MEENAKSHI AMMAL Vs. AMMINI AMMAL

JUDGEMENT

(1.) The plaintiff obtained a decree for arrears of maintenance against her husband, the 1st defendant; she attached his property before judgment and a claim petition against the attachment was allowed in favour of the claimant. The appellant has brought the present suit for setting aside the order of the claim petition, and for a declaration that the suit property is liable to be attached and sold in execution .of her decree. The District Munsif decreed her suit as regards items 2, 3 and 4, and dismissed it as regards items Nos. 1 and 5. The Additional Subordinate Judge of Palghat has allowed her appeal as regards items Nos. 1 and 5. The 2nd defendant, the vendee of items Nos. 1 and 5 has preferred this second appeal.

(2.) It is contended by Mr. Ramachandra Aiyar for the appellant that the right to separate maintenance of a Hindu wife arises only in certain circumstances and when it does, the liability is a personal one and does not depend upon the possibility of property and the husband is entitled to alienate the property by sale or mortgage and the right to maintenance does not attach itself to his property till it is declared to be a charge on it by act of parties or by the Court and therefore the plaintiff cannot question the alienation in favour of the plaintiffs. In the case of a Hindu widow, the right of maintenance depends upon her husband's share in the family property; in other words, those who succeed to her husband's property are under an obligation to maintain her out of its income. The creditors of her husband have a prior claim to the widow. If a testator devises all his property by will without making any provision for his widow the legatee would get the bequest subject to her maintenance (see Mayne, Para. 466, p. 646 of the 8 Edition). The husband can sell his property and the wife cannot object to the sale on the ground that she has a claim for maintenance. If the husband makes a gift of his entire property without providing for his wife's maintenance, the donee takes it subject to her right to maintenance (see Narbadabai V/s. Mahadeo Narayan [1880] 5 Bom. 99 and also Jamna V/s. Machul Sahu [1878] 2 All. 315.

(3.) As long as the wife is living with her husband and so long as he is willing to live with her or maintain her, she has no right to claim separate maintenance. If owing to cruelty or desertion of the husband the wife is unable to live with him, she will be entitled to separate maintenance. Even if there be no desertion or cruelty, if the Court finds that it would be injurious to the health of the wife to live with her husband, it may decree separate maintenance to her. In this case the husband deserted his wife for several years and she had to live in her father's house. She made a demand for her maintenance before he sold the property to the 2nd defendant. The simple question in this case is, Is the husband, after having deserted his wife and after she had made a claim for past maintenance entitled to alienate his property with a view to defeat her claim to maintenance? In other words is she a creditor within the meaning of Section 53 of the Transfer of Property Act? I have not the slightest hesitation in holding that the amount which a husband is liable to pay for the maintenance of his wife during the years he has deserted her is as much a debt as any other contracted by him. The liability to pay for past maintenance is a legal liability and it is difficult to see how it does not amount to a debt. If a father forsakes his child and someone supplies the necessaries of life to the child to keep it from starvation, would not the father be liable to make good the amount spent for the upkeep of the child? If a wife who is entitled to be maintained and protected by her husband is deserted by him and she is maintained by her parents, is not the husband bound to make good the amount spent for a wife's sustenance? There can only be one answer to the question to the extent of the amount spent for her maintenance, he is a debtor. The husband can be arrested and sent to jail in execution of his wife's decree for maintenance. Now is her claim for maintenance which has become a debt different from other debts? In giving a decree for maintenance the Court simply determined what the amount is and the claim for maintenance does not become a debt only after the Court passes a decree in favour of the wife; for the liability of the husband is antecedent to the filing of the plaint.