JUDGMENT
Rafique, J.
1. This appeal arises out of a suit for maintenance brought by the plaintiff-respondent, Musammat Personi, a Hindu wife, against her husband, the defendant-appellant.
2. The claimed Rs. 5 per mensem as maintenance on the ground that her husband had taken to himself another wife and had since then, been ill-treating her (the plaintiff-respondent) and had turned her out of the house declining to support her anymore.
3. The defendant-appellant resisted the suit by denying the alleged ill-treatment and expulsion of the plaintiff-respondent. He further said that she was a woman of bad temper and worse manners. She was unable to cook meals and do other household work on account of which he had to take another and more suitable wife to himself. The plaintiff-respondent, he said, had been abducted from his house by her father who had instigated her to bring the present suit and made her children to return to him. He was willing to support her if she went back to live with him.
4. The learned Munsif of Saharanpur, in whose Court the suit was brought, came to the conclusion, on a well-considered judgment, that no legal cruelty had been proved and dismissed the claim. On appeal, the learned Subordinate Judge, though agreeing with the first Court that no cruelty or ill-treatment had been proved, was of opinion that “there were ample circumstances to justify the conclusion that the woman owing to the conduct of her husband was in extreme mental agony.” And that the said circumstances taken with the presence of a second wife in the house entitled the plaintiff-respondent to live separately from her husband and claim maintenance. He accepted the appeal and reversing the decree of the first Court, decreed the claim of the plaintiff-respondent. The husband has preferred a second appeal to this Court,
5. The learned Counsel for the appellant contends that the taking of a second wife by a Hindu or the unequal treatment of the two wives by him or both taken together does not amount to cruelty in the legal sense of the word which would enable the aggrieved wife to live separately from her husband and claim separate maintenance. The allegation of cruelty, it is said, must be borne out by evidence which establishes actual violence by the husband of such a character as to endanger personal health or safety of the wife or a reasonable apprehension of such violence. In the present case, both the lower Courts have found that no violence of such a character was used by the defendant appellant. The lower Appellate Court misapprehended the law in thinking that the mental agony caused to the plaintiff-respondent by the re-marriage of the defendant-appellant or by her neglect or unkind conduct to her entitled her to seek for separate maintenance.
6. The learned Counsel has cited a number of cases in support of his argument, some of which are given below:
7. Jeebo Dhon Bungah v. Musammat Sundhoo 17 W.R. 522; Sitanath Mukerjee v. Srimutty Haimabutty Debi 24 W.R. 377; Yamunnabai v. Narayan Narishwar Pandse 1 B. 164; Arumugam v. Talukanam 7 M. 187; Binda v. Kaunsilia 13 A. 126; A.W.N. (1891) 18; Dular Koer v. Dwarka Nath Misser 34 C. 971 Halsbury’s Laws of England, Volume XVI, page 473.
8. For the respondent, the reply is that under the Hindu law, the conduct of a Hindu husband, which tends to disgrace the wife, is a sufficient reason for her to live apart from him and to claim separate maintenance. It has been found by the lower Court that the defendant-appellant wanted the plaintiff-respondent, to live in subjection to and under the orders of his second wife. Such a position was an intolerable means of her disgrace and the plaintiff-respondent could never submit to it. She should, therefore, he allowed to live with her parents and the defendant-appellant should give her Rs. 5 per month for her support.
9. The learned Vakil for the plaintiff-respondent relies on the passage given at page 133 of Colebroke’s Hindu Law Vol. II, Bk.. 4. It is further argued that there is a reasonable apprehension of the safety of the plaintiff-respondent as her refusal to accept an inferior position to her co-wife is bound to bring on her the displeasure and violence of the defendant-appellant.
10. I think that the contention for the defendant-appellant must prevail. It is not disputed that the only ground, upon which a Hindu wife can claim separate maintenance, is that of habitual ill-treatment and cruelty on the part of her husband. The law as to what constitutes cruelty which would justify a Hindu wife to live apart from her husband and to claim a separate maintenance is quite clear.
11. A long and uniform course of decisions in this country has laid down the rule that the act of cruelty which can be recognized under the Hindu Law justifying a Hindu wife to claim separate maintenance, is the legal cruelty which would under the English Law support a suit for judicial separation. And under the English law to constitute legal cruelty, there must be actual violence by the husband of such a character as to endanger personal health and safety of the wife or there must be a reasonable apprehension of it.
12. The conduct of the husband causing mere pain to the mental feelings of the wife, however wantonly caused or keenly felt, would not, according to English Law, fall within the definition of legal cruelty. In the present case, there is the concurrent finding of the lower Courts that the defendant appellant used no violence endangering the health and safety of the plaintiff-respondent. Nor was there any reasonable apprehension of it.
13. The fact that the defendant appellant has taken a second wife to himself and neglects or shows unkindness to the plaintiff-respondent or has assigned the latter an inferior position in the house, no doubt, must cause great mental agony to her, but it does not amount to legal cruelty. The text given in Colebroke referred to by the learned Vakil for the respondent is inapplicable. It runs as follows:
14. “But she who, though afflicted with illness, is beloved and virtuous, must never be disgraced, though she may be superseded by another wife with her own consent.” This text is clearly not in point. It only describes one of the circumstances under which a Hindu wife may be superseded, and in that case should be treated with consideration. The defendant-appellant’s counsel will retort that the plaintiff-respondent was not superseded because she was afflicted with illness but because she was afflicted with a bad temper and (here is no rule in Hindu Law which enjoins a husband to treat a bad tempered wife with consideration. The suggestion that the refusal of the plaintiff-respondent, in case she goes to live with her husband, to accept a subordinate possession to her rival wife would lead to violence by the defendant-appellant is an unfounded apprehension. The appeal prevails. I allow it and set aside the decree of the lower Appellate Court and restore that of the first Court. Costs are allowed to the appellant.
