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gent measures to compel the performance of conjugal duties, but, as long
as the law remains as it is, Civil Courts, in our opinion, cannot, with due
regard to consistency and uniformity of practice (except perhaps under
the most special circumstances,) recognize any plea of justification other
than a marital offence by the complaining party, as was held to be the
only ground upon which the Divorce Courts in England would refuse
relief in Scott v. Scott."

But whilst the rule has been so laid down by the Bombay High Court,
Garth.C.J., in Jogendoronundini Dossee v. Hurry Doss Ghose (3)said: "Now
although we entertain no doubt that, as a matter of law, a suit for restitu-
tion of conjugal rights may be maintained by a Hindu in this country, we
are not at all prepared to say that the same state of circumstances which
would justify such a suit, or which would be an answer to such a suit
in the case of a European, would be equally so in the case of a Hindu.
The habits and customs of a native community, especially as regards the
marriage state, are so different from ours, that we think in such a matter
as a suit for restitution of conjugal rights, the Hindu and the European
cannot always be fairly judged by the same rules." The proper rule in such
cases was laid down by the Lords of the Privy Council in Moonshee Buzloor
Euheem v. Shumsoonnissa (4). Since the rights and duties resulting
from the contract of marriage vary in different communities, so specially
in India, where there is no general marriage law, they can be only
ascertained by reference to the particular law of the contracting parties. "
In the present case the wife among her pleas pleaded both desertion
and cruelty, and whilst I have already dealt with desertion, I think it
is necessary to consider the Hindu Law also as to legal cruelty, as a
defence to a suit for restitution of conjugal rights. The text of Manu
(Ch. V, v. 154), which I have already quoted, prescribes that even a wicked
[160] husband and misbehaved "must constantly be revered as ' a god, "
whilst another text (Ch. VIII, v. 299) allows thut wives "may be correct-
ed when they commit faults, with a rope or a small shoot of cane. " There
are not many texts which describe the husband's behaviour of kindness
towards his wife, but there are passages which indicate[that kind and gentle
treatment should be extended to virtuous wives. Manu((jh. Ill, v. 55)
lays down thab "married women must be honoured and adorned by their
fathers and brethren, by their husbands and by the brethren of their

(1) 34. L. J. P. M. and A. 23. (2) 10 B. 301. (3) 5 0. 500.

(4) 11 M.I. A. 551.

99



13 All. 161



INDIAN DECISIONS, NEW SERIES



[Yol.



1890

MAY?.

APPEL-
LATE
CIVIL.

13 A. 126=*
11 A.W.N.
(1891) 18.



husdands, if they seek abundant prosperity, " and there are other texts (vv.
56-62)whioh go to show that kind treatn^ent to wives is prescribed in terms,
which, by a liberal interpretation, may be taken to be not only moral and
religious precepts but to amount to legal obligations. It is only from in-
ferences which may be drawn from such texts that the prohibition of
cruelty may be evolved ; but there is no precise text to show that under
the Hindu Law, which throughout favours the husband's control, even
cruelty would justify a wife in deserting her husband or in forsak-
ing cohabitation with him. The general
upon which our Courts act in such matters
long course of decisions which recognize the
of the husband would be a sufficient cause for



or in

principles of humanity
have, however, led to a
rule that legal cruelty
refusing restitution of



conjugal rights, or otherwise affect the claim. The Lords of the Privy
Council in Moonshee Buzloor Ruheem v. Shumsoonnissa made certain
observations which seem to be equally applicable to Hindu and
Mubammadan cases and which must now be taken to enuncitate the rule
which must be followed by the Courts in British India. They said : " It
seems to them clear that if cruelty in a degree rendering it unsafe for the
wife to return to her husband's dominion were established, the Court
might refuse to send her back. It may be, too, that gross failure by the
husband of the performance of the obligations which tbe marriage contract
imposes on him, for the benefit of the wife, might, if properly proved,
afford good grounds for refusing to him the assistance of tbe Court, and,
as their Lordships have already intimated, there may be cases in which
the Court would qualify its interference by imposing terms on the hus-
band." [161] In Yamunabai v. NarayanMoreshwar Pendse (1), the Bombay
High Court laid down that the Hindu Law on the question what consti-
tutes legal cruelty sufficient to bar a claim for restitution of conjugal
rights would not differ materially from the English Law ; that to costitute
legal cruelty there must be actual violence of such a character as to
endanger personal health or safety, or there must be reasonable appre-
hension of it, and that mere pain to mental feelings, such for instance as
would refiult from an unfounded charge of infidelity, however wantonly
caused or keenly felt, would not come within the definition of legal
cruelty.

