Marten, C.J:—

This is a husband's suit for restitution of conjugal rights. The parties are Hindus. The wife pleades that she has been abandoned and deserted by her husband, that he has remarried a second wife—a girl of seven or eight—that he has refused to maintain the defendant or to take her back, and that when she threatened him with a summons for maintenance he retorted by bringing this suit, which is not bona fide, and accordingly the Court should not grant any relief.

At the trial the defendant tendered evidence in support of her defence, but both the Courts below rejected it on the ground that it affords no defence in law. Accordingly, for the purposes of this appeal we must take it as if all the statements in the written statement were admitted and that yet—according to the plaintiff—they would afford no defence in law to a suit of this nature.

We have had an interesting discussion as to the origin of a suit of this description. Admittedly, its origin is not Hindu. It is borrowed from the old Ecclesiastical Courts in England, but the law which the Ecclesiastical Courts enforced in this respect has been described as barbarous by a former Lord Chancellor Lord Herschell in Russell v. Russell. In those old days the Ecclesiastical Courts acknowledged no defence to a suit for restitution, which would not have amounted to a valid defence to a suit for divorce a mensa et thoro. Thus Lord Halsbury at page 419 says:—

“Now, in dealing with a question like the present, involving the relations of married people towards each other, the Spiritual Courts always proceeded to act as having full jurisdiction over domestic life. They investigated the whole conduct of the spouses, and they undoubtedly recognized no middle course between the order for renewed cohabitation between them and an order for the separation from bed and board.”

But there have since been certain changes effected in the law in England, and in particular one effected by an Act of 1884. The result, according to the decision of Mr. Justice Gorell Barnes in Oldroyd v. Oldroyd, is that the effect of the decision in Russell v. Russell appears to be that in cases where the conduct of the petitioner had led to desertion by the respondent, and has amounted to sufficient cause to disentitle the petitioner to maintain a suit for judicial separation on the ground of desertion, the Court is now empowered to refuse to pronounce a decree compelling the respondent to return to cohabitation with the petitioner.

Here we are not dealing with English law. Manifestly the jurisdiction of the old Ecclesiastical Courts cannot be applied to other races in India, as was pointed out in Ardaseer Cursetjee v. Perozeboye. In that case it was held that the jurisdiction of the Supreme Court of Bombay, on its Ecclesiastical Side, did not enable a suit for restitution of conjugal rights to be maintained as between Parsees. But it was pointed out that there ought to be, and probably must be, a remedy of a different character and under a different jurisdiction available to Parsees and others not amenable to the Ecclesiastical jurisdiction of the Court. This was afterwards held to be so in the important case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum and Jodonath Bose v. Shumsoonnissa Begum which my brother Madgavkar has brought to my attention. Their Lordships there set out at pages 606 and 607 the arguments advanced at the Bar, one of which was that a suit of this nature was in the nature of a suit for specific performance. It was then pointed out that the very fact that the parties were not subject to the rather rigid principles of the Ecclesiastical jurisdiction might really be to their benefit by allowing rather wider defences to be put forward. At page. 612 it is said:—

“If, however, it be granted that, according to Mahomedan law, the Husband may sue to enforce his right to the custody of his Wife's person; and that, if her defence be cruelty, she must prove cruelty of the kind just described, it by no means follows, that she has not other defences to the suit which would not be admitted by our Ecclesiastical Courts in a suit for the restitution of conjugal rights. The marriage tie amongst Mahomedans is not so indissoluble as it is amongst Christians. The Mahomedan Wife, as has been shown above, has rights which the Christian—or at least the English—Wife has not against her. Husband. An Indian Court might well admit defences founded on the violation of those rights, and either refuse its assistance to the Husband altogether, or grant it only upon terms of his securing the Wife in the enjoyment of her personal safety, and her other legal rights; or it might, on a sufficient case, exercise that jurisdiction which is attributed to the Kazee by the Futwa (if the law, indeed, warrants such a jurisdiction), of selecting a proper place of residence for the Wife, other than her Husband's house.”

Then, at page 614 after refusing to accept the wider propositions laid down in the lower Court, and pointing out that the general Mahomedan law had to be applied the judgment proceeds at page 615:—

“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 the 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 the 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 Husband. But all these are questions to be carefully considered, and considered with some reference to Mahomedau law.

Before, however, any of these principles can be applied, the facts to which they are to be applied must be established by legal proof; and this, their Lordships are of opinion, has not been done in the present case. Besides the evidence on the futile and now abandoned issue about Freemasonry, there is little evidence in the cause.”

Accordingly, on this point the case was remitted to the High Court with directions to have the same retried on fresh evidence, and with power to amend the issues, or to frame new issues, if they should see fit to do so.

