P BALAMBA Vs. KKRISHNAYYA AND 3 ORS

JUDGEMENT

(1.) The first defendant is the daughter, and defendants Now. 2 and 3 are the sons, of one deceased Venkataratnam, who insured his life for Rs. 2,000 which the Insurance Office agreed to pay to his wife and children. The plaintiff got a decree against Venkataratnam and he claims the insurance money towards the decree, including the Rs. 400 that fell to the first defendant.

(2.) The first question for decision is whether the money insured is protected by the Married Women s Property Act (III of 1874) or whether it is a part of the estate of the deceased. The Judge, following the decision in Oriental Government Security Life Assurance, Ltd., v. Vanteddu Ammiraju (1912) I.L.R. 35 Mad. 162 as he was bound to do, held that the Act did not apply. This is an appeal from that decision.

(3.) It is argued before us that that judgment ought not to be followed, and that the Act is applicable to cases like the one before us. Section 6 of Act III of 1874 runs thus: A policy of insurance effected by any married man on his own life, and expressed on the face of it to be for the benefit of his wife, or of his wife and children, or any of them, shall enure and be deemed to be a trust for the benefit of his wife, or of his wife and children, or any of them, according to the interest so expressed, and shall not, as long as any object of the trust remains, be subject to the control of the husband, or to his creditors, or form part of his estate." The Act applies to the whole of British India, Now, the words of the section seem to be clear, and according to it, the policy of insurance effected by the deceased Venkataratnam should enure for the benefit of the first defendant and others. But it is argued that Section 2 shows that this Section 6 does not apply to Hindus. The clause relied upon runs thus: But nothing herein contained applies to any married woman who at the time of her marriage professed the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion, or whose husband, at the time of such marriage professed any of those religions." Now, it is obvious that this clause applies only to a married woman who professed any of the religions referred to in the section, or who may be a follower of any other religion, say Christianity, but whose husband professed any one of those religions. The proviso, therefore, does not apply to all Hindus and it applies to others than Hindus, It does not apply to males who profess those religions. That this is so, appears to be clear to me from the next clause which enables the Governor-General in Council to exempt from the operation of the Act members of any race. If, therefore, males who follow those religions have to be excluded, it must be by an order of the Governor-General in Council. This appears to be superfluous if the exemption clause applied to them also. The last clause of that section only states that the Section 4 of the Indian Succession Act shall not apply, and shall be deemed never to have applied, to any marriage one or both parties to which professed any of the above religions, and., is confined solely to that provision of the Indian Succession Act. It appears to me, therefore, that Section 6 does clearly apply, and I am confirmed in this view by a consideration of the general scheme of Act III of 1874, which shows also why the clause in Section 2 is confined to the married women referred to therein. In order to understand it, it is necessary to make a brief reference to Act X of 1865. That Act, with the exception of Section 4, dealt with property which was taken by succession, either under a will or under intestacy, and it was provided by Section 331 that, with reference to such property, the Act should not extend to Hindus, Muharnmadans or Buddhists. But Section 4 provided that" no person shall, by marriage, acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried. This section applied also to property taken otherwise than by succession, and as this provision was deemed to be a proper one with regard to property taken by way of succession, and as it affected the property relations of married people, it was deemed more convenient to affirm the broad principle than to have the property taken by succession alone regulated by that law. This clause, therefore, went further than the rest and enacted the law which was peculiar to marriage and had nothing to do with succession while the rest of the law dealt with matters peculiar to succession and had nothing to do with marriage. Part VI which is headed "On the effect of marriage" does not touch this question. Now, there was no restriction as regards the communities affected by Section 4 j Hindus and Buddhists were not excluded. This Act was passed in 1865, and in 1870 the Married Women s Property Act was passed in England (33 and 34 Vic, c. 93), and it was deemed advisable to enact some provisions of that Act in India which was done by Act III of 1874. The legislature then proceeded on the view that, as the Hindus, etc., had their own marriage law and their own succession law, it was undesirable to interfere with them, and that the new provisions to be enacted need be made applicable only to those whose law of succession was governed by the Indian Succession Act. Accordingly, it was provided by the last clause in Section 2 that Section 4 of the Indian Succession Act shall not apply, and shall be deemed never to have applied, to any marriage one or both parties to which professed at the time of marriage any of those religions. The Sikh and Jains religions were added as a doubt was entertained whether the Sikhs were Hindus and the Jains were Buddhists, as was thought at the time when the Indian Succession Act was passed. Now, it will be noticed that all the sections except Section 6 referred to laws which were peculiar to English marriage. Section 4 of Act III of 1874, which was Section 1 of the English Act of 1870, was intended to get rid of the right of the husband acquired by marriage under English law to strip his wife of her wages and earnings. Section 5 also, which is the first paragraph of Section 10 of the English Married Women s Property Act, also had reference to the peculiar marriage law of England. Under that law, as it then stood, if a wife effected a policy of insurance on her own life or on her husband s life otherwise than by separate property and died in her husband s life-time, the husband in the capacity of her administrator became the absolute owner of the property. If a married woman had already separate property and if she chose to make any arrangement by means of that separate property in any suit that may be instituted by her to enforce it, the husband must be a party, might raise any questions he liked and could rip up a good deal of domestic life to decide the question whether she had private property. The section avoided any such question as to what is separate property and laid down a rule that, if the wife contracts with an Insurance Office and provides the money by which the insurance is effected, the Insurance Office shall ask no questions as to whether the property in question was her separate property or not. But the Insurance Office should be liable to the wife and to the wife alone. Section 7 of the Act referred to legal proceedings by and against a married woman. It also was intended to place beyond doubt the difficulties which arose on account of the English marriage law. So, too, Sections 8 and 9. Now, all those sections with the exception of Section 9 which were taken from the Married Women s Property Act of 1870 had reference to the disabilities of married women under the English law. Section 9 was intended to get rid of the husband s liability and was consequential on the removal of the wife s liabilities and deprivation of his rights by marriage. These sections had no reference whatever to the disabilities of married women under the Hindu law, and therefore, Section 2 distinctly declared that these provisions shall not apply to any married woman who professed the Hindu or any other of the religions referred to therein.