Lakshmayee vs Ponna Goundan and Others

V. Ramaswami, J.—An interesting point of law arises in this case. The Appellant was married to the first Respondent sometime in the

beginning of 1963 according to the Hindu Sastric rites. The second Respondent is the mother of the first Respondent. She had tiled the suit alleging

that; since she refused to give her consent for the first Respondent marrying another girl as his second wife, she was beaten and driven out of the

house on the 17th of October 1963. Though the panchayatdars requested the first Respondent not to ill-treat the Plaintiff. be was not heeding their

advice and, their fore, she was entitled to live separately and claim maintenance u/s 18 of the Hindu Adoption and Maintenance Act. She had

claimed maintenance at Rs. 50 per mensem.

The first Respondent filed a written statement denying the allegation of cruelty and contended that she was not entitled to live separately or claim

maintenance.

When the suit for maintenance filed by the Appellant was pending before the District Munsif, Salem, the first Respondent filed Original Petition

No. 253 of 1964 on the file of the learned Subordinate Judge of Salem u/s 9 of the Hindu Marriage Act, 1955, claiming restitution of conjugal

rights. In this petition he had alleged that he never ill-treated his wife and that he had done nothing which would entitled his wife to live separately

and desert him. The Appellant herein filed a counter denying these allegations and asserting that she was entitled to live separately and claim

maintenance because of the ill treatment and cruelty of her husband. The maintenance suit came up for trial earlier than the petition for restitution of

conjugal rights and by judgment and decree dated 31st July, 1967 the learned District Munsif held that the cruelty and desertion alleged by the

Appellant were true and that she was entitled to live separately and claim maintenance. Having regard to the income from the properties and the

requirements of the Appellant, the learned District Munsif fixed the maintenance at Rs. 30 per month and gave charge over the B Scheduled

properties which were admittedly joint family properties.

The first Respondent filed an appeal against this judgment in Appeal Suit No. 246 of 1967. When this appeal was pending, Original Petition No.

253 of 1964 was dismissed holding that, because of the ill-treatment and cruelty of the husband, the wife was entitled to live separately and the

claim of desertion pleaded by the husband had not been proved. That judgment was not appealed against and it became final. Therefore the

Appellant herein field Interlocutory Application Nos. 387 of 1970 and 397 of 1970 under Order XLI, Rule 27, of the CPC to receive and admit

as additional evidence the certified copies of the petition and the judgment in Original Petition No. 253 of 1964. The Appellant also contended

before the lower appellate Court that in view of the provisions of Section 41 of the Evidence Act, the finding in Original Petition No. 253 of 1964

is final and conclusive and it is not open to the first Respondent to challenge that finding in this suit for maintenance. The learned Subordinate Judge

was of the vire that since the judgment in Original Petition No. 253 of 1964 was given subsequent to the judgment in the suit, that finding is open to

question in the appeal and that the fact that no appeal had been preferred in Original Petition No. 253 of 1964 and the judgment had become final

cannot debar the first Respondent herein from contesting the claim of the Appellant to live separately without forfeiting her right to maintenance.

Though the learned Judge has expressed this view on the legal position, inform he dismissed the application filed under Order XLI, Rule 27, Code

of Civil Procedure, after holding that there was no justification for the wife to live separately and that she was not entitled to maintenance.

In this appeal, the learned Counsel for the Appellant contended that in view of Section 41 of the Evidence Act, it was not open to the lower

appellate Court ignoring the finding in Original Petition No. 253 of 1964, to go into the question as to whether the Appellant was legally entitled to

live separately and claim maintenance. The relevant portion of Section 41 of the Evidence Act provides that a final judgment, order or decree of a

competent Court, in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which

declares any person to be entitled to such character, not as against any specified person but absolutely, is relevant when the existence of any such

legal character of any such person is in question. It also states that such judgment, order or decree is conclusive proof that any legal character

which it confers or declares any such person to be entitled to accrued or ceased accordingly at the time when such judgment, order or decree

came into operation.

