Patna High Court
Sarbo Gopain vs Anta Lal Gope And Ors. on 8 May, 1958
Equivalent citations: AIR1958PAT613, 1958(6)BLJR404, AIR 1958 PATNA 613
JUDGMENT Misra, J.
1. The appellant, Sarbo Gopain, brought a suit in forma pauperis for the grant of suitable maintenance, either on a monthly or annual basis, together with a prayer for a decree for maintenance from Baisakh 1850 B. S. to the month of Jyastha 1356 B. S. at the rate of Rs. 600/- a year, alleging that she was the legally married wife of defendant No. 4. No issue was, however, born to the couple so that the plaintiff was being ill-treated by her husband as well as the other defendants who are members of a joint family with him. The matter came to such a pass that her father-in-law, defendant No. 1, actually assaulted her. Her husband also assaulted her and she was compelled to move to her maternal uncle's house for residence in the year 1347 F. S. Her husband took another wife soon after. The plaintiff, however, returned to her husband's place and wished to live in his house but her husband refused the request and she was compelled to go back to her maternal uncle's house where her mother was living, as the plaintiff's father was dead. She was being maintained by her maternal uncle. Accordingly, the present suit was instituted by her under the Hindu Married Women's Right to Separate Residence and Maintenance Act (Act XIX of 1946), on 11-7-1949. Two sets of written statements were filed on behalf of the defendants, one being on behalf of defendant Nos. 1, 2 and 3 and the other by defendant No. 4. The defendants admitted that the plaintiff was the legally married wife of defendant No. 4 but the allegation that she was ill-treated by the defendants was incorrect; nor was she turned out of the house.
It was the desire of the maternal uncle of the plff. that she should live with him as he had no issue of his own. He also requested defendant No. 4 to live with him as a ghar jamai which he refused to do. The plff. then left his house at the instance of her mother & did not come back in spite of repeated requests. Defendant No. 4, accordingly, had to take another wife. It was also incorrect to say that she came back to the house of her husband again. In fact, defendant No. 4 was ever willing to take her back and maintain her but was due to her own obstinacy and her mother's influence that she would not live in her husband's house. She was, therefore, not entitled to maintenance and, in any case, the amount claimed was exorbitant.
2. The suit was tried in the Court of the learned Subordinate Judge, Dumka, who found that the plaintiff had failed to establish that she was turned out of the house by her husband. She was living with her maternal uncle of her own accord and on account of her mother's wishes, and not due to any ill-treatment to her by the defendants. Defendant No. 4 had, no doubt, taken another wife, but the Court below held on the main issue that she was not entitled to maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, as in view of Sub-section (4) of Section 2 of the Act such a claim could not be allowed unless the husband married another wife after the Act came into force, i.e., 23rd April, 1946.
The marriage of defendant No. 4 having taken place with another woman long before 1946, the plaintiff was not entitled to any maintenance while she was living separately from her husband. On evidence, however, he decided that although the plaintiff claimed Rs. 50/- per month as the rate of maintenance, she would not be entitled to more than Rs. 20/- per month, in view of the means of her husband calculated on his share in the joint family properties. Accordingly, he dismissed the suit. The plaintiff has filed the present appeal against the decision of the learned Subordinate Judge.
3. Learned counsel for the parties have not argued any question of fact before us. Mr. B. C. De, for the appellant, has only contended that in view of the repeal of Act XIX of 1946 by The Hindu Adoptions and Maintenance Act, 1956 (Act LXXVIII of 1956), which has a retrospective effect, the plaintiff would be entitled to maintenance even if her husband married another wife before the 23rd April, 1946, when Act XIX of 1946 had come into force. He pressed that in view of the decisions of some High Courts it was not noticed by the learned Subordinate Judge that the plaintiff, under other decisions of other High Courts, was entitled to maintenance even under Act XIX of 1946. Learned counsel has relied upon the following cases in support of his contention that even under Act XIX of 1946, Section 2, Sub-section (4), the plaintiff would be entitled to maintenance; Sm. Pancho v. Ram Prasad, AIR 1956 All 41 (A); Kulamani Hota v. Parbati Devi, (S) AIR 1955 Orissa 77 (B); Anjani Dei v. Krushna Chandra, AIR 1954 Orissa 117 (C) and Varalakshmi v. Viramulu, AIR 1956 Hyd 75 (D). Learned counsel for the respondents, however, has relied upon the following cases for the contrary view that the plaintiff would not be entitled to any relief under Section 2, Sub-section (4) of Act XIX of 1946, when her husband took another wife prior to the enforcement of that Act. Laxmibai Wamanrao v. Wamanrao Gobindrao, AIR 1953 Bom 342(E); Mt. Sukhribai v. Pohkalsingh, AIR 1950 Nag 33 (F); Kasubai v. Bhagwan, (S) AIR 1955 Nag 210 (FB) (C) & Palaniswami Gounder v. Devanai Ammal, (S) AIR 1956 Mad 337 (FB) (H).
In my opinion, the decision in the case of (S) AIR 1956 Mad 337 (FB) (H), appears to be the sounder view inasmuch as it is in consonance with the wordings of Section 2, Sub-section (4) of Act XIX of 1946. That section reads as follows:
"Notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely,-
X X X (4) if he marries again:
x x x After a full consideration of the various decisions of the Madras High Court taking the contrary view, the Full Bench decided that Sub-section (4) of Section 2 is not declaratory in nature and a Hindu wife is not entitled to claim separate residence and maintenance under the Act on the ground that her husband had married a second wife, when the second marriage took place before the passing of the said Act. Decisions of that High Court to the contrary were overruled by the Full Bench. Without taking up a fresh examination of the various considerations, I would content myself with saying that I agree with the opinion expressed by their Lordships of the Madras High Court inasmuch as the intention of the Legislature is expressed in unambiguous terms as the words used are "if he marries again", which would certainly apply to cases when the husband marries after date when the Act came into force. I am not inclined to agree with the line of decisions cited by Mr. B. C. De in support of the argument referred to above. If therefore, the present case were governed by Act XIX of 1946, the appeal would have to be dismissed. As it is, however, Mr. B. C. De, as an alternative argument, has referred to the provisions of Section 18, Sub-section (2), Clause (d), of Act LXXVIII of 1956. Section 18 is in these terms:
"18(1) Subject to the provisions of this section, a Hindu wife, whether married before Or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.
x x x
(d) if he has any other wife living;
X X X Mr. De's contention is that the language used by the Legislature in framing Section 18 is such as to avoid the ambiguity which arose in the interpretation of Section 2 of Act XIX of 1946, as Clause (4) is, as I have mentioned above, "if he marries again", whereas Clause (d) of Sub-section (2) of Section 18 is "if he has any other wife living". The difference between the phraseology of the two provisions covering an almost identical point is well-marked. Evidently, the Legislature intended to end the ambiguity. Sub-section (1) in terms lays down the right of a Hindu wife to claim maintenance from her husband during her life-time. No doubt, this right of maintenance was available to her even before the passing of this Act, but the same is recognised in plain terms. Her right, however, to separate residence was on very limited ground. As a result of judicial interpretation, in normal circumstances, she was bound to remain with her husband.
Right of separate residence was legislatively recognised under Act XIX of 1946. The present Section 18 of Act LXXVIII of 1956 has slightly departed from the language of Section 2 of Act XIX of 1946. 'Learned Counsel for the respondents has urged that the words "if he has any other wife living" in Clause (d) of Sub-section (2) should be given the same meaning as the words "if he marries again" in Sub-section (4) of Act XIX of 1946, inasmuch as the husband had vested right before the passing of Act XIX of 1946 and the present Act, not to maintain his wife if she insisted upon separate residence from him. In my opinion, the argument is misconceived. No question of vested right can arise in a matter like this as to how a husband will maintain his wife, whether on a condition of her living with him or, under certain circumstances, even when the latter insists upon separate residence as legislatively recognised.
