KULAMANI HOTA Vs. PARBATI DEBI

JUDGEMENT

(1.) This is a defendant's appeal against the appellate judgment of the Subordinate Judge of Cuttack Dhenkanal reversing the judgment of the Munsif of Athmallik and decreeing the plaintiff's (respondent's) suit for maintenance against her husband, the defendant. The parties are Hindus residing in Athmallik which, is one of the former Orissa States which merged with the Dominion of India by the well-known Merger Agreement which came into force from 1-1-1948. The plaintiff alleged that she is the legally married wife of the defendant and that a daugther was born to them. Later on, however, the defendant took a second wife, ill-treated the plaintiff by giving her shoe-beating and by other kinds of assault and eventually drove her out of his residence. The exact date of the second marriage of the defendant was not given but it was said to have taken place about sixteen years before the date of the filing of the plaint (23-9-1946). The main defence, taken was that the defendant was compelled to take a second wife as the plaintiff did not give him a son. The allegations of ill-treatment were emphatically denied and it was further stated that the plaintiff of her own accord left his protection and went to stay with her mother. Both parties led evidence on the question of cruelty and ill-treatment of the plaintiff by the defendant. The trial Court held that though the defendant might have given shoe-beating to his wife occasionally, such an act on his part would not amount to cruelty as required by Hindu Law so -as to entitle the plaintiff to claim separate residence and maintenance inasmuch as there was no danger to her personal safety. The lower appellate Court, however, disagreed with the trial Court on this point and held that after the coming into force of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) (hereinafter referred to as the Act) and its application to Athmallik and other merged areas on 16-6-1948 it was not necessary for a Hindu wife claiming maintenance from her husband to show that the cruelty towards her was such as to endanger her life and that it was sufficient if it was established that on account of his ill-treatment it was undesirable for her to live with him. It further held that the other provisions of the Act would also apply to the present case and hence it decreed the plaintiffs suit.

(2.) Mr. Misra on behalf of the appellant raised the following two contentions: (i) The lower appellate Court erred in applying the provisions of the Act to the present case; (ii) The lower appellate Court's view as regards legal cruelty was also wrong.

(3.) The suit under appeal was instituted on 23-9-1946 when Athmallik was one of the Native States of India. The Act came into force in the territories formerly known as British India, on 23-4-1946 but it did not apply 'proprio vigore' to Athmallik State. After the merger of Athmallik with British India with effect from 11- 1948 the Government of Orissa as the delegated authority of the Central Government and exercising powers under the Extra Provincial Jurisdiction Act, 1947 made an Order known as the Administration of Orissa States Order, 1948 for the purpose of governing the merged areas including Athmallik State. By para 4 of that order, several enactments then in force in British India as specified in the Schedule to that Order were applied throughout the merged areas and it was further provided that the enactments so applied would prevail in the merged territories notwithstanding anything to the contrary in the laws that were in force in those territories prior to the coming into force of that order. Amendments were made from time to time to the schedule to that order- The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) was thus applied to Athmallik State on 16-6-48 by an amendment made to the Schedule to that Order. On that date the trial of this case was pending in the Court of the Munsif of Athmallik though a substantial portion of the evidence had been adduced by the parties. The judgment of the Munsif was delivered only on 29-11-48. The trial Court completely ignored the provisions of the Act and disposed of the suit on the assumption that the law applicable was as it stood on the date of the institution of the suit in September, 1946. It is title that under the general principles of statutory construction when a law is altered during the pendency of an action the rights of the parties should be decided according to the law as it existed when the action was begun. But the new statute may either by express provision or by necessary implication, indicate a clear intention to affect pending actions also. Clause (c) of para 12 of the said Order is to the following effect: