LAKSHMI AMMAL Vs. NARAYANASWAMI NAICKER

JUDGEMENT

(1.) This is a second appeal preferred by a wife against the decree of dismissal by the Courts below of her suit against her husband for separate maintenance. The suit was filed by the wife and her two minor unmarried daughters against defendant 1 for maintenance on the ground that he had brought another woman into the house and was ill-treating the plaintiffs. It was found by the courts below -- and this finding is not challenged in second appeal--that the "other woman" referred to by the plaintiffs was the second wife of the defendant and the ill-treatment alleged by the plaintiffs was not true. Though the Hindu Married Woman's Rights to Separate Residence and Maintenance Act, XIX [19] of 1946 (hereinafter called the Act) came into force on 23rd April 1946 and the judgment of the appellate Court dismissing the plaintiff's suit was pronounced on 22nd October 1946 yet no reliance was placed on the Act in support of the claim of the plaintiffs. The Act was not in force when the trial Court gave its decision or when the appeal was filed in the lower appellate Court. In second appeal, however, the claim of the plaintiffs is based only on the Act. Three points now arise for decision, (1) Whether it was open to me for the first time in second appeal, to entertain the plea based on the Act. (2) Whether on a true construction of Section 2 (4) of the Act, the wife and/or her minor daughters are entitled to maintenance in a case where the husband had married a second wife before the Act came into force; (3) what is the proper rate of maintenance to be awarded if the above two points are answered in favour of the plaintiffs.

(2.) On the first point, I am of the opinion that the suit being one for maintenance, it is permissible for this Court in second appeal to consider the effect of legislation which came into force after the disposal of the suit by the trial Court and during the pendency of the appeal in the appellate Court. The ordinary rule is that a Court should give its decision on the facts and circumstances as they existed at the date of the institution of the suit or at the date of any subsequent amendment of the pleadings and should not take notice of events of decisions which have happened after such date. But the Court has power in a proper case, to take notice of events subsequent to the suit in order to shorten litigation, avoid unnecessary expense and do complete justice between the parties. If a cause of action not available on the date of the suit accrues during its pendency, the Court has a discretion to grant an amendment of the plaint so as to enable the plaintiff to include the fresh cause of action. The terms of Order 6 Rule 17, Civil P. C. are very wide and do not prohibit such a course, see Doraisami Pillai v. Chinnia Goundan, 34 M. L. J. 258 : (A. I. R. (5) 1918 Mad. 272), Subbaraya Chetti v. Nachiar Ammal, 7 M. L. W. 403 : (A. I. R. (5) 1918 Mad. 143). When, however, the facts are not in dispute and the accrual of a cause of action subsequent to the suit is under the terms of a statute of which the Courts must take notice, a formal amendment of the plaint is unnecessary, for the Court is bound to administer the law of the land at the date when it gives its decision on a dispute. Mr. K. V. Ramachandra Iyer, the learned advocate for the respondent maintains that the remedy of the plaintiffs, if any, is by way of a fresh suit and I cannot, sitting in second appeal, interfere with the decrees of the Courts below which were right on the materials they had before them. I cannot accept this contention. As pointed out by Bhashyam Aiyangar J. in Kristnamachariar v. Mangammal, 26 Mad. 91 at pp. 95, 96 (F. B), a case decided before the new Civil Procedure Code of 1908, an appeal is under the processual law of this country, in the nature of a rehearing of the cause. This view has been affirmed and accorded legislative sanction by the enactment of Section 107(2) and Order 41 Rule 33, Civil P. C. of 1908. The Judicial Committee acted on this principle and dismissed an appeal on the strength of legislation which came into force during the pendency of the appeal before the Board, K. C. Mukerjee v. Mst. Ramratan Kuar, 15 Pat. 268 : (A. I. R. (23) 1936 P. C. 49). The Federal Court exercising appellate jurisdiction over the Patna. High Court has, in view of the Bihar Money-Lenders' Act (VII [7] of 1939) which came into forceduring the pendency of the appeal before the Federal Court, reversed the decrees of the High Court and granted on the basis of the new Legislation, Shyamakanth v. Ram Bhajan, 1939 F. C. R. 193 : (A. I. R. (26) 1939 F. C. 74), Lachmeswar Prasad v. Keshwar Lal, 20 pat. 429 : (A. I. R. (28) 1941 F. C. 5). For these reasons I hold that it is open to the appellants to claim relief for the first time in second appeal on the basis of Act XIX [19] of 1916.

(3.) On the second point I am of the opinion that the wife is entitled to a provision for separate residence and maintenance. Section 2 (4) of the Act gives her such a right if her husband "marries again". The plaintiff 1 is the first wife and her husband had also taken a second wife before the Act came into force. It is argued by Mr. K. V. Ramachandra Aiyar for the husband that the Act should not be construed to operate retrospectively so as to impose fresh liabilities on husbands who had married second wives before the Act, in conformity with the Hindu law which permitted a multiplicity of wives without an obligation arising from the fact of a second marriage to provide separate maintenance for the first wife. It is further contended that the legislature would have used the words "has married" in Section 2 (4), if the provision was intended to operate retrospectively so as to take away the existing rights and privileges of husbands. It is a familiar rule of interpretation of statutes that in the absence of express words or a clear and necessary implication deducible from the enacted words, a statute should not be construed to have retrospective operation and thereby impair vested rights, i. e., rights acquired before its enactment. Appeal has been made to this rule for interpretation by Mr. Ramachandra Aiyar who, in his anxiety to non-suit the plaintiffs, contended that it would be blasphemous to attribute to the legislature a lack of precise and accurate knowledge of the rules of English grammar. He insisted that the words used were deliberately chosen and were so precise as to admit only of one meaning. I may say that I yield to none in my respect for the capacity of the Legislature, but I am not disposed to make a fetish of it, least of all, in a case like the present where the legislation was piecemeal and was intended as remedial measure to redress existing social wrongs and injustice. The draftsman of Section 2 (4), has been somewhat laconic and has assumed a knowledge of Hindu law and its recent developments on the part of those who have to interpret the Act. In construing an enactment such as this, I have to find out what the legislature must be taken to have really meant by the expressions which it has used, without necessarily attributing to it a precise appreciation of the shares of difference between the present tense and present perfect tense found on text books on English grammar.