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PETITIONER: AMIREDDI RAJAGOPALA RAO AND OTHERS

       Vs.

RESPONDENT: AMIREDDI SITHARAMAMMA AND OTHERS

DATE OF JUDGMENT: 18/02/1965

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R. RAMASWAMI, V.

CITATION:  1965 AIR 1970            1965 SCR  (3) 122

ACT:     Hindu  Law--Married Brahmin woman becoming concubine  of Sudra     male-having     children--Their     rights      of maintenance--Whether  such  rights  affected  by  the  Hindu Adoption and  Maintenance  Act, 1956.

HEADNOTE:     The  first respondent S, a Brahmin woman married  to  R, during  the lifetime of her husband became  the  permanently kept  concubine  of  L, a sudra by caste.  The  other  three respondents  were the sons of S & L. After L’s death,  in  a suit  filed by the respondent against L’s brother and  their sons (the appellants here), the sub-judge, by a decree dated September  20, 1954, awarded maintenance to the  respondents during their life-time out of the estate of L and this award was upheld on appeal by the High Court. During the  pendency of the appeal before the High Court, the Hindu Adoptions and Maintenance  Act  of  1956  came  into  force  and  upon   a contention being raised before it, the High Court held  that the  relevant  provisions  of  the  new  Act  did  not  have retrospective effect so as to adversely affect the rights of maintenance available to the respondents under the Hindu Law before the Act came into force. In  appeal  before the Supreme Court, it  was  contended  on behalf  the  appellants (1), that the respondents  were  not entitled  to  claim  any maintenance from the  estate  of  L under the Hindu Law in force before the 1956 Act because (a) the  first  respondent was not a Dasi and  the  other  three respondents were not Dasiputras of L;    (b) the husband  of the first respondent having been alive, her connection  with L was adulterous and she could not therefore be entitled  to maintenance  as  an  Avaruddha  Stree  and  (c)  the   first responden  being a Brahmin adulteress and L being  a  Sudra. the  connection was Pratiloma and illegal. (2) That  in  any event,  by  virtue of s. 4 of the 1956 Act,  the  Hindu  Law prior  to  that Act ceased. to have effect with  respect  to matters  for  which provision was made in the Act  and  that provision  for  maintenance, etc. had in fact been  made  in sections 21 and 22 of the Act.

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   HELD’: (1) The respondents were entitled to  maintenance during  their lives out of the estate of L under  the  Hindu Law as it stood before the 1956 Act came into force. [127 D]     (a)  It was well recognised that  independently  of  the express  texts  of the Mitakshara, whereby, in the  case  of Sudras  the  Dasiputra  was  entitled  to  a  share  of  the inheritance, the illegitimate son of a Sudra was entitled to maintenance out of his father’s estate though his mother was not a Dasi in the strict sense and though he was the  result of a casual or adulterous relationship. [125 C]     Mitakshara  Ch. I, S.. 12 V. 1, 2 and  3  referred   to; Case law reviewed.     (b)  Under Mitakshara law. a married woman who left  her husband and lived with her paramour as his permanently  kept mistress  could  claim the status of an Avaruddha  Stree  by remaining faithful 123 to her paramour, even though the connection was  adulterous, and she was entitled to maintenance from the estate of   the paramour  so long as she preserved sexual fidelity  to  him. [125 H, 126 B]     Akku  Prahlad v. Ganesh Prahlad I.L.R. [1945]  Bom.  216 affirmed Case law reviewed. (c)  A  Brahmin concubine in the  exclusive  and  continuous keeping  of a Sudra until his death was entitled  to   claim maintenance.[127 B] Case law referred to.     Sections  21 and 22 are in terms prospective  and  these sections  read with section 4 did not destroy or affect  the right of maintenance of the respondents which vested in them on  the death of L and before the commencement of  the  1956 Act. [128 F; 129 A]     S.  Kameshwaramma  v.  Subramanyam  A.I.R.  1959  Andhra Pradesh 269; distinguished.

