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of contract within the meaning, as it is within the terms, of s. 23 of the
Limitation Act. Then if that section applies, as it appears to me that it
does, No. 42 of the schedule does not govern the disposal of a suit of the
kind under notice." The learned Judge then pointed out that No. 42

(1) P.B, Vol. 14 p. 157.
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BINDA V. KAUN8ILIA



13 All. ISO



(which corresponds to No. 35 of the present Act) was overridden by s. 23
which rendered it " inoperative in respect to a suit like the present by a
Muhammadan husband against his wife." The learned Judge further
explained himself by saying :

" It does not by any means follow that No. 42 is rendered wholly
inoperative by s. 23, for ib will continue to be applicable to all suits of the
kind described where by the general law of those parties marriage is not a
civil contract, and to which, consaquently, s. 23 is not applicable. Virtually
therefore, the suit of a Muhammadan husband against his wife for recovery
of his wiffl is not capable of being barred by limitation."

[149] Before quoting further from the judgment, I wish to point out
that the distinction which the passage I have just quoted draws between
marriage when it is a civil contract and marriage which is a sacrament,
as among the Hindus, ceases to have any effect in view of the circum-
stance that s. 23 'of the present Limitation Act applies equally to "a
continuing breach of contract " and " a continuing wrong independent of
contract," so that the reasoning of the learned Judge would now apply
equally to the case of Hindu marriages. For the same reason no distinc-
tion would remain between the effect of s. 23, upon suits for recovery of a
wife (No. 41, Act IX of 1871, corresponding to No. 34 of the present Act)
against a third party, and suits for restitution of conjugal rights against
the wife (No. 42, Act IX of 1871, corresponding to No. 35 of the present
Act), for, in the former case there would be a continuing wrong by a person
who is no party to the contract of marriage, and in the latter case there
would be a continuing breach of contract by a party to the contract, the
continuing infringement of the obligation in either case being covered by
s. 23 of the present Act.

After specifically laying down that suits for restitution of conjugal
rights among Muhammadans could not be barred by any limitation so
long as the marriage subsisted, the learned Judge made further observa-
tions which would apply bo Hindu and Muhammadan marriages alike, so
far as limitation of suits for restitution of conjugal rights is concerned.
He observed :

" I may add, before quitting this point, that practically the same
result would be reached, that is to say, that the husband could enforce by
action his right to recover possession of his wife, after any length of time,
if ib be held that s. 23 does not apply to a contract of marriage, and that
the withholding of herself by the wife is not a continuing breach of
contract within that section. For if ib be supposed that No. 42 does
apply, and a suit for restitution of conjugal rights were dismissed upon
the ground that the suit had not been brought within two years of the
demand and refusal proved,, it would still, in my opinion, be competent to
the husband [150] to make a fresh demand and institute a fresh suit
if ib were not complied with. The marriage would still subsist and the
right, to the wife's society would likewise subsist and there would be,
quite independently of s. 23 of the Act, a right to compel the wife to
fulfil her obligations. There is no provision in the Act, similar to that
in s. 29 as to suits for the possession of land or an hereditary office,
extinguishing the right of the husband to the society of his wife, and the
mere dismissal of the former suit on a plea of limitation would not bar
the second suit to enforce the right."

As to the limitation (under No. 41 of Act IX of 1671, corresponding to
No. 34 of the present Act) against a third party who was harbouring a
wife, the learned Judge held that s. 23 of the old Acb (IX of 1871) was not

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1890 applicable as it related to continuing breaches of contract nor was a. 24
MAY 7. applicable, being limited as it was to one kind of continuing injury,
namely, a continuing nuisance, and the suit would therefore be barred by
APPETj- two years' limitation from the date of demand and refusal. This distinction,
LATE as I have already slated, vanishes in view of the more comprehensive
nature of the provisions of s. 23 of the present Act, and moreover, as the
learned Judge himself points out towards the end of his judgment, his
13 A. 126= reasoning as to the practical efficacy of a repeated demand in defeating
11 AWN. limitation is applicable alike to suits against the wife and against a third
(1891) 18. party who is harbouring her.

