A P K NARAYANASWAMI REDDIAR Vs. PADMANABHAN

JUDGEMENT

(1.) THIS is an appeal by the first defendant from a decree of the Additional subordinate Judge, Mayuram, granting maintenance at the rate of Rs. 15 per mensem to each of the first three plaintiffs, at Rs. 30 per mensem to the fourth plaintiff, and a further payment to the plaintiffs of Rs. 10 per mensem towards their residence. The decree also directed the first defendant to pay plaintiffs past maintenance for a period of three years at the said rate. The properties described in the plaint B schedule were charged with the maintenance so decreed. The suit was instituted in forma pauperis for partition and separate possession of the first plaintiffs one fifth share in the suit properties and for right of residence of the fourth plaintiff in item 1 of the plaint A schedule and for maintenance at Rs. 100 per mensem from 1-4-1958, and for past and future maintenance at the same rate for the plaintiffs. The plaintiffs' case was that the first defendant, who had a spouse living, married the fourth plaintiff on 9-5-1951 at Mayuram. It is not in dispute that the fourth plaintiff is a Malayalee lady and that she has been a permanent resident of Travancore State. After the marriage, the first defendant took the fourth plaintiff to his native place at M. Adanur near Kattumannargudi, and lived there as husband and wife and begot through her plaintiffs 1 to 3, who are all minors. From 1953, however, misunderstandings arose as a result of, that is the plaint case, ill-treatment meted out by the first defendant to the fourth plaintiff. The last child, the third plaintiff, was born on 16-5-1955, and the first defendant and the 4th plaintiff separated sometime in September 1954. The first defendant resisted the suit and denied the status of the 4th plaintiff as also the other plaintiffs. He pleaded that he had married one Janaki Ammal in 1921, who gave birth to defendants 2 to 4 and died in 1956. There could, therefore, be no lawful marriage, in any case, of a second wife during the lifetime of Janaki Ammal. In fact, the first defendant went to the extent of suggesting that the 4th Plaintiff was the wife of one Madhavan Nair and plaintiffs 1 to 3 were born to him. The properties described in the schedules A and C to the plaint, according to the first defendant, had been bequeathed by one Balarama Reddiar for charitable purposes and the properties covered by plaint B schedule alone are his self acquisitions. The first defendant asserted that, in the circumstances, the plaintiffs had no cause of action either for partition and separate possession or for maintenance.

(2.) THE Additional Subordinate Judge framed appropriate issues and found that the marriage pleaded by the 4th plaintiff was true but invalid in law, because of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949, that plaintiffs 1 to 3 were the children of the first defendant born during the wedlock with the 4th plaintiff and that the plaintiffs were entitled to maintenance, past and future. The Subordinate Judge also found that he plaint A and C schedule properties were trust properties not answerable to the claims of the plaintiffs and that the B schedule properties were the self acquisitions of the first defendant. Nevertheless, he determined the quantum of maintenance on the basis of the income from and the extent of, the entire properties in the three schedules.

(3.) IN our view, the decree of the learned Subordinate Judge is correct except in regard to the maintenance, past and future, decreed in favour of the fourth plaintiff. Before us, no attempt was made by the learned counsel for the first defendant to contend that as a matter of fact there was no marriage at all and that the finding of the court below in this regard is in anywise erroneous. But his contention is that the 4th plaintiff's marriage with the first defendant having been found to be invalid as a bigamous one, the court below was not justified in granting maintenance to her. The view of the Subordinate Judge on this point is not quite clearly expressed in his judgment. But it would appear to have been argued before him that when the 4th plaintiff's marriage with the 1st defendant was rendered invalid by law, she should be equated to the position of a concubine and maintenance given to her. Whether the Subordinate Judge accepted this position and gave maintenance, it is not obvious. Under Hindu law, a concubine of a Hindu will not be entitled to maintenance against him during his lifetime. Nor can it be said that the status of the 4th plaintiff, in the circumstances, is that of concubine, for a ceremony of marriage, as required by the personal law, was gone through and the 4th plaintiff and the first defendant lived for a fairly long time as husband and wife and brought forth children through that union. But, when the marriage, as a bigamous one, is rendered void by S. 4 (1) of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949, what exactly is her status? For the appellant the contention is that when the marriage is invalid, whatever might be the status of the 4th plaintiff, she will not be entitled to any maintenance. On the other hand, it is strongly urged before us that the law should not fail to take note of the factual position, namely, that the 4th plaintiff and the first defendant did go through a form of marriage in accordance with their personal law and that even if by the said Act the marriage is void, she should nevertheless, be held to be entitled to maintenance.