4. Learned counsel then contended that, in any case, it was imposing a new liability and, therefore, retrospective effect should not be given to such a provision unless the Legislature expressed its intention to do so in clear terms. If defendant No. 4 had known that he would have to maintain his first wife, even when she would refuse to live with him, he would not have married again. In my opinion, it is not a question of ulterior consideration as to what the husband would do in certain circumstances but the Court of law has to determine what actually the Legislature has done. In my opinion, the change in the language from "marries again'' to "wife living"
is so clear that there is no difficulty in gathering the intention of the Legislature. Learned counsel was conceded that the intention of the Legislature can be gathered not only with reference to the express terms but also with reference to the necessary intendment of the words employed by the Legislature, vide Maxwell's Interpretation of Statutes, 9th edition, p. 21. The passage runs thus:
"It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears' very clearly in the terms of the Act, or arises by necessary and distinct implication".
He has, however, referred in this connection to Section 6 of the General Clauses Act which deals with the effect of repeal of an Act. Clauses (b) and (c) refer to the fact that the repeal of an enactment shall not affect the previous operation of an enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is, however, clear that the Legislature has also provided in that section that the various clauses mentioned therein will operate unless a, different intention appears. Section 6, therefore does not improve the position because the crux still is whether a different intention has been expressed by the Legislature in using the words "a wife living' or not. Learned counsel for the parties have also referred to Maxwell on Interpretation of Statutes. Mr. B. C. De has referred to pages 68 and 253 of the 10th edition of that book for the contention that a beneficial construction is to be given to the Act. At page 68, the following passage occurs:
"It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words".
Learned counsel for the respondents has also referred to Maxwell in support of his contention that a strict meaning should be given to the words. In my opinion, the words of the section are so plain that it is unnecessary to refer to any canons of construction for interpreting them. It is enough to mention that the state of law, as it was prior to the passing of this Act, did create some ambiguity owing to the words employed and this section must be taken as an attempt to remedy that defect. In my opinion, therefore, even if not in express terms, these words by necessary intendment show that the Legislature intended this clause to be of a declaratory character and not merely remedial which was the criterion applied in construing Act XIX of 1946. Learned counsel for the respondents has, however, drawn our attention to a Full Bench decision of the Punjab High Court in the case of Pt. Ram Parkash v. Smt. Savitri Devi, AIR 1958 Punj 87 (I). No doubt, in that case an observation occurs to the following effect :
"There is nothing in the Act of 1956, to indicate that it was intended to operate retrospectively or to deprive husbands of the rights which had been acquired by them before its enactment. It pro vides merely that after this Act comes into force a Hindu wife shall be entitled to separate residence and maintenance in certain circumstances and that she will forfeit her right to separate residence and maintenance in certain other circumstances."
This observation, however, is in the nature of an obiter dictum as the real point for decision in that case was the effect of Sub-section (4) of Section 2 of Act XIX of 1946, in regard to which I have already held that I am inclined to agree with the opinion expressed in the case of Palaniswami Gounder v. Devanai Ammal (H) by the Full Bench of the Madras High Court. The above decision of the Punjab High Court also is in consonance with that view. Any observation, therefore, by the learned Chief Justice in regard to the scope of Section 18 of 1956 Act was not for the purpose of answering the question formulated by the Division Bench, which question was whether a Hindu wife is entitled to separate residence and maintenance under Act XIX of 1946 on the ground that her husband had married a second wife when that marriage took place before the passing of the Act.
Even, however, if there were any force in the contention that the above observation was warranted in the circumstances of that case, I would respectfully differ from that opinion for the reasons stated by me in this judgment. It must accordingly be held that the suit of the plaintiff has to be decreed in terms of section 18 of the present Act (Act LXXVIII of 1956), although it was rightly dismissed when this Act was not passed. In this connection, reference may also be made to the case of K. C. Mukerjee v. Ram Ratan Kuer, ILR 15 Pat 268 : (AIR 1936 PC 49) (J) wherein also an identical question with regard to the retrospective effect of certain provisions of the Bihar Tenancy Act, was considered by the Judicial Committee and it was held that the provisions were retrospective and must apply to pending litigations as well, although the Legislature had not laid down in express terms that those provisions would apply to pending litigations.
An apt illustration to support the same conclusion is to be found in the case of Lane v. Lane, (1896) P. 131 : 65 L. J. P. 63 (K) referred to by Maxwell above cited at p. 230 in the following words :
"The Summary Jurisdiction (Married Women) Act, 1895, (C. 39), Section 4, which enacts (inter alia) that 'any married woman whose husband shall have been guilty of persistent cruelty to her, and by such cruelty have caused her to leave and live separately and apart from him may apply to any Court of summary jurisdiction for an order under the Act,' was held to be retrospective in its operation, and to apply to acts of cruelty committed before the Act came into operation."
5. I would, therefore, hold that the suit of the plaintiff has to be decreed in terms of Section 18 of Act LXXVIII of 1956, even if the suit was rightly dismissed by the Court below, on the view of law an the case of (S) AIR 1956 Mad 337 (H), which view apparently found favour with the learned Subordinate Judge.
6. The next question for consideration is from what date the plaintiff would be entitled to maintenance. Learned Counsel for the respondents has urged that, in any case, the decree for maintenance should be at the rate determined by the Court below and it can be passed only from 22-12-1956, when the Act was published in the Gazette of India, and not for the period preceding that date. This contention is well-founded. In view of my conclusion that the plaintiff was not entitled to get maintenance under section 2 of the Act of 1946, her claim for maintenance up to 22-12-1956, cannot be decreed. After that date, however, since the parties art now governed by Act LXXVHI of 1956, the claim of the plaintiff must be decreed from 22-12-1956.
7. The appeal, therefore, is allowed, the judgment and decree of the Court below are set aside and the plaintiff's right to maintenance at the rate of Rs. 20/- per month is declared. She would get a decree for maintenance from 22-12-1956, onwards. In the circumstances of the case, however, parties must bear their own costs throughout.
S.C. Prasad, J.
8. I have had the advantage of going through the judgment of my learned brother. I agree that the appeal should be allowed, because Section 18 of Act LXXVHI of 1956, is retrospective in operation and will apply to the pending litigations also.
9. The relevant portions of Section 18 are as follows :
"(18) (1) subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance, :
X X X X X
(d) if he has any other wife living :
X X X"
In addition to what my learned brother has observed in his judgment regarding the significance of the change in the phraseology of the present section as compared with the corresponding section of the Act of 1946, pointing out unmistakably the intention of the legislature to make the present Act restrospective, I have to lay stress on the opening lines of this Section 18, and also on the expression "whether married before or after the commencement of this Act" following the words "a Hindu wife."
In my view, this expression further re-inforces the conclusion that the intention of the legislature is as has been pointed out by my learned brother, namely, that this section is to operate retrospectively, The entire section, viz., Sub-sections (1), (2) and (3) have to be read as a whole, so that Sub-section (2) must be held to apply to a Hindu wife, married before or after the commencement of this Act and unless the legislature intended to make this section retrospective in order to affect all married Hindu women irrespective of the fact as to when their marriages had taken place, it would not have used this expression which would otherwise have been redundant in this section.
10. It does not seem reasonable to suppose that the legislature should have intended to benefit two categories of Hindu wives, namely, those who were married after the commencement of this Act or those out of whom some had been married before and some after the commencement of this Act while the third category or Hindu wives, namely, all of them who had been married before the commencement of this Act should be deprived of the right of living separate from their husbands and at the same time claiming maintenance on the ground that he had married another wife.
It should not be forgotten that before this Act of 1956 was enacted by the Parliament, there was a sharp conflict of opinion between the High Courts on the point of the operation of 1946 Act in respect of the claims of those wives who had been married before that Act had come into operation. It seems clear, as has been pointed out by my learned brother, that in order, to quieter this conflict and clarify the position, the present Act has used the above expression, and has departed from the previous expression "If he marries again" having adopted the present phraseology "if he has any other wife living". Obviously, such a provision has to be interpreted beneficially keeping in view the state of the law prior to the enactment of this section, the mischief which was intended to be remedied, and the words used by the legislature in doing so. This is one of the fundamental canons of the interpretation of statutes. I have no doubt in my mind that so interpreted, this section' must be held to be retrospective in its operation. It is true that the section itself does not say in express term that it should have that operation and ordinarily an Act should not be interpreted as having retrospective operation unless the statutes shows a clear intention to that effect: See the cases of Ward v. British Oak Insurance Co., (1932) 1 KB 392 (L), Phillips v. Eyre, (1870) 6 QB 1 (M) and Re Pulborough School Board Election, (1894) 1 QB 725 at p. 737 (N). Eyre's case (M) contains a good analysis of the law of retrospection.