I think the principles thus laid down are applicable to this case and
must govern the decision ot the plea of cruelty set up by the defendant
Musammat Kaunsilia. I may notice here another point of similarity
between the Bombay case and.tbis case, that there the husband was
" admittedly a man of very low mental capacity, on the border line of
idiocy, and hero the learned Judge of the lower appellate Court in his
finding upon remand has observed that "the plaintiff is a half demented
old man and he is not even aware that he brought a suit in the Munsiff's
Court for tbe recovery of his. wife, and that it is therefore clear that some
one else has put him up in this case. " The Bombay Court did not
regard mental weakness of the husband as a sufficient ground for refusing
restitution of conjugal rights, nor would I in this case allow such a plea
to prevail.

The case of Moola v. Nundy (2) furnishes an illustration of a peculiar
class of cases. There a Hindu husband and a wife had been married
thirteen years ago, whilst the latter was a girl of about 13 years of age.
She had co- habited with him for a few months but was ill-treated and.



U) 1 B. 164.



(2) N.W.P.H.C.B. 1872, p. 100.



100



YII] BINDA y. KAUNS1LIA 13 All. 163

expelled by him in consequence of his having formed an illicit connection 1890
with his brother's widow, whom he made an inmate of his house, MAY 7.
and had three children by her, and was still keeping her as his mistress.
The wife ever since her expulsion by her husband had been living with her APPEL-
father and the husband had not contributed to her support. It appeared LATE
that the dispute had been considered by a panchayat which adjudged a CIVIL

[162] separation of the married couple. In these circumstances a Division

Bench of this Court, consisting of Stuart, C.J., and Pearson, J., declined 13 A. 126 =
to enforce restitution of conjugal rights without deciding whether the 11 i.W.N.
verdict of the panchayat dissolved the marriage. They observed : "For (1891) 19.
the purposes of this suit it is sufficient to observe that 13 years ago they
consented to separate, and that looking to the circumstances under which
that separation took place, and to the circumstances still existing, we are
of opinion that the plaintiff is not entitled to have that arrangement set
aside without Musammat Poonia's consent, nor are we aware that the
opinion expressed by us is contrary to any provision of the Hindu Law."
I am not prepared to say how far I can regard that decision as consistent
with the Hindu law, but the facts of the case are very peculiar, and I
need not further discuss it, as no similar facta are alleged to exist in
this case. The ruling is however an authority for holding that the
Court may, in exceptional cases, exercise judicial discretion by with-
holding relief of restitution of conjugal rights. In Jogendronundini
Dossee v. Hurry Dass Ghose, (1) the husband appeared to have lived
a very profligate life, and was in the habit of consorting opanly with
prostitutes, and on several occasions had insulted his wife by introducing
one of them into her private apartments. He was moreover given to
intemperance and whilst under the influence of intoxication bad ill-treated
and threatened his wife with knives and other weapons in such a way as
to induce very natural apprehensions on her part for her own personal
safety. Under these circumstances she left his house and went to live
with her mother under the protection of her own family. He however
paid visits to her there, and cohabited with her as man and wife. Garth,
C. J., held that the circumstances of the case showed condonation on the
part of the wife, of which the effect was not undone by reason of a slap
on the face, which was given with the open hand at a time when the
husband was under the influence of drink and in a moment of irritation
when his wife was worrying him for monoy,

The learned Chief Justice, with the concurrence of Pontifex, J.,
decreed the claim for restitution of conjugal rights, qualifying their
[163] decree by saying, " But we think it right, after whac has occurred,
to secure the defendant a home untainted by the presence of any persons
of bad character ; and we therefore .prooose so far to modify the decree of
the lower Court, as to make it a condition that the house which the
husband provides shall be in every respect fit for the reception of a
virtuous and respectable wife." Again the case of Paigi v. Sheo Narain (2)
is one in which my brother Straight held that under the Hindu Law
the fact that a husband had had adulterous intercourse with another
woman which had ceased at the time of suit, was not an answer to a
claim by him for restitution of conjugal rights so long as the marriage
subsisted, but that the Court was bound not to disregard any reasonable
objections, such as personal injury or cruelty at the hands of the husband
or that he was actually living in adultery with another woman, or that if

