BHAGVANLAL CHUNILAL Vs. BAI DIVALI

JUDGEMENT

(1.) The original plaintiff to this suit was one Parshottam Hargovan Das, who sued to recover from the defendants possession of the property in suit, alleging that his wife Bai Adat died on January 9, 1921, leaving behind her that property to which the plaintiff was the heir at law; that the defendants were withholding possession of the same from him on the strength of an alleged Will by Bai Adat; and that as the plaintiff had not consented to it, it was not operative.

(2.) The defendants went to trial on the issues, whether the Will by Bai Adat was valid, and whether the suit properties, or any of them, were other than Saudayika stridhan of the deceased Bai Adat. The Trial Judge found that the Will was valid, and that the property in suit was not Saudayika stridhan of Bai Adat. He considered in the circumstances of the case that Bai Adat was entitled to dispose of such property by. Will, although her husband was alive, because the Will was not made during covertures, which was still understood to mean a state during which the wife was under the power of her husband, and as it was admitted that Adat was living separate and independently of her husband at her father's house for thirty or forty years till her death, she was not under coverture. In appeal the Judge said. "Bai Adat stayed with her husband Purshottam for a few years. She gave birth to four or five children who died long ago. Purshottam then married a second wife with the result that Bai Adat had to seek the shelter of her parents. She lived with her parents and in their house for about forty years prior to her death. During this time her husband never maintained her nor did he ever care to know how she was doing. She seems to have been treated as an abandoned wife."

(3.) He agreed with the learned Trial Judge that Bai Adat really got her father's property as his heir, and referring to the decision of Bhau V/s. Raghunath 30 B. 229 : 6 Bom. L.R. 936 said- The ruling quoted by the appellant lays down that it is not open to a wife to dispose of her stridhan property except Saudayika stridhan without her husband's consent or permission during coverture. The principle on which the ruling is based is that females are always subject to the control of males even in a matter of d if position of their separate property. This condition of control can exist when the females reside with and are members of the family of the controlling male persons. If a husband abandons his wife and fails to fulfil the obligations enjoined by Hindu Law to his wife for more than a generation, he cannot claim the right of control over the property she acquired in her paternal house. The law, which gives a husband powers of control over the person and property of his wife also presents corresponding obligations. If the latter are not discharged, the former must be treated as lost to a great extent. Bat Adat had virtually cease to be a member of her husband's family. Her husband had. therefore, lost all control over her property and over her person to a great extent.