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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 14 of 155)
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Allahabad, dated the 25th February 1889.

(1) 4 A. 137,

79



13 All. 128



INDIAN DECISIONS, NEW SERIES



[Vol.



1890

MAY 7.

APPEL-
LATE
CIVIL.

13 A. 126 =

11 A.W N.
(1891) 18.



Act cannot be taken as applicable to suits of this description. To hold that they
did apply would be to introduce serious innovations into the personal law of Ihe
Hindus (and of the Muhammadaus 1 which could not have been contemplated by a
statute of the nature and scrpe of the Limitation Act. The limitation aoplicable
to suits of the prpfent nature is that of art. 120 of the second schedule, read
with s. 23 of the Limitation Act.

Desertion by a wife of her husband is permitted by the Hindu Law under cer-
tain circumstances, but the insanity of the husband will not justify his desertion
by the wife. In ary case desertion does not terminate the relation of husband and
wife. A suit for restitution of conjugal rights could in such case only be effectually
met by establishing a pita of some matrimonial cffenoe on the part of the com-
plainant Euob as would entitle tb'e defendant to a separation. Legal cruelty on
the part of ihe complainant may be a ground for refusing restitution of conjugal
rights, or for imposing terms on the complainant.

[N.F., 98 M. 436 (437); P., 27 A. 96 (97> = A.W.N. (1904) 173 = 1 A.L J. 433;
Apd, 58 C. 751 (7621 = 5 C.W.N. 673; R.. 34 A. 412 I416)=9 A.L J. 784:
I r /b8) =16 Ind. Cas 1:24 ; 16 B. 714 (716) ; 21 B 610 (613); 3 B. 307 (311) ;
28 C. 37 <45) = 5 C.W N. 195; 34 C 971 i984) = 9CWN 5'0=1 C L.J. 283 ;
11 A.L J, 160 H64) ; 1 C.L.J. 73 (75) ; IP Ind. Cap. 713 (714) ; 3' P.R. (1908) =
76 P W.R (19081 = 152 P.L B. U908) : Com., 25 B. 644 (655) (F.B.) = 3 Bom.
L.B. 371 (377) ; D-, 13 Ind. Cas. 609 i612).]

THE facts of this case were as follows :

The plaintiff, Binda, instituted a suit against bis wife, Musammab
Kaunsilia, and one Becbu, who was alleged to be harbouring her, for
restitution of conjugal rights and for recovery of bis wife, on the 16fch
November. 1886. Tbe Court of first instance decreed the plaintiff's
claim. The lower appellate Court reversed the decree of the first Court
and dismissed the suit as barred by limitation. The plaintiff then
appealed to the High Court and the case came before Mabmood, J,, who,
by bis order of 17th July, 1888, referred it to a Bench consisting of
Straight, J., and himself. On the 31st July, 1889. the Bench so constitu-
ed remanded the case under s. 566 of the Code of Civil Procedure to the
lower srrellate Court for determination of the following issue: Whether
on the 24tb October 1886, or about that time, as asserted in paragraph 4 of
the plaint, there was a demand made by the plaintiff to his wife, the de-
fendant, Musammat Kaunsilia, to return to him and a refusal by [1281
her to do so?" On this issue the lower appellate Court recorded certain
findings on the 16th September, 1889, which findings are fully set forth in
the judgment of Mabmood, J. The case then came on for hearing before
Straight and Mahmood, JJ

Pandit Sundar Lai for the appellant.

Mr. J. Simeon for the respondent.

JUDGMENT.

MAHMOOD, J. The preliminary facts of this case and the points of
law to which they give rise were^set forth by me iu my order of the 17th
July, 1888, whereby the case was referred to a Bench of two Judges con-
sisting of my brother Straight and myself, and upon the case coming on
for hearing before us, we, by our order of the 3 1st July, 1889, remanded
the case under s. 566 of the Code of Civil Procedure to the lower appellate
Court'for a clear finding on the issue, whether on the 24fch October, 1886,
or about that time (as asserted in paragraph 4 of the plaint) there was a
demand made by the plaintiff to his wife, the defendant, Musammat
Kaunsilia, to return to him, and a refusal by her to do so.

