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confinement contemplated by it is a lawful confinement to be awarded by
the lawful authority after some sort of adjudication, such authority being
naturally the King. In other words, I am strongly inclined to hold that
the confinement contemplated by the text is much the same as the impri-
sonment of a judgment-debtor who disobeys a decree for restitution of
conjugal rights provided by s. 260 of our Code of Civil Procedure. But
tho authority of the King over a wife wrongfully deserting her husband
does not rest [1383 upon this inference or analogy alone. There is an
express text ot Manu, which I quote with all the greater emphasis because
it is characteristic of the ancient spirit of the Hindu Law and shows how
extensive are the powers of the King in respect of wrongful desertion of
her husband by the wife. The text stands in that sacred institute as verse
371 of Ch. VIII :

" Should a wife proud of her family and the great qualities of her
kinsmen, actually violate the duty which she owes to her lord, let the
King condemn her to be devoured by dogs in a place much frequented."

It is true this text occurs in the chapter on Criminal Law, but, as I
have repeatedly said, the Courts of justice in interpreting such an ancient
system of law as Hindu jurisprudence, and in applying its rules to modern
life must not forget that in those ancient times juristic arrangement of
legal ideas, as now understood, was not known or recognised, and the
institutes of Manu as a Code are themselves a very good illustration of how
those sacred law- givers mixed up religious, civil and criminal rules of law.
To this I may add the observation that in regard to matrimonial disputes
in particular, other systems also, such as the Muhammadan, and even the
English law, do not always draw marked lines of distinction between the
ecclesiastical, civil and criminal aspect of the case, and proceedings in

86



VII]



BINDA V. KAUNSILIA



13 All. 140



such causes are regarded as gwast-criminal. Bearing this in mind it
cannot be contended that; the texts of Hindu Law give no temporal
power to the King over a deserting wife, and that the only punishment or
remedy contemplated is of a moral or religious character. It is of course
clear that, once the extreme authority of the sovereign is established, the
manner in which he is to protect rights or enforce them is to be regulated
by the conditions of the times. Our Courts cannot of course condemn a
deserting wife to any such punishment as that contemplated by the text ;
but it stands to reason that if the King could in ancient times " condemn
her to be devoured by dogs." Our Courts in modern times must be held
to have the much lesser power of imprisoning her if she, having illegally
deserted her husband, refuses to obey a decree for restitu-[139]tion of
conjugal rights under s. 260 of the Code of Civil Procedure.

I rhink I have said enough to show that according Co the spirit and
letter of the Hindu Law itself, enforcement of conjugal right by judicial
authority awarding restitution does not fall beyond the scope of the King's
functions, and therefore not beyond the jurisdiction of the Civil Courts in
modern times. This conclusion is fully borne out by a long course of
authoritative decision of the Courts, as was pointed out by Sargent, C.J.,
in his judgment in Dadoji Dhikaji v. Rakhmabai (1), and I wish to quote
a passage from that judgment, as it represents in language better than
any I can use the manner in which I myself regard the subject and the
views and conclusions at which I have arrived in this caso. Referring to
the case-law on the subject, Sir Charles Sargent went on to say :

" We could not, therefore, with propriety entertain any objection
which goes to the root of the jurisdiction such as thab urged by Mr. Telang,
viz., that the Hindu Law books do not recognize a compulsory discharge
of marital duties, but treat them as duties of imperfect obligation to be
enforced by religious sanction. We may, however, remark that, although
no text may be found in the Hindu L%w books which provides for the
Kin? ordering a husband or wife to return, no text was cited forbidding
or deprecating compulsion, and that it was admitted that the duties apper-
taining to the relationship of husband and wife have always been the
subject of caste discipline, and, therefore, that with the establishment of
a systematic administration of justice, the Civil Courts would properly
and almost necessarily assume to themselves the jurisdiction over con-
jugal rights as determined by Hindu Law, and enforce them according to
their own modes of procedure."