In Dular Koer v. Dwarka Nath Misser Mr. Justice Mookerjee reviewed the authorities and at page 984 he says:—

“…I am inclined to hold that there may be cases in which something short of legal cruelty may bar a suit for restitution, and if there is any case in which the Court in the exercise of its discretion may justly refuse a decree for restitution of conjugal rights, I feel no hesitation in holding that the present case is eminently one of that description.”

Accordingly he came to the conclusion in that case that the discretion should be exercised against the plaintiff.

Then, there are cases in our own Courts. In Yamunabai and Narayan Jaganath Bhide v. Narayan Moreshvar Pendse, a decision of Melvill and West JJ., a suit for restitution of conjugal rights was held to lie amongst Hindus. And in another case, Dadaji Bhikaji v. Rukmabai, Sir Charles Sargent held that jurisdiction is now clearly established. Later again comes the decision of Mr. Justice Chandavarkar and Mr. Justice Knight in Sitabai v. Ramchandrarao, where, on a claim by a Hindu wife for maintenance, Chandavarkar, J. points out that, according to Yajnyavalkya, mere abandonment of a wife, who is chaste, by her husband, is sufficient to entitle the former to separate maintenance. He quotes Yajnyavalkya by saying (p. 377):

“(He who) abandons an obedient, intelligent, son-producing, sweet speaking (wife) must be compelled to give (to her) one-third of his wealth for maintenance.”

He then proceeds:—

“On this Vijnaneshwara's gloss in the Mitakshara is that the king must compel the husband to give one-third of his wealth to the wife and that if the husband has no wealth, the king must compel him to support her—that is, ‘to maintain her by giving her food, clothing, &c.’ (The Mitakshara: Moghe's 3rd edition, page 19.) Cruelty is not, according to Hindu law, necessary if there has been abandonment of the wife.”

I quite recognize that this is not a case of restitution of conjugal rights. Nevertheless, it shows that abandonment of a wife may entitle her to separate maintenance from her husband.

Then there is another case of Babu Ram v. Musammat Kokla, where the facts were somewhat similar to those here. There the plaintiff, who was a Brahmin, had many years ago turned his wife out of doors because he suspected her chastity. The wife went to live with her uncle, who supported her. Later on, she applied for and obtained an order for maintenance under section 488 of the Code of Criminal Procedure against her husband. During these proceedings the husband still refused to take his wife back, stating at the time that he suspected her chastity. When, however, the wife began to execute her decree for maintenance, the husband proceeded to file a suit for restitution of conjugal rights. It was held that in the above circumstances the inference was legitimate that the defendant would have a reasonable apprehension of bodily injury if she returned to her husband, and that the Court below was right in refusing the plaintiff a decree.

In the present case there is no suggestion against the chastity of the wife. The leading facts, so far proved, are clear. The parties were married in 1912, when they were children. In 1923, the plaintiff, according to the defendant's story, abandoned his wife, and shortly afterwards married a little girl. In 1924 the wife called on her husband for maintenance. Thereafter criminal proceedings were started, and then according to the wife's story, this present suit was instituted. But meanwhile the wife's complaint under section 488 of the Criminal Procedure Code was heard and decided in her favour, and the husband was ordered to pay Rs. 15 a month.

Now, in the view I take, the learned Judges in the Courts below have taken an unfortunate course in shutting out all evidence on behalf of the defendant. I think they have lost sight of the nature of the suit, which, after all, is one rather akin to an action in personam on the Original Side, or in the Equity Courts in England. I have already pointed out that in the arguments in Moonshee Buzloor Rulieem v. Shumsoonnissa Begum, it was described as akin to a specific performance action. In two other cases Lord Herschell has been disposed to apply to such a suit some of the principles with which we are all familiar sitting in a Court of Equity. I refer to the principle that he who seeks equity, must do equity or must come into equity with clean hands. Accordingly, in Mackenize v. Mackenize, Lord Herschell remarks (p. 390):—

“It is not a motion strange to our law that the Court should refuse its aid to one who does not come into it with clean hands, and when the question arises for decision I think it may well be considered whether the Court would be bound to entertain an action, and grant relief at the suit of one whose misconduct, though falling short of a matrimonial offence, has been the primary cause of the difficulty, and has led to the refusal to adhere.”

And then in Russell v. Russell Lord Herschell States (p. 456):—

“Indeed, if the broadest definition of cruelty which has been contended for in this case were accepted, it would still be to my mind unsatisfactory that a husband who, though stopping short of cruelty in that sense, had by insult and outrage driven his wife to leave him, should, without repentance for the past or any assurance of amendment for the future, be able to invoke the assistance of the Court and call for the strong arm of the law to force his wife under pain of imprisonment to resume cohabitation. One would think that the Court might well refuse to afford its assistance to one who acted thus.”

