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1955 DIGILAW 170 (MAD)

Palaniswami Gounder v. Devanai Ammal and others

1955-05-05

RAJAGOPALA AYYANGAR, RAJAGOPALAN, RAJAMANNAR

body1955
Judgement ORDER OF REFERENCE KRISHNASWAMI NAYUDU, J. :- This appeal arises out of a suit for separate maintenance and residence by a Hindu wife against her husband, for herself, and fat her minor daughters. 2. The first plaintiff, the wife, was married to the defendant 20 years prior to the suit. The 2nd and 3rd plaintiffs are two of the surviving daughters of the marriage. The plaintiffs case is that on account of cruelty on the part of the husband, the first plaintiff was obliged to leave him. The suit for maintenance was resisted by the husband on the ground that she was living away from him without sufficient cause and that he was prepared to take her back and allow her to live with him. The defendant married a second wife, as the first plaintiff did not bear him a male child, which marriage was, according to him, with the approval of the first plaintiff. 3. The learned Subordinate Judge did not consider it necessary to examine the allegations of cruelty in view of the passing of the Hindu Married Womens Right to Separate Residence and Maintenance Act 19 of 1946. A contention was raised on behalf of the defendant that the said Act was not retrospective in character and would not afford the first plaintiff, a ground to claim separate maintenance, as admittedly in this case the marriage took place long before the passing of the Act. But the learned Judge following the decision of Viswanatha Sastri, J. in - Lakshmiammal v. Narayanaswami Naicker, 1950 Mad 321 (AIR V 37) (A), who took the view that the Act was retrospective in character, granted maintenance. 4. In the present appeal, the correctness of the view taken by Viswanatha Sastri, J. is canvassed. In so far as our High Court is concerned, Raghava Rao, J. in - S.A. No. 556 of 1947 (Mad) (B), followed Viswanatha Sastri, J. and held that the Act was retrospective. One of us (Krishnaswami Nayudu, J.) had occasion to consider this question in - Sidda Setty v. Muniamma, 1953 Mad 712 (AIR V 40) (C), though, that question did not directly arise for consideration in that case, and a contrary view was taken. 5. The decision of the question turns upon the interpretation of the words "if he marries again" in S. 2(4) of Act 19 of 1946. 5. The decision of the question turns upon the interpretation of the words "if he marries again" in S. 2(4) of Act 19 of 1946. Viswanatha Sastri, J. took the view that the words "marries again" are merely descriptive of the position of the husband as a twice married man at the date when the wifes claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation. In - Lakshmibai v. Wamanrao, 1953 Bom, 342 (AIR V 40) (D), a Bench of the Bombay High Court consisting of Rajadhyaksha and Vyas, JJ. before whom the decision in 1960 Mad 321 (AIR V 37) (A), was cited, did not accept the view that the Act was retrospective and held that the words "if he marries again" must be interpreted as meaning "if he marries again after the Act comes into force", and any earlier marriage, of the husband prior to the coming into force of the Act will not confer upon the wife the right to claim separate residence and maintenance. The learned Judges agreed with the view of Hidayatullah and R. Kaushalendra Rao, JJ. in - Sukhiribai v. Pokkal Singh, i960 Nag 33 (AIR V 37) (E), that the Act could not be called a "declaratory Act" in the strict sense of the term and therefore could not be given a retrospective operation as a declaratory Act and the Act was a remedial measure and Cl. (4) of S. 2 thereof must be given prospective operation. 6. The matter came up in a first appeal before Subba Rao and Ramaswami, JJ. whose decision is reported in - Nagendramma v. Ramakotayya, 1954 Mad 713 (AIR V 41) (F). Ramaswami, J. delivering the leading judgment, accepted the view of Sastri, J. that the words "marries again" in S. 2(4) of Act 19 of 1946 "are merely descriptive of the position of the husband as a twice married man at the date when the wifes claim for separate maintenance is made under the Act and do not exclude a husband who has taken a second wife before the Act from its operation". and did not purport either to discuss or express any opinion as to whether the law was remedial and prospective or declaratory and retrospective. and did not purport either to discuss or express any opinion as to whether the law was remedial and prospective or declaratory and retrospective. Subba Rao, J. in a short judgment did not express any opinion on the general question as to whether the first wife living apart from her husband on the ground that he married a second Wife was entitled to maintenance by reason of the second marriage alone and did not think it necessary to express his view on the second question whether such marriage in itself would be a sufficient ground before Act 19 of 1946 for awarding maintenance to the first wife. Subba Rao, J. did not consider it necessary to express any opinion on the conclusion arrived at by Ramaswami, J. as to the real state of the law prior to the enactment. The learned Judge stated that he agreed with Ramaswami, J. on the interpretation of the provisions of Act 19 of 1946. 