Brahma nuptials only are practised by good men; but even the marriages called Asura, Gandharva, Rakshasa and the rest are sometimes practised by others. Colbrooke's Digest, Vol. III, page 566”.

The same learned author at page 444 quotes Yama and Devala, Yama says:

“Neither by water nor words of mouth can a man be said to be the husband of a girl; he becomes her husband by the performance of the nuptial rites and by (the bride) stepping on the seventh step”

and Devala says:

“The nuptial rites are ordained in the marriages styled the Gandharva and the rest; to this contract the nuptial fire must be made witness by men of the, three classes—Colebrooke's Digest Vol. II, London Edition, p. 606”.

Dr. Jolly on Hindu law and Custom at pages 110 and 111 says that in the Smritis the choice of husband is allowed to the young lady if she is not given in marriage even after some time has passed after her attainment of puberty. The motive in this is that the father loses his authority over the daughter through his delay in giving her away in marriage; at page 111-112 he says:

“Gandhrava Vivaha too the love-marriage without the consent of the parents seems in the first place to have been a privilege of the nobles and therefore can be connected with the Raksham Vivaha, i.e, the bride, on understanding with her lover, is forcibly carried away from the house of her parents. The best known and often quoted example of a pure Gandharva marriage out of epic is the story of Sakuntala and Dusyanta and a secret marriage of this sort without nuptial ceremonies has even been called the most appropriate form of marriage for the Kshtriyas. There was a difference of opinion as to whether the usual marriage ceremonies are necessary or are superfluous in case of a Gandharva Vivaha. Already Devala recommends the performance of these ceremonies and Kamas 228F. too advises the lover to perform sacrifices into the fire and to take the bride thrice round the household fire, because the marriage would therewith be as good as concluded, and the parents, in order to avoid public scandal would have to give their consent to it. The Gandharva marriage is moreover praised as being on the whole the best form of marriage…………It is also opined in the Smritis (Narada and Baudhayana) that this form of marriage is open to all castes alike.”

Trevelyan summarises (at page 60) the law relating to Gandharva marriage on reference to various authorities in this way:

“This form of marriage is said to exist still in the family of the Tipperah Rajas, and it was recently asserted to have taken place in a family in Ganjam. A religious ceremony is now as necessary in a marriage in this form as when the marriage takes place in the ordinary forms. The Gandharva form of marriage as now celebrated, and the ancient form seem, therefore, to resemble one another in name only.”

To sum up, it is well settled that the ancient Hindu lawgivers beginning with Manu downwards have all considered the Gandharva form of marriage as one of the eight forms for the Hindus of all castes, but because in the Gandharva form the bride is not given away by the father to the bridegroom contrary to the principles of patria potestas, it was considered as one of the unapproved forms by some law-givers. The blame that attached according to them to this form of marriage did not however make the marriage void, but created some difference in case of succession to the property of a wife married in the Gandharva form. The theory was that as the father had not made over the bride, therefore, the bride's gotra continued to be the same as that of the father, and therefore on the death of such a wife, the father in preference to her husband had the better right to succeed. But in other respects even some of those old law-givers said that Gandharva Vivaha was the best form of marriage. According to some of the law-givers, Gandharva marriage is compared to concubinage, but as has been very clearly pointed out in Mayne at page 134, paragraph 92, this was due to a mis-conception. Manu enumerated the eight forms of marriage for Hindus irrespective of any caste but did not say anything about the nuptial rites being performed. This in the view of the later commentators was considered to be a concubinage, because it was not accompanied with the necessary nuptial, rites, such as, giving away the bride in midst, of festivities known as kanyadan, recital of vedic mantras at the time of panigraha, scrifice into the fire known as nuptial fire and proceeding of the young couple seven steps together called saptapadi. But the mistake committed by those commentators was that Manu did never mention of any nuptial rites in connection with any other form of marriage too. So far as nuptial rites are concerned they are mentioned in grihashutra and, as already mentioned, Devala and certain other commentators have said that nuptial rites, such as above excepting kanyadan, are necessary even in the case of a Gandharva form of marriage. Therefore, a Gandharva form of marriage proceeding from love and desire and based upon mutual consent of the bride and the bridegroom, followed by the performance of nuptial rites would be found to be completely blameless likely any other form. And it would be all the more so when it is found that the father has delayed in giving the bride to a suitable bridegroom even for some time after her attainment of puberty which is the case in all instances of major girls and which is a matter of evidence.