This leads me to the second part of the argument addressed on behalf
of the respondent, namely, that a definite demand by the husband of con-
jugal rights and refusal by the wife is a condition precedent; to the
maintainability of such a suit : It is conceded that there is no text of
the Hindu Law which enjoins any such [140] rule, but it is contended
that the matter is one of procedure and must therefore he decided by
affirming the necessity of an antecedent demand upon general principles
of procedure. Now, so far as general principles are concerned, I am of
opinion that the elopement of a wife and her wrongful withdrawal of herself
from ner husband's home and cohabitation with him is sufficient to con-
stitute a cause of action for a suit for restitution of conjugal rights, the
fact of the wrongful desertion itself being an infringement of a right
which can be enforced. The use the language of Sargent, C.J., in Dadaji
Bhikoji v. Rukhmabai(l) " the gist of the action for restitution of conjugal

(I) 10 B. 301.

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rights is that married persons are bound to live together, and that one or
other has withdrawn himself or herself without lawful cause." Taking the
analogy of other systems, the rule contained in s. 32 of the Indian Divorce
Act (IV of 1869) seems to me to proceed upon sound general principles. It
lays down that " when either the husband or wife has without reasonable
excuse withdrawn from the society of the other, either wife or husband
may apply, by petition to the District Court or the High Court, for resti-
tution of conjugal rights, and the Court, on being satisfied of the truth of
the statements made in such petition, and that there is no legal ground
why the application should not be granted, may decree restitution of conju-
gal rights accordingly." There is nothing said as to the necessity of an
antecedent demand as a condition precedert to a petition for restitution
of conjugal rights, and the section seems to proceed upon the general
principle of the English Law and practice of the Divorce Court till such
practice was altered comparatively recently by a new rule (No. 175) by
the Judge Ordinary under the power conferred upon him by statutes
of Parliament. The rule is printed in an Appendix to Browne's Treatise
on Divorce and Matrimonial causes (4th ed., p. 548). The general
effect of the rule is that there must be a written demand of cohabitation
by the petitioner and the lapse of reasonable opportunity of compli-
ance therewith before the petition is registered ; but there are some cases
cited by Mr. Browne at page 90 of his work showing that the strictness
[141] of the rule is liable to be dispensed with and its application modified
in cases where personal service of the written demand cannot be bad on
the party respondent. Thn rule itself was not framed till 1869, and I am
not aware that it has ever been introduced into India even in cases gov-
erned by the Indian Divorce Act. Much less am I aware of any such rule
being applied by our Courts to cases of restitution of conjugal rights
among Hindus.

But it is contended on behalf of the reapondent as preliminary to the
third part of the argument that the general rule has been altered by the
provisions of Nos. 34 and 35, sch. II of the Limitation Act (XV of 1877).
The former of these clauses prescribes limitation of two years for suits for
the recovery of a wife, and the time from which the period begins to run is
stated to be " when possession is demanded and refused." Similarly the
latter clause in prescribing the same period of limitation for suits for the
restitution of conjugal rights states that such period is to be reckoned from
the time " when restitution is demanded and is refused by the husband or
wife being of full age and sound mind." It is contended that the neces-
sity of a demand being a pure matter of procedure ad Utis ordinationem, and
the law of limitation appertaining to the same branch of law, the words of
the Limitation Act which I have quoted must by necessary implication be
taken to abrogate, modify, or add to the rules of the personal law of the
Hindus and Muhammadans on the subject, and that therefore there can be
nothing inconsistent with the protection cf native laws guaranteed by s. 37
of the Civil Courts Act (XII of 1887), if in such cases of restitution of
conjugal rights the Court insists upon a demand and refusal ante litem
motam being established, and throws out the suit as barred in limine
where no such demand has been made.

I have considered this contention with all the greater anxiety as the
well recognized rule of interpreting statutes cannot be ignored that the
Legislature, is not to be unnecessarily credited with either surplusage or
inconsistency, and before I express my opinion upon this point I think it
is necessary to realize the exact extent to which the argument logically

88



YII] BINDA V. KAUNSILIA 13 All. 143

leads. The argument, [142] relying as it does mainly upon the words 1890
of the third column of No. 35, must necessarily involve the result that for J^AY 7.
the maintainability of a suit for restitution of conjugal rights, not only are
a demand and refusal indispensable, but also that such demand or refusal APPEL-
must be made by the husband or the wife, when he or she is " of full age LATE
and sound mind." So that, in other words, if the contention is sound, the
Limitation Act must be taken to render restitution of conjugal rights
unavailable either by or against minors and insane persons, and to abolish 13 A. 126=
such a suit where either of the parties is suffering from such disabilities. 11 &.W.N.