Under this issue the learned Judge of the lower appellate Court has
found that the elopement of the plaintiff's wife and his demand for her
return and her refusal took place more than five years before suit, that

80



YU] BINDA |\ KAJJJISILIA 13 All. 130

Musammat Kaunsilia, the defendant, had ever since been co-habiting with 1890
Bechu, defendant:, and by him has given birbh to two children, one of MAY 7.
whom is still alive, and that neither demand by the husband nor refusal
by the wife of conjugal rights was proved to have been made within two APPEL-
years before the suit. LATE

To these findings no objections have been taken by either party ClVIL

under s. 567 of the Civil Procedure Code, but the learned pleader for the

respondent argues that these findings are fatal to the suit. He contends : 13 A. 126 =

First, that a remedy by suit for restitution of conjugal rights by 11A.W.H.
enforcing return and cohabitation is not contemplated by the Hindu Law, (1891) 18.
and therefore a suit of this character is not entertainable by the Civil
Court.

[129] Secondly, that even if such a suit is maintainable, a definite
demand and refusal of restitution of conjugal rights is a condition precedent
to the maintainability of such an action.

Thirdly, that after such demand has been made the lapse of two yeara
will bar the action for ever under clauses 34 and 35 of sch. ii of the
Limitation Act (XV of 1877).

Fourthly, that under the circumstances of this case the defendant,
Musammat Kaunsilia, must be treated as a deserted wife and no longer
amenable to the husband's demand for restitution of conjugal rights under
the Hindu Law, and

Fifthly, that in any case the granting of a decree for restitution of
conjugal rights is entirely within the discretionary power of the Court,
which, under the circumstances of this case, should not be exercised.

The argument for the appellant contests all these points and aims at
showing that the suit is maintainable, that it is not barred by limitation,
and should be decreed under the Hindu Law.

It will be convenient to consider the case in the order of the points
urged on behalf of the respondent.

Upon the first point I am of opinion that there is ample authority
in the Hindu Law to show that it is the duty of a wife to live with her
husband in conjugal cohabitation, discharging such functions as the
domestic law of the Hindus assigns to her. Tbese authorities are collect-
ed in Colebrooka's Digest of Hindu Law, Volume II, Book IV, Chapter
I and Chapter II, and, when read together, furnish a very interesting and
instructive picSura of the domestic conjugal life of the husband and wife
as contemplated by the Hindu Law.

Some of these texts may be quoted here. Perhaps the most import-
ant is one of Manu, with which Chapter II of Colebrooke's Digest (Vol.
II, page 137) opens, on the duties of a wife :

" In childhood must a female be dependent on her father; in youth
on her husband ; her lord being dead, on her sons;. ..a [130] woman must
never seek independence. Never let her wish to separate herself from her
father, her husband, or her sons; for, by a separation from them she
exposes both families to contempt. She must always live with a cheerful
temper, with good management in the affairs of the house, with great
care of the household furniture and with a frugal hand in all her expenses.
Him to whom her father has given her, or her brother, with the paternal
assent, let her obsequiously honour, while he lives ; and when he dies, let
her never neglect him. The recitation of holy texts and the sacrifice
ordained by the Lord of creatures are used in marriages for the sake of
procuring good fortune to brides ; but the first gift or troth plighted by the
husband is the primary cause and origin of marital dominion. When the

81
A VII 11



13 All. 131



INDIAN DECISIONS, NEW SERIES



[Vol.



1890 husband has performed the nuptial rites with texts from the Veda he gives
MAY 7. bliss continually to bis wife here below, both in season and out of season ;

and he will give her happiness in the next world. Though inobservant of

APPEL approved usages, or enamoured of anotherwomao, or devoid of good qualities,
LATE yet a husband must constantly be revered as a God by a virtuous wife."
CIVIL. (Manu, Cb. V, vv. 148-54). " Day and night mast women be held by their
protectors in a state of dependence ; but in lawful and innocent reorea-
131.126= tions, though rather addicted to them, they may he left at- their own
11 A.W.M. disposal. Their fathers protect them in childhood ; their husbands
(1891) 18. protect them in youth ; their sons orotect them .in age ; a woman is never
fib for independence " (Manu, Ch. IX, vv. 2 and 3). " Woman must, above
all, be restrained from the smallest illicit gratification ; for, not being
thus restrained, they bring sorrow on both families. Let husbands consider
this as supreme law ordained for all classes ; and let them, how weak soever
diligently keep their wives under lawful restrictions (Manu, Ch. IX,
vv. 5 and 6). Let the husband keep his wife employed in the collection
and expenditure of wealth, in purification and female duty, in the paroara-
tion of daily food and the superintendence of household utensils " (Manu,
Ch. IX, v. 11). The production of children, the nurture of them when
produced, and the daily superintendence of domestic affairs are peculiar
to the wife. From the wife alone proceed offspring, good household mana-
gement, solicitous attention, most [131] exquisite caresses and that
heavenly beatitude which she obtains for the manes of ancestors and for
the husband himself. She who deserts not her lord but keeps in subjec-
tion to him her heart, her speech and her body, shall attain her mansion
in heaven, and, by the virtuous in this world be called Sadhevi or good and
faithful. But a wife by disloyalty to her husband shall incur disgrace in
this life, and be born in the next from the womb of a Shakal, or be tor-
mented with horrible diseases which punish vice." (Manu, Ch. IX, vv. 27
30).