Now, therefore, let us examine how does the Gandharva marriage stand with regard to its validity in the Mithila school of Hindu law. It is agreed on all hands as well settled that Vivada-ratnakar and Vivada-chintamani are the highest authorities in the Mithila school of Hindu law. Vivada-ratnakar has been translated by J.C Ghosh, Hindu Law, Volume II, page 572. The author of Vivada-ratnakar, who is also held in a very high esteem by Vachaspati Misra, and is very often quoted in his Vivada-chintamani, in Chapter X deals with the several rules of succession to stridhana of childless woman according as she is married in one form of marriage or other. In paragraph 1 of the Chapter the author of Vivada-ratnakar says:

“Now is discussed the rule of succession to the wealth of a childless woman according to form of marriage. Narada says: ‘Property of a woman shall go to her offspring; if she have no offspring, it is declared to go to her husband if she was married according to one of the four approved forms beginning with the Brahma form if she was married according to one of the other forms, it shall go to her parents’. The four forms are mentioned not for the purpose of excluding the fifth. Therefore, the wealth of a childless woman married in Brahma, Daiva, Arsha, Gandharva and Prajapatya, on her death goes to the husband; the wealth of one married in one of the other forms Rakshasha, Asura and Paisacha, goes to the father. This refers to property received at the time of marriage Manu says: ‘It is ordained that the property of a woman married according to the Brahma, the Daiva, the Arsha, the Gandharva, or the Prajapatya rite shall belong to her husband alone, if she dies without issue’. Aprajayam means without issue. Devala says: ‘The property of a woman on her death is taken in common by her sons and maiden daughters; in default of issue, the husband, the mother, the brother or the father Shall take’.”

Ghosh in the same volume at page 699 has also incorporated a translation from Vivada-chinaniani of Vachaspati Misra on the subject. Vivada-chinaniani verse 233:—

“Manu says: ‘It is admitted that the property of a woman married according to (any of) the ceremonies called Brahma, Vaha, Arsha, Gandharva and Prajapatya, shall go to her husband, if she die without issue. But her wealth, given to her on her marriage in the form called Asura or either of the other two (??? and Paisacha) is ordained on her death without issue, to become the property of her mother and father’.”

These translations are quoted from the two highest authoritative commentators make it very clear that Gandharva marriage is considered to be one of the approved forms of 1 marriage for the purpose of succession to the property of a wife dying without issue. This could not be so, if Gandharva marriage was considered to be a sort of concubinage by the aforesaid commentators of the Mithila school and if as such it was considered to be invalid. On the contrary, Vivada-ratnakar having quoted Devala in support of his interpretation of the text of Narada accepts Devala's view that nuptial rites are not dispensed with in the case of a marriage in the Gandharva form.

The learned Counsel for the opposite-party has relied upon a passage in Kricya-chintamani compiled by the same author. Therein, after narrating the eight forms of marriage commencing with Brahma and ending with Paisacha, the author says:

“For a Brahmin however, there are only four forms of marriage commencing with Brahma. All forms of marriage are for castes other than that.”

