Binda v. Kaunsilia

Mahmood, J.:— The preliminary facts of this case and the points of law to which they give rise were set forth by me in my order of the 17th July 1888, whereby the case was referred to a Bench of two Judges consisting of my brother Straight and myself and upon the case coming on for hearing before us, we, by our order of the 31st July, 1889, remanded the case under s. 566 of the Code of Civil Procedure to the lower appellate Court for a clear finding on the issue, whether on the 24th October, 1836, or about that time (as asserted in paragraph 4 of the plaint) there was a demand made by the plaintiff to his wife, the defendant, Musammat Kaunsilia, to return to him and a refusal by her to do so.

Under this issue the learned Judge of the lower appellate Court has found that the elopement of the plaintiff's wife and his demand for her return and her refusal took place more than five years before suit, that Musammat Kaunsilia, the defendant, had ever since been cohabiting with Bechu, defendant and by him has given birth to two children, one of whom is still alive and that neither demand by the husband nor refusal by the wife of conjugal rights was proved be have been made within two years before the suit.

To these findings no objections have been taken by either party under s. 567 of the Civil Procedure Code, but the learned pleader for the respondent argues that these findings are fatal to the suit. He contends:—

First, that a remedy by suit for restitution of conjugal rights by enforcing return and cohabitation is not contemplated by the Hindu Law and therefore a suit of this character is not enterbainable by the Civil Court.

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

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

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

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

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

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

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

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

“In childhood must a female be dependent on her father; in youth on her husband; her lord being dead, on her sons;…a [130] woman must never seek independence. Never let her wish to separate herself from her father, her husband, or her sons; for, by a separation from them she exposes both families to contempt. She must always live with a cheerful temper, with good management in the affairs of the house, with great care of the household furniture and with a frugal hand in all her expenses. Him to whom her father has given her, or her brother, with the paternal assent, let her obsequiously honour, while he lives; and when he dies, let her never neglect him. The recitation of holy texts and the sacrifice ordained by the Lord of creatures are used in marriages for the sake of procuring good fortune to brides; but the first gift or troth plighted by the husband is the primary cause and origin of marital dominion. When the husband has performed the nuptial rites with texts from the Veda he gives bliss continually to his wife here below, both in season and out of season; and he will give her happiness in the next world. Though inobservant of approved usages, or enamoured of another woman, or devoid of good qualities, yet a husband must constantly be revered as a God by a virtuous wife.” (Manu, Ch. V. vv. 148-54). “Day and night must women be held by their protectors in a state of dependence; but in lawful and innocent recreations, though rather addicted to them, they may be left at their own disposal. Their fathers protect them in childhood; their husbands protect them in youth: their sons protect them in age; a woman is never fit for independence” (Manu, Ch. IX, vv. 2 and 3). “Woman must, above all, be restrained from the smallest illicit gratification; for, not being thus restrained, they bring sorrow on both families. Let husbands consider this as supreme law ordained for all classes; and let them, how weak soever diligently keep their wives under lawful restrictions. (Manu, Ch. IX, vv. 5 and 6). Let the husband keep his wife employed in the collection and expenditure of wealth, in purification and female duty, in the preparation of daily food and the superintendence of household utensils.” (Manu, Ch. IX, v. 11). The production of children, the nurture of them when produced and the daily superintendence of domestic affairs are peculiar to the wife. From the wife alone proceed offspring, good household management, solicitous attention, most [131] exquisite caresses and that heavenly beatitude which she obtains for the manes of ancestors and for the husband himself. She who deserts not her lord but keeps in subjection to him her heart, her speech and her body, shall attain her mansion in heaven, and, by the virtuous in this world he called Sadhevi or good and faithful. But a wife by disloyalty to her husband shall incur disgrace in this life and he born in the next from the womb of a Shakal, or be tormented with horrible diseases which punish vice.” (Manu, Ch. IX, vv. 27-30).