JUDGMENT:  CIVIL APPELLATE JURISDICTION:CiVil Appeal No. 434 of 1963.     Appeal from the judgment and decree dated July 22, 1960, of  the Andhra Pradesh High Court in Appeal Suit No. 709  of 1954.     A.  Ranganadham Chetty, A. Vedavalli and   A.V.  Rangam, for the appellants. M.S.K. Sastri and M.S. Narasimhan, for the respondents. The Judgment of the Court was delivered by     Bachawat,  J. The first respondent, Seetharamamma, is  a Brahmin woman. She was married to one Ramakrishnayya. During the  life-time  of her husband she became the  concubine  of one Lingayya, a Sudra by caste. From 1938 until the death of Lingayya  in  February, 1948, she was the  permanently  kept concubine  of  Lingayya,  and lived with  him.  During  this period  and  thereafter, she preserved  sexual  fidelity  to Lingayya.  The second, third and fourth respondents are  the sons of the first respondent by Lingayya. The husband of the first  respondent  is still alive. The  appellants  are  the brothers  and  brothers’  sons of  Lingayya.   Lingayya  was separate in estate from his brothers and brothers’ sons. The parties  are residents of Choragudi, Bapatla, now in  Andhra Pradesh and governed by the Mitakshara school of Hindu  law. In the plaint, as originally filed, the respondents  claimed that  they were exclusively entitled to the estate  left  by Lingayya.  The  Subordinate Judge and the High  Court  found that  as  the  first respondent was and continued  to  be  a married  woman  while she lived with Lingayya and  bore  him

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children,  she was not the lawfully wedded wife of  Lingayya and  the children born of the union were not his  legitimate sons,  nor were they Dasiputras and as such entitled to  his properties.  The  suit   was  originally  dismissed  by  the Subordinate  Judge, but on appeal, the High Court  gave  the respondents  leave  to amend the plaint by  making  suitable averments  for  the award of maintenance, and  remanded  the suit  for  trial  on the question  of  maintenance.  At  the subsequent  trial  on the amended  plaint,  the  Subordinate Judge  decreed  the respondents’ claim for  maintenance  and consequential 124 reliefs  and  awarded  to  them  maintenance  during   their lifetime  out  of the estate of  Lingayya.  The  Subordinate Judge  passed his decree on September 20, 1954.  During  the pendency  of the appeal preferred by the  appellants  before the  High Court, the Hindu Adoptions and Maintenance Act  of 1956  (hereinafter referred to as the Act) came into  force. The  main controversies in the appeal before the High  Court were   (1)   whether   the  provisions  of   the   Act   are retrospective; and (2) whether a married woman who left  her husband  and  lived  with another as  his  permanently  kept mistress  could be regarded as an A varuddha Stree. In  view of  the  importance  of  these  questions,  the  appeal  was referred  to  a Full Bench of the High Court. On  the  first question the High Court held that the relevant provisions of the  Act applied only to the estates of Hindus  dying  after the  commencement  of  the Act, and that the  right  of  the respondents  to maintenance during their lifetime under  the Hindu law in force at the time of the death of Lingayya  was not  affected by the Act. On the second question,  the  High Court held that the first respondent was an Avaruddha  Stree of  Lingayya,  and  was entitled  to  maintenance  from  his estate, though her husband was alive and the connection with Lingayya  was  adulterous. The High Court  agreed  with  the Subordinate Judge with regard to the quantum of maintenance.     On  behalf of the appellants, it is contended  that  the respondents  are not entitled to claim any maintenance  from the estate of Lingayya under the Hindu law as it stood prior to  the  commencement  of the Act,  because  (a)  the  first respondent  is not a Dasi and the second, third  and  fourth respondents  are not Dasiputras of Lingayya, and this  point is  concluded  by the previous judgment of the  High  Court, which  has  now become final between the  parties;  (b)  the husband of the first husband still alive, and the connection of the first respondent with Lingayya. was adulterous during the period of her intimacy with Lingayya and while she  bore him  children;  (c)  the first respondent  being  a  Brahmin adulteress  and Lingayya being a Sudra, the  connection  was Pratiloma and illegal.   Now,   under  the  Hindu  law  as  it  stood  before   the commencement of the Act, the claim of a Dasiputra or the son of a Dasi, that is, a Hindu concubine in the continuous  and exclusive keeping of the father rested on the express  texts of the Mitakshara, Ch. I, s.12 V. 1, 2 and 3. In the case of Sudras,  the  Dasiputra  was  entitled to  a  share  of  the inheritance,  and this share was given to him not merely  in lieu  of maintenance but in recognition of his status  as  a son,  see  Gur Narain Das and another v. Gur Tahal  Das  and others(1).  But  the  illegitimate son of  a  Sudra  by  his concubine was not entitled to a share of the inheritance  if he were the offspring of an incestuous connection, see Datti Parisi Nayudu v. Datti Bangaru Nayudu(2), or if at the  time of his conception, the connection was (1)[1952] S.C.R. 869, 875.