According to the order of enumeration the first four commencing with Brahma will exclude Gandharva, and therefore it is argued that according to Vachaspati Misra who is the highest authority in the Mithila school, a Brahmin cannot marry in Gandharva form, and, therefore, any marriage according to that form must be deemed to be held invalid by Vachaspati Misra. I have just quoted Vachaspati Misra from his Vivada-chintamani which adopts Manu's text in which Gandharva is considered to be one of the approved forms of marriage. To the same effect is Vivada-ratnakar. It falls, therefore, to be considered which view of Vachaspati Misra is correct. In my opinion there is no discrepancy between the two. What is stated by Vachaspati Misra in Vivada-chintamani is law, while what he writes in Kritya-chintamani is more or less a social or moral rule. Kritya-chintamani has no where been accepted to be an authority in the Mithila school of Hindu law. I have had the advantage of reading Kritya-chintamani, and I have found that this is a book on rituals: The contents of the book will show that he does not deal with Vyavahara or law but deals with Achara. The subject heads dealt with in this Code are various Hindu festivities and the ceremonials and rituals connected therewith. It is frankly conceded by the opposite party that this book has not been referred to in any decided case so far and none of the standard authors of Hindu law have referred to this book as being one of authority in the Mithila school of Hindu law except by way of a general reference in terms such as that the Vivada-chintamani, Vyavahara-chintamani and other works of Vachaspati Misra commonly cited by the name of Misra, all considered as great authority in Mithila. In my view, therefore, the passage in Kritya-chintamani has not authority of law. At any rate it cannot be considered to have laid down that if a Brahmin enters into a Gandharva form of marriage—by Gandharva form of marriage we must understand a marriage between two adult male and female based upon their mutual agreement followed by performance of all the nuptial rites including homa and saptapadi, either followed or preceded by consummation.—that marriage creates no jural relationship between the married couple. It cannot be conceived for a moment that while Vachaspati Misra in his Vivadachintamani gives such a high position to Gandharva marriage for the purpose of succession of the wife's stridhana by the husband, he should consider the marriage void for all other purposes. In the case of this sort of discrepancy the usual presumption of validity of marriage, if performed, must prevail. In my view, therefore, the Gandharva form of marriage is not invalid according to the Mithila school of Hindu law. At any rate, the relationship of husband and wife created by such marriage is binding against each other and the husband cannot escape his liability of maintaining the wife married in this form, whatever be the consequences upon the children born of such wedlock with regard to their right of inheritance and succession and whatever be her status in relation to her husband's agnatic and cognatic relations. J.C Ghosh at pages 798 and 799 while considering the validity of this marriage observes that the Madras High Court has taken the right view, namely, that such marriages (Gandharva) may be valid if contracted with a virgin and if nuptial rites with homa are subsequently performed. G.D Banerji in his Tagore Law Lectures on Marriage and Stridhana at page 102 after quoting Macnaghten, says:

“But the correctness of this opinion of Macnaghten appears to have been questioned by the High Court of Bengal in the case of Chuckrodhuj Thakoor v. Beer Chanda Joobraj and it is contrary to the opinion of Jagannatha, which is based upon the following text of Devala.—‘Nuptial rites are ordained in the marriage styled Gandharba and the rest; to this contract the nuptial fire must be made witness by the men of the three classes; and it seems that the only formality which may be dispensed with in the Gandharba marriage is the formal gift of the bride by her guardian, she being in this instance considered self-given”.

In my opinion, therefore the view taken by the learned Subordinate Judge is completely wrong, and further it is clear however that he has not brought his mind to bear upon the question at issue in its true perspective. The case before him was whether in view of the allegations made by her, the applicant was entitled to call upon the opposite-party to maintain her. It is apparent on the face of his judgment that he has not applied his mind to this very limited question raised in the plaint. He has misdirected himself by entering into a consideration of validity at large of Gandharva marriage. It may be assumed for the purpose of this case that this marriage may not be as valid as the four approved forms of marriage for all other purposes including questions of inheritance, succession, etc. but there is no authority for the proposition that a husband after taking a wife in this form of marriage and after consummating the same and thereby disabling the wife from taking another husband would be free to escape the consequence of his own act by denying her the bare right of maintenance. A question of estoppel may well operate against the husband denying the relationship.

The learned Subordinate Judge is also wrong in observing that the plaintiff was not entitled to claim maintenance even on the ground that she is the illegitimate wife of the opposite-party. I do not find any inconsistency in the claim. The plaintiff's case is that she was married to the opposite-party in a particular form, and it is quite open to her to say that if according to law this marriage is not valid for all purposes, it at least has created in her the right to be maintained by the opposite-party. There is no inconsistency in facts, and alternative pleas in law are always permissible, and there is nothing wrong in that: In my view, therefore, the allegations in the plaint do show a cause of action for the plaintiff's right to maintenance as against the defendant.