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

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

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

“The wife is the home: a man should not consider his home a habitation ungraced by a wife; therefore is she another home.” The text which Colebrooke has fully quoted (Vol. II, pp. 141-143) Roes on to give minute details of the domestic duties of the wife; but as illustrative of them I may quote the more succinct text of Sancha and Lichita, [ib., p. 139):—

“For every succeeding day let the wife clean the vessels used at meals; let her sweep the dwelling-house and gate and when clean, preserve it so; let her provide curds, rice, durva grass, new leaves and blossoms for oblations; let her reverently salute her husband's parents and afterwards perform the necessary business of the household; let her eat nothing before the Gods and guests are satisfied, [132] nor before her husband has eaten except drugs swallowed medicinally.”

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

“Under the Hindu Law, as indeed under most other systems, the liberty of the wife is liable to be considerably restrained by the husband. The duty of attendance on her husband, which is so strongly inculcated, obliges her to follow him wherever he chooses to reside; and it is a general principle of law that the domicile of the wife follows that of her husband. She is also bound to refrain from going to any place where her husband forbids her to go.”

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

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

I am of opinion that this argument is unsound, both upon general principles of jurisprudence and also as matter of Hindu Law. The maxim ubi jus ibi remedium is a maxim of universal application, because the law does not recognize a right which cannot be enforced. It would be needless to enter into any discussion that the rules of law and equity which justify a Court in declining to grant specific relief, or authorize them to impose limitations upon a right when decreed, form no contradiction of the general maxim which I have cited. I hold therefore that the right of conjugal cohabitation when infringed may, upon general principles, be enforced by a suit for restitution of conjugal rights. In Moonshee Buzloor Ruheem v. Shumsonnissa(1), the Lords of the Privy Council said. “If the law which regulates the relation of the parties gives to one of them a right and that right be denied, the denial is a wrong; and, unless the contrary be shown by authority, or by strong arguments, it must be presumed that for that wrong there must be a remedy in a Court of Justice.”

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

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

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

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

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

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

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

These and other penalties are no doubt prescribed by the law for the husband who illegally deserts his wife, but it does not follow (and indeed such a supposition is expressly contradicted by the text of Narada which I have already quoted) that the judicial authority of the sovereign is limited to chastisement and does not extend to enforcing the performance of conjugal obligations. The words of Narada's text are:—shall be brought to his duty by the King with a severe chastisement”—so that the text fairly lead shows that punishment is ancillary to the remedy of restitution of conjugal rights. So these texts have been interpreted by the eminent Hindu [137] lawyer, Shyama Charan Sairkar, in his Vyavastha Chandrika (vol. II, p. 487, s. 721.) where he sums up the rule is the following terms:—

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

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

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

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

The reasonable interpretation to he placed upon this text is that the 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 imprisonment of a judgment-debtor who disobeys a decree for restitution of conjugal rights provided by s. 260 of our. Code of Civil Procedure. But the authority of the King over a wife wrongfully deserting her husband does not rest [138] upon this inference or analogy alone. There is an express text of 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 recognized 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 such causes are regarded as quasi-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 he 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 hare the much lesser power of imprisoning her if she, having illegally deserted her husband, refuses to obey a decree for restitution [139] of conjugal rights under s. 260 of the Code of Civil Procedure.

I think I have said enough to show that according to 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 Dadaji Dhikaji v. Rakhmabai 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 case. 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 that 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 Law books which provides for the King ordering a husband or wife to return, no text was cited forbidding or deprecating compulsion and that it was admitted that the duties appertaining 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 conjugal 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 conjugal 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 be 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 her husband's home and Cohabitation with him is sufficient to constitute 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. To use the language of Sargent, C.J, in Dadaji Bhikaji v. Rukhmabai “the gist of the action for restitution of conjugal 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 restitution 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 conjugal rights accordingly.” There is nothing said as to the necessity of an antecedent demand as a condition precedent 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 co-habitation by the petitioner and the lapse of reasonable opportunity of compliance 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 he had on the party respondent. The rule itself was not framed till 1869 and I am not aware that it has ever been introduced into India even in cases governed 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 respondent 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 necessity of a demand being a pure matter of procedure ad litis 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 of 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 leads. The argument, [142] relying as it does mainly upon the words of the third column of No. 35, must necessarily involve the result that for 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 must be made by the husband or the wife, when be or she is “of full age 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 such a suit where either of the parties is suffering from such disabilities.

