Authored By : Loftus Richard Tottenham, S.C. Ghose

Loftus Richard Tottenham and S.C. Ghose, JJ.

1. This was a suit for maintenance brought against thedefendant No. 1 by his wife and his minor son, upon the ground that his crueltyand other misconduct had put her in fear of her life and driven her to takerefuge with her son at her own fathers house. She claimed maintenance forherself and son at the rate of Rs. 50 per mensem, and Rs. 25 per mensem wasclaimed for the sons education. There was a further claim for maintenance forthe six months before suit.

2. The defendants 2 and 3 were made parties to the suitbecause they are executors appointed under the will of Junmejoy Mullick, latefather of defendant No. 1, and the maintenance is claimed from the estate.

3. The Lower Court held that the plaintiffs had made out nosufficient case for a decree for separate maintenance for the future; but gavea decree for Rs. 150 in respect of the maintenance and education of the son forthe six months previous to the suit. The plaintiffs having appealed, thedefendant No. 1 has filed a cross-appeal against the decree for these Rs. 150.

4. The facts alleged and proved against thehusband-defendant are so discreditable to him that we are astonished at his nothaving settled his wifes claim out of Court, rather than have his conductexposed and condemned publicly IN the Courts of Justice. And after hearing theappeal we have abstained for some time from delivering judgment, as there wassome hope that even at the last moment the defendant would offer the plaintiffsuch reasonable terms as she might accept, and so escape the disgrace of adecree of this Court being passed against him in such a suit. We are, however,compelled to proceed to judgment.

5. The plaintiff No. 1 has for many years been the wife ofthe defendant No. 1, and their son must now be about 15 years of age, for inthe plaint filed on the 6th of April 1889 he is described as then being 12years and 8 months old. In her moral conduct she has been, as far as we canjudge, irreproachable; though she has, it appears, sometimes allowed her temperto get the better of her under the provocation which her husbands habitual illtreatment of her offered.

6. The findings of fact of the Subordinate Judge are notdisputed by the respondent; and his last assault upon his wife is properlycharacterised by the Court as a most cruel, heartless and cowardly one. Thehusband has also been proved to be a profligate youth, addicted to drink, andone who "behaves most shamefully by his wife", to use the words ofthe Subordinate Judge; still he does not think she was justified in leaving herhusbands house. He thinks that, notwithstanding all that has happened,notwithstanding the violence committed a dozen times or so, and notwithstandingthe last most brutal assault, still there is no reasonable apprehension ofpersonal safety or health; and that consequently she is bound to return to herhusband and is not entitled to separate maintenance.

7. It would be a matter of very great regret to us to becompelled by Hindu law, or by any other consideration, to endorse, thisjudgment. The Hindu law, while it enjoins upon the wife the duty of attendanceon, obedience to, and veneration for, the husband, inculcates that the husbandmust honour the wife and treat her with affection and courtesy. The husband isno doubt entitled to restrain the liberty of the wife, and she is bound torefrain from going to any place where her husband forbids her to go; and thesages mention only certain cases where the wife may forsake the husband (seeColebrookes Digest, Vol. II, Book IV, Chapter I, Section 2, and Chapter IV,Section 2). But it is nowhere laid down that the wife is bound to live with ahusband who habitually treats her with cruelty, and so ill-treats her as toendanger her personal safety: and in this connection we may refer to Section488 of the Code of Criminal Procedure as showing what the Legislatureconsidered to be the correct law on the subject, as also to the observations ofGarth, C.J. in Sitanath Mookerjee v. Haimabutty Dabee 24 W.R. 377. We think itamply established in this case that the defendants violence towards his wifehas been such as to create the most serious apprehension for her safety shouldshe continue in his power: and under these circumstances we hold that she isfully justified in leaving her husband and is entitled to be maintained fromhis income. We reverse the decree of the Lower Court so far as it dismissesMatanginis suit, and direct that she receive maintenance at the rate of Rs. 32per mensem from the income enjoyed by the defendant No. 1 under his fatherswill. She is entitled to recover at the above rate from Ashin to Falgoon 1296(Amli) and for the remainder of her husbands life. And she will got her costsin both Courts.

8. As regards the cross-appeal, the Lower Court was, wethink, in error in making any decree in respect of the maintenance andeducation of the defendants son; but as the learned pleader did not press theappeal, we do not consider it necessary to make any order upon it.

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Matangini Dasi and Ors. vs. Jogendra Chunder Mullick andOrs. (28.07.1891 - CALHC)