The next important question to be considered is whether, assuming that the learned Subordinate Judge is wrong in his view of law, this Court has got the power to interfere in revision under section 115 of the Code of Civil Procedure. This section has been interpreted from time to time in high judicial pronouncements beginning with the case of Raja Amir Hassan, mentioned above. The next case on the point that came up before the Judicial Committee was the one reported in Muhammad Yusuf Khan v. Abdul Rahman Khan. This case simply upheld the decision of a Court who had given effect to the interpretation of section 622 of the Code of Civil Procedure corresponding to the present section 115 as laid down in Rajah Hassan Khan's case. The point again came up for consideration in the case of Balkrishina Udauar v. Basudeva Aiyar. Their Lordships of the Privy Council observed: “It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved”. In Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa their Lordships observed: “it (the Court) made a sad mistake it is true; but a Court has jurisdiction to decide wrong as well as right…. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law”. Bearing in mind the principles enuncited in these three cases the position comes to this that once a Court rightly assumes jurisdiction to decide a dispute between the parties; it does not exercise its jurisdiction illegally or with material irregularity simply because it decides either a question of law or a question of fact erroneously and in such a case High Court has no power of revision against a decision of the lower Court. But if a question of jurisdiction is involved in his conclusion of law or fact, then High Court can interfere in the event of such conclusion being erroneous, because that would amount to illegal assumption or exercise of jurisdiction. A third case that might arise is when a Court refuses to decide a matter which he has jurisdiction to decide, his decision can also be interfered with under the section. Applying these principles to the facts of this case, the question resolves itself to this: Whether any question of jurisdiction is involved in the learned Subordinate Judge's conclusion on the question whether the allegations in the applicant's plaint do not show a cause of action. If the answer to this is in the affirmative, then the order of the Subordinate Judge is revisable. If the answer is in the negative, then no revision would lie. In order to examine the question, the scheme of Order XXXIII of the Code of Civil Procedure has to be kept in view. This Order of the Code prescribes a special procedure for suits by paupers. Under the law every subject has a right to have his suit however frivolous fully tried and decided in case he files his plaint with proper court-fees provided for by fiscal legislation; but it is only in some special cases and on compliance with some special requirements that a suit can be entertained and tried when filed by a pauper without payment of proper court-fees. Order XXXIII, therefore, is a special procedure to meet special cases. In order that a party can be allowed to sue in forma pauperis, he has to fulfil certain conditions as laid down in the said Order. Rule 1 defines a pauper. Rule 2 prescribes the particular form that the application for permission to sue as pauper shall take. Rule 3 prescribes the mode of presentation of such an application and rule 4 makes it discretionary with the Court to examine the applicant regarding the merits of the claim and his pauperism. Rule 5 confers jurisdiction on the Court to reject such an application on the happening of certain contingencies as enumerated in the several clauses of the rule. Rule 5 provides

“The Court shall reject an application for permission where the applicant is not a pauper”.

