KAMTABAI Vs. UMABAI

JUDGEMENT

(1.) MAONAIR , A.J.C. 1. The findings of the first Court which I have to consider are: That the first husband of Mt. Umabai is not proved to have been alive during the time of Umabai's connexion with Dayalgir; Umabai, then, as a permanent concubine is entitle to maintenance out of the estate of the deceased Dayalgir; and Rs. 25 per mensem is the proper amount of such maintenance.

(2.) IT is first urged that it was for the plaintiff to prove that her husband is dead and that she has failed to give such proof. The plaintiff appears to have suppressed evidence. She admits that her mother is alive, and that Manrakhan, her near male relation is also alive. She states that Manrakhan had told her that she was married to a Rajput and that she never questioned her mother on the point. Clearly it was the plaintiff's duty to find out from her mother and Manrakhan, the name of her first husband and to make a definite statement that he was dead or had disappeared. As she had not produced this evidence, a presumption arises against her. Again Section 107, Evidence Act, is very clear. Umabai gave her age in the plaint as 35 and it appears that her husband was alive 30 years ago. The burden of proof that he was dead, therefore, rested upon her. Section 108, Evidence Act, has no application as a wife, who left her husband and is in the keeping of another, is not one of the persons who would naturally hear from him if he were alive. I do not follow the reasons for disbelieving the evidence of the defendant, but even if the evidence of the defendant is unworthy of belief and the plaintiff's husband is not Manna Singh, it was for the plaintiff to show that her husband, whoever he may be, is now dead. She has failed to do so and it must be presumed, that her husband is still alive.

(3.) IN Mayne's Hindu Law, 9th edn., para. 450, it is stated that concubines are entitled to maintenance even though the connexion with them is an adulterous one. I respectfully think the reasons given by Shah, Ag. C.J., and Crump, J., that a concubine is entitled to maintenance from her husband that she cannot live a chaste life when her husband is alive at the time of her paramour's death are not entirely satisfactory. In my opinion, then, Mt. Umabai is entitled to maintenance although her husband is alive. I add that the maintenance in the circumstance should be on a less generous scale than would be awarded to a widow.