In the present case, on the bare facts that we have so far got before us, it amounts to this, that a husband may turn his wife out of the house and leave her without maintenance for upwards of a year, and then when he is required to pay her what she is rightfully entitled to under Hindu law, he can yet bring a suit of this nature asking the Court to force the wife to go back to him. If, however, the case for the defendant is correct, the plaintiff is entirely at fault, and he has only himself to blame for any trouble caused by his wife leaving him. Moreover, I think, I am correct in saying that in an English case after conduct of this sort some private letter would be expected from the husband to the wife, and that the first request to resume marital cohabitation should not take the form of a summons in a law suit. Further, the very facts here show that this suit may be a device to avoid the plaintiff's just obligations for maintenance. And there may be other grounds—were all the facts ascertained—for the Court refusing to grant this particular discretionary aid. One such ground is alluded to in the Allahabad case (Babu Ram v. Musammat Koklam), viz., that there may be a reasonable apprehension of bodily injury if the wife returned. Moreover, the Court should consider what precautions or undertakings ought to be imposed before passing this extremely drastic order.

Under these circumstances, speaking for myself, I decline on the present materials to decide the bare point of law in favour of the plaintiff as the learned Judges in the Courts below have done. I think this is one of those cases where the lady should be allowed to have her say and to produce lieu witnesses. Then the Court can see whether this is a proper case in which the relief asked for should be granted. I, in no way, prejudge whether, when all the facts are before the Court, the relief should be granted or refused. But I feel, as was felt in some of the cases that were cited, that the facts here have not yet been properly elucidated. Under these circumstances, I would allow this appeal, and set aside the judgments in both the Courts below and remand this suit to the Court of first instance to determine according to law. There will accordingly be an order in very much the same form as that in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum and Jodonath Bose v. Shumsoonnissa Begum, with power to amend the issues, and to frame new issues.

Madgavkar, J.:—This is a suit by a Hindu husband for restitution of conjugal rights. The parties are Rajputs from the Surat District, both about twenty years old and married at the age of twelve by their parents. In 1923 the wife and the husband separated. Shortly afterwards her father gave him notice and she claimed an order for maintenance from a Magistrate. Thereupon the husband filed this suit for restitution of conjugal rights. The written statement controverted the allegation in the plaint that the wife had left the house of her own will and alleged that she had been driven out by the plaintiff and his father, and asserted that shortly afterwards the plaintiff had taken a second wife of tender years. The wife defendant resisted the suit. She had pendente lite obtained an order for maintenance from a Magistrate, implying that it was the husband who had turned her out, and not she who left him against his will.

Both the lower Courts held that the written statement disclosed no sufficient defence in law against the plaintiff's suit and, without allowing the defendant to raise issues or lead evidence, decreed the claim. The wife appeals.

The trial Court held that desertion by itself was not a sufficient defence in the absence of cruelty and relied on the case of Sidlingapa v. Sidava kom Sidlingapa. That was a suit for maintenance by the wife in which the Court held that although by Hindu law a husband is bound to maintain his wife, she is not entitled to a separate maintenance from him, unless she proves that, by reason of his misconduct or by his refusal to maintain her in his own place of residence, or other justifying cause, she is compelled to live apart from him. That case, therefore, relating as it does, to the wife's right to separate maintenance and not to the husband's right of restitution to conjugal rights, is hardly authority on the present question.

The appellate Court was very much of the same opinion on the strength of the case of Motilal v. Bai Chanchal, which merely held that it was not competent to a Court, in passing a decree for restitution of conjugal rights, to impose certain conditions under which alone the restitution could be had. Therefore, this case also is not directly in point on the legal conclusion at which the lower Courts arrived.

In view of the order we propose to pass, I do not desire to enter exhaustively into the present state of the law as regards the husband's rights and the wife's defences in a suit for restitution by the husband. I content myself with holding that, on the pleadings as at present framed, the lower Courts have, in my opinion, taken too broad a view of the rights of the husband. It is argued for the appellant wife that desertion in certain circumstances might suffice as a defence. The respondent contends that the Hindu Shastras are clear as to the right of the husband to re-call a wife even after desertion and that the Courts are bound to give effect to these rights. As at present advised, I am of opinion, that the Courts have declined to lend themselves to either extreme position.