Suppose the trial Court takes an erroneous view of the law defining the word “pauper” in explanation to rule 1 and relying upon this erroneous view of his, rejects the application for permission to sue. The question will naturally arise whether any question of jurisdiction is involved in the lower Court's conclusion on this question. My answer is in the affirmative, because the Court's jurisdiction to reject an application without allowing the applicant or the plaintiff to have a trial is a special jurisdiction. Assumption of this jurisdiction depends upon his conclusion on the question whether the applicant is a pauper or not. If he is a pauper, the Court has no jurisdiction to reject his application. If he is not a pauper, the Court is bound to reject it. In my view, therefore, this is a question of law or fact as the case may be in which the question of jurisdiction is involved. We are here concerned with the learned Subordinate Judge's conclusion on rule 5, clause (d). Here similarly the Court's jurisdiction to reject the application is derived from or is based upon the decision of the question whether the applicant's allegations do not show a cause of action. If the Court commits an error of law or fact in his conclusion on this question in which the question of jurisdiction is involved, his conclusion if erroneous leads to an illegal assumption of jurisdiction and is, therefore, revisable. The learned Counsel for the opposite-party contends strenuously, in terms of the decision of the Judicial Committee in Rajah Wazir Hassan's case, that the Subordinate Judge had jurisdiction to decide the question whether the allegations of the applicant do not show a cause of action, and having jurisdiction to decide it, if he decided it wrongly, that does not amount to either acting without jurisdiction or acting illegally or with material irregularity in exercise of his jurisdiction. It is, however, to be borne in mind that if this contention be accepted, then section 115 should be completely nugatory because in some instances before assuming jurisdiction he has to decide some question of jurisdiction, and if he decides wrongly, there is no remedy available. Such an aspect of the thing had to be dealt with by their Lordships of the Privy Council in the case of Bal Krishna Udayar. I invite reference to a passage at page 267. What happened in that case was that a District Judge acting in exercise of the powers conferred upon him by section 10 of the Religious Endowments Act (XX of 1863) decided that the election of a member to fill up the vacancy in an endowment committee was regular and he by his order accepted him as a member of the committee on an erroneous construction of the statute which on the contrary requires that, the vacancy has to be filled up by the members of the committee by election and until that is not done, the District Judge has no power to deal with the matter. Against this order, a revision was filed before the Madras High Court. At the hearing of the application a preliminary objection was raised that on the construction of the statute a petition for revision of the order of the District Court did not lie. The High Court overruled the preliminary objection and set aside the District Judge's order as made without jurisdiction. Against this there was an appeal to the Judicial Committee, and the preliminary objection that the petition did not be under section 115 was also raised and discussed there. In overruling that objection their Lordships said: “It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. And if the appellant's contention be correct, then if the Civil Court should absolutely and whimsically decline to exercise its jurisdiction and refuse to make any orders as to the filling up of vacancies, no matter how many existed there, would not, in a case such as the present, be any remedy available under this section and no appeal would lie”. It is evident from the observation of their Lordships that it is not every, erroneous decision either of law or of fact of a Court that is immune from revision by the High Court; if in their Lordships' own words the conclusions of law or fact be one in which the question of jurisdiction is involved, then, by all means, such conclusions are revisable by the High Court. It will be profitable here to refer to the case of Mosammat Dhanwanti Kuer v. Sheoshanker Lal. In that case a judgment-debtor who subsequent to the sale of his immovable property in execution sold his property privately, applied to have the auction sale set aside under Order 21, rule 89. The question that was discussed before the executing Court was whether the judgment-debtor was competent to apply under that rule. The lower appellate Court reversing the decision of the executing Court came to a decision that the judgment-debtor in that case was not competent to apply under the rule. Against this order a revision was directed to this Court and Mullick and Jwala Prasad, JJ. overruled the preliminary objection, and set aside the order of the appellate Court. Mullick, J., said: “In my opinion the principles of Malkar Juris case do not apply. Here the Court could only adjudicate upon the application if it was presented by a person fulfilling the character required by rule 89. The Court's decision upon the point