The views thus expressed by Sir M. Plowden, as the Senior Judge of
the Punjab Chief Court, were adopted by his learned colleagues, and I
have quoted them at such length, as the case in which they were expressed
is the only reported ruling to be found in the published .reports. There
appears, however, to be a decision of the Bombay High Court in Hemchand
Harjivan v. Shiv, which is inaccessible *o me, as it does not appear in
any of the authorised reports, but is referred to by Mr. Starling in his
note on s. 23 and No. 35, as having been printed in some printed judg-
ment of the Bombay High Court for 1883, at pp. 124 26. It is also cited
in Mr. Mittra's work on Limitation (2nd ed., p. 512), and he states [151]
that the case is referred to in Branson's Digest of unreported judgments
of the Bombay High Court at p. 210. The effect of the ruling is repre-
sented by Mr. Starling to ba that the refusal of a wife bo return ho her
husband and allow him the exercise of his conjungal rights, and the
retention of the wife by a man in whose house she is living constitute
continuing wrongs, giving rise Co constantly recurring causes of action, of
demand and refusal, and the learned author in summing up the effect of
the Punjab case and of the Bombay case states the law to be that " the
right of a husband to the possession of his wife is one which continues
so long as the marriage bond continues, consequently it would seem that
so often as ha chooses to demand possession of her or restitution of
conjungal rights, and is refused, so often would a new cause of action
arise. The practical result of this is that there would be no limitation to
his bringing a suit for possession or restitution so long as he brought it
within two years from some demand and refusal " (Soarling's Limitation
Act, p. 107).

The Punjab case was a suit between Muhammadans, whilst the
Bombay case was a suit between Hindus, and I agree in those rulings so
far as they lay down that the jural relation created by marriage involves
the continuing obligation of conjugal cohabitation upon the husband and
the wife, that so long as this jural relation subsists the unlawful infringe-
ment of the obligation, whether by the husband or the wife, or by a
third person (as in the case of one who harbours a runaway wife) amounts
to a continuing wrong or breach of the obligation within the meaning
of s. 23 of the present Limitation Act (XV of 1877), so that " 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."

It is not necessary for me in this case to determine how far I am
prepared to accept those rulings in so far as they may be understood
to lay down that soccessive demands and refusals are either required
or could be made as foundations of successive actions for restitution of
conjugal rights with the result that there would b' no limitation or any
other plea in limine barring such suits so long [152] as thoy wore brought
within two years from some demand and refusal. I may, however,



94



YII] BINDA v. KAUNSILIA 13 All. 153

observe that much doubb and difficulty have arisen in consequence of 1890
not; realizing clearly the distinction between a daoaand which by the sub- MAY 7.
sfcantive law terms au essential element of the cause of action, that is,
Che gist of the action and, as such, a condition precedent to the enforcement APPEL-
of the right by suit, and demands whicn do not constitute the gist of LATE
the action and which therefore tne law does nob render indispensable. Givrr

