DAYAVATI RAMCHANDRA Vs. KESARBAI KASIBAI

JUDGEMENT

(1.) This is an appeal against the decision of Mr. Justice Kania in a suit by the plaintiff for maintenance, the defendant being the widowed heir of a man named Ramchandra in whose keeping the plaintiff alleges that she was down to the date of his death. In the plaint, as originally drawn, the plaintiff alleged that she had been for twelve years in the exclusive keeping of the deceased as a permanent concubine, and that the arrangement had continued down to his death, and on that basis she claimed maintenance. When the matter first came before the learned trial Judge he accepted the view of the defendant that the plaint as drawn disclosed no cause of action, and he therefore allowed an amendment in these terms: "The deceased treated the plaintiff as he would a wife and the plaintiff was an avaruddha stree of the deceased." The written statement denies that the plaintiff was the avaruddha stree of the deceased, and it also alleges that the plaintiff was not chaste, and traverses her claim to maintenance. Various issues were framed which were answered in favour of the plaintiff. The learned Judge held that she was not shown to have been unchaste, and that she had been the permanent concubine of the deceased. The third issue related to the point raised by the amendment, namely, whether the deceased treated the plaintiff as he would a wife and whether the plaintiff was an avaruddha stree of the deceased. That issue also was answered in the affirmative. On this appeal the findings of fact of the learned Judge have not been challenged, except in respect of his findings relating to the third issue, and the plaintiff's chastity except in her relation to the deceased is not questioned. The point argued on the appeal is this : it is said that in order to succeed the plaintiff must show that she was an avaruddha stree of the deceased, and that involves, not only that she was a permanent concubine, but that she formed part of the family of the deceased. On the other hand the plaintiff-respondent contends that it is sufficient if it be proved that the plaintiff was a permanent concubine, that it is not necessary that that relationship should have been known to the family of the deceased, and a fortiori it is not necessary that the plaintiff should have been treated as a member of that family.

(2.) So far as the facts are concerned it is found by the learned Judge, and his finding is not challenged, that for twelve years prior to the death of the deceased, which occurred in August 1932, the plaintiff had been under his exclusive protection. She lived in a house in Bombay, and the deceased paid her Rs. 400 a month for maintenance. The deceased sometimes lived at his up-country place, but he had a house in Bombay in which he generally lived, and he visited the plaintiff, according to her evidence, every day whilst he was in Bombay between the hours of 5 p. m. and about 8 p.m. Shortly before his death, and after his marriage to the defendant, he stayed with the plaintiff for about three weeks. The plaintiff produced a large number of letters written to her by the deceased ( Ex. A collectively), and I think those letters show that the deceased had very great affection for the plaintiff. He treated her as much more than a woman reserved merely for purposes of sexual enjoyment; he evidently confided to her all matters of family interest and also matters relating to his business, and so far as he was concerned he certainly regarded her as a member of his family in the sense of being a person for whom he had great affection and in whom he confided. But there is no evidence that the deceased's wife or members of his family knew about his connection with the plaintiff. Some of his friends knew about the connection, the evidence of the plaintiff being that four male friends of the deceased knew about his connection with her and some- times came to her place generally with the deceased.