(1) 5 C. 500. (2) 8 A. 78,

101



13 All. 164 INDIAN DECISIONS, NEW SERIES [Vol.

1890 she resumed cohabitation with him she might be butcasted, and under

MAY 7. the circumstances of the case be held thab in decreeing a claim for

restitution of conjugal rights, a Court was entitled, if it saw good reason to

APPEL- do so, while recognizing the civil rights of a husband to his wife, to put

LATE such conditions upon the enforcement of his rights by legal process as

CIVIL, kbe circumstances of the case might fairly demand, and that, applying

this principle to the present case, the defendant might reasonably ask the

13 A. 126= Court before compelling her to return to her husband to make it a condi-

11 A.W.N. tion that he should first obtain his restoration to caste.

(1891) 18. These cases I think are sufficient authorities for holding that a Court

in dealing with cases of conjugal rights will not upon right grounds decline

to award relief ; that it will ordinarily abide by the precepts of the Hindu

Law itself in determining such questions, and will decree the claim unless

a sufficient reason to justify the wife under the Hindu Law in forsaking

her husband is shown ; that in exceptional cases it will exercise a sound

judicial discretion by imposing conditions upon a decree to secure the

welfare of the wife. The mere taking of a wife's jewel or the marrying of a

second wife has been held to be no bar to a husband's claim for restitution

of [164] conjugal rights (1) and I do not think thatpasZ cruelty any more

than past adultery of the husband would constitute a sufficient defence

under the Hindu Law to such a suit, and I hold that in cases between

Hindus, whilst past cruelty would furnish good reason for apprehending

cruelty in the future, a Court would not be justified in dismissing a suit

for conjugal rights where the circumstances would warrant the conclusion

that no cruelty in the legal sense is to be apprehended, and the welfare

and the safety of the wife can be secured even if the suit is decreed.

For these reasons and since the lower appellate Court has not tried
the case upon the merits, I would decree this appeal, and, setting aside
the decree of that Court, remand the case under s. 562, Civil Procedure
Code, for trial upon the merits and passing such a decree as the circum-
stances of the case may require after adjudication, with reference to the
observations which I have made. Costs will abide the result.

STRAIGHT, J. I think it right only to add this much that the ela-
borate and exhaustive examination of the points arising in the case by my
brother Mahmood and the conclusions which he has arrived are the same
that I had formed at the close of the hearing of the argument of the ap-
peal, and that the only reason that the judgment was reserved for consi-
deration was that my brother Mabmood had some little doubt upon the
matter. The doubt has now been dispelled, and I am glad to think that
we have what appears to me to be a most complete and unanswerable
argument presented to establish the propriety of those conclusions to which
I have referred. I concur in the order that has been made.

Cause remanded.



(1) 17 W.B. 522 ; 1 M.H.C.B. 375 ; 24 W.B. 377.
102



VII] BAM CHARAN V. DEBI DIN 13 All. 166

13 A. 165 (P.C.)=5 Bar. P.G.J. 616.

[165]. PRIVY COUNCIL. JULYS.

PRESENT : PRIVY

Lord Watson, Sir B. Peacock, and Sir R. Couch. COUNCIL.
[On appeal from the High Court for the North-Western Provinces.]

13 A. 185

(P.C.).-

RAM CHARAN (Appellant) v. DEBI DIN AND OTHERS (Respondents.} 3 sar. P.C.J,

[8th July, 1890.] 616.

Hindu Law Evidence of partition of joint family Presumption.

In a suit to enforce an alleged tight of one brother against another, to separate
proprietary possession of share in joint family estate, the concurrent findings
of the Courts below were definitely to the effect that a partition had taken place,
after which the brothers had been no longer joint as to their interests.

The Courts had fully gone into the case on either side, receiving the evidence
offered by either party, and they had considered the whole of it. Therefore, it
could not be effectively urged, as a ground of appeal, that the Courts below in
coming to the above conclusion, had erred in putting the burden of proof unduly
upon the plaintiff, or disregarded the presumption arising from the original
state of the family.

APPEAL from a decree (3rd July 1885) of the High Court, affirming
a decree (14th July 1881) of the Subordinate Judge of Cawnpur.