Then arises the serious question : Did the Legislature by framing No 35 (1891) 18.
of the Limitation Act intend or comtemplate any such serious results,
involving, as they do, interference with the native personal laws of
marriage and conjugal relations ? In order to answer this question it is
necessary to bear in mind some of the most important rules of the
interpretation of statutes. " The preamble of a statute has been said to be
a good means to find out its meaning! and, as it were, a key to the under-
standing of it, and as it usually states, or professes to state, the general
object and intention of the Legislature in passing the enactment, ic may
legitimately be consulted for the purpose of solving any ambiguity or of
fixing thameaning of words which may have more than one, or of keeping
the effect of the Act within its real scope, whenever the enacting part is in
any of these respects open to doubt." (Maxwell, p. 52.) " But the
preamble cannot either restrict or extend the enacting part, when the
language of the latter is plain, and not open to doubt, either as to its
meaning or its seope." (ib., p. 56)

Similar is the effect of what Mr. Wilberforce has stated to be the
rules in his work, and I have no doubt that the preamble of a statute is the
most important source of information for ascertaining the object and inten-
tion of the Legislature and the scope of the enactment. This being so,
there are other equally well recognized principles of interpretation, which
have been well stated by Mr. Maxwell in his well known work on the
interpretation of statutes (pp. 95, 96). "Before adopting any proposed
construction of a [143] passage susceptible of more than one meaning,
it is important to consider the effects or consequences which would result
from it, for they often point out the genuine meaning of the words. There
are certain objects which the Legislature is presumed not to intend,
and a construction which would lead to any of them is therefore to be
avoided. It is found sometimes necessary to depart not only from the
primary and literal meaning of the words, but also from the rules of gram-
matical construction when it is improbable that they express the real
intention of the Legislature ; it being more reasonable to hold that the
Legislature expressed its intention in a slovenly manner lhan it intended
something which it is presumed cot to intend. One of these presumptions
is that the Legislature does not intend to make any alteration in the
law beyond what it explicitly declares, either in express terms or by
unmistakeabie implication, or in other words, beyond the immediate
scope and object of the statute. In all general matters beyond the
law remains undisturbed. It is in the last degree improbable that the
Legislature would overthrow fundamental principles, infringe rights or
depart from the general system of law without expressing its intention
with irresistible clearness, and to give any such effect to general words,
simply because in their widest and perhaps natural sense they have that
meaning, would be to give them a meaning in which they were not really
used. It is therefore an established rule of construction that general words

89
A vii is



13 All. 144



INDIAN DECISIONS, NEW SERIES



[Vol.



1890 and phrases, however wide and comprehensive in their literal senae, must
MAY 7. be construed as strictly limited to the immediate objects of the Act, and

as not altering the general principles of the law. "

APPEL- An illustration of the application of these rules is given by Mr. Max-

LATE well (p. 104) on the authority of Vane v. Vane (l), where " it was hold that

ClVIL. ' ne Provision of the statute of Limitations, 3 and 4 Will. IV, Cap. 27, s. 26,

which deprives the owner of lands of the right of suing in equity for their

18 A. 126= recovery, on the ground of fraud, from a purchaser who did not know or

11 A.W.N. have reason to believe that any such fraud had been committed, was to be

(1891) 18. construed, subject [144] to the presumption that the Legislature had not

intended, by its general language, to subvert the established principles of

equity on the subject of constructive notice, and was therefore read as

meaning that the purchaser did not know or have reason to believe either

by himself, or by some agent whose knowledge or reason to believe is : in

equity, equivalent lo his own. "

I have dwelt upon these principles of interpretation because I think
they apply with equal force to the statute law of British India, and I will
now consider what effect they have upon the interpretation of the Indian
Limitation Act (XV of 1877) with reference to the particular question now
under discussion.

