(APTURU) SEENAYYA REDDI Vs. (APTURU) MANGAMMA

JUDGEMENT

(1.) There is a preliminary objection that no appeal lies as this is a remand order by the learned District Judge on a point which is not preliminary. The suit was brought by the plaintiff for maintenance and the first issue was: "Is the plaintiff entitled to maintenance," which he found against. The learned District Judge reversed that decision, finding that the plaintiff was entitled to maintenance, and sent the case back to the District Munsif to decide the other points in issue. I think there is no doubt that under the ruling in Raman Nair V/s. Krishnan Nambudripad A. I. R. 1922 Mad. 505 this is a preliminary point. There is no ground, it seems to me, after that Full Bench ruling for saying that a preliminary point depends in any way on the degree of importance it may assume in the hearing of the case. Mr. Justice Coutts-Trotter ( as he then was) defines a preliminary point as a point which, when decided in the way in which it is in fact decided, determines the result of the suit. It seems to me that this matter in question here conforms exactly to that definition.

(2.) With regard to the merits: we have to consider whether the findings of the learned District Judge are such as to justify him in law in coming to the conclusion that the plaintiff is entitled to relief by way of separate maintenance. The only ground for the District Judge's decision is that she is so entitled because of the respondent's (husband s) neglect to maintain her without lawful excuse. The husband and wife lived together for about two years. It does not appear to have been a very happy time because the wife was accused of stealing some jewels belonging to the husband's brother. The matter went before a panchayat who decided that her father and brother were to pay Rs. 50 as compensation to the brother-in-law. This of course was a finding, for what it is worth, that the wife was guilty of theft. The husband appears to have been very angry on this occasion and abused his wife, and the lower Court finds that he beat her on this occasion. The District Judge, however, agreeing with the District Munsif, finds that there is no proof of violence and that the corporal chastisement administered on this occasion was not sufficient to justify her in leaving her husband's house. Nor was there any continued ill-usage which would amount in law to legal cruelty. The other incident is important because it is really the case of the wife for leaving the husband's house, and that is, she contracted an illness, as she says on account of an attempt to poison her on the part of her husband. No such attempt has been proved, but the wife was removed to hospital, and, whichever story is right as to exactly what happened or the exact terms on which she proceeded to her father's house immediately she was discharged from hospital, there is no doubt that she did go straight from the hospital to her father's house and she has in fact remained there ever since. The husband's version is that he wanted the wife to come straight home with him from the hospital, but that the father undertook to send her back in a few days. The District Judge's conclusion is that both parties probably thought that as the wife was still under suspicion with regard to this theft it would be better if she stayed in her father's house for some time. In this state of circumstances it is a little curious that the District Judge finds that she did not leave her husband's home of her own accord. The District Judge says that by his suspicion more than by his punishment he had made his home too hot for her and that as he admitted in his counter-petition to the petition to sue in forma pauperis she left, being unable to bear the persecution that she was subjected to by the owner of the jewels, namely, her brother- in-law. The Telugu word used means pressure and it seems to me, there being no evidence as to what this pressure was or whether it was such a worrying or mental harassment of the wife as would really amount to legal cruelty, I can come to no satisfactory conclusion about that, particularly in view of the just previous finding of the learned District Judge that there was no ill-usage which would amount to cruelty in law. The fact being that this wife returned from the hospital to her father's house and has been living there ever since, has the husband been guilty of neglect or abandonment? The neglect is said to be that he failed to provide her with fool and raiment. In 1921,. about six years after she left her husband's house, she wrote Ex. 1 through a vakil not, be it noted, asking the husband to take her back, but asking him to make some provision for her maintenance, in spite of the repeated demands made to you from time to time (that is six years ago as regards her food and clothes) you have not made any arrangement about the same.

(3.) The Judge really bases the whole case on the fact that the husband did not reply to this letter and that it was his duty to go to the wife and beg her to return. Is that the law? It is no doubt, the duty of a Hindu wife to reside with her husband whenever he may settle his residence- and according to Mayne, para. 456 nothing will justify the wife in leaving her home except such violence as renders it unsafe for her to continue there or such continued ill-usage as would be termed cruelty in an English matrimonial Court and Mr. Justice Wallis (as he then was) in S. Bangaramma V/s. S. Brambaze [1908] 31 Mad. 338 says: It is undoubtedly the duty of a Hindu wife to live with her husband and under his protection and if without due cause she leaves him and lives apart she cannot claim to be maintained by him. In the absence of clear authority to the contrary I am of opinion that it is her right and also her duty to return to her husband.