whether the applicant has the necessary legal character is clearly a question involving jurisdiction. An erroneous decision on a question of law or fact after jurisdiction has been once legally assumed would not be a ground for interference under section 115 of the Code of Civil Procedure, but if the decision is the very basis and foundation of jurisdiction in its limited sense as distinguished from power it at once comes within the purview of the section. The judgment of their Lordships of the Privy Council in Balkrishna Udayar v. Basudeva Ayar is in my opinion authority for this view”. The point again came up for consideration in the case of Raja Bahadur Harihar Prasad Narain Singh v. Mahraj Kumar Gopal Saran Narain Singh. In that case the question arose whether a particular application that was filed before a Court in a mortgage suit in which a preliminary decree had been passed, was one seeking to record a compromise under Order XXIII, rule 3, Code of Civil Procedure. A contention against the maintainability of this application was to the effect that it was an application under Order XXI, rule 2, and, as such, it was barred by limitation, and therefore it could not be entertained under Order XXIII, rule 3. In short, the question was whether the application answered the description given in Order XXI, rule 2 or Order XXIII, rule 3, Code of Civil Procedure as in the present case the question is whether the plaint is one falling within the mischief of rule 5(d) of Order XXXIII. The Subordinate Judge entertained the application under Order XXIII, rule 3. This order was sought to be revised in this Court under section 115 of the Code of Civil Procedure. It was contended on behalf of the opposite-party in that revisional proceeding that the Subordinate Judge had the jurisdiction to decide whether the application fell within the provisions of Order XXIII, rule 3, or within that of Order XXI, rule 2, and if his decision be right or wrong, this Court had no jurisdiction to interfere by way of revision. In overruling this preliminary objection, Courtney Terrell, C.J, quoted with approval the dictum propounded by Mullick, J., in Dhanwanti's case, above recited, and then said: “Indeed learned Counsel for the opposite-party was constrained to admit that if a particular jurisdiction originates in some special law or enactment, the High Court can always interfere in the sense that it can construe the law and in accordance with that construction compel the lower court to exercise such jurisdiction or to refrain from exercising the jurisdiction if not warranted by the law or enactment in question”. He further says: “It (opposite-party's contention) amounts to a contention that a subordinate Court is the sole and final judge of the ambit of its own jurisdiction. It is certainly true that the High Court will not interfere in revision with a decision on the merits even if the lower court should err both in law and in fact, provided always that such subordinate court had jurisdiction to entertain the dispute between the parties. But if it be contended, as in this case, that the court had no jurisdiction whatever to entertain the matter, this Court must listen to the contention and if it should find that the lower court has made a mistake as to the extent of its jurisdiction, it may then interfere and this is particularly so when the lower court, in determining the ambit of its own jurisdiction, construes a legislative enactment”. This decision in Raja Harihar, Pd. Singh's case came up for consideration in a Full Bench case of this Court, Ramkhelawan Sahu v. Bir Surendra Sahi. The decision in Raja Harihar Pd. Singh's case was accepted as good law and it was held that “the superior Court will interfere in revision where the jurisdiction is derived from statute, e.g, the Court-fees Act, and the matter is one of construction of the statute, e.g, the particular category into which the suit falls and the proper court-fee payable on it. Moreover in deciding the question of court-fee, the Court is deciding an issue as between the Crown and the plaintiff; and should its decision be adverse to the plaintiff, it amounts to a decision to refuse to exercise its jurisdiction to try the issue as between the plaintiff and the defendant”. Applying the principles thus enunciated in the Full Bench case to the facts of the case before us, it comes to this that the learned Subordinate Judge in deciding the question whether the applicant's allegations do not show a cause of action in a particular way resulting in his rejection of the application for permission, decides the question whether the applicant is entitled to sue without payment of proper court-fees, and in doing so, he ultimately refuses to try the issue as between the applicant and the opposite-party. His power or jurisdiction to so refuse is attributable to the statutory enactment of rule 5, clause (d) and if he misinterprets this provision or in holding an enquiry into the applicability or otherwise of this provision of law commits an error of law, he in substance commits a mistake with regard to the ambit of his jurisdiction, and therefore this being a question in which the question of jurisdiction is involved, his order is revisable under section 115 of the Code of Civil Procedure by the High Court.