The plaintiff claimed a one-half share of joint family property, suing
his only and elder brother, the first and principal defendant, with whom
two sons, a grandson, and a deceased son's widow, were joined as co-defend-
ants interested in the subject-matter. The plaint (29th July 1880) al-
leged that both brothers had jointly succeeded to the estate of their father,
Jian, who died about the year 1828, consisting of an eight-anna share in
mauza Bibrapur, and a smaller share in mauza Bakothi besides household
and other property ; that the brothers continued joint, trading with ances-
tral fund ; and that about thirty-eight years before this'suit their father's
brother Nayan, who had survived, was separated off. It was stated in the
plaint thai the joint property comprised shares in ancestral villages in the
Cawnpur and Farrukbabad district, which stood in the Collectorate books
in the names of the two brothers, Umrao Singh, the plaintiff, and Debi
Din, the first defendant, as joint proprietors ; other shares in other vil-
lages were entered in their names separately and shares in villages had been
purchased out of the joint family funds in the names, respectively, of Beni
[166] Madho, son of Debi Din, and of Ramcharan, son of Umrao Singh ;
also other shares had been entered in the name of Musammat Pern Kuar,
widow of Beni Madho, and in the name of Bhima, son of Debi Din,
subsequently to Beni Madho's death. Shares in villages purchased out
of the joint family funds, had been recorded in the names of Pern Kuar
and Ganga Sahai, after a purchase at a sale uoon a decree obtained by
Beni Madho in his lifetime. Also were claimed shares in gardens, groves,
indigo factories, debts, and decreed debts, jewels, and furniture ; the whole
being valued at Ra. 1,68,811.

The plaintiff's case was that the brothers remained joint in estate,
and that the parties were in possession of all the villages, and of the profits
of the joint trading concerns, including an indigo factory, which profits were
applied to the family expenditure, until the death of Beni Madho, the eldest
son of Debi Din, on the 19th June 1876, when his father caused the name
of Pern Kuar, the widow, and the name of Ganga Sahai, minor son of Bhima,
another of Debi Din's sons, to be entered as proprietors of some villages,

103



13 All. 167



INDIAN DECISIONS, NEW SERIES



[Vol.



1890 remaining himself in possession : that upon this, followed disputes and
JULY 8, separate living, dating from the 16th October 1877, when the cause of



been acquired while
decree for one-half



13 A. 163

(P.C.)-

5 Bar. P.O.J

616.



action accrued ; and that as all the property had
PRIVY the family was joint, the plaintiff was entitled to a
COUNCIL. of fche entirety.

The defence of the defendant, Debi Din, mainly was that about ten
years after the death of their father, which had occurred as the plaintiff
stated, the brothers separated each taking his half share ; and that no part
of the property in suit had been acquired by means of the ancestral stock
or its profits, but by bis, Dabi Din's, own personal axertions, each brother
carrying on business separately.

The Subordinate Judge found that Jian having died at the date alleged,
left the property stated, and ]that plaintiff was in undisputed possession
of a moiety thereof ; but that after Nayan's separation, admitted by
both parties to have occurred about thirty-eight years before this suit, the
family no longer remained joint ; " and although there was no division of
the ancestral property by metes and bounds, the members separately
appropriated and enjoyed the pro-[167]fits ; they carried on business
separately, and all their concerns were separate ; each party having ex-
clusive possession of the property personally acquired by him ; and the
interest of any party in any transaction in which he was?admitted as a
partner, was limited to the amount of money contributed by him."

The Subordinate Judge also found that the plaintiff was at one time
employed as a jamadar in the opium factory at Bibiapur, and subsequently
traded in grain ; and that be made smaller profits than did his elder brother,
who traded in ootton and indigo seed, and who carried on business at
Cawnpur with the late Mr. Hugh Maxwell, an indigo-planter, through
whom he made a large fortune.

The lower Court observed : "Moreover, it is neither alleged nor proved
that the plaintiff shared in the profits of the estates held in mortgage or
purchased in the name of the first defendant or his children within twelve
years before his cause of action, while it is shown that he received profits
of mauza Gauri and Musahibpur held by him exclusively and of a
4-anna share in Asalatganj and Bachitbhartu in which, besides Beni
Madho, other parties unconnected with the family were shareholders. As
the plaintiffs used to receive no profits from those estates in which
the names of the second and fourth defendants were substituted in the
place of Beni Madho's it did not affect his position, and if the plaintiff's
possession was not affected by these paper proceedings he could have no
cause of action."

