P.V. Rajamannar, CJ.
1. 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 Women's Right to Separate Residence and Maintenance Act (Act XIX 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 Clause (4) which occurs in Section 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 contracted from her;
(2) if he is guilty of such cruelty towards her as 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 he ceases to be a Hindu by conversion to another religion;
(6) if he is keeping a concubine in the house or habitually resides with a concubine;
(7) for any other justifiable cause;
There has been 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 Clauses (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 tha
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t 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 be 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 Clause (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 the 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 in 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 Bourke v. Nutt L.R. (1894) 1 Q.B. 725, similar language was understood to have a prospective application. Section 32. of the 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'. 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. I 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.
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.
2. I shall now refer first to the decisions of this Court on the construction of the cause. The earliest reported case on the point is Lakshmi Ammal v. Narayanaswami Naicker (1950) 1 M.L.J. 63. 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 hardships arising from an one sided and prejudiced view of the rights of women and a state 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 yet 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.
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.
The literal meaning of the words used in the clause was evidently pressed upon him. But he dismissed the contention thus:
With reference to Section 2(4), however, it is argued that the words ' marries again ' refer to a future marriage, i.e. after the Act. I appreciate the verbal point of this interpretation but I am unable to accept it. In my opinion, the words are merely descriptive of the position of the husband as a twice married man at the date when the wife's 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 on 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, apostasy 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 of the previous law, which denied the superseded wife separate maintenance. The learned Judge saw no reason why the Legislature should have 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 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 unreported decision of Mack, J., in S.A. No. 1413 of 1946 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. 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 husbands on the ground of remarriage.
The learned Judge did not attempt to get over the plain language of the clause Raghava Rao, J., took the same view in S.A. No. 556 of 1947. He followed the decisions of Viswanatha Sastri, J. and Mack, J. (Vide also Kistappa Naicker Vs. Parvati Ammal and Others, . The latest decision of our Court on this point is that in Nagendramma v. Ramakotayya (1955) 1 M.L.J. 25, 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 Section 2(4) and the relevant decisions, there can be no doubt that the words " marries again " are merely descriptive of the position of the husband as a twice-married man at the date when the wife's 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 texts 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 Section 2(4) does not exclude a husband who had taken a second wife before the Act from its operation.
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.
3. Krishnaswami Nayudu, J., struck a different note, at first sitting singly, in Annasami Mudaliar Vs. Ekambari Ammal, . The learned Judge held that on a proper construction, the words " marriages 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.
He expressly dissented from Viswanatha Sastri, J. This learned Judge had taken a similar view even earlier in A.S. No. 596 of 1949, 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. I shall now refer to these two decisions. The earlier of the two decisions is that of the Nagpur High Court in Sukhribai v. Pokhalsing AIR (1950) Nag. 33. The learned Judges, Hidayatullah and Kaushalendra Rao, JJ., 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 Laxmibai Wamanrao Vs. Wamanrao Govindrao, , Rajadhyasha and Vyas, JJ., expressly dissented from the decision of Viswanatha Sastri, J., and agreed with the decision of the Nagpur High Court. There is a very full discussion of the question in the judgment of Rajadhyakaha, 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. 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 Edition, page 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 a declaratory Act is given in Maxwell, 10th edition, page 222, namely, the Customs and Inland Revenue Act, 1889, which declared that the provisions of the Customs and Inland Revenue Act, 1881, Section 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 XXV of 1948, which added Section 28-A of the Provincial Insolvency Act. An amending Act explaining a particular expression already used in the original Act may be declaratory in nature. Such was Act XXVII of 1926 which inserted in Section 3, Transfer of Property Act, 1882, a definition of the word "attested" Balaji Singh Vs. Chakka Gangamma and Another, . I am clearly of opinion that Clause (4) of Section 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' (Dunni Chand v. Anar Kali) ILR (1946) All. 748., or 'arising within the City of Madras' V. Ramamirtham, Sole Proprietor, Glorious Pictures Vs. Rama Film Service, , have been used because these phrases are adjectival and more flexible than a verb like 'marries' or 'is adjudged', which latter expression was considered in Bourke v. Nutt L.R. (1894) 1 Q.B. 725, as applying only to adjudications after the enactment.
4. I find myself, therefore, in agreement with Krishnaswami Nayudu, J., and the decisions of the Nagpur and Bombay High Courts.
5. Besides this point regarding the construction of Section 2(4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act, there are other questions raised in the appeal. There is no reference of any of those matters to this Full Bench and indeed they were not argued before us.
6. 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 conclusion reached on them.
7. I agree.
Rajagopala Ayyangar, J.
8. I agree.
9. In pursuance of the above order of the Full Bench this appeal came on for hearing this day (6th October, 1955), before the Division Bench (Govinda Menon and Krishnaswami Nayudu, JJ.).
Krishnaswami Nayudu, J.
10. 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 Lakshmi Ammal v. Narayanaswami Naicker (1950) 1 M.L.J. 63, 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.