7. The question of interpretation of S. 2(4) of Act 19 of 1946 is of great importance as it arises not only in suits for maintenance on the ground of second marriage contracted by the husband, however long before the Act, but also in other cases, and it arose in another case, before us, - Kuppammal Gouodan v. Palaniammal, 1955 Mad 471 (AIR V 42) (G), in connection with a petition for divorce filed by the husband and on the ground of desertion, the contention raised there being that the wife, whose husband took a second wife, prior to Act 19 of 1946, and living separately from the husband under a decree far maintenance and separate residence obtained under the Act must be held to have deserted without just cause. One of us (Krishuaswami Nayudu, J.) has already taken a different view, which is the view expressed in the two Bench decisions of the Bombay and Nagpur High Courts referred to above. The question as to whether the enactment is a declaratory or a remedial measure has not been considered by the Bench of our High Court, though that was the basis of the decisions of the Bombay and Nagpur High Courts. The question as to whether the enactment is a declaratory or a remedial measure has not been considered by the Bench of our High Court, though that was the basis of the decisions of the Bombay and Nagpur High Courts. Further the basis of Ramaswami, J.s view that the Hindu law as to separate maintenance end residence on husbands second marriage even prior to the enactment was the same, not having been subscribed to by Subba Rao, J. We consider it necessary that the whole question may be examined by a Full Bench, An authoritative decision by a Full Bench appears to be necessary especially in view of the conflict. 8. The papers will be placed before the Honourable the Chief Justice for his orders. OPINION OF THE FULL BENCH RAJAMANNAR, C.J. : 9. The only question which was argued before us was whether a Hindu wife is entitled to claim separate residence and maintenance under the Hindu Married Womens Right to Separate Residence and Maintenance Act (Act 19 of 1946) on the ground that her husband had married a second wife, when the second marriage took place before the passing of the said Act. The answer to this question depends on a construction of Cl. (4) which occurs in S. 2 of the Act. That section runs thus : "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 : 1. if he is suffering from any loathsome disease not contacted from her; 2. if he is guilty of such cruelty towards her us renders it unsafe or undesirable for her to live with him; 3. if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish; 4. if he marries again; 5. if the ceases to be a Hindu by conversion to another religion; 6. if is keeping a concubine in the house or habitually resides with a concubine; 7. for any other justifiable cause". 10. if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish; 4. if he marries again; 5. if the ceases to be a Hindu by conversion to another religion; 6. if is keeping a concubine in the house or habitually resides with a concubine; 7. for any other justifiable cause". 10. There has teen a sharp divergence of judicial opinion on the construction of the clause if he marries again", some Judges taking the view that the clause would govern the case of a second marriage even before the commencement of the Act, while other Judges have taken the narrower view that it can only apply to the case of a second marriage after the commencement of the Act. Not a little of this difference of opinion is due to the unhappy language of the clause. The present tense is used in all the Cls. (1) to (6); but there is no room for doubt on the construction of some of the clauses. Take, for example, the first clause. It is obvious that what is required is proof of the fact that the husband is suffering from a loathsome disease on the date on which the claim to maintenance is put forward or sought to be enforced. The fact that he might have been suffering even before the Act would not make him any the less suffering subsequently. The fact that he was suffering from such a disease at some time before the commencement of the Act would not a valid ground under the Act if at the time the claim is put forward he is no longer suffering from such a disease. The clause describes a state, a bodily state. The same remarks may be made as regards Cl. (6). Here again, the tense used is the present continuous. If the husband was keeping a concubine before the commencement of the Act, but if he is no longer keeping a concubine after the Act and at the time when the claim to maintenance is put forward, then the clause will not apply. Clause (4), however, refers to an act done by he husband, namely, marrying again. It is not a continuous act, though the state of marriage may continue. Clause (4), however, refers