These texts from Manu are supported by many other sacred texts of
the Hindu Law jutifying what Dr. Gurudas Banerji has said:

" No system of law has ever surpassed our own in enjoining on the
wife the duty of obedience to the husband and veneration for his person.' 1
(Tagore Law Lectures, 1878, p. 120).

" It follows from the very nature of the matrimonial relations that
the husband and the wife must each be entitled to the society of the
other. It is one of the express conditions in the nuptial vow of the Hindus
that each party is to become the associate of the other," (ib., p. 114). This
is well fortified by original authorities and the text of Harila, in propound-
ing the conduct enjoined to married women, begins by saying :

" The wife is the home ; a man should not consider his home ahabita-
tion ungraced by a wife ; therefore is she another home." The text which
Colebrooke has fully quoted (Vol. II, po. 141 143) goes on to give minute
details of the domestic duties of the wife ; hut as illustrative of them I
may quote the more succinct text of Sancha and Lichita (ib. t p. 139.)

" For every succeeding day let the wife clean the vessels used at
meals ; let her sweep the dwelling-house and gate, when clean, pre-
serve it so ; let her provide curds, rice, durva grass, new leaves and blos-
soms for oblations ; let her reverently salute her husband's parents, and
afterwards perform the necessary business of the household ; let her eat
nothing before the Gods and guests are satisfied, [l32] nor before her
husband has eaten except drugs swallowed medicinally."

82



VII] BINDA V. KAUNSILIA 13 All. 133

Dr. Gurudas Banerji in his Hindu Law of marriage (Tagore Law 1890
Lectures, 1878, p. 118> sums up the general effect of the authorities in the MAY 7,
following words : .

" Under the Hindu Liw, as indeed under most other systems, the APPEL-
liberty of the wife is liable to be considerably restrained by the husband. LATE
The duty of attendance on her husband, which is so strongly inculcated, r TVTT

obliges her to follow him wherever he chooses to reside ; and it is a general '

principle of law that the domicile of the wife follows that of her husband. 13 A. 126 =
She is also bound to refrain from going to any place where her husband i JL.W.H.
forbids her to go." (189t) 18.

I have dwelt; upon these authorities especially in view of the circum-
stance that in such cases relating to marriage we are expressly required
by s. 37 of the Civil Courts Act (XII of 1887), which has only reproduced
the provisions of s. 24 of Act VI of 1871, to apply the Hindu Liw
and adopt that law as the rule of decision. The rules of that law are
explicit in defining the reciprocal duties and obligations of the husband and
the wife, and, whilst the husband is bound to maintain and support her
and protect her, the wife is bound to reside with him iu conjugal cohabi-
tation, discharging such domestic functions as the law has prescribed for
her. The ?acred Hindu texts on the subject in describing the riuries of a .
wife no doubt prescribe many matters of detail which can be regarded as
only moral precepts, as distinguished from legal obligations, and such
distinction is apparent from the context of the texts themselves, and the
words in which the precapfcs are exoressed ; but I am convinced that the
texts, so far as they relate to conjugal cohabitation and impose restrictions
upon the liberty of the wife and place her under the control of her
husband, are rules of law creating a legal right in the husband based upon
the jural relation which exists between him and the wife. Such rights
are not to ba confounded with mere moral precepts, for they are based
upon texts similar to those which impose upon the husband the corre-
sponding duty of maintaining [133] his wife and discharging other obliga-
tions which the law recognizes and enforces.

To this extent, indeed, it cannot be seriously contended that the
right of conjugal cohabitation is not a legal right under the Hindu Law'of
marriage, mutually available to the husband and the wife. What has
been, however, seriously contended is, that, notwithstanding such rights
being legal rights under the Hindu Law, that system does not prescribe
and does not contemplate any remedy when either the husband or the
wife infringes the obligations which those rights create, and that therefore
a suit for restitution of conjugal rights is unknown to the Hindu Law and
cannot be maintained in our Courts.