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(2)  [1869] 4 Madras High Court Reports. 204, 125 adulterous,  see  Rahi and others v. Govind  Valad  Teja(1), Narayan  Bharthi v.  Laving Bharthi and  others(2),  Tukaram v.  Dinnkar(3). Such an illegimate son could not  claim  the status of a member of his father’s family and could not  get a share of the inheritance as a Dasiputra under the  express text  of  the  Mitakshara.  For  the  reason,  the  previous judgment  of  the High Court rightly held that  the  second, third   and  fourth  respondents  were  not  Dasiputras   of Lingayya, and could not claim the inheritance. But the point whether  they are entitled to maintenance out of the  estate of   Lingayya is not concluded by the previous judgment.  It is  well recognised that independently of the express  texts of the Mitakshara, Ch.  I s. 12, V. 3, the illegitimate  son of  a Sudra was entitled to maintenance out of his  father’s estate, though his mother was not a Dasi in the strict sense and  though  he  was the result of a  casual  or  adulterous intercourse.   It  was  not  essential  to  his   title   to maintenance  that he should have been born in the  house  of his father or of a concubine possessing the peculiar  status therein.   See:  Muttusawmy  Jagavera  Yettappa  Naicker  v. Vencataswara   Yettayya(4). The illegitimate son of a  Sudra was  entitled  to maintenance out of  his  father’s  estate, though  at  the  time of his conception  his  mother  was  a married woman, her husband was alive and her connection with the putative father was adulterous, see  Rahi v.  Govind(2), Viraramuthi Udayan v. Singaravelu(5), Subramania  Mudaly  v. Valu(6).  According  to the Mitakshara school  of  law,  the illegitimate  son a Sudra was entitled to  maintenance  from his  father’s  estate during his lifetime. Under  the  Hindu law,  as it stood prior to the commencement of the Act,  the first,   second  and  third  respondents  were,   therefore, entitled  to maintenance during their lifetime, out  of  the estate of Lingayya.     The  claim  of  an  Avaruddha Stree  or  woman  kept  in concubinage  for  maintenance for her lifetime  against  the estate  of  her  paramour  rested on  the  express  text  of Mitakshara,  Ch. 2, s. 1, Vs. 27 and 28 read with V.  7.  In Bai Nagubai v. Bai Monghibai(1), where the man and the woman were Hindus and the paramour was governed by the law of  the Mayuka, Lord Darling said:--                   "providing the concubinage be   permanent,               until  the death of the paramour,  and  sexual               fidelity  to  him be preserved, the  right  to               maintenance   is  established;  although   the               concubine  be not kept in the family house  of               the deceased." The  law of the Mitakshara is in  agreement with the law  of the  Mayuka  on this point. In the instant case,  the  first respondent (1)[1875]  I.L.R.1 Bom.97 (2)[1878]  I.L.R.2Bom.140. (3)[1931]  33 B.L.R. 280. (4)[1868]  12 M.I.A. 203,220. (5)[1877]  I.L.R. 1 Mad.306 (6)[1911]  I.L.R. 34 Mad.68. (7)[1926]  I.L.R. 50 Bom.604,614,(P.C.). 126 being  continuously  and  exclusively  in  the  keeping   of Lingayya until his death for about 10 years, the concubinage has been found to be permanent. She observed sexual fidelity to  Lingayya  during his lifetime, and after his  death  has continued  to  preserve  her  qualified  chastity.  In  Akku Pralhad  v.  Ganesh Pralhad(1), a Full Bench of  the  Bombay