Of the former class a very apt iilustr-tuoa is to be found in the rule of
the Muhammadan Law of pre emption, which renders the preliminary 13 4. 125 =
demands necessary as conditions presadent to the anforceability of the n jj^ jf
right, and the omissiom of which woul i render the suit unmaintainable. ii891) 18
Of the latter class of deminds, namely, those which are ootional, illustra-
tions are furnishei by the Limitation Act itself in Nos. 59 and 73,
where, although the agree oaeno rendered the money payable on demand,
the date of tiu loan in the one case, and the date of the bill or the
note in the o^her, are the smarting points of limitation, so chat a suit
may be maintained without any previous demand. Whether such
a rule is well founded in jurisprudence is a subject of considerable
interest and wa? well discussed by Sir Louis Jackson in Tarini Prasad
Ghose v. Bam Kishna Banerii (1) where, upon the authority of the views
of Austin, the learned Judge held that demand was of essence of the cause
of action, whilst Holloway, J., in Eathamukala S^bbammahv. Raqiah (2)
and C. Vencataramanier v. Mane he Reddy (3) strenuously repudiated the
doctrine of Austin and held that the absence of demand and refusal in the
case of a confessing defendant was only a matter affecting the question of
costs. I need not, however, enter into a discussion upon this question,
because, for Che purposes of this case, it is enough to hold, as I said,
that the Hindu Law of marriage does not prescribe a previous demand
and refusal of conjugal rights as a condition precedent to the enforcement
of those rights against a wife who unlawfully withdraws herself from
cohabitation with her husband, and than therefore the provisions of s. 23
[153] of the Limitation Act, to which Nos. 34 and 35 are subject, save this
suit from being barred by limitation, either against the wife, or the third
party who is harbouring her, although the demand and refusal of conjugal
rights was superfluously made in this case about five years before suit.
The effect of my view is to apply the general No. 120 to the present case,
and, reading it with s. 23 of the Act, to hold that limitation does not bar
the suit, either against the wife, or against the other person who is har-
bouring her, and to entertain this suit without requiring the plaintiff to
accept the dismissal of this suit, and to make a fresh demand as the
foundation of another suit against the same- parties, and for the same
relief. It is not necessary for me to decide whether such a second
suit would be maintainable, because this is not such a second suit. At
all events, considering the rulings of the Punjab Chief Court and the
Bombay High Court, and the views which I have expressed here, I
cannot help feeling that it would have been much better if the Legislature
had altogether omitted to frame Nos. 34 and 35 of the Limitation Act,
for conjugal disputes among Hindus and Muharamadans are governed
by the general provisions of their personal laws, and, as I have already
shown, No. 120 is sufficient to make provision for them. Such au
omission to provide any special periods of limitation for conjugal
disputes among the native copulation, would be consistent with the
policy upon which clause (a) of s. 1 of the Act proceeds by saving



(1) 6 B.L.R, 160. (2) 7 M.H.C.R. 293. (3) 7 M.H.C.R. 298.

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1890 from limitation suits under the Indian Divorce Act. The practical effect,
MAY 7. however, as I have shown, is much the same, for Nos. 34 and 35 must be
read as inapplicable Co suits such as the present, and therefore virtually
APPEL- superfluous. Any ofcher view of those articles would in effect amount to
LATE holding that tha lapse of two years after demand and refusal of conjugal
CIVIL. "ghts would either amount to dissolution of marriage or divorce, or separa-
tion irremediable by law. In other words, such an interpretation would
[18 A. 126= involve the conclusion that the Legislature by a side-wind effectually
11 A.W.N. introduced divorce into the Hindu Law, of which the spirit abhors the
(1891) 18. notion, and tha letter does not recognize it, and that in the case of
Muhammadans a serious innovation has been introduced by the statute
of which the scope and objects did not contemplate [154] any interference
with their Native Law of marriage and conjugal rektion. I have already
said enough to show why I cannot credit the Legislature with any such
intentions and also why I repudiate any such interpretation as would
involve such serious results.

I now pass on to the fourth point of the argument on behalf of the
respondent, namely, that under the circumstances of this case the
defendant, Musacnmat Kaunsilia, must be treated as a deserted wife and
no longer amenable to her husband's, the plaintiff's, demand for restitution
of conjugal rights under the Hindu Law.

It is clear that under s. 37 of the Civil Courts Act (XII of 1887) we
are bound to decide this question according to the Hindu Law. That law
contains in itself provisions for justifying a woman in forsaking her
husband, and enumerates the conditions under which she may do so.
The text of Devala translated by Colebrooka (Digest, Vol. II, page 164,
text GLil) lays down :

" A husband may be forsaken by his wffe, if he be an abandoned
sinner, or an heretical mendicant, or impotent or degraded, or afflicted
with phthisis, or if he have long been absent in a foreign country," and it
goes on to say (text CLII) " whether such a husband be alive or dead,
his wife may take another lord, for the sake of obtaining progeny, not
through female independence." Then the same author (Vol. II, at
pp. 165-66, texts CLIV and CLV) cites texts describing the period for which
an absent or missing husband is to be waited for by tha wife before she
can taka another husband, and this period varies according to the caste
or class to which f.he parties belong. The Vyavastha Chandrika of Shyama
Charan Sarkar (Vol. II, page 489) quotes a text of Parashara. " If the
husband be missing, dead, quit the condition of a householder, be impo-
tent, or degraded ; in (any of) these five calamities it is lawul for a
woman to have another husband," and the learned author comments upon
the tex^s by saying: "Thus Parashara having declared it lawful for a
woman to take another husband in case her former husband bs in one of the
said circumstances a fortiori then it must be inferred that according to his
doot-.rine a womin may desert her husband when so circumstanced." Sir
[155] William Macnaghten in his work on Hindu Law (Vol. I, p. 61)
states the liw in the following words :