First, then, we find that the preamble in defining the obieot and scope
of the enactment metitions limitations of suits, &c., and Requisition of
ownership of easements and property as the subjects in regard to which
legislation was undertaken. There is not a word in the preamble to show
that any alteration of the nature of personal laws of marriage and conjugal
relations was intended, and in the absence of explicit declaration, either in
express terms or unmistakable implication, the scope of the enactment
cannot he extended beyond the preamble, unless the body of the Act; points
to a different conclusion by employing enacting words of " irresistible
clearness." To hold otherwise would be credit the Legislature with
disturbing well-settled existing rights of persons and property by indirect
and almost surreptitious methods ; and this is one of the reasons why in
interpreting statutes it is important to bear in mind the distinctions
between words and phrases which are intended to be merely declaratory or
enabling and those which are employed to convey a mandate or prohibition
by directory Or imperative terms. A legislative mandate cannor, be evolved
from inferences based upon mere use of words without expressly enacting
terms, and this rule applies with especial force where a mandate or pro-
hibition is sought to be evolved from words in the body of the Act refer-
ring to matters which fall beyond the scope and purview of the Act as
represented in its preamble.

[145] Now it is clear that the words employed in clauses 34 and 35
of sch. II of the Limitation Act are merely descriptive and in no sense
enacting words conveying in themselves any mandate or prohibition. The
first column describes the nature of suits, the second mentions the period
of limitation, and the third states tho starting point of such period.
Taking the three columns together by themselves there are no enacting
words expressing any mandate or prohibition, directory or imperative
in its nature, and it is only when they are read with the enacting
s. 4 of the enactment that hhey can have any permissive or prohibitive
efficacy. But what does s. 4 say ? It simply lays down that suits, &o., filed
after the period of limitation prescribed therefor by the second schedule

(1) L.R 8 Ch. 383.

90



YII] BINDA U. KAUNSILIA 13 All. 147

of the Act shall ba dismissed. It does not say that words and phrases 1890
employed in the third column of the schedule to describe the starting MAY 7.
point of the period of limitation are intended to serve more than a
descriptive purpose, and that from them may ba evolved rules conveying APPEL-
mandate or prohibition, abrogating, modifying or adding to the rules of the LATE
substantive laws falling beyond the scope and purview of the preamble. CIVIL
Holding these views I am unable to hold that the words in the third
column of No. 35 of the Limitation Act are to be read or interpreted as 13 A. 126 =
if the statute laid down the following propositions : 11 A.W.N.

(1) No suit for the restitution of conjugal rights shall be maintained (1891) 18.
unless restitution is previously demanded and refused.

(2; No suit on behalf of a minor, or a person of unsound mind, for
restitution of conjugal rights shall be maintainable.

l^t such is the neaessary logical resulb of the contention for the
respondent in this case. I hold that; the words in the third column of
Nos. 34 and 35 are merely descriptive of the starting point of the period
of limitation, that they only proceed upon an assumption that the Native
laws governing marriage and conjugal relation require a demand, but that
they are not enacting words laying down any rules involving any abroga-
tion or modification of the Native laws or addition to them. They must be
taken to leave the Native laws undisturbed, and the effect of the two articles
[146] cannot therefore be more than that of furnishing a general indica-
tion tbat the Legislature intended two years to be the period of limitation
lor such suir.s to be calculated from the starting point described in the
third column, where such description applies ; but that in other cases the
matter would be governed by the ordinary rules of applying limitation
calculating it from the time when the right to sue accrues. In other
words, I hold that in cases where the personal law of the parties does
not require antecedent demand, nor deprives minors and persons of unsound
mind of the conjugal right of cohabitation, No. 35 of the Limitation Act
has no application, nor No. 34, but tbat the suit would fall under the
general provisions of No. 120 of the Limitation Act. This interpretation
no doubt impairs and fritters away the efficacy of Nos. 34 and 35 by
limiting their applicability, but I am afraid such must necessarily be the
case where the Legislature employs terms .which either omit to provide for
cases which may arise, or which limit the application of any particular rule
to any particular class of cases. Instances of this are to he found in the
reported cases.