to an act done by he husband, namely, marrying again. It is not a continuous act, though the state of marriage may continue. There would have been no difficulty if the language had been "if he has another wife alive"; that would have fully and accurately expressed what probably was the intention of the Legislature. Obviously, it could not have been the intention to confer a right of separate residence and maintenance is a case where on the date the claim is put forward the second wife is dead. The language, as it is, contemplates the event happening in the future and is not at all appropriate to refer to an act which has already been done. In - Bonrko v. Nutta, 1894-1 QB 725 (H), similar language was understood to have a prospective application. Section 32, Bankruptcy Act, 1883, provided inter alia as follows : "Where a debtor is adjudged bankrupt he shall, subject to the provisions of this Act, be disqualified for ........ being elected to ......... the office of .......... member of a school board." It was held by the Court of Appeal that such disqualification did not attach to a person who had been adjudged bankrupt before the passing of the Act Lopes L.J. pointed out that to read the words "where a debtor is adjudged bankrupt" as applying to the case of an adjudication prior to the Act would be not to give the word "is" its ordinary and natural meaning, but to distort it. It was urged that the words are equivalent to the words "where a debtor is an adjudicated bankrupt". But the argument was met with this observation : "If the Legislature so meant, why did they not use that form ?" Davey L.J. said : "Now reading those words alone, and apart from considerations arising out of the subject-matter of the section in which they occur, I should certainly understand, them (according to the ordinary use of the English language) to mean, if any man shall or may hereafter be adjudged bankrupt; and unless there be some controlling context in the Act or in the section, I hold that to be the meaning of the words. It has been suggested that the words may be read as meaning "where a man is an adjudicated bankrupt". It has been suggested that the words may be read as meaning "where a man is an adjudicated bankrupt". The answer seems to me to be that those are not the words before us, and that the words we have to construe are grammatically different. J think the words "is adjudged" are the verb whereas in the paraphrase suggested the word "adjudicated" would be an adjective. The one form of sentence points to an event to happen, whereas the form suggested predicates a certain quality of the subject which may just as well attach to him by a previous adjudication as by a subsequent one." 11. The principle of this decision would, to my mind, clearly apply to the clause in question. "If he marries again", means, if he contracts a marriage after the Act. That is the construction I would place, without reference to any of the decisions dealing with this question. 12. I shall now refer first to the decisions of this Court on the construction of the clause. The earliest reported case on the point is 1950 Mad 321 (AIR V 37) (A). Viswanatha Sastri, J. held that the clause in question would apply even when the second marriage had been contracted before the Act. The learned Judge discussed the object of the Act, which according to him was "to mitigate in some measure, the hardship arising from an one-sided and prejudiced view of the rights of woman and statement of law which, while allowing a man to marry as many wives as he wished denied the right of divorce to a married woman and of subjected her to perpetual and implicit obedience to her husband." He assumed that before the Act the law was, the mere fact of a husband taking a second wife did not, by itself, entitle the wife to separate maintenance, if the husband was willing to keep her in his house. According to him, "The Act was designed to remedy the mischief created by a state of the law which permitted a man to marry as often as he liked but denied, to the superseded wife separate maintenance". According to him, "The Act was designed to remedy the mischief created by a state of the law which permitted a man to marry as often as he liked but denied, to the superseded wife separate maintenance". And the learned Judge added : "There is no reason why the Legislature should have made an invidious distinction between wives superseded by a second marriage of the husband before the Act and those who are so superseded by a second marriage after the Act." 13. The literal meaning of the words used in the clauses was evidently pressed upon him. But the dismissed the contention thus : "With reference to S. 2(4), however, it is argued that the words "marries again" refers to a future marriage, i.e., after the Act. I appreciate the verbal point of this interpretation but I am unable to accept if. In my opinion, the words are merely descriptive of the position of the husband as a twice married man at the date when the wifes claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation." With great deference to the learned Judge, I doubt if it is permissible to substitute for the language actually used in the statute language which is more likely to express what was presumably contemplated by the Legislature. In the first place, it is difficult, if not impossible, to be certain in this case as to the intention of the Legislature, It may very well have been that it is only in the case of a man marrying again after the Act, i.e., fully aware of the consequences, that a liability should be cast on him to provide for separate residence and maintenance for the first wife. A second marriage depends upon the volition of the husband, if he wants, he can avoid it. It is not so with disease. It may well be that a greater liability was not sought to be imposed upon a husband for an act done by him before the commencement of the Act than, he was subject to under the law as it stood. The learned Judge says at one place in the judgment that cruelty and desertion, apostacy and keeping of a concubine, might have started, i.e., had their inception before the Act came into force. The learned Judge says at one place in the judgment that cruelty and desertion, apostacy and keeping of a concubine, might have started, i.e., had their inception before the Act came into force. This is true, but then the language used does not grammatically exclude such cases. The necessary condition is his state or status or his action, the results of which must be present on the date on which the claim to separate residence and maintenance is made by the wife, and it will not be doing any violence to the language, if the clauses are applied to cases where the ground might have existed even before the Act. The learned Judge concedes that he appreciates the verbal point of the interpretation of the words "marries again" which prima facie would refer to a future marriage, i.e., after the Act. But he was unable to accept it solely because the Act, according to him, was designed to remedy the mischief created by the state in the previous law, which denied the superseded wife separate maintenance. The learned Judge saw no reason why the Legislature should are made a distinction between wives superseded by a second marriage before the Act and those superseded by a second marriage after the Act. May I venture to suggest that the Legislature might have thought of a husband who might have contracted a second marriage before the Act, in the belief that that by itself would not furnish a ground for the award of separate residence and maintenance to his first wife and made a distinction between such a husband and a husband who fully aware of the provisions of the new Act, still deliberately goes and marries again ? Earlier than this decision of Viswanatha Sastri, J. there is an un-reported decision of Mack, J. in - S.A. No. 1413 of 1946 (Mad) (I), placing the same construction on the words "marries again". Mack, J. was influenced by the same consideration as Viswanatha Sastri, J. He said : "I have no hesitation in holding that the dominant intention of the Act was to give all wives separate maintenance against their husbands who have married again either prior to or subsequent to the Act. Mack, J. was influenced by the same consideration as Viswanatha Sastri, J. He said : "I have no hesitation in holding that the dominant intention of the Act was to give all wives separate maintenance against their husbands who have married again either prior to or subsequent to the Act. I do not think the Act sought to make an invidious distinction between wives whose husbands marry again after the Act and to give the former in perpetuity no right to separate maintenance against their husband on the ground of re-marriage." The learned Judge did not attempt to get over the plain language of the clause. 13A. Raghava Rao, J. took the same view in S.A. No. 556 of 1947 (Mad) (B). He followed the decisions of Viswanatha Sastri, J. and Mack J, (vide also - Kistappa Naicker v. Parvati Ammal. 1951 Mad 360 (AIR V38) (J). The latest decision of our Court On this point is that in 1954 Mad 713 (AIR V 41) (F), a decision of Subba Rao and Ramaswami, JJ. In the leading judgment delivered by Ramaswami, J. several points were dealt with by him on which, however, Subba Rao, J. did not express his opinion. But he agreed with Ramaswami, J. on the interpretation of the clause in question. After referring to the decisions of this Court cited by me above and other decisions of this and other Courts, the learned Judge, Ramaswami, J. came to the following conclusion : "On a careful consideration of S. 2(4) and the lords "marries again" are merely descriptive of the position of the husband as a twice-married man the date when the wifes claim for separate maintenance is made under the Act and do not exclude a husband who had taken a second wife before the Act from its operation. In this view it is unnecessary to discuss at great length the other aspect of the matter, viz., whether the law is remedial and prospective or declaratory and retrospective. It will be noticed, however, that