One reason is that the Hindu law itself, even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanctions or procedure, as compulsion by the Courts to force her to return against her will. This remedy and this procedure, as has been pointed out by the learned Chief Justice, begin in England from the Ecclesiastical Courts and have been modified by legislation. They have been adopted by the British Indian Courts by various analogies such as to consider them as a species of suit for specific performance. However that may be, it is undoubted, since the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum and Jodonath Bose v. Shumsoonnissa Begum, that the Indian Courts have jurisdiction in such suits and under the Civil Procedure Code, Order XXI, Rules 32 and 33, that, until lately, the wife could even be imprisoned on her failure to obey the decree. Nevertheless, the difficulty pointed out at the outset has always been present to the minds of the Courts, viz., that such compulsion is repugnant to modern ideas, it is based on one-sided texts thousands of years old, hardly suited even in India to existing social conditions, and it has to be enforced by sanctions and procedure borrowed from the West and from some what archaic canons of Ecclesiastical law. Hence the provision in Order XXI, Rule 33, as it originally stood, that even while passing a decree for restitution of conjugal rights, the Court could expressly direct that it should not be executable by imprisonment. Under the latest amendment the penalty is abolished.

The earliest case dealing with the point in this Court is Yamunabai and Narayan Jaganath Bhide v. Narayan Moreshuar Pendse, where it is laid down that a wife could not refuse to live with her husband merely because of his mental weakness, and an opinion—but an opinion only—was expressed that before the wife could resist such a suit, cruelty, more or less, approximating to cruelty as defined by the English Courts would be necessary to be proved by her. The same repugnance and the same difficulty are noticeable in the case of Dadaji Bhikaji v. Rukmabai, not merely in the judgment of Pinhey, J., who refused restitution to the husband, but also in the appellate judgment of Sargent, C.J, who in appeal allowed it. The decision in In Re Gulabdas Bhaidas has no direct bearing, being concerned with the wife's right to maintenance. In Purshotamdas v. Bai Mani it was held that the wife could not resist such a suit on the ground of her physical incapacity, but that she would have to prove other grounds sufficient in law to justify the Court in refusing the husband's claim. The last case of this Court, Sitabai v. Ramchandrarao, was a suit for maintenance by the wife. It was held that according to Hindu law, to entitle a wife to separate maintenance, it was not necessary for her to prove cruelty if there had been abandonment.

In regard to the other Courts, it suffices to refer to the case of Binda v. Kaunsilia, where the husband succeeded in his suit and the cases of Surjyamoni Dasi v. Kali Kanta Das and Dular Koer v. Dwarka Nath Misser. In this last case the husband, who was a Brahmin, having expelled his wife and his son and daughter-in-law, sued after twenty-six years for restitution, although in the interval the son had filed a suit for partition against him, as he was keeping a low caste mistress in the house. The lower Court held this conduct was not sufficient cruelty to entitle the wife to resist the suit. That view was reversed in appeal by Harington, J.; who at page 973 observed:—

“But while I recognize that the habits of Hindus and Europeans with regard to marriage state so differ that it would not be safe to say that whatever was a defence to an action of this nature in the case of a European would also be in every case a defence in the case of a Hindu, yet I am not prepared to assent to the proposition that this Court is bound to send a Brahmin lady to reside in a house in which her husband keeps a low caste prostitute.”

Mookerjee, J., after reviewing the English law on the point, came to the conclusion, following the tendency of judicial decisions in England, that while each element separately such as desertion, or a second marriage, or a mistress, might not suffice, their cumulative effect might be such as to disentitle the husband to any relief. This conclusion agreed with that in the recent case of Babu Ram v. Musammat Kokla.

The Courts, therefore, recognize the difficulty and on the one hand do not lay down that differences and a desertion which the party responsible might desire to retract should be held to be a sufficient ground so as to leave no locus pcenitentice. But, on the other hand, they have not assented to the proposition that actual physical cruelty is necessary to enable the wife to resist such a suit. In the absence of legislation it appears, therefore, on the whole that the Courts desire to consider the entire conduct of the parties so as to be able to judge whether the plaintiff deserves at the hands of the Court the relief which he seeks, and whether such a relief is not unreasonable in the particular case against the defendant. Neither judgment below has any reference to these considerations.

Under these circumstances, I entirely agree that if the parties and their parents are unable to come to an agreement with or without the intervention of the Court and if the wife is still unwilling to return to her husband, the law before it orders her to do so against her will, should at least give her a full and patient hearing so that the conscience of the Court might be clear before it forces a young woman to return to her husband and that the Courts should be certain that there are no reasonable apprehensions of cruelty before such a decree is made. More than this I do not think it necessary to say at the present stage.

Appeal allowed and case remanded.

J.G.R