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High  Court held that a married woman who left  her  husband and lived with her paramour as his permanently kept mistress could  claim the status of an Avaruddha  Stree by  remaining faithful   to  her  paramour,  though  the  connection   was adulterous, and was entitled to maintenance from the  estate of the paramour so long as she preserved her sexual fidelity to  him. This Full Bench decision overruled the decision  in Anandilal   Bhagchand  v.  Chandrabai(2)and   followed   the earlier  decisions   in  Khemkore  v.  Umiashankar(3),   and Bingareddi v. Lakshmawa(1). The decision in Akku Pralhad  v. Ganesh  Pralhad(1) has been the subject of strong  criticism in Mayne’s Hindu law and Usage, 11th Edn., Art. 683, p.  816 edited  by  Sri  N. Chandrasekhara Aiyar and  in  a  learned article in (1946) 1 M.L.J., Notes of Indian cases, p. 1, but the  Full  Bench  of the Andhra Pradesh High  Court  in  the instant case found themselves in complete agreement with the Bombay  decision.  We  are of the opinion  that  the  Bombay decision lays down the correct law.     Avaruddha Stree, as understood by Vijnaneswara, includes a Swairini or adulteress kept in concubinage. While  dealing with the assets of a deceased Hindu not liable to partition, Mitakshara,  Ch.  I,  s. 4, V. 22, he  says,  "Swairini  and others  who  are  Avaruddha by the father,  though  even  in number, should not be divided among the sons".  Colebrooke’s translation  of  the  passage  is  as  follows:  "But  women (adulteresses and others) kept in concubinage by the  father must not be shared by the sons, though equal  in number". In his  commentary  on Yajnavalkya’s  Verse  290  in  Vyavahara Adhyaya,  Ch. 24 on Stree Sangrahana,  Vijnaneswara,  citing Manu,  explains  Swairini as a woman who  abandons  her  own husband and goes to another man of her own Varna out of love for  him.  Thus,  a Swairini and other  adulteress  kept  in concubinage  could claim the status  of an Avaruddha  Stree. The connection was no doubt immoral, but concubinage  itself is immoral; yet it was recognised by law for the purpose  of rounding a claim for maintenance by her and her illegitimate sons.  The  paramour may be punishable for  the  offence  of adultery, but the concubine is not punishable as abettor  of the offence.     A   concubine   was  not  disqualified   from   claiming maintenance  by reason of the fact that she was  a  Brahmin. The claim of a concubine who was a respectable woman of  the Brahmin caste and (1) I.L.R. [1945] Bom. 216. (2)I.L.R 48 Bom. 203. (3) [1873] 10 Biombay High Court Reports. 381. (4)[1901] I.L..R. 26 Bom. 163. 127 her  illegitimate  sons  for  maintenance  was  allowed   in Hargovind  Kuari v. Dharam Singh(1). No doubt,  a  Pratiloma connection  is  denounced by the  Smriti-writers   and   the Commentators,  and before the Hindu Marriages Validity  Act, 1949  (Act XXI of 1949) Pratiloma marriages between a  Sudra male and a Brahmin female were declared invalid in Bai Kashi v.   Jamnadas(2)  and in Ramchandra  Doddappa  v.  Hanamnaik Dodnaik(3),  but even those cases recognise that  a  Brahmin concubine  in  the exclusive and continuous  keeping  of   a Sudra until his death was entitled to claim maintenance.  We express  no  opinion  on the question  whether  a  Pratiloma marriage  was  valid  under the old Hindu law,  but  we  are satisfied that the claim of the respondents for  maintenance cannot  be defeated on the ground that the first  respondent was a Brahmin and her paramour was a Sudra.     We  are satisfied that the respondents were entitled  to maintenance during their lives out of the estate of Lingayya

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under  the  Hindu law as it stored in  1948,  when  Lingayya died,  in  December 1949, when the suit was  instituted  and also  in 1954, when the suit was decreed by the  Subordinate Judge.  The question is whether this right is taken away  by the  Hindu Adoptions and Maintenance  Act,  19 5  6,   which came  into  force  during  the pendency of the appeal to the High Court. The Act is intended to amend and codify the  law relating to adoptions and maintenance among Hindus.  Section 4 of the Act is as follows:               "4.  Save as otherwise expressly  provided  in               this Act,-(a) any text, rule or interpretation               of Hindu law or any custom or usage as part of               that  law  in  force  immediately  before  the               commencement  of this Act shall cease to  have               effect  with respect to any matter  for  which               provision is made in this Act;                     (b)  any other law in force  immediately               before  the  commencement of  this  Act  shall               cease  to apply to Hindus in so far as  it  is               inconsistent   with  any  of  the   provisions               contained in this Act." Section 21 defines "dependants" as meaning certain relatives of  the deceased, and under sub-cl (viii), includes "his  or her minor illegitimate son, so long as he remains a  minor". A concubine is not one of the persons within the  definition of  "dependants" given in s. 21, and an illegitimate son  is not  a  dependant when he ceases to be a minor.  Section  22 reads thus:                     "22.  (1) Subject to the  provisions  of               sub-section (2), the heirs of a deceased Hindu               are  bound to maintain the dependants  of  the               deceased  out of the estate inherited by  them               from the deceased.               128                     (2) Where a dependant has not  obtained,               by  testamentary or intestate succession,  any               share in the estate of a Hindu dying after the               commencement of this  Act, the dependant shall               be entitled, subject to the provision of  this               Act,  to maintenance from those who  take  the               estate.                     (3) The liability of each of the persons               who takes the estate shall be in proportion to               the  value of the share or part of the  estate               taken by him or her.                     (4)  Notwithstanding anything  contained               in  sub-section  (2) or  sub-section  (3),  no               person  who is himself or herself a  dependant               shall   be   liable  to  contribute   to   the               mainten(2)  or sub-section (3), no person  who               is  himself or herself the value of which  is,               or would, if the liability to contribute  were               enforced,  become  less  than  what  would  be               awarded  to him or her by way  of  maintenance               under this Act." Sub-section  (1)  of  s.  22 imposes upon  the  heirs  of  a deceased  Hindu the liability to maintain the dependants  of the deceased defined in s. 21 out of the estate inherited by them from the deceased. but this liability is subject to the provisions  of sub-s. (2), under which only a dependant  who has  not obtained by testamentary or  intestate  succession, any  share  in  the  estate  of  a  Hindu  dying  after  the commencement  of  the  Act  is  entitled,  subject  to   the provisions of the Act, to maintenance. Specific provision is thus  made  in  s.  22 with regard  to  maintenance  of  the