Apart from what I have said above, the same conclusion is inevitable from another aspect of the matter. It has to be seen whether in examining the question whether the applicant's allegations do not show a cause of action, within the meaning of rule 5 clause (d), Order XXXIII, Code of Civil Procedure the Court has got to decide the merits of the case at this preliminary stage. In other words whether the aforesaid provision requires a Court to examine if the allegations are such as would lead to a successful termination of the suit in favour of the applicant, or he has simply to see whether the allegations show prima facie a cause of action calling for a reply from the opposite-party and later a final adjudication of the matter as between the parties. The learned Counsel for the opposite-party contends that the words “cause of action” appearing in rule 5 clause (d) mean bundle of facts which would enable the plaintiff to succeed in his suit, and in support thereof cites the decision in the case of Ramdhanpuri v. Balkishen Puri. If this decision is the last word on the subject, it no doubt supports the learned Counsel's contention. This was a case in which the plaintiff-petitioner was claiming the right of succession to a mahantship of a particular Math. He set out in his plaint that the succession of the particular institution was regulated by a custom of nomination followed by election, while with regard to his own case, he based the cause of action on nomination merely without any election. In such circumstances, the bundle of facts alleged by him did certainly show not only no prima facie cause of action but also showed that according to the very rule of succession propounded by him, he could not succeed. Under those circumstances, James, J. after laying down the facts and after demonstrating how the plaintiff's title was on the very face of it defective, since on his own allegation in the plaint, he was not a legally constituted Mahanth of the Math, and that on such allegations, he could not hope to succeed in an action for ejectment, observed: “The cause of action, may be defined as the bundle of facts which would enable the plaintiff to succeed in his suit; and it must be held in this case that the plaintiff has not set out a cause of action in his plaint.” In that case the Subordinate Judge in allowing the applicant the permission to sue in forma pauperis did not confine himself to the case of the plaintiff as set out in the plaint but had made out a new case by travelling outside the plaint, and therefore his Lordship held that his order could not be sustained. It seems that the facts of that case did not warrant the aforesaid definition of the words “cause of action”. It seems they had been defined rather more widely than it was necessary for the decision of that case. If this view be correct, then it would not be wrong to say that allegations in a particular suit may amount to cause of action according to the decision of one Court and may not amount to cause of action according to the decision of either a superior Court or inferior Court who gives different decision on it. On the contrary, here are authorities to the effect that what the Court has to decide in adjudicating upon the maintainability of a pauper application is whether the allegations, prima facie, show a cause of action capable of enforcement in a Court of justice and calling for an answer. In this connection I refer to the case of Nawab Bahadur of Moorshedabad v. Harish Chandra Acharjee. In this case the learned Vakil who appeared to show cause had argued that the plaint as amended did disclose a cause of action and that it was not open to this Court to determine at that stage whether the plaintiff is or is not entitled to succeed on the basis of the alleged cause of action. In support of his contention he had placed reliance upon the cases of Debi Das v. Mohunt Ram Chandra Das and Gopal Chandra Neogy v. Bigoo Mistry. These cases affirmed the proposition that it is not open to a Court at the preliminary stage to enter into the merits of the suit and to determine whether the cause of action alleged in the plaint is or is not well founded. In reference to this, Mookerjee, J., said: “The correctness of this position need not be disputed, though there has been some divergence of judicial opinion upon the question of the extent to which the Court is entitled to investigate the facts at the preliminary stage, with a view to determine whether or not the allegations of the plaintiff disclose any cause of action.” Mookerjee, J. referred to the case of Kamrukh Nath v. Sundar Nath in which it was said that the learned Judges of the Allahabad High Court were inclined to the view that the Court is authorised by section 407 of the Code of 1882 which corresponds with rule 5 of Order XXXIII of the Code of 1908 to deal not merely with the question of jurisdiction but also to determine whether the person who asked for leave to sue in forma pauperis has a good subsisting prima facie cause of action capable of enforcement in a Court of justice and calling for an answer. In the case of Govindasami Pillay v. Municipal Council, Kumbakonam(5) it has been held by their Lordships of the Madras High Court that upon an application for leave to sue in forma pauperis, the Court is not justified in determining, at the stage contemplated by Order XXXIII, rule 5, Code of Civil Procedure, a question of limitation as to which there has been considerable difference of judicial opinion. Order XXXIII rule 5, applies only to cases where the allegations of the petitioner do not show a cause of action and this should appear clearly upon the face of the petition. This view of the Madras High Court has since been approved in the Full Bench case of U Be Dwe v. Maung Lu Pan(6) in which Page. C.J holds that it is not the function of the Court to embark at this stage upon the consideration of a complicated or a doubtful question of law or fact arising upon the allegations. In this connection, Page, C.J observes: “Further, I am of opinion that, if the allegations of the applicant prima facia disclose a cause of action, the Court ought not to embark upon the consideration of a complicated or doubtful question of law or fact that may arise upon the allegations of the applicant for the purpose of determining whether the allegations show a cause of action, for it is contrary to the scheme and the provisions of Order XXXIII that the Court for the purpose of disposing of an application for leave to sue in forma pauperis should decide issues affecting the merits that more properly and fairly can be determined at the hearing of the suit.” Here his Lordship refers to Govindasami Pillay.