the Nagpur and Bombay decisions proceed on the assumption that neither the Hindu law nor judge made law excuses cohabitation in the case of a superseded first wife. The categorical and unqualified assumption has been found upon critical examination to be largely unfounded. It will be noticed, however, that the Nagpur and Bombay decisions proceed on the assumption that neither the Hindu law nor judge made law excuses cohabitation in the case of a superseded first wife. The categorical and unqualified assumption has been found upon critical examination to be largely unfounded. Therefore, the better construction seems to be that this 1946 legislation only declared and put beyond doubt what was already the judge made law. Hence S. 2(4) does not exclude a husband who had taken a second wife before the Act from its operation." 14. The learned Judge was apparently influenced largely by the conclusion which he had arrived at after an examination of the Hindu law texts that the new legislation only declared and put beyond doubt what was already the law. In this, however, it may be remembered that Viswanatha Sastri, J. took a different view. 15. Krishnaswami Nayudu, J. struck a different note, at first sitting singly in 1953 Mad 712 (AIR V 40) (G). The learned Judge held that on a proper construction the words "marries again" could only refer to a future marriage, i.e., marriage after the Act. He observed : "This, in my view would be the reasonable and natural construction to be put upon the words without doing violence to the language or even to the spirit of the statute, and the language does not admit of any ambiguity and is plain. To do otherwise would be to lead to inconvenient and unjust results which should always be avoided in judicial interpretation of the words of a statute." 16. He expressly dissented from Viswanatha Sastri, J. This learned Judge had taken a similar view even earlier in - A.S. No. 596 of 1949 (Mad) (K), though it was not necessary to express a final opinion in that case. Subsequently, the same question arose before a Division Bench of which he was a member, the other learned Judge being Govinda Menon, J. and the Division Bench decided to refer the matter for decision by a Full Bench. In the Order of Reference made by Krishnaswami Nayudu, J. on behalf of the Bench, the learned Judge, besides referring to the earlier decisions of this Court, also referred to a decision of the Bombay High Court and another of the Nagpur High Court in which the view which he was inclined to take had been adopted. In the Order of Reference made by Krishnaswami Nayudu, J. on behalf of the Bench, the learned Judge, besides referring to the earlier decisions of this Court, also referred to a decision of the Bombay High Court and another of the Nagpur High Court in which the view which he was inclined to take had been adopted. I shall now refer to these two decisions. The earlier of the two decisions is that of the Nagpur High Court in 1950 Nag 33 (AIR V 37) (G) The learned Judges Hidayatullah and R. Kaushalendra Rao, J. held that the clause "marries again" would only apply to cases in which a husband marries again after the date on which the Act became law. After a thorough and critical examination of the language used and its grammatical meaning, the learned Judges concluded that the phrase denoted a happening in the future. One contention raised before them on behalf of the wife was that the new Act was a declaratory Act, declaratory of the law on the subject, and a declaratory Act must always be construed retrospectively. The learned Judges were of the opinion that the Act as a whole could not be called a declaratory Act in the strict sense of the term. In 1953 Bom 342 (AIR V 40) (D) Rajadhyaksha and Vyas, JJ. expressly dissented from the decision of Viswanatha Sastri, J. and agreed with the decision of the Nagpur High Court. There is very full discussion of the question in the judgment of Rajadhyaksha, J. and I respectfully agree with his reasoning. The learned Judge pointed out how a different interpretation would retrospectively affect the husband. He said, "It may well have been the intention of the Legislature that such an Act should not have a retrospective effect. Before the Act came into force a Hindu husband marrying a second time during the lifetime of the first wife could not have anticipated that by doing so he would be laying himself open to the liability of providing separate residence and maintenance for the first wife. The Act would, therefore, impose upon the husband a new liability if the legislation were given a retrospective effect and the legislature may have thought that it would not be fair to Hindu husbands to subject them to such new liability. The Act would, therefore, impose upon the husband a new liability if the legislation were given a retrospective effect and the legislature may have thought that it would not be fair to Hindu husbands to subject them to such new liability. After the Act came into force, a husband marrying a second time could do so with the full knowledge