(3.) The question on this appeal is whether the learned Judge was right in holding that the facts entitled the plaintiff to maintenance. The right of a concubine under Hindu law, when the relationship has been permanent in the sense that it has lasted down to the death of the man, rests on the ancient texts, and no doubt the women who were entitled to maintenance in olden times were women in the position of slaves. But it is quite clear on the authorities that the obligation has been recognised and enforced since slavery was abolished. It is not necessary I think to go through the texts, or the old cases, because in my view the question arising on this appeal is really governed by the decision of the Privy Council in the case of Nagubai V/s. Monghibai That case originally came before this High Court on its original side, and the facts proved shortly were that the claimant in that case had been in the keeping of the deceased for about five years prior to his death ; he made her an allowance and she maintained herself in a house where the man himself often lived with her, though he sometimes resided in his business premises. His wife and family lived in a separate house. The learned trial Judge in that case held that the plaintiff had shown that she was a permanent concubine, and he decreed her maintenance. There was an appeal which was heard by Mr. Justice Shah and Mr. Justice Crump, and they reversed the decision, and held that for a woman to be entitled to maintenance as a permanent concubine it was necessary that she should prove that her relationship with the deceased was open and avowed, and that she had lived as a member of the deceased's family either in his family house or else in such circumstances that she was regarded by everybody as a member of the family. The plaintiff then appealed to the Privy Council, and the Privy Council reversed the decision of the Appeal Court. Their Lordships agreed with the Court of Appeal in thinking that the plaintiff must prove that she was an avaruddha stree, and they construed that word as meaning a permanent concubine. They left open the question whether it was necessary to prove more than that the plaintiff was merely a woman kept and reserved for the sexual enjoyment of one man to whom she remained faithful, because they held that in that case the evidence, even as accepted in the Court of Appeal, showed that the woman was much more than that. They accepted the finding of the trial Judge that the inference from the evidence was that the deceased did not care for the members of his family, and the members of his family did not care for him, and the deceased looked to the plaintiff as the person who was a member of his family and looked to her for nursing him, and then they held that in order to be a member of his family It was not necessary that the woman should reside in the family house. Then later on their Lordships definitely accepted and followed the decision of this Court in Ningareddi v. Lakshmmwa (1901) I.L.R. 26 Bom. 163 and they held that the case established that, provided the concubinage be permanent until the death of the paramour and sexual fidelity to him be preserved, the right to maintenance was established. In Ningareddi V/s. Lakshmawa (supra) the postition was that the man's wife left him on account of ill-health and he then introduced a concubine into his family house; after thirteen years the wife returned and the concubine was then sent out of the family house, but the man continued to visit her. In that case, therefore, it was clear that the woman was not living as part of the family of the man. There was no finding as to whether the relationship of the man with his concubine after the return of the wife was known to the family, and the Court apparently regarded that as immaterial. It seems to me that the Privy Council have negatived the view that in order to succeed in establishing a claim for maintenance a concubine must show that she was recognised by the family of the deceased, or that his relationship with her was known to the family. "What is necessary for her to show is that she was a permanent concubine. No doubt the question of permanency is a question of fact to be determined in each particular case. It may well be that a connection between a man and a woman which in fact endured down to the date of his death may appear on the evidence not to have been intended as a permanent connection. But in this case I am quite satisfied from the evidence, and particularly the letters, that down to the death of the deceased he certainly did intend that his connection with the plaintiff should be a permanent one. I am unable to distinguish the facts of this case, in their essentials, from the facts in Nagubais case. In that case, as here, the woman belonged to the caste of professional prostitutes, and there were, therefore, grave social obstacles in the way of her marrying, or openly associating with, the deceased man. In that case, as here, the man made her an allowance, and she maintained herself in her own house. No doubt there are distinctions in detail; the man in that case seems to have more often spent the night at the house of his mistress than did the deceased in the present case ; and it may be that in that case the deceased took the woman about with him rather more than in the present case. On the other hand the letters in the present case show more strongly the affectionate relations which existed between the deceased and the concubine. The fact which has been relied upon by Mr. Carden Noad for the appellant as distinguishing Nagubais case from the present one, and as showing that in that case the relationship of the deceased man with the plaintiff was known to his family, is that his sons visited him occasionally at the house of the plaintiff. It appears, however, from the judgment of the trial Judge that the sons in question were only aged thirteen and fourteen respectively, and it is not shown how often they visited their father at the house of the plaintiff. Even if boys of that age may have known or suspected what the relationship was between their father and the woman living in the house where they visited him, it is extremely unlikely that they would have discussed the matter with the members of the father's family, and there is no evidence that any adult member of the family knew of the deceased's relations with the plaintiff. The Privy Council noticed this circumstance amongst the facts proved in the case, but they did not, as far as I can see, rely upon it, and as I read their judgment, they do not consider it necessary for the relationship of the plaintiff with the deceased to be known to his family. The decision of the Privy Council has been accepted by text-writers in India in the sense in which I understand it, see, for example, Sir Dinshah Mulla's Hindu Law, 7 Edn., p. 557. The learned author of Sarkar's Hindu Law thinks that the decision of the Court of Appeal in Nagubai's case was right, and that the Privy Council decision altered the law. On the other hand the learned Advocate General for the respondent contended that it was the judgment of Mr. Justice Shah in the Court of Appeal which, if not reversed, would have altered the law. One cannot help observing that if the qualification which that judgment sought to impose upon the right of a permanent concubine to recover maintenance, namely, that she should have been recognised openly as a member of the deceased's family, be accepted, that qualification would largely destroy in practice the right. Public opinion in modern times would hardly tolerate a concubine being kept in the same house as the wife, and the right to maintenance would therefore generally only arise in the case of a man prepared to defy public opinion. But, whether the decision of the Privy Council altered the law or not, we are bound by it, and in my opinion it governs this case. I think, therefore, that the appeal must be dismissed with costs. BlackWell, J.