Bai Daya, Widow vs Natha Govindlal on 7 January, 1885

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Bombay High Court
Bai Daya, Widow vs Natha Govindlal on 7 January, 1885
Equivalent citations: (1885) ILR 9 Bom 279
Author: C Sargent
Bench: C Sargent, Kemball


Charles Sargent, C.J.

1. The plaintiff in this case sued her step-son for arrears of maintenance, alleging that he had inherited moveable and immoveable property from her husband. Although no distinct issue was raised, the question as to her right to maintenance independently of their being inherited property was also dealt with at the hearing in both the lower Courts. The Assistant Judge found that, after paying off his father’s debts, the defendant had nothing left but irrecoverable outstandings which he had offered to make over to the plaintiff, and that, under those circumstances, defendant was under no legal obligation to support the plaintiff.

2. It has been urged before us that the question, whether defendant had inherited property liable for plaintiff’s maintenance, was dealt with in such an unsatisfactory manner by the Assistant Judge, that we ought not to accept his finding. It was objected that the opinion ex pressed, by the Assistant Judge, that the entries in the defendant’s books did not represent actual entries of interest, was a mere assumption, and not based upon any evidence; and, further, that he had not appreciated the evidence afforded by the defendant’s account in the books of his sister, which shows that sums were paid in by defendant from time to time to the credit of his account. There is, doutless, some force in these objections; we do not think however we should consult the appellant’s interests by sending the case back for a fresh finding. The Subordinate Judge himself has only found that there are still out standings from which he thinks defendant might recover Rs. 150 a month; but this is pure assumption, and is rebutted, by defendant’s offer to assign over the outstandings to the plaintiff.

3. We proceed, therefore, to consider the question, whether the plaintiff is entitled to maintenance from her step-son independently of his having inherited available assets from his father, and that question, since the Full Bench decision in Savitribai v. Luximibai I.L.R. 2 Bom. 673 , must, we think, depend upon whether a step- mother is one of those relations whose maintenance is made by certain special texts a legal and imperative duty as distinguished from those general female relations whose maintenance independently of family property is only a moral and optional duty. Sir Michael Westropp, in delivering the judgment of the Court in that case, points out that there is “an important distinction in the language of Manu and other Hindu jurists when, without reference to the existence of family property, they especially treat of the maintenance and support of the wife or of parents or of an infant son, and when they speak of the maintenance and support of the females of the family at large,” and concludes that it is only in the former class of cases that, independently of the existence of family property, a legal obligation exists.

4. This view of the Hindu texts has been fully discussed by the learned authors of West and Buhler’s Treatise on Hindu Law Page 230 (3rd ed) and the opinion has indeed been expressed that undue importance had been given to the above distinction relied on by Sir Michael Westropp. They say, p. 240 : Whatever precept of the Smritis, therefore, bad been violated to the injury of a complainant, whether expresse in terms hortative or prohibitory, and whether a penalty was annexed to the rule or not, the alleged injury might, if the prince or the judges so willed, be remedied or punished without an ‘ excess of jurisdiction.’ See Yajn., I. 360; Muttayan Cheiti v. Sivagiri Zamindar I.L.R. 3 Mad. 380.” ”

5. This may be true, but in determining at the present day which of the duties enjoined by the Smriti writers is to be clothed with a legal obligation and to become a part of the substantive law of the Hindu community as administered by regular Courts of justice, we may well and, indeed, ought in my opinion to pay regard to the tone of the language in which the injunction is couched as affording some indication, at least, of the importance which attached to it in the opinion of its promulgators.

6. Acting, as we apprehend, on this principle, and having due regard to the altered conditions of modern life, the Full Bench would-appear to have arrived at the conclusion that it was only in the special cases mentioned in the texts, to which the judgment refers at p. 593, that an obligation to maintenance arising exclusively from the relationship between the parties ought to be enforced by law. These texts are” the following: -Manu, ch. VIII (on Judicature), pl. 389: “A mother, a father, a wife, and a son shall not be forsaken; he who forsakes either of them, unless guilty of a deadly sin, shall pay 600 panas to the king.” A text ascribed to Manu and referred to in the Dig., bk. 5, Ch. VI, Section 2, Article 1, p. 490: “A mother and a father in their old age, a virtuous wife, and an infant son must be maintained even doing a hundred times that which ought to be done.” And, lastly, a text in the Mitakshara on the Subtraction of Gift, ch. X, fol. 69, p 1, pl. 1, referred to by Mr. Strange in his Manual of Hindu Law, which says: “Where there may be no property, but what is self-acquired, the only person whose maintenance out of such property is imperative are aged parents, wife, and minor children.”

7. It is said that the word mata, and mata pitrau, which are the Sanskrit words used in these texts for mother and parents, include a step-mother. That mata may in certain oases be construed as meaning stop-mother, would appear from the contention of Balambhatta mentioned in West and Buhler, 471, and also from the discussion of the term “matrau” in the texts of Vyasa and Vrihaspati at p. 244 of the Digest-see West and Buhler, 472; but the discussion in both cases proceeded on the supposition that the primary meaning of mata was “natural mother,” and that it was only in a secondary or figurative sense that it could mean step-mother. It follows, therefore that the conclusion that it is intended to be used in the latter sense must be drawn from the context or from a comparison of cognate texts. At the foot-note at p. 472, West and Buhler, it appears that the shastri at Ahmedabad held “step-mothers” to be included in the expression “aged parents” in the text cited from the Mitakshara.

8. On the other hand in Steele’s Law and Custom of Hindu Castes, on the authority of answers obtained from Khandesh, the absolute necessity to provide maintenance is referred to as con- fined to the natural mother. One would naturally expect to find that much difference of opinion prevailed as to the extent of the obligation to maintain a step-mother, as it is plain that, regarded from a moral point of view, the obligation must necessarily vary much with the circumstances of the family, and can. only be a very high one when the step-mother has been in loco parents towards the children during their infancy, which is by no means always the case, and, indeed, we should imagine more frequently not. Again, if the maxim “noscitur a socris” – be applied in interpreting the texts, the combination of mother, father, wife and children in the same text would appear to confine the term to the natural mother as one of the four nearest and dearest relations which a man possesses; and, lastly, the strong terms in which a violation of the duty is denounced, point in the same direction.

9. Upon all the considerations which the case suggests, we think that the expression “mother” and “parents” should be read in their natural sense in the above text, and that the obligation to support a step-mother independently of family property should be left to the conscience of each individual, influenced, as it must be, more or less by the opinion of the particular community in which he lives.

10. Decree confirmed, except as to costs. Parties to pay their own costs throughout.

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