The judgment of their Lordshifs was delivered by

Sir B. Peacock:— This was a suit brought by Rani Bajkooer against Raja Pirthee Singh to recover arrears of maintenance, and also to have a decree for future maintenance. Raja Pirthee Singh was the adopted son of Raja Petumber Singh, and the plaintiff was the fourth or youngest of the four widows left by the late Raja. The Subordinate Judge gave a decree in favor of the plaintiff, which was appealed to the High Court, who supported that decision and increased the amount of maintenance awarded by it From that decision there is an appeal to Her Majesty in Council, which we now have to consider.

The defence set up by the adopted son was that the plaintiff had been provided with maintenance so long as she lived with the family of her deceased husband, but that she had quitted his house for improper purposes. He says — “The defendant provided the plaintiff with maintenance so long as she remained in Ava” (that was the family house), “according to the family custom. In 1861, the plaintiff, disregarding her husband's honor, left for Kotah with Bholanath, contrary to the terms of the will and the family custom, and became an abandoned character.

This being so, she has lost her right. Even after this the defendant, to avoid scandal and to oblige her, and relying on her promise that she would no more let Bholanath have any access to her, allowed her lodgings at Durriyapur, and regularly took care of her maintenance. The plaintiff's claim for maintenance prior to the institution of the suit is therefore illegal, and her claim for interest is also illegal, the payment of which was never stipulated. The plaintiff has nevertheless not parted with Bholanath, i.e, she has continued to act and behave contrary to her promise, disregarding the honor and custom of the family, and has not left off her former bad habits. She has, therefore, no right under the Hindu law to have a maintenance fixed for her for the future.” Now, that defence on the part of the defendant has not been proved, and has been very properly given up. The plaintiff alleged that some dispute arose between her and the elder widow with regard to her jewels which she did not make out; and she has not made out any cause for leaving the residence of her late husband any more than the defendant has made out his defence. The question, therefore, comes to this, — whether a Hindu widow loses her right to maintenance by reason of her leaving her husband's house, provided she does not leave for the purposes of unchastity or for any other improper purpose.

Several cases have been cited upon this point, and it will be as well to refer in the first instance to a case which was decided by the Privy Council, as that is one of the highest authority. That was a suit by Cossinauth By sack v. Hurrosoondery Dossee which was tried in the Supreme Court in Calcutta, in which the Chief Justice, Sir Edward Hyde East, gave judgment The question was put to the pundits, whether a widow was deprived of her property upon the ground of her having left her deceased husband's residence. Sir Edward Hyde East says:— “Upon the last ground of error the pundits have uniformly answered that the widow was not bound to live with her husband's relatives. The eighth question put by the Court to their pundits was:— If a widow from a just cause cease to reside in the family of her husband, does she thereby forfeit her right of succession to her deceased husband's estate? A. If a widow, from any other cause but for unchaste purposes, cease to reside in her husband's family, and take up her abode in the family of her parents, her right would not be forfeited.” He certainly goes on to say: “Here there was a good cause at the time, namely, the extreme youth of the wife, and no pretence was made of the prohibited cause.” It was alleged that, having left the residence of her deceased husband, and having refused to reside with the family, she did not forfeit the property which she had taken. That case was appealed to Her Majesty in Council, and was decided on the 24th June 1826. The opinion of the Judicial Committee was delivered by Lord Gifford. He says:— “With respect to the last supposed ground of error in this decree which was assigned by the appellants, namely, that it was not ordered by either of the decrees that Hurrosoondery Dossee should reside with, or under the care, protection, and guardianship of the appellants, who, as the surviving brothers of Bissonauth Bysack, were alone entitled to have the care, protection, and guardianship of his widow, the pundits appeared to be unanimous in the opinion that a Hindu widow is not bound to live with her husband's relatives.” That is the principle laid down. Then says his Lordship:— “I will read the answer to the eighth question pat, which will explain what the Hindu law is upon the subject, and in that it appears the other pundits who were called in agreed, or at least they expressed no objection to the opinion pronounced. The question put is this:— ‘If a widow from a just cause ceases to reside in the family of her husband, does she thereby forfeit her right of succession to her deceased husband's estate?’ The answer is:— If a widow, from any other cause but unchaste purposes, ceases to reside in her husband's family, and takes up her abode in the family of her parents, her rights would not be forfeited. “Then his Lordship goes on to say:— “Now, it was not pretended in this case that she had removed from the protection of her husband's family for unchaste purposes. She was only of the age of fourteen years at the death of her husband. His brothers were young men, and she thought it more prudent and decorous to retire from their protection, and live with her mother and her family after the husband's death. Therefore it appears quite clear from the answers given by the pandits that she did not forfeit the right of succession to her husband's estate on account of removing from the brothers of her late husband; that they had no right to insist upon her not withdrawing from them in order to put herself under the protection of her mother; and, therefore, there appears to be no foundation to that extent for the appeal.” The reasons given, that she was only of the age of fourteen years at the death of her husband, and that his brothers were young men, do not appear to be the reasons upon which that decision was founded. It was merely pointed out, as their Lordships understand the judgment, for the purpose of showing that the widow was not removing from her husband's house for unchaste or improper purposes.