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dependants  defined  in  s.  21 out of  the  estate  of  the deceased Hindu, and in view of s. 4, the Hindu law in  force immediately  before  the commencement of the Act  ceases  to have  effect after the commencement of the Act with  respect to matters for which provision is so made. In  terms, ss. 21 and  22  are prospective. Where the Act is  intended  to  be retrospective,  it expressly says so. Thus, s.  18  provides for  maintenance of a Hindu wife, whether married before  or after  the  commencement of the Act, by her husband,  s.  19 provides  for  the  maintenance of  a  Hindu  wife,  whether married before or after the commencement of the Act, by  her father-in-law,  after  the death of her husband, and  s.  25 provides for alteration of the amount of maintenance whether fixed by a decree of Court or by agreement either before  or after the commencement of the Act. Now, before the Act  came into  force,  rights of maintenance out of the estate  of  a Hindu  dying  before  the  commencement  of  the  Act   were acquired,  and  the  corresponding  liability  to  pay   the maintenance was incurred under the Hindu law in force at the time  of  his  death. It is a well-recognised  rule  that  a statute should be interpreted, if possible, so as to respect vested  rights. See Craies on Statute Law, 6th Edn.  (1963), p.  397. We think that ss. 21 and 22 read with s. 4  do  not destroy or affect any right of maintenance out of the estate 129 of  a  deceased  Hindu  vested  on  his  death  before   the commencement of the Act under the Hindu law in force at  the time of his death. On  the  death  of Lingayya, the  first  respondent  as  his concubine  and the second, third and fourth  respondents  as her  illegitimate  sons had a vested  right  of  maintenance during their lives out of the estate of Lingayya. This right and  the  corresponding liability of the appellants  to  pay maintenance  are not affected by ss. 21 and 22 of  the  Act. The  continuing  claim  of  the  respondents  during   their lifetime springs (out of the original right vested  in  them on  the  death of Lingayya and is not rounded on  any  right arising after the commencement of the Act.   In  S.  Kameswarammna v. SubramanYam(1),  the  plaintiff’s husband  had  died in the year 1916, and the  plaintiff  had entered into a compromise in 1924 fixing her maintenance  at Rs. 240 per year and providing that the rate of  maintenance shall  not  be  increased or  reduced.  The  question  arose whether,  in  spite of this agreement, the  plaintiff  could claim  increased maintenance in view of s. 25 of  the  Hindu Adoptions  and Maintenance Act, 1956. It was held  that,  in spite  of  the  aforesaid term of the  compromise,  she  was entitled  to claim increased maintenance under s.  25.  This conclusion  follows  from the plain words of  s.  25,  under which  the amount of maintenance, whether fixed  by   decree or  agreement either before or after the commencement of the Act,   may  be  altered  subsequently.  The   decision   was therefore,   plainly  right.  No  doubt,  there  are   broad observations  in that case to the effect that the  right  to maintenance  is  a  recurring right  and  the  liability  to maintenance  after the Act came into force is imposed by  s. 22, and there is no reason to exclude widows of persons  who died  before  the  Act from the operation of  s.  22.  Those observations  were  not necessary for the  purpose  of  that case,  because the widow in that case was  clearly  entitled to.  maintenance  from the estate of  her  deceased  husband dying   in   1916  under  the  Hindu  law,   as   it   stood then,independently  of  ss.  21 and 22 of the  Act,  and  in spite  of the compromise timing the maintenance  before  the commencement  of the Act, the widow could in view of  s.  25

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claim  alteration  of  the amount of  the  maintenance.  The decision  cannot  be regarded     as an  authority  for  the proposition  that  ss. 21 and 22 of the  Act  affect  rights already  vested  before  the commencement  of  the  Act.  We therefore, hold  that the claim of the respondents  to  main tenance for their lives is not affected by the Act. We see no reason to interfere with the concurrent finding of Courts below with regard to the quantum of maintenance. In the result, the appeal is dismissed with costs. Appeal dismissed. 130