In Nath Prasad v. Bam Paltan Ram (1), a Full Bench of this Court,
whilst deploring the anomaly which their ruling involved, held that
No. 10 of the Limitation Act, which provides one year's limitation for suits
for pre-emption, did not apply to a suit to enforce a right of pre-emption
in respect of a conditional ?ale of a share of an undivided Mahal, and that
such suit therefore fell under the general provisions of No. 120 which
prescribes six years' limitation. This was followed in Rasik Lai v. Gajraj
Singh (2) and Ashik Ali v. Mathura Kandu (3) and the rule was carried
further in Durga v. Haidar Ali (4) and Udit Singhv. Padarath Singh (5).

Nor is. the applicability and efficacy of Nos. 34 and 35 impaired and
frittered away only by the considerations which I have described.

[147] Their efficacy, as furnishing a bar by limitation, is almost dis-
sipated also by other considerations which I now proceed to discuss. I

(1)4 A. 218. (2) 4 A. 414, (3) 5 A. 187. (4) 7 A. 167. (6) 8 A. 54.

91



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CYoI.



J890 have already pointed out that the enacting words which convey a mandate

MAY 7. rendering these two articles operative as bars by limitation, are the

terms of s. 4 of the Limitation Act, which imperatively require the dismis-

APPEL- sal of suits instituted after the lapse of the period of limitation prescribed

LATE ln fche second schedule. But this imperative mandate in express terms

CIVIL qualifies itself by subjecting the limitation contained in the schedule to

' the provisions contained in s. 5 to s. 25 of the Limitation Act. One of

13 A. 126= the most important of those sections is s. 23 which runs as follows :
11 A.W.N. "In the case of a continuing breach of contract and in the case of a

(1891) 18. continuing wrong" independent of contract, a fresh period of limitation
begins to run at every moment of the time during which the breach or
the wrong, as the case may be, continues."

Before I discuss the effect of this section I must point out that the
section as it now stands in the Limitation Acfc (XV of 1877) has taken the
place of ss. 23 and 24 of the old Limitation Act (IK of 1871), the former
of which related to successive and continuing breaches of contract whilst
the latter was confined to cases of "continuing nuisances '' and provided
fresh periods of limitation and fresh rights to sue. The present section has
abrogated both those sections and lays down a much wider rule pre-
scribing a fresh period of limitation beginning at every moment in the case
of continuing breaches of contract and continuing torts alike. Another
change is that the present No. 34 stood as No. 41 in Act IX of 1871, and
the present No. 35 stood as No. 42 in the same Act, without the words
" by the husband or wife being of full age and sound mind."

With reference to the law standing as it did under the Limitation Act
IX of 1871, a Full Banoh of the Punjab Chief Court, consisting of Messrs.
Plowden, Smyth, and Elsmie, had to consider the case of Gaizini v.
Mussammat Mehran (l), which was a suit between Muhammadans of a
nature similar to this, and the Judges formulated the question for decision
in the following words :

[148] " In a suit between Mubammadan parties when a husband
claims as against his wife restitution of conjugal rights, and, as against
the person detaining her, recovery of his wife, such suit being instituted
more than two years after a demand and refusal (a) of restitution of
conjugal rights, and (b) of possession of his wife, the relation of husband
and wife still subsisting, is the suit barred (a) as against the wife by
No. 42 of schedule II of Act IX of 1871, (b) as against the order defend-
ant by No. 41 of the same schedule."

In answering the question Sir M. Plowden, who delivered the leading
judgmen t in the case, after stating that " it is abundantly clear that accord-
ing to the Muhammadan Law marriage is a civil contract, that it imposes
upon the wife the obligation of cohabiting with her husband, unless there
be just cause for withholding herself, and that a suit will lie to compel her
to return to him." went on to say :

" This being so, the unjustifiable withholding of her person by the
wife is a breach of the contract of the marriage, and a breach which con-
tinues so long as her person is so withheld ; and upon consideration I can
find no sufficient ground for holding that this is not a continuing breach



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 15 of 155)