It, therefore, appears that a Hindu widow is not bound to reside with the relatives of her husband; that the relatives of her husband have no right to compel her to live with them; and that she does not forfeit her right to property or maintenance merely on account of her going and residing with her family, or leaving her husband's residence from any other cause than unchaste or improper purposes.

That decision is quite in accordance with the vyavasthas which are quoted by Shamachurn Sircar in his book called Vyavastha Darpana. At p. 370, Vyavasthas Nos. 199 and 200 are thus stated:— “Should a woman without unchaste purposes quit the family house, and live with her parents or other relations, yet still she is entitled to maintenance. The widow, however, is not entitled to maintenance by residing elsewhere without a just cause, if she was directed by her husband to be maintained in the family house.” The husband in this case left a will, but he did not impose any condition upon either of his widows to reside in his family house after his death. He wrote a letter to the Collector, in which he stated that he did not wish that his widows should have the management of his property, and put the property into the hands of a mooktear, because, he said, it was of importance to maintain the reputation of his family. But it is no more than any other Hindu gentleman would desire, that after his death his property should not be jeopardized, that the reputation of his widows should be maintained, and that they should not destroy the reputation of his family by destroying the reputation of themselves.

It has been held that the Hindu law does not require a Hindu widow, for the purpose of maintaining her reputation, necessarily to live with her husband's relatives. She does not injure her reputation by living with her own mother or her own father. It is laid down as a rule of law that she is not bound to live with her husband's relatives. The decision of the Privy Council was quite in accordance with those texts of the Hindu law referred to by Shamachurn Sircar.

In the case of Shibasundari Dasi, the widow of Golackchunder, cited in Baboo Shamachurn Sircar's book at page 381, in which Sir Lawrence Peel delivered a judgment, it appeared that Shibasundari Dasi, widow of one Golackchunder, who died during his father Rammohan's lifetime, voluntarily left the family house (“voluntarily,” that is to say, without any cause except her own will and desire), and sued the defendants, who were the surviving sons and representatives of the other sons of Rammohan, for separate maintenance: a verbal reference had been made to three respectable Hindus, Kashinath Mallik, Gobindachunder Banerjea, and Rammohan Neoghi, who awarded Rs. 12 per month as sufficient allowance to her, she being allowed apartments in the family house, and food. Sir Lawrence Peel said:— “We think she is entitled to a separate maintenance. The words ‘food and raiment’ being too vague and ambiguous an expression, we must refer it to the Master to inquire and report whether the amount offered was just and proper with reference to her situation in life.” Then in another case:— “Srimati Mandodari Debi, the eldest of the two widows of Tilakram Pakrasi, a Hindu native of Bengal, filed a bill against his son, praying that defendant may set forth a full, true, and perfect account of the property, and may be compelled by a decree to pay her the same.” I believe it was not made a question about her having left the father's house, but in that case arrears of maintenance were awarded to her and future maintenance secured.

There was also the case of Jadumani Dossee v. Kheytra-mohun Shil, in which Sir Lawrence Peel, having considered the whole question, laid down the law in a clear and explicit manner. Every one who is acquainted with Sir Lawrence Peel must have the highest respect for his opinion upon all questions of this kind. He delivered the judgment of the Court He said:— The question is, whether a Hindu childless widow, who, some short time after the death of her husband, uncompelled by cruelty or ill usage, left the house of the family of her deceased husband, to dwell at first in the house of her own father, and subsequently with her aunt, living with her own relations, the residence being in all respect a proper one, and her conduct unimpeached, forfeits her right of maintenance out of the property which was that of her deceased husband in his lifetime and which had devolved on his heirs.” There the question was whether the principle which had been laid down in the case cited from the Privy Council, which was applicable to property inherited by a widow from her deceased husband, was applicable to a case of maintenance. Sir Lawrence Peel, after referring to some conflicting authorities, said:— “This state of the authorities has induced us to examine closely into the law on the subject. We should not hesitate to follow the decisions of the Sudder in preference to those of our own Court, if they appeared to us to be at once more just and more conformable to the Hindu law. We have intended to follow the Privy Council. The Privy Council has, on the subject of the right of the Hindu widow to return to the home of her parents, laid down a broad rule, upon which it is not desirable to infringe. That Court says:— ‘It was not pretended that she had withdrawn herself for unchaste purposes. She was only fourteen at the death of her husband, his brothers were young men; and she thought it more prudent and decorous to retire from their protection and live with her mother and her family after the husband's death, therefore it appears quite clear from the answers given by the pundits, that she did not forfeit the right of succession to the husband's estate on account of removing from the brothers of her late husband; that they had no right to insist on her not withdrawing herself from them, in order to put herself under her mother's protection.’ The decisions of that Court must of course give the law to all Courts here. The answer of the pundits, which the Privy Council adopts, is, that if a widow, from any other cause but unchaste purposes, ceased to reside in her husband's family and took up her abode in her parents' family, her rights are not forfeited.” Then he says:— “In the Privy Council the question was whether the Hindu heiress forfeited her estate, by selecting without impropriety her father's roof for her residence. But it is to be observed that the opinion of the pundits was generally expressed as to forfeiture of rights, and the Court expressed in general terms that the widow had a right under the circumstances to select that residence, and could not be compelled to reside under the roof of her husband's family. This freedom of choice had respect to causes as applicable to a widow not an heiress, as to one who inherited;” meaning to say, that the rule which had been laid down was equally applicable to a case of maintenance as it was to the case of property which the widow had inherited; that is to say, that she was entitled to a freedom of choice, and that unless she left the residence of her deceased husband for unchaste purposes, she could not be deprived either of the property which she had inherited from him, or be deprived of maintenance which the Hindu law requires the heirs of her husband to provide for her.