Then arises the serious question: Did the Legislature by framing No. 35 of the Limitation Act intend or contemplate 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 understanding of it and as it usually states, or professes to state, the general object and intention of the Legislature in passing the enactment, it may legitimately be consulted for the purpose of solving any ambiguity or of fixing the meaning 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 scope.” (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 intention 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 cut 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 grammatical 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 than it intended something which it is presumed not 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 unmistakeable 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 and phrases, however wide and comprehensive in their literal sense, must be construed as strictly limited to the immediate objects of the Act and as not altering the general principles of the law.”

An illustration of the application of these rules is given by Mr. Maxwell (p. 104) on the authority of Vane v. Vane, where “it was held that the 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 recovery, on the ground of fraud, from a purchaser who did not know or have reason to believe that any such fraud had been committed, was to be 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 whoso knowledge or reason to believe is, in equity, equivalent to 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 object and scope of the enactment mentions limitations of suits, &c. and acquisition of ownership of casements 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 unmistakeable implication, the scope of the enactment cannot be 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 to 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 cannot 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 prohibition is sought to be evolved from words in the body of the Act referring 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 the 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 they can have any permissive or prohibitive efficacy. But what does s. 4 say? It simply lays down that suits, &c., filed after the period of limitation prescribed therefor by the second schedule of the Act shall be dismissed. It does not say that words and phrases employed in the third column of the schedule to describe the starting point of the period of limitation are intended to serve more than a descriptive purpose and that from them may be evolved rules conveying mandate or prohibition, abrogating, modifying or adding to the rules of the substantive laws falling beyond the scope and purview of the preamble. 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 if the statute laid down the following propositions:—

(1) No suit for the restitution of conjugal rights shall be maintained 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.

Yet such is the necessary logical result 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 abrogation 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 indication that the Legislature intended two years to be the period of limitation for such suits 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 rights of cohabitation, No. 85 of the Limitation Act has no application, nor No. 34, but that 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 be found in the reported cases.

In Nath Prasad v. Ram Paltan Ram, 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 sale 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 Lal v. Gajraj Singh and Ashik Ali v. Mathura Kanda and the rule was carried further in Durga v. Haidar Ali(4) and Udit Singh v. 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 dissipated also by other considerations which I now proceed to discuss, I have already pointed out that the enacting words which convey a mandate rendering these two articles operative as bars by limitation, are the terms of s. 4 of the Limitation Act, which imperatively require the dismissal of suits instituted after the lapse of the period of limitation prescribed in the second schedule. But this imperative mandate in express terms 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 the most important of those sections is s. 23 which runs as follows:—

“In the case of a continuing breach of contract and in the case of a 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 Act (XV of 1877) has taken the place of ss. 23 and 24 of the old Limitation Act (IX 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 prescribing 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 Bench of the Punjab Chief Court, consisting of Messrs Plowden, Smyth and Elsmie, had to consider the case of Gaizini v. Mussammat Mehran, 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 Muhammadan 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 other defendant by No. 41 of the same schedule.”

In answering the question Sir M. Plowden, who delivered the leading judgment in the case, after stating that “it is abundantly clear that according 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 be 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 continues 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 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 (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 it 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, consequently, s. 23 is not applicable. Virtually, therefore, the suit of a Muhammadan husband against his wife for recovery of his wife 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 circumstance 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 distinction 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. 3-5 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 observations which would apply to 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 it 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 it 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 it 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 1871, 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 Act (IX of 1871) was not applicable as it related to continuing breaches of contract, nor was s. 24 applicable, being limited as it was to one kind of continuing injury only, namely, a continuing nuisance and the suit would therefore be barred by two years' limitation from the date of demand and refusal. This distinction, as I have already stated, 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 reasoning as to the practical efficacy of a repeated demand in defeating limitation is applicable alike to suits against the wife and against a third 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 casein 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 to 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 judgment of the Bombay High Court for 1883, at pp. 121-26. 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 represented by Mr. Starling to be that the refusal of a wife to return to her husband and allow him the exercise of his conjugal rights, and the retention of the wife by a man in whoso house she is living constitute continuing wrongs, giving rise to 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 seam that so often as he chooses to demand possession of her or restitution of conjugal 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” (Starling'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 infringement 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, continuos.”