I am of opinion that this argument is unsound, both upon general
principles of jurisprudence, and also as matter of Hindu Law. The
maxim ubijus ibi remedium is a maxim of universal application, because
the law does not recogniza a right which caunot be enforced. It would
be needless to enter into any discussion that the rules of law and equity
which justify a Court in declining to grant specific relief, or authorize
them to impose limitations upon a right when decreed, form no contradic-
tion of the general maxim which I have cited. I hold therefore that the
right of conjugal cohabitation when infringed may, upoageaeral principles
be enforced by a suit for restitution of conjugal rights. In Moonshee
Buzloor Ruheem v. Shumsonnissa (1), the Lords of the Privy Council

(1) 11 M.I. A. 551.
83



13 All. 134 INDIAN DECISIONS, NEW SERIES [Yol.

1890 said, " If the law which regulates the relation of the parties gives to one

MA? 7. of them a right, and that right be denied, the denial is a wrong ; and, unless

the contrary be shown by authority, or by strong arguments, it must be

APPEL- presumed that for that wrong there must be a remedy in a Court of

LATE Justice."

CIVIL. So far as the Hindu Law as to restitution of conjugal right is concern-

ed, the question was raised before Mr. Justice Pinhey of the Bombay
18 A. 128= High Court in the well-known case of Dadaji Bikaji v. Rukhmabai (1),
Ijl A.W.N, an( j j. Qa j. i earne( j Judge, accepting the plea of the wife, who was
(1891) 18. defendant, held that such a suit was unmaintain-[134]able as it was not
recognized by the Hindu Law. The decision of the learned Judge was
however appealed to a Bench consisting of Sargent, C. J., and Bayley, J., (2)
and the report shows that much learned and able argument
was addressed to the learned Judges on both sides of the question
and all the principal authorities were cited. It was there argued by
Mr. Telang (vide p. 307), on behalf of the wife who was resisting the
suit, that although the Hindu Law prescribes duties of husband and wife,
it does not provide any mode of enforcing their performance, that such
duties are merely religious anc! cannot be enforced by the civil Courts.
The learned counsel upon the authority of Khetramani Dasi v. Kashtnath
Das (3), drew a distinction between moral as distinguished from legal
obligations and pointed out that " the civil Courts now exercise the
authority which belonged to the King when the Hindu Law books were
written ; so that functions of the Court are to be ascertained by reference
to what are laid down as the duties of the King " ; and with this premise
he affirmed that the only mode of enforcing conjuogal duties was by fine to
the King, and that the only case contemplated by the Hindu Law was
that of a husband abandoning his wife when the only result would be a
fine to the King, but that there was no provision at all for the case of a
wife separating from her husband. And in the absence of such provision
it must be assumed that a similar remedy or punishment would be appli-
cable to her, but that in neither case was restitution of conjugal rights
ordained or provided for. For this contention the learned counsel relied
mainly upon the Vyavahara Mayukha, Chap. XX. (Stokes Hindu Law
Books, p. 164), and emphasized it by saying that the Vyavastha Ghandrika
contained no provision for restitution. I do not think that the argument
can be more ably put than the manner in which it was addressed by Mr.
Telang on that occasion, and I will examine it from the Hindu Law point
of view itself, especially as the learned Judges of the appellate Bench, who
rejected Mr. Telang's argument and reversed the decree of Pinhey, J.,
based their judgment upon the state of the case law rather than upon any
consideration of the texts of the Hindu Law.

[135] Now there can be no doubt that under the system of Hindu
jurisprudence the administration of justice is one of the functions of the
sovereign, and that references to his authority in the Hindu Law books
must be taken as a guide by our Courts in administering the Hindu Law
in such cases. But, whilst this is so, it must also be affirmed as an undoubted
proposition that throughout the Hindu Law texts the King, as the arbiter
and dispenser of justice, is regarded as thepoteotor of rights, the punisher
of wrongs and the awarder of remedies to injured parties. Without these
three powers, which must of course be exercised according to law, it would



(1)93.529. (2)108.301. (3) 2 B.L R.A.C, 15,

84



YIl]



BINDA V. KAUNSILIA



13 All. 136



be vain to assign to the King what the Hindu Law undoubtedly assigns to
him, namely, judicial functions.

What then are the behests of the Hindu Law as to the effects of
marriage upon the parties thereto ? To use the language of an eminent
Hindu lawyer, Shyama Charan Sarkar, in his Vyavastha Chandnka
(Vol. (c II, p. 480J.