Prior to the enactment of the Hindu Marriage Act, 1955, so far as Hindus were concerned there was no matrimonial jurisdiction as such to

decide regarding matters connection with marriage such as restitution of conjugal rights, judicial separation, divorce or declaration of marriage as

null or void. They were all dealt with as civil matters falling u/s 9 of the Code of Civil Procedure. A special jurisdiction has been conferred on

Courts now under the provisions of the Hindu Marriage Act and special Courts are constituted in respect of matters dealt with under the Act. The

petition for restitution of conjugal rights u/s 9 therefore, comes within the matrimonial jurisdiction of the special Courts constituted under the Hindu

Marriage Act. The order in Original Suit No. 253 of 1964 thus was one made by the Court in exercise of its matrimonial jurisdiction and that order

has become final. Therefore, the first condition for the applicability of Section 41 of the Evidence Act is satisfied. There could be no doubt that if

the order in that petition related to the matters referred to in Section 41, it would not be open to any party before any other Court to canvass that

finding. It is immaterial that the decision was rendered during the pendency of the suit or when the matter was pending in appeal. When that is

produced as evidence, the Court has no option but to accept the same as final and binding. In the instant case, though the finding by the

matrimonial Court that there was no desertion by the wife and that she was � entitled to live separately because of the ill-treatment and cruelty of

the husband was given subsequent to the judgment of the trial Court, when the judgment was produced before the lower appellate Court it should

have acted on it and treated it as conclusive evidence of the right of the wife to live separately because of cruelty and ill-treatment of the husband.

It was not open to the lower appellate Court to canvass that finding much less to come to a different conclusion.

The learned Counsel for the first Respondent relied on a decision of the Rangoon High Court in Ma Po Khin v. Ma Shin ILR Rang. 198 In that

case the question for consideration was whether the Plaintiff was or was not the wife of one deceased U Tun ; and it was contended that the

Plaintiff was in fact married to another person called Po Chein and that, therefore, she could not be the legal wife of U Tun. Pending the suit, a suit

for restitution of conjugal rights was filed against her by one Maung Chein. The suit was decreed against her ex Parte and her subsequent attempt

to have the ex-parte decree set aside also failed. It was contended by the Defendant in the suit that the finding in the exparte judgment in the suit

for restitution of conjugal rights is a judgment in rem and that u/s 41 of the Evidence Act the finding cannot be re-opened. The Court held that

Section 41 has no application. This was in the view that the Court which dealt with the case of the restitution of conjugal rights was not exercising

any powers under the matrimonial jurisdiction and therefore the judgment was not binding on the Plaintiff in the said litigation. As already stated,

prior to the Hindu Marriage Act suits for restitution of conjugal rights could have been entertained by Courts only u/s 9 of the CPC and there was

no matrimonial jurisdiction as such for the civil Courts. This decision was rendered with reference to a case arising prior to the Hindu Marriage Act

which confers matrimonial jurisdiction for the Courts and, therefore, has no relevance deciding the issue arising in the second appeal.

My view also find support in the decision in Suhas Manohar Pande Vs. Manohar Shamrao Pande, and in Survepalli Siddaiah Vs. Survepalli

Penchalamma, . In Suhas Manohar Pande Vs. Manohar Shamrao Pande, the facts are these. A suit for maintenance was filed by a minor son of

the Defendant. The Defendant contended that the Plaintiff was an illegitimate son and not the of spring of a legally married wife. In a petition filed

for restitution of conjugal rights by the mother of the Plaintiff against the Defendant u/s 9 of the Hindu Marriage Act, it was held that she was legally

married wife and she was entitled to a decree for restitution of conjugal rights. This order was produced by the Plaintiff as evidence that he is the

legitimate son of the Defendant and therefore entitled to maintenance. The Defendant challenged the finding of the matrimonial Court and still

persisted in contending that the Plaintiff''s mother was not his legally married wife. A Division Bench of the Bombay High Court, relaying on

Section 41 of the Evidence Act held that the decision of the matrimonial Court is a judgment in rem and that the question of the statue of the

Plaintiff''s mother as wife of the Defendant was conclusive and not open to question in that suit.

In Survepalli Siddaiah Vs. Survepalli Penchalamma, it was held that a judgment given in exercise of the jurisdiction conferred on the Court by

the Hindu Marriage Act would fall within the purview of Section 41 of the Evidence Act and any such decision would be conclusive not only

against the parties to the proceedings but against the whole world. Both these decisions are also authority for the position that while disposing of an

application u/s 9 of the Hindu Marriage Act, the Court is exercising a matrimonial jurisdiction and not its general powers u/s 9 of the Code of Civil

Procedure.