It is not necessary for ma 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 successive 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 be no limitation or any other plea in limine barring such suits so long [152] as they were brought within two years from some demand and refusal. I may, however, observe that much doubt and difficulty have arisen in consequence of not realizing clearly the distinction between a damand which by the substantive law forms an essential element of the cause of action, that is, the gist of the action and, as such, a condition precedent to the enforcement of the right by suit and demands which do not constitute the gist of the action and which therefore the law does not render indispensable.

Of the former class a very apt illustration is to be found in the rule of the Muhammadan Law of pre-emption, which renders the preliminary demands necessary as conditions precedent to the enforceability of the right and the omission of which would render the suit unmaintainable. Of the latter class of demands, namely, those which are optional, illustrations are furnished by the Limitation Act itself in Nos. 59 and 73, where, although the agreement rendered the money payable on demand, the date of the loan in the one case and the date of the bill or the note in the other, are the starting points of limitation, so that 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 was well discussed by Sir Louis Jackson in Tarini Prasad Ghose v. Ram Kishna Banerji 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 Subbammah v. Ragiah and C. Vencataramanier v. Manche Reddy 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 the 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 that 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 harbouring 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 Muhammadans 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 an omission to provide any special periods of limitation for conjugal disputes among the native population, would be consistent with the policy upon which clause (a) of s. 1 of the Act proceeds by saving from limitation suits under the Indian Divorce Act. The practical effect, however, as I have shown, is much the same, for Nos. 34 and 35 must be read as inapplicable to suits such as the present and therefore virtually superfluous. Any other view of those articles would in effect amount to holding that the lapse of two years after demand and refusal of conjugal rights would either amount to dissolution of marriage or divorce, or separation irremediable by law. In other words, such an interpretation would involve the conclusion that the Legislature by a side-wind effectually introduced divorce into the Hindu Law, of which the spirit; abhors the notion and the letter does not recognize it and that in the case of Muhammadaus 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 relation. 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, Musammat 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 Devoid translated by Colebrooke (Digest, Vol. II, page 164, text CLI) lays down:—

“A husband may be forsaken by his wife, if he he 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 the wife before she can take another husband and this period varies according to the caste or class to which the parties belong. The Vijastha 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 impotent, or degraded; in (any of) these five calamities it is lawful for a woman to have another husband,” and the learned author comments upon the texts by saying:—“Thus Parashara having declared it lawful for a woman to take another husband in case her former husband be in one of the said circumstances, a fortiori then it must be inferred that according to his doctrine a woman may desert her husband when so circumstanced.” Sir [155] William Macnaghten in his work on Hindu Law (Vol. I, p. 61) states the law 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 circumstances under which her desertion of her husband would not be considered as a punishable offence.” In this passage the learned author adds the husband's insanity to the list of justifiable grounds for his wife's forsaking him and the authority on which he relies is the test of Manu (Chap. IX, v. 79). “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 punish crimes, must neither be deserted nor stripped of her property.” 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 and the author then affirms that there is no authoritative text to support the view that insanity of the husband would justify a wife in forsaking him. This view is in keeping with the corresponding right of the husband in the text of Devala (Colebrooke'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 (at p. 490) that, “although a married pair can desert each other under the circumstances above 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; audit follows as a corollary that where the husband or the wife deserts the 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 ma just and reasonable 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 he 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. Pacts plead able 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 formerly held to constitute a ground for judicial separation and it was the rule that the remedy for desertion was restitution. 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 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 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 desertion, 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 impossible to either, at least until their common life and home has been resumed; the refusal by either, after request of the other, to resume conjugal relations 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, C.J, in Dadaji Bhikaji v. Rukhmabai, 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 must necessarily be applied where the law upon any particular point is totally silent. Under the English Law as under the Indian Divorce Act. “desertion without 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 adopting 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 a lengthened period, such desertion, in conjunction with the other circumstances of the case, may constitute one of the elements of considering whether the Court 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 point in the argument for the respondent. Under the English Law “if a wife does not prove that she was justified in withdrawing from co-habitation either by proving her husband's adultery or cruelty, the Court will pronounce her under the obligation to return. Nor has the Court any discretionary power to refuse a decree in a suit for restitution of conjugal rights, on the ground that the suit was instituted by the 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 rights is entitled to a decree, unless he is proved to have committed a matrimonial offence; which would be ground for a judicial separation.” (Browne, p. 89).