" Adultery is a criminal but not a civil offence, and an action for
damages preferred by the husband will not be against the adulterer. It is
not a sufficient cause for the wife to desert the husband and there are not
many predicaments in which such an act on her part is justifiable. Insanity
impotence and degradation are, perhaps, the only cirsumstances under
which her desertion of her husband would not be considered as a punshi-
able offence. " In this passage the learned author adds the husband's

96



YII] BINDA V. KAUNSILIA 13 All. 156

insanity to the list of justifiable grounds for his wife's forsaking him and 1800
the authority on which he relies is the text of Manu (Chap. IX, v. 79). MAY 7.
" She who is averse from a mad husband, or a deadly sinner or an eunuch,
or one without manly strength, or one afflicted with such maladies as APPEL-
punish crimes, must neither be deserted nor stripped of her property." LATE
The author of the Dattaka Chandrika (Vol. II, p. 489, footnote) contests
this view, and, adopting the interpretation of Kulluka-Bhatta interprets
the aversion from a husband to mean only want of diligent attention to him, 13 A. f26=
and the author then affirms that there is no authoritative text to support 11 A.W.N.
the view that insanity of the husband would justify a wife in forsaking (189J) 18.
him. This view is inkeeping with the corresponding right of the husband
in the text of Devala (Colebrooko's Digest, Vol. II, text LXII, p. 129) which
lays down that: " A man may exclude from his bed or from pilgrimage,
a wife who is afflicted with leprosy, degraded from her class, barren, or
insane, whose courses are stopped, or who is wicked, but he may not
exclude her from all business." I am therefore inclined to agree with the
author of the Dattaka Chandrika in the opinion that insanity is not a
legal ground for desertion either of the husband or of the wife any more than
it would be under the English law. I also agree in the view fab p. 490)
that although a married pair can desert each other under the circum-
stances abova noticed, yet desertion does not render their marriage
dissolved, for Manu says : 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." (Chap. IX. v. 46).

[156] From what I have said it seems clear to me that, under the
Hindu law, desertion does not terminate the jural relation created by the
sacrament of marriage, and that it is only in certain specified circumstances
that the parties may forsake each other ; and it follows as a corollary that
where tho husband or the wife deserbs th,e other without lawful cause, a
suit for restitution of conjugal rights would be maintainable, and could be
successfully resisted only by establishing that a legally sufficient cause for
desertion existed and continues. This view seems to me just and reason-
able on general principles and is supported by the analogy of the English
law, which lays down that " in a suit for restitution of conjugal rights no
facts are sufficient to bar the proceeding except such as would be sufficient
to have entitled the parties to a divorce on an original suit. Facts
pleadable in bar to a suit for restitution are such only as, upon proof, will
entitle the party who pleads them to a sentence of separation, such
sentence being prayed for " (Browne's Divorce, 4th edition, p. 140), a
similar rule has been adopted in the Indian Divorce Act, of which
s. 33 lays down that "nothing shall be pleaded in answer to a petition
for restitution of conjugal rights which would not be ground for a suit
for judicial separation, or for a decree of nullity of marriage."

What would be sufficient cause for divorce or for judicial separation
must necessarily depend upon the personal matrimonial law of the parties
concerned, so that in this case the Hindu law would govern the
decision of the question, and, as I have already said, that law does not
provide that unlawful desertion whether by the husband or the wife would
clear a suit for restitution of conjugal rights. Even under the English
law desertion was not formely held to constitute a ground for judicial
separation, and it was the rule that the remedy for desertion was resti-
tution. Mr. Browne (p. 46) quotes the words of Sir William Scott in
Evans v, Evans.

" To say that the Court is to grant a separation, because the husband

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has thought fit to separate himself would be to confirm the desertion,
and to gratify the deserter."