" The effect of marriage is the union of the bride and bridegroom,
upon the performance of the nuptial ceremonies and rices, more especially
by the recitation of this text of the Veda: ' Bones (identified) with bones,
flesh with flesh, and skin with skin,' the husband and wife become as it
were one person. So, Manu says : The ' husband is even one person
with his wife.' So also Virhaspati : ' In Scripture, and in the Code of
Law, as well as in popular practice, the wife is declared to be half the
body of her husband, equally sharing the fruit of pure and impure acts.
Of him whose wife is not deceased, half the body survives.' "

Such being the legal contemplation of the effects of marriage, the
same learned author sums up the result of the authorities (p. 485, s. 719)
by laying down that '' marriage properly contracted by the performance
of the nuptial rites is indissoluble, and the reciprocal relation of the
married rjair endures even after the natural death of one or both of them."
He bases this conclusion especially on the text of Manu (Ch. IX, v. 46).
" Neither by sale nor desertion can a wife be released from her husband ;
thus we fully acknowledge the law enacted of old by the Lord of creatures."
[136] We then have the text of Narada : " It is a crime in them both, if
they desert each other, or if they persist in mutual altercation, except "in
the case of adultery by a guarded wife." (Colebrooke's Digest, Vol. II,'
p. 130, Text LXIII).

Now the argument of Mr. Telang before the Bombay Court, was that
this prohibition against desertion was only a moral or religious obliga-
tion and could not be legally enforced by the King, his power baing limited
to fine. The learned advocate however seems to have overlooked, or
perhaps underrated, some of the sacred texts to be found in oolebrooke's
Digest (Vol. II. p. 129). Text LIX is from Narada : "A husband who
abandons an affectionate wife, or her who speaks not harshly, who is sensi-
ble, constant and fruitful, shall be brought to his duty by the King with a
severe chastisement." Now reading this text as I do, it distinctly con-
templates authority in the King to enforce the performance of conjugal
duties by the husband, and chastisement is mentioned there as the means
for enforcing those obligations. It is true, as the text of Vi^nu (LX)
shows, that " the man who deserts a faultless wife shall suffer tnc .same
punishment" as a thief, and it is also the fact that a punishment is pre-
scribed by other sages also : For instance Yajnyawalaya lays down:

"He who forsakes a wife, though obedient to his commands, diligent
in household management, mother of an excellent son and speaking kindly,
shall be compelled to pay the third of his wealth, or, if poor, to provide a
maintenance for that wife."

These and other penalties are no doubt prescribed by the law for the
husband who illegally deserts his wife, but it does not follow (and indeed
such a supposition is expressly contradicted by the text of Narada which
I have already quoted) that the judicial authority of the sovereign is
limited to chastisement and does not extend to enforcing the performance
of conjugal obligations. The words of Narada' s text are : shall be brought
to his duty by the King with a severe chastisement " so that the text fairly
read shows that punishment is ancillary to the remedy of restitution of

85



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MAY 7.

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13 1. 126 =
11 A.W N
(1891) IB.



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1890

MA? 7.

APPEL-
LATE
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18 A. 126 =
11 A.W.N,
(1891) 18.



conjugal rights. So these texts have been interpreted by the eminent
Hindu [137] lawyer, Shyama Charan Sarkar, in his Vyavastha Chandrika
(vol. II, p. 487, s. 721) where he sums up the rule in the following
terms :

" Without any of the faults recognized by the law, as above, a
wife must not be deserted. He who deserts a good or faultless wife must
be brought to his duty by the ruling power, or compelled to pay a third of
his wealth, or, if poor, to provide a maintenance for her."

This, in my opinion, is a correct statement of the Hindu Law on the
subject of unlawful desertion of a wife by the husband, and it leaves no
doubt in my mind that restitution of conjugal rights at the instance of the
wife is contemplated by the Hindu Law.

But Mr. Telang's argument before the Bombay Court went further,
as the learned advocate broadly affirmed, with reference to the Hindu Law
texts, that "there is no provision at all for the case of a wife separating
from her husband." and that, although the caste might interfere, the King
is nowhere referred to as having any authority in the matter of a wife un-
lawfully deserting her husband. This argument has been repeated in this
case, as indeed the other portions of Mr. Telang's argument, by the learn-
ed pleader for the respondent, who has indulged in an equally broad
negative of the King's authority over a deserting wife. But it seems to
me that this broad negation proceeds upon ignoring some important texts
of the Hindu Law. For instance Manu (Ch. IX, v. 83) prescribes :

" If a wife legally superseded shall depart in wrath from the house,
she must either instantly be confined, or abandoned in the presence of the
whole family."

The reasonable interpretation to be placed upon this text is that the



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 14 of 155)