This rule which in English Law is based principally upon the authority of Scott v. Scott was applied by Sargent, C.J, to [159] the case of Hindus in Dadaji Bhikaji v. Rukhmabai where the learned Chief Justice said:— “It may be advisable that the law should not adopt stringent 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 Jogendronundini Dossee v. Hurry Doss Ghose said: “Now although we entertain no doubt that, as a matter of law, a suit for restitution 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 Buheem v. Shumsoonnissct. 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, precribes that even a wicked [160] husband and misbehaved “must constantly be revered as a god,” whilst another text (Ch. VIII, v. 299) allows that wives “may be corrected 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 (Ch. III, v. 55) lays down that “married women must be honoured and adorned by their fathers and brethren, by their husbands and by the brethren of their husbands, if they seek abundant prosperity,” and there are other texts (vv. 56-62) which go to show that kind treatment 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 inferences 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 forsaking cohabitation with him. The general principles of humanity upon which our Courts act in such matters have, however, led to a long course of decisions which recognize the rule that legal cruelty of the husband would be a sufficient cause for 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 Muhammadan cases and which must now be taken to enunciate 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 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.” [161] In Yamunabai v. Narayan Moreshwar Pendse, the Bombay High Court laid down that the Hindu Law on the question what constitutes legal cruelty sufficient to bar a claim for restitution of conjugal rights would not differ materially from the English Law; that to constitute legal cruelty there must be actual violence of such a character as to endanger personal health or safety, or there must be reasonable apprehension of it and that mere pain to mental feelings, such for instance as would result 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 of the plea of cruelty set up by the defendant Mussammat Kaunsilia. I may notice here another point of similarity between the Bombay case and this case, that there the husband was “admittedly a man of very low mental capacity, on the border line of idiocy,” and here 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 the 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 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 ex-polled by him in consequence of his having formed an illicit connection with his brother's widow, whom he made an inmate of his house 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 father and the husband had not contributed to her support. It appeared that the dispute had been considered by a panchayat which adjudged a [162] separation of the married couple. In these circumstances a Division Bench of this Court, consisting of Stuart, C.J and Pearson, J., declined to enforce restitution of conjugal rights without deciding whether the verdict of the panchayat dissolved the marriage. They observed:—“For 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 Mussammat 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 facts 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 withholding relief of restitution of conjugal rights.—In Jogendronundini Dossee v. Hurry Doss Ghose, the husband appeared to have lived a very profligate life and was in the habit of consorting openly 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 had 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 money.

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 what has occurred, to secure the defendant a home untainted by the presence of any persons of bad character; and we therefore propose 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 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 she resumed cohabitation with him she might be out casted and under the circumstances of the case he held that in decreeing a claim for restitution of conjugal rights, a Court was entitled, if it saw good reason to do so, while recognizing the civil rights of a husband to his wife, to put such conditions upon the enforcement of his rights by legal process as the circumstances of the case might fairly demand and that, applying this principle to the present case, the defendant might reasonably ask the Court before compelling her to return to her husband to make it a condition that he should first obtain his restoration to caste.

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 and I do not think that past 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 circumstances 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 elaborate 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 appeal and that the only reason that the judgment was reserved for consideration was that my brother Mahmood 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.