GOPAL Vs. KALLU

JUDGEMENT

(1.) This Civil Second Appeal has been referred by Ranawat J. to a Division Bench as it involves an important point of law relating to the interpretation of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (No. 19 of 1946) (hereinafter called the Act).

(2.) On the 4th of November, 1950 Mst. Kallu plaintiff-respondent filed an application to sue in forma pauperis against her husband Gopal defendant- appellant in the court of the Munsiff, Tonk with the allegations that she had been married to the defendant about 12 or 13 years back and lived with him as his wife. In 1947, she became sick and pregnant and the defendant treated her cruelly and did not make any arrangements for her treatment. On the other hand he left her with her father. Since that time the defendant had not been paying any maintenance allowance to her and also did not take her to his house. The plaintiff filed an application under Section 488 of the Criminal Procedure Code in which the defendant by his tactics persuaded her to compromise. The defendant had since then married again. The date of marriage is not given in the application, but it may be taken that the second marriage had taken, place long before 24-1-1950 the date on which Act No. 19 of 1946 was brought into force in the State of Rajasthan. The plaintiff further stated that she was entitled to a maintenance allowance at the rate of Rs. 30/-p. m. She claimed a decree for Rs. 1170/-for the arrears of maintenance allowance for three years and three months. The application in forma pauperis was granted The defendant denied that there had been any cruelty or desertion on his part. He admitted that he had married again as the plaintiff was not willing to reside with him. He also took the plea of limitation. The learned Munsif decreed the claim for Rs. 540/- holding that the plaintiff was entitled to a maintenance allowance of Rs. 15/- p.m. for three years. The rest of the claim was dismissed. An appeal was filed by the appellant before the learned Civil Judge, Tonk. The learned Civil Judge dismissed the appeal. Hence this second appeal on behalf of the defendant, Both the lower courts have decreed the claim on the ground that the plaintiff could claim maintenance under Section 2(4) of the Act as the defendant had married again.

(3.) The main point for determination in this appeal is whether the plaintiff is entitled to maintenance in spite of the fact that the second marriage of the defendant had taken place before 24-1-1950 when the Act was brought into force.