But that effect can also be inferred by necessary implication from the words used by the Legislatte: See the case of Phillips v. Eyre (M), referred to above, at p. 23 and that of Hutchinson v. Jauncey, (1950) 1 KB 574 (O) followed in Jonas v. Rosenber, (1950) 2 KB 52 (P). In my view, retrospective operation of this section affecting pending action is also necessarily implied in the words used by the Legislature in this section specially the expressions "whether married before or after the commencement of the Act" and "If he has any other wife living".
11. In a case in which the Wine and Beerhouse Amendment Act, 1870, provided that "every person convicted of felony" shall be disqualified from selling spirits by retail and that if any such person should take out or have taken out a license for that purpose, it should be void. This was held to include a man who had been convicted of felony before, and had obtained a license, after the above Act was passed. This construction was put on this section because this best advanced the remedy and suppressed the mischief: See the case R. v. Vine, (1875) 10 QB 195 (Q) considered and approved in the case of (1894) 1 QB 725 (N) (specially, the observation in the judgment of Lord Esher, at p. 734). An earlier case of Hitchcock v. Way, (1837) 6 A & E, 943 (R) lays down that where a law is altered by statute, pending an action, the law in existence when the action was commenced must decide the rights of the parties unless (and this in my view is important) the Legislature, by the language used, show a clear intention to vary the mutual relation of the parties. The cases of (1950) 1 KB 574)(O), & (1950) 2 KB 52 (P), already referred to above, were cases in which the effect of a statute enacted during the pendency of an action was considered and the statute was applied.
It was held in the latter case following Hutchinson's case (O) that the law applicable was the law as it existed on the date of the Judgment. Section 10 of the Statute there provided that some of the sections of the Act were to apply whether letting of the house began before or after the commencement of the Act -- Landlord v. Tenant (Rent Control Act of 1949) but not so as to affect rent in respect bf any period before the commencement thereof or anything done or committed during any such period. This Act had come into force during the pendency of the action. Still it was applied.
12. In the case of Hutchinson v. Jauncey (O), Evershed M. R. observed as follows;
"To quote from Maxwell, on the Interpretation of Statutes (9th Ed.) p. 229, "In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights''. Two of the cases seem to indicate that there should be found express reference to causes or action pending. For example, in In re Joseph Suche & Co. Ltd., (1875) 1 Ch. D 48 at p. 50) (S), Jessel M. R, sitting at first instance decided a particular case on this ground of principle. He' stated his conclusion thus: "I so decide because it is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action its enactments, unless in express terms they apply to pending actions, do not affect them".
Something of the same kind, I think, may fairly be said to emerge from the language of Wilde B, in Wright v. Hale, (1860) 30 LJ Ex. 40 at p. 43 (T).
Having examined the many cases cited for the landlord, I doubt whether the principle ought to be expressed in quite such precise language as Jessel M. R. used in In re. Joseph Suche and Co., Ltd. (S). In other words, it seems to me that, if the necessary intendment of the Act is to affect pending causes of action, then this court will give effect to the intention of the legislature even though there is no express reference to pending actions''.
13. I would also refer in this connection to Section 4 of the Act LXXVIII of 1956 especially to Clause (b) of this section which runs as follows :
"any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act".
In my view, the rule of common Hindu Law ceased to have any force when this Act of 1956 commenced, being inconsistent with it. That being so, it is clearly, this Act of 1956 which will have to be looked into for determining the rights of the parties, the previous law being no longer operative in this field in view of this clear provision of the Act. Consequently the present appeal has to be decided with reference to Section 18 of the Act. Sub-clause (b) of Section 4 of this Act further re-enforce the conclusion that Section 18 must have retrospective operation. It is a well established principle of law that the courts are not prevented from granting relief on the basis of a subsequent legislation of which they can take notice for this purpose, especially when it is likely to shorten litigation and do complete justice between the parties: See the case of Attorney General v. Birmingham Drainage Board (1912) AC 788 at p. 802 (U). It need hardly be pointed out that if no relief is granted to the appellant in this appeal on the basis of Section 18 of the Act, it will result in great injustice to her.
14. I also agree that the Act of 1946 had no retrospective operation and could not help the appellant.