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Calcutta High Court
Dular Koer vs Dwarka Nath Misser on 7 March, 1905
Equivalent citations: (1907) ILR 34 Cal 971
Author: Harington
Bench: Harington, Mookerjee


Harington, J.

1. This is an appeal by the defendant against the judgment of the Subordinate Judge affirming on certain conditions the decree of the Munsif in a suit in which the plaintiff claimed restitution of conjugal rights.

2. From the paper-book it appears that the plaintiff expelled the defendant, her son and daughter-in-law from his house in 1875 and that for the 26 years anterior to the bringing of the suit the parties have been living separate. The plaintiff married a second wife, and took as a concubine a low caste prostitute to live with him. The defendant’s, son had brought a suit for partition in which an appeal was (at the time this suit was heard) pending in the High Court. The Subordinate Judge thinks that the plaintiff’s motive in bringing the suit after the lapse of 26 years was to coerce the defendant into withdrawing the appeal presented by her in her son’s partition-suit by forcing her under the decree of the Court to return to her husband, and reside with him as wife in the marital house in company with his second wife, and his low caste mistress under conditions under which he would be able to force her to withdraw her case.

3. Both the Munsif and the Subordinate Judge think that neither the taking of the second wife, nor the keeping of a Ghasi prostitute in the house are sufficient to entitle the wife to resist a decree for restitution of conjugal rights: but the Subordinate Judge goes on to say that if cruelty to 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 and after stating that this has not been proved, the Judge goes on to impose certain conditions for “safety of the defendant as the suit does not seem to be a bond fide one.”

4. From this it is clear that the Judge considered that there was a reasonable ground for apprehending danger to the lady, otherwise there would be no reason for imposing conditions for her safety.

5. Had this case arisen between Europeans governed by English law the fact that the petitioner was living in adultery with a prostitute at the house to which he proposed to compel his wife to return, would be an answer to any claim for restitution of conjugal rights.

6. Put while I recognise 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. It might be well open to argument that to impose on a high caste Brahmin lady the society of a low caste prostitute was such a gross breach of marital obligation as to justify the Court in refusing a decree. But in my opinion, this case does not rest solely upon this consideration. The Sub-Judge has found that the plaintiff’s object in suing is to coerce the defendant: he has found that no cruelty has been proved and his finding no doubt is right as the parties have been living apart for 26 years; but, although he does not in express terms find that it will be unsafe for the defendant to return, yet it is clear that that is his opinion as he finds it necessary to impose terms for her safety. And the view is reasonable: the lady is to be delivered into her husband’s hands to be “coerced” into abstaining from exercising her legal rights. It is true, coercion may be by moral pressure only, but on the other hand it may be by the infliction of physical cruelty–indeed I think it would be difficult to say under the circumstances that there was not a reasonable ground for apprehending physical cruelty.

7. I do not think it necessary to discuss the question as to what degree of conjugal infidelity would, in a case like the present, justify the Court in refusing the petitioner a decree or whether the conduct of the husband in expelling his wife from his house and replacing her by a second wife, and a concubine amounted to cruelty. I prefer to base my judgment on a principle which is equally applicable to Europeans and Indians alike, namely, that the Court is not bound to order a wife to return to her husband when there is reasonable ground for apprehending that a returns to that husband will imperil her safety.

8. For these reasons, I am of opinion that the appeal must succeed and the order of the Sub-Judge set aside.

9. The appeal must be allowed with costs.

Mookerjee, J.

10. I agree with my learned brother that the decree made by the Subordinate Judge cannot be sustained.

11. The facts so far as they are necessary for the purposes of this appeal which has been preferred by the defendant in a suit for restitution of conjugal rights, are in a large measure undisputed. The plaintiff and the defendant are Kanouji Brahmins governed by the Mitakshara law and were married in July 1853. They lived together for some years and had two children, a son and a daughter. About 1861, the husband, who is the plaintiff in this suit, took a second wife and, as happens not unfrequently, this led to strained feelings between the parties and constant disputes. The parties, however, continued to live together till 1875, when the plaintiff took a mistress, a low caste Hindu woman and a dancing girl by profession whom he brought into the house and made to live with his wife and other members of the family. This led to a serious dispute between himself on the one hand and his first wife and her son on the other. The result was that he expelled his first wife and his son from the house, and his own mother was so disgusted that she left the house and joined the company of her daughter-in-law and grandson. Since then, up to the date of this suit, that is, for a period of about 26 years, the appellant, her son and her mother in-law have been living separate from the respondent, sometimes in the house of friends, at others under the protection of relatives. It is not necessary to set out in detail the series of disputes and litigations which during this period went on between the father and his son; I need only mention that shortly before the institution of the present suit, the son brought an action against the