PREREPA BHAGAVAT SASTRULU (DIED) Vs. SARIDEY LAKSHMIKANTAM

JUDGEMENT

(1.) This appeal raises a question regarding the right of the permanently kept concubine of a deceased Hindu to claim maintenance when she has not had a child by the deceased. It is a question upon which authority is meagre. The only definite pronouncement is contained in an obiter dictum of Spencer, J., at page 810 in the case of Rama Raja Thevar V/s. Papammal . The learned Judge was dealing with a case of a claim by a concubine who in fact had a daughter by her deceased paramour. In laying down the conditions upon which a concubine may be entitled to maintenance he observes: Another condition that has been put on the right of a concubine to be maintained is that she should be the mother of illegitimate children,

(2.) quoting as authorities the case of Khemkor V/s. Umiashankar (1873) 10 B.H.C.R. 381 and Strange's Hindu Law, Chapter 8, p. 174. The other learned Judge while agreeing generally with the conclusion of Spencer, J., says nothing about the question whether the right of maintenance depends upon the existence of children by the concubine. Turning to the authorities for this pronouncement I find that the case of Khemkor V/s. Umiashankar (1873) 10 B.H.C.R. 381, does not lay down any rule that a concubine who has no children is disentitled to maintenance. The judgment is very short and the essential point is found in one sentence which is: We also agree with the Judge in thinking that as the mother of the illegitimate children of Ranchor, that is, as his concubine, she is entitled to maintenance.

(3.) The judgment quotes as authority Strange's Hindu Law and West and Buhler. This passage may well be an indication that the essential criterion is not whether the claimant is the mother of illegitimate children but whether she was a regularly kept concubine of the deceased. When we turn to the passage in Strange, Vol. I, page 174 we find the learned author after referring to the rights of illegitimate children to maintenance adds the sentence "the mothers of such children also have a like claim." The contrary proposition that concubines who are not the mothers of illegitimate children have no claim to maintenance is not stated. I have not been able to verify the passage, in the old edition of West and Buhler quoted by the learned Chief Justice in Khemkor's case (1873) 10 B.H.C.R. 381. Turning to the original texts in the Mitakshara upon which the right of a concubine to maintenance is built, we find very little assistance. Chapter II, Section 1, paragraph 27 contains the following: It is said by Katyayana heirless property goes to the King deducting however a subsistence for the females .