Bombay High Court
Dattatraya Waman vs Rukhmabai Pandurang on 31 July, 1908
Equivalent citations: (1908)10BOMLR770
JUDGMENT Batchelor, J.
1. This was a suit for maintenance brought by a Hindu widow. The Judge of first instance dismissed the suit on this among other grounds that it was premature. The learned Judge in the Court of appeal differing from that view allowed the suit and gave the plaintiff a decree for maintenance at the rate of Rs. 100 a year.
2. The only question raised in this appeal is whether the cause of action had accrued to the plaintiff when this suit was filed in February 1904. At that time the findings of the Court show that the plaintiff was in possession of a fund belonging to her husband's family estate, which fund was sufficient to provide for her maintenance for five years at the rate allowed by the lower Court. And in this state of the facts, we are of opinion that no cause of action had accrued to the plaintiff. In 1904 the Court was not in a position to forecast events or to anticipate the position of affairs five years later. In other words it was not in a position to make a decree for maintenance; and no liability to provide maintenance could in the then existing circumstances attach to the appellant.
3. It is urged that the Court might have made a mere declaratory decree affirming the plaintiff's abstract right to maintenance. But assuming that such an abstract prayer was competent, it was not a prayer put forward by the plaintiff; her prayer was for maintenance at the rate of Rs. 120 a year. We think, therefore, that the Subordinate Judge of first instance was right in the view which he took upon this point and we must reverse the decree under appeal and dismiss the suit with costs throughout.
4. We may add that Mr. Khare has attempted to enlist our sympathy in favour of his client. But upon that point we need only say that whatever the sympathies of the Court may be worth, they do not range themselves on the side of the plaintiff.