[157] The author then on the authority of Manning v. Manning (1)
says that "according to the law of Ireland, desertion by a wife, even though
wilful, is no bar to a suit by her for restitution of conjugal rights," but
that " it is very questionable how far this decision is in accordance with
English Law," (p. 142). He goes on to point out (p. 46) that "recent
legislation, however, has expressly recognized desertion as a ground for
judicial separation," and he explains that " to sustain the charge of deser-
tion, the act relied upon as such must have been done contrary to the will
of the person charging it." The same is the rule adopted in clause (9) of
s. 3 of the Indian Divorce Act, which lays down that " desertion implies an
abandonment against the wish of the person charging it," and it is clear
that it is only such desertion which under s. 22 of the Act would constitute
a ground for judicial separation, or furnish a defence under s. 33 to a suit
for restitution of conjugal rights. " No one can desert who does not actually
and wilfully bring to an end an existing state of co-habitation ; if the state
of co-habitation has ceased to exist, whether by the adverse act of husband
or wife, or even by the mutual consent of both, desertion becomes impos-
sible tojeither, at least until their common life and home has been resumed ;
the refusal by either, after request of the other, to resume conjugal rela-
tions does not constitute the offence of desertion," (Browne, p. 47). But
" though the separation be not desertion in its inception it may become
such afterwards ; for where a husband whilst living apart from his wife,
under circumstances which did not constitute desertion, suddenly broke
off all communications with her, and formed an adulterous connexion
with another woman, it was held that these facts showed that the husband
had resolved to abandon his wife and therefore constituted desertion,"
(ib. p. 49).

What facts would constitute complete desertion under the Hindu Law
does not clearly appear from the texts, and if I have referred to the English
Law upon the subject, it is because, following the example of Sargent,
0. J., in Dadaji Bhikaji v. Rukhmabai (2), I think that the analogy
furnished by that law may be [158] applicable, to this case, as a rule of
justice, equity and good conscience which mustnecessarily be applied where
thd law upon any particular point is totally silent. Under the English Law
as under the Indian Divorce Act, "desertion ivithout reasonable excuse for
two years or upwards" would under s. 22 constitute a ground for judicial
separation and would under s. 33 defeat a suit for restitution of conjugal
rights. But this rule is the creation of the statute and does not rest upon
any such general principle as would justify its importation into the Hindu
Law, either in respect of allowing judicial separation or in respect of adopt-
ing the arbitrary period of two years' desertion as a valid defence to a suit
for restitution of conjugal rights. But the broad advantage of consulting
the English Law upon the subject remains, because by analogy it affords
valuable help in deciding what amounts to desertion and in holding that
where there has been desertion for lengthened period, such desertion, in
conjunction with the other circumstances of the case, may constitute one
of the elements of considering whether the Oourt should decree restitution
of conjugal rights.

"Whether any such discretionary power exists in our Courts in dealing
with such suits under the Hindu Law, is the subject of the fifth and last



(1) 7 Ir. R. Eq.520.



(2) 10 B, 301.



98



YII] BINDA V. K1UNSILIA 13 All. 160

point in the argument for the respondent. Under the English Law " if a 1890
wife does not prove that she was justified in withdrawing from MAY 7.
co-habitation either by proving her husband's adultery or cruelty, the
Couri will pronounce her under the obligation to return. Nor has the APPEL-
Court any discretionary power to refuse a decree in a suit for restitution LATE
of conjugal rights, on the ground that the suit was institutsd- by the CIVIL

petitioner, not in order that he might regain the society of his wife, but '

for some collateral object : the petitioner in a suit for restitution of conjugal 13 A. 126 =
rights is entitled to a decree, unless he is proved to have committed a ** A.W.H,
matrimonial offence, which would be ground for a judicial separation ;" (1891) 18,
(Browne, p. 89).

This rule which in English Law is based principally uoon the authority
of Scott v. Scott (1) was applied by Sargent, C. J., to [159] the case of
Hindus in Dadaji Bkikaji v. Rukhmabai (2) where the learned Chief
Justice said : " It may be advisable that the law should not adopt strin-



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 16 of 155)