" Moreover, from the very fact of the plaintiff having in a former suit
sued for possession of the property acquired in the name of first defendant
and his children, it is shown that he did not hold joint possession of those
properties on the date of his cause of action (16th October, 1877), for bad
he been in possession, he would have sued merely for establishment of
his right and maintenance of his possession as an equal sharer, and as he
hag not in the present or former petition of plaint mentioned the date,
on, and circumstances under which he lost such possession, or was ex-
cluded from joint family property, hia plant does not disclose sufficient
cause of, action. The lower Court also found that the suit was barred by
[168] limitation, observing : " The plaintiff has not proved that the pro-
perty acquired in the name of the first defendant and his children was
joint family property ip the profits of which he participated within Involve

104



YII] RAM CHAR AN V. DEBI DIN 13 All. 189

years before his cause of action. The suit is therefore barred by lapse of 1890
time." The suife was dismissed. JULY 8.

On the plaintiff's appeal, the High Courtraffcer a remand for further -
evidence on the point whether Debi Din had been either personally, or by PRIVY
authority given by him to sign khewats, a party thereto, maintained the COUNCIL,
judgment of the Court of first instance. The Judges (BRODHURST and
TYRRELL, JJ.) pointed out that there was no evidence of jointness
afforded by the revenue records, or that the plaintiff had ever interfered 'P- -) 31
in villages bought in the names of the defendants, or conversely ; and that, 8 Sftr 6 ' 1 F' CtJ>
had ib bean otherwise, it would have been easy for the plaintiff to produce
accounts, or other similar evidence, to show payments made by him to the
defendants, or by them to him, for these estates. Nayan and the separated
members of the family occupied the same building after their undeniable
separation for some years, and that partition was not more formal, or
more certain in its character than this partition alleged by the^defendants ;
and yet it was a fact.

The Judges then concluded in the terms quoted in their Lordships'
judgment concurring in the finding of the Court below.

They added the following to the finding of the fact of previous
partition, on which their Lordships' judgment proceeded:

We think that the Subordinate Judge has rightly found that the
parties to the suit have realized and appropriated the rents, and have
continuously been in adverse proprietary possession of the properties
purchased in their respective names, and that the plaintiff has not, within
twelve years of the institution of his suit, been in possession of the
properties which be sues to obtain.

Umrao Singh having preferred the present appeal, was now represented
by Bamoharan, his son.

Mr. G. W. Arathoon, for the appellant, argued that the burden of proof
had been wrongly laid in this case upon the plaintiff, it having [169] been
incumbent on the defendants to establish the separation alleged by them,
so as to rebut the presumption of Hindu Law that the family had continued
to be joint. Toe defendants had not proved their case. He referred to the
application of presumption in particular cases, citing Bholanath Mahta v.
Ajudhia Prasad Sookul, (1), and Gobind Chunder Hookerjee v. Doorga
Prasad Baboo (2).

The respondents did not appear. Their Lordships' judgment was
deliveredsby Sir E. Couch.

JUDGMENT.

SIR B. COUCH. THE plaintiff to this suit, the late Umrao Singh,
who is now represented by the appellant, and the defendant, Dabi Din,
are the sons of one Jian, who had a brother named Nayan. The plaintiff
asked in his plaint for a partition of the property, which he alleged was
joint family property, part of it having come to the brothers from
their father Jian, and another part of it having been acquired after
the death of the father, and in such a manner as to be joint family
property. The defence was that there had been a partition subsequently
to the death of Jian. There had been a previous partition between
Jian and his brother of the property which came to them from their
father, but that is not material. The real question was, whether there had
been a partition between the plaintiff and the defendant, Debi Din.

(1) 12 B.L.R. 336. (3) 14 B.L.R. 337.

105
A VII 14



13 All. 170



INDIAN DECISIONS, NEW SERIES



[Yol.



1890

JULY 8.

PRIVY
COUNCIL.

13 A. 165.

(P.C.)-

5 Bar. P.C.J

616.



issue was: " Did plaintiff and first defendant separate after the demise
of their father, or did they continue to live in joint partnership until 16th
October, 1877, and hold joint possession of all ancestral property or was 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 17 of 155)