We are, therefore, not now deciding the question for the first time. We are not now for the first time laying down a rule upon this subject. In the case of Shurno Moye Dossee v. Gopal Loll Doss, the widow sued for maintenance, and it was held that she was entitled to that maintenance notwithstanding she had left the residence of her deceased husband. The Court said,— “In this case a widow sues for maintenance. The defendant, who is her step-son, objects that she resides in the house of her father, and alleges that she is, therefore, not entitled to maintenance. The widow alleges that she left the family home because she was tortured or rendered uncomfortable, but did not prove that allegation. We find, however, that it is laid down in the Vyavastha Darpana of Shamachurn Sircar, the learned interpreter of the late Supreme Court, vol. 1, p. 319, s. 160, that (should a woman without unchaste purposes quit the family house, and live with her parents or own relations, yet still she is entitled to maintenance; and in s. 161. The widow, however, is not entitled to maintenance by residing elsewhere without a cause if she was directed by her husband to be maintained in the family home. We think, therefore, that the widow is entitled to retain, the decree for maintenance which she has obtained, and dismiss the appeal.”

In this case their Lordships are of opinion that there was no direction by the husband's will which rendered it necessary for the widow to reside in her husband's house. The case of a widow is very different from the case of a wife. A wife of course cannot leave her husband's house when she chooses, and require him to provide maintenance for her elsewhere; but the case of a widow is different. All that is required of her is that she is not to leave her husband's house for improper or unchaste purposes, and she is entitled to retain her maintenance, unless she is guilty of unchastity, or other disreputable practices, after she leaves that residence.

The case was tried by a Subordinate Judge, in this instance, who was a Hindu, and, therefore, must be acquainted with the habits, usages, and religion of Hindus; and he thought that the widow having left the husband's house, was still entitled to her maintenance, and he awarded her the sum of Rs. 150 a month, with a sum of money calculated at that rate for the years during which she had not been allowed maintenance. The case was appealed to the High Court, and that Court thought that, having regard to the amount of the husband's property, the widow was entitled to a larger sum; and they awarded her maintenance at the rate of Rs. 200 a month. Their Lordships do not think it necessary to disturb that decision. The amount of maintenance, it is stated in the Vyavastha 197 in Shamachurn Sircar's book, should be fixed with reference to the proprietor's estate. Now in this case the deceased husband left property to the extent of two lakhs, or £20,000, a year. It does not appear to their Lordships to be excessive, even though he left four widows, that each of those widows should have a maintenance allowance at the rate of Rs. 200 a month, equal to £240 a year. Looking to the state in which a widow is bound to live and the religious duties which she is called upon to perform, it does not appear to their Lordships, having reference to the property of the deceased husband, that this widow ought to receive a less sum than that which has been awarded to her by the High Court, namely, Rs. 200 a month.

Some question was made as to the right of the widow to recover past arrears. A case was cited from the Madras High Court in which arrears were awarded; in the case also in which Sir Lawrence Peel gave that elaborate judgment to which I have referred, arrears of maintenance were awarded to the widow, as well as a decree in her favor with regard to future payments.

Under these circumstances their Lordships are of opinion that the decision of the High Court is correct, and they will therefore humbly recommend Her Majesty that that decree be affirmed, with the costs of this appeal.

Appeal dismissed.

Agent for the appellant: Mr. Wilson.

Agents for respondent: Messrs. Frank, Richardson, and Sadler.