Amireddi Rajagopala Rao & Ors Vs.
Amireddi Sitharamamma & Ors  INSC 40 (18 February 1965)
18/02/1965 BACHAWAT, R.S.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1965 AIR 1970 1965 SCR (3) 122
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.
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.
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.  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.
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
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 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)
S.C.R. 869, 875.
(2)  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 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) I.L.R.1 Bom.97 (2) I.L.R.2Bom.140.
(3) 33 B.L.R. 280.
(4) 12 M.I.A. 203,220.
(5) I.L.R. 1 Mad.306 (6) I.L.R.
(7) 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 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
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
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.  Bom. 216.
(2)I.L.R 48 Bom. 203.
(3)  10 Biombay High Court Reports.
(4) 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 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
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
(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
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 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