But the more important question is what is the legal character which is referred to in Section 41 of the Evidence Act in respect of which alone

the decision of the matrimonial Court would be conclusive and binding as a judgment in rem. The meaning of the term legal character in Section 41

of the Evidence Act came up for consideration before a special Bench in In Re: P.C. Venkataramanayya Pantulu Advocate, High Court, Madras, .

Though they were concerned with the finding of a Court exercising insolvency jurisdiction, the discussion on the meaning of legal character is

general nature and not restricted to the findings in insolvency jurisdiction. It was held that the term legal character in Section 41 means something

equivalent to status. It should be in the nature of a decision which announces to the whole world what the legal status of the person in questi and

that the words legal character must be narrowly cons-trued and any decision in respect of the same would be a judgment in rem.

In Sunanda v. Venakata Subba Rao AIR 1957 A.P. 424 a decree dissolving the marriage was held as determining the status of the parties and

equivalent to a judgment in rem.

In Duggamma v. Ganeshayya A.I.R 1965 Mys. 97 it was held that a status of a person means his personal legal condition, that is to say, a

man''s legal condition so far as his personal rights and burdens are concerned to the exclusion of his proprietory relation ; in particular, it was held

an adjudication on adoption will in law amount to a declaration of status, though the claim to succession is not a matter of status.

Salmond in his Jurisprudence (eleventh edition pages 292 and 293) points out the different senses in which the term status is normally used.

Sometimes it is used as legal condition of any kind, whether personal or proprietory sometimes personal legal condition alone and sometimes

relating to personal capacities and incapacities.

The judgment which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such

character, in Section 41 of the Evidence Act, in my opinion, refers to only that judgment which dealt with the personal legal condition and not the

personal capacities or incapacities or the proprietary rights of persons, for these rights would not be really declarations of legal character or status

of such individuals. In this since it would include his personal rights and burdens arising from martial relationship. Another word used in respect of

such legal character in Salmond is domestic right. It is with reference to these domestic rights Section 41 of the Evidence Act attaches finality and

conclusiveness.

Learned Counsel for the first Respondent relied on the words not as against any specified person but absolutely in Section 41 as indicating that

only the decision relating to status as a wife or husband could alone be treated as judgment in rem and not any finding relating to the right of the

wife to reside -separately and claim maintenance. In this connection the learned Counsel also referred to Section 18 of the Hindu Adoption and

Maintenance Act which prescribes the circumstance under which the wife would be entitled to live separately from her husband without forfeiting

her claim to maintenance. According to the learned Counsel any finding as to the existence of those circumstances do not concern the status of the

parties, and that therefore Section 41 of the Evidence Act would not be attracted. Having given a careful consideration for this argument of the

learned Counsel, I am unable to accept this contention. The words not as against any specified person but absolutely only mean that the finding is

of such a nature that persons who are not parties to the proceeding are also not entitled to challenge such findings. If a finding is not open to

question by any person who is not a party to the proceeding, it shall be treated to be one given against the whole world. The learned Counsel was

not able to say that anybody other than the husband would be entitled to question the right of the wife to live separately and claim maintenance.

The question of desertion or cruelty is one to be decided only as between the parties and no third party is interested in that question. Even a legal

heir who succeeds the husband would not be entitled to question the same, as the finding given against the husband would be binding on such legal

heir.

Further, I could find no difference between a decree or order granting judicial separation and the one which declares the right of the wife to live

separately and claim maintenance. The learned Counsel for the first Respondent is willing to accept that any finding on judicial separation would be

declaring the status, of the parties and thereby their legal character within the meaning of Section 41 of the Evidence Act, If that were so, I find no

logic or reason in the contention that if the wife is held entitled to live separately in the proceeding for restitution of conjugal rights, it will not amount

to a declaration of status or legal character. Right to reside separately is a personal right available to the person against her husband. I have

therefore, to hold that the finding in Original Petition No. 253 of 1964 is final and binding between the parties and conclusive and not open to

question in these proceedings.

Though the learned Counsel for the Appellant wanted to rest his case even on the merits 1 do not find it necessary to go into that question in

view of my finding on the applicability of Section 41 of the Evidence Act.

In the result, the second appeal is allowed. The judgment and decree of the lower appellate Court are set aside and the judgment and decree

of the trial Court are restored. There will be no order as to costs.

No leave.