that his wife would have a right to claim separate residence and maintenance. An Act imposing a new liability on one party and conferring fresh rights on the other is not ordinarily given a retrospective effect." Before us, it was argued that the Act is declaratory and therefore presumably retrospective. I agree with the learned Judges of the Nagpur High Court that it is not a declaratory Act, at any rate so far as the clause in question is concerned. The Act in form is not declaratory. The words generally employed in statutes of that class are absent. According to Craies Statute Law, 4th Edn. p. 61, a declaratory Act usually, if not invariably, contains a preamble and also the word "declared" as well as the word "enacted". An instance of such declaratory Act is given in Maxwell 10th Edn. page 222, namely, the Customs and Inland Revenue Act, 1889, which declared that the provisions of the Customs and Inland Revenue-Act, 1881, Sec. 38, with regard to the imposition of stamp duties upon personal property passing under voluntary settlement should be construed as if marriage settlements were included, though until then they had not been regarded as voluntary settlements. There are several instances of such Acts in India as well; as for example. Act 25 of 1948, which added S. 28-A, Provincial Insolvency Act. An Amending Act explaining a particular expression already used in the original Act may be declaratory in nature. Such was Act 27 of 1926, which inserted in S. 3, Transfer of Property Act 1882, a definition of the word "attested" - Balaji Singh v. Sangamma, 1927 Mad 85 (AIR V 14) (L). I am clearly of opinion that Cl. (4) of S. 2 of the Act is not declaratory in nature. Such was Act 27 of 1926, which inserted in S. 3, Transfer of Property Act 1882, a definition of the word "attested" - Balaji Singh v. Sangamma, 1927 Mad 85 (AIR V 14) (L). I am clearly of opinion that Cl. (4) of S. 2 of the Act is not declaratory in nature. I do not think it useful to discuss the decisions in which expressions like "dying intestate" : Duni Chand v. Mt Anar Kali, 1946 P.C. 173 (AIR V 33) (M), or "arising within the City of Madras" - Ramamirtham v. Rama Film Service, 1951 Mad 93 (AIR V 38) (FB) (N) have been used because these phrases are adjectival and more flexible than a verb like "marries" or "is adjudged", which later expression was considered in 1894-1 QB 725 (H), as applying only to adjudications after the enactment. 17. I find myself, therefore, in agreement with Krishnaswami Naiudu, J. and the decisions of the Nagpur and Bombay High Courts. 18. Besides this point regarding the construction of S. 2(4), Hindu Married Womens Right to Separate Residence and Maintenance Act there are other questions raised in the appeal. There is no reference to any of these matters to this Full Bench and indeed they were not argued before us. 19. The appeal will, therefore, be posted before a Division Bench for dealing with those other points, and for the appeal being disposed of in the light of the conclusions reached on them. 20. RAJAGOPALAN, J. :- I agree. 21. RAJAGOPALA AYYANGAR, J. :- I agree. (After the expression of the opinion of the Full Bench this appeal coming on for final disposal before the Court, Govinda Menon and Krishnaswami Nayudu, JJ., on 6-10-1955, the Court delivered the following judgment : 22. KRISHNASWAMI NAYUDU, J. :- In view of the opinion of the Full Bench that the Act is not retrospective in nature, it will not be open to the plaintiffs to take advantage of the second marriage of the defendant and claim maintenance. But the suit for separate maintenance is based on other grounds as cruelty, abandonment etc. KRISHNASWAMI NAYUDU, J. :- In view of the opinion of the Full Bench that the Act is not retrospective in nature, it will not be open to the plaintiffs to take advantage of the second marriage of the defendant and claim maintenance. But the suit for separate maintenance is based on other grounds as cruelty, abandonment etc. Though issues were raised whether the defendant was guilty of cruelty and desertion, the trial Court did not consider it necessary to go into those issues as in its view it was sufficient if the defendant was married for a second time, and following the decision of Viswanatha Sastri, J. in 1950 Mad 321 (AIR V 37) (A), the trial Court held that the first plaintiff was entitled to separate maintenance and granted a decree at Rs. 220 per month, of which Rs. 150 was for the first plaintiff and Rs. 35 for each of the other two plaintiffs who are the daughters. It therefore becomes necessary that the suit must be heard on the other issues and the rights of the first plaintiff at any rate will depend upon the findings which will be given on those issues. In the circumstances the appeal is allowed and the decree of the trial Court is set aside and the suit is remanded for disposal in the light of these observations and the opinion of the Full Bench on the question as to the retrospective nature of the Act. Court-fee paid on the appeal will be refunded. Costs will abide the result. Appeal allowed.