From the very discussion of the question, at issue, whether Gandharva form of marriage is valid according to the Mithila school of Hindu law embarked upon by the Subordinate Judge in his judgment, as well as on reference to the authorities which I have cited above either in favour of or against the question, and the very wrong approach made by the Subordinate Judge in his discussion on the question, it is evident that the question is one of considerable difficulty and doubt, and therefore the learned Subordinate Judge was not acting within the ambit of his jurisdiction when he decided the question on the merits and once for all. Here his erroneous interpretation of rule 5(d) is the basis on which he founds his jurisdiction to reject the pauper application and plaint.

There is still another aspect of the matter from which if judged it will appear that the learned Subordinate Judge has, at any rate, acted in exercise of his jurisdiction with material irregularity. As I have shown above, the limited question whether the plaintiff was entitled to maintenance as against her alleged husband to whom she was married in the Gandharva form was the question at issue and the allegations should have been examined to show whether even for this limited purpose she should not be considered to be the wife of the opposite-party. The learned Subordinate Judge has missed this very question, and there is not a word of discussion about it in his judgment though in the operative part of it he rejects the petition holding that the allegations do not show a cause of action. The point had been raised in the plaint. On the contrary, he says that the petitioner's claim to maintenance on the mere fact of marriage though invalid is not tenable in view of her pleadings. This amounts to saying that he refused to bring his mind to bear upon the real question at issue. A similar question arose, in the case of Raghubir Singh v. Mul Chand. There, as will appear from the judgment, the lower Court had failed to consider the material question raised in the case and did not apply his mind to all the provisions of law on that question. In that case the leading judgment was delivered by Sir Sulaiman, C.J, who in disposing of the preliminary objection that no revision lay, observed: “It has been laid down by their Lordships of the Privy Council in several cases that where a lower court comes to an erroneous view of the law or decides a case erroneously, it does not act with material irregularity in the exercise of its jurisdiction, nor does it act without jurisdiction, and that therefore the High Court has no power in revision at all. But where there is not merely a question of error of law or an erroneous decision, but there has been a material irregularity in the acting of the court below while exercising its jurisdiction, it is well settled that a High Court can interfere. In the present case there is not a question of any error of law made by the court below, but it is a material irregularity in the exercise of jurisdiction, because the court did not at all apply its mind to the objection raised by the applicant, which had been either conceded or at any rate not disputed on behalf of the decree-holder. The point had certainly been made that interest should be calculated on the principal sum and it does not appear to have been expressly disputed on behalf of the decree-holder. The court, without any reference to the provision of section 30 of the Act and the definitions of the words ‘loan’ and ‘interest’ as given in the Act, has in the operative portion of its order, but not by its main judgment, directed that the interest should be calculated on the aggregate amount. The Court I below without considering the matter has taken it for granted that the decree should be in the form given in the operative portion of the order. It has not given any reasons in support of that direction. The case therefore is not merely one of an erroneous decision, but is one in which there has been a material irregularity in the exercise of jurisdiction because there has been no consideration of the point at all”.

Applying the principles of this case to the facts of the present case, it is clear that the learned Subordinate Judge has not applied his mind as to what the Hindu law is with regard to the right of maintenance of a wife belonging to Brahmin caste married in Gandharva form as against her Brahmin husband, while it is a matter of common knowledge that various jural relationships created under circumstances invalidating the same and the provisions of the Hindu law are ultimately found to create a legal relationship for the limited purpose of maintenance.

In this view of the matter it is quite clear that the learned Subordinate Judge has not only not acted within the ambit of his jurisdiction but acted with material irregularity in exercise of his jurisdiction in not considering the real point in controversy. In my view, therefore, the order of the learned Subordinate Judge must be set aside and the applicant's petition for leave to sue in forma pauperis should be granted.

The rule is made absolute and the opposite-party must pay the costs to the applicant. Hearing fee five gold mohurs.

Sinha, J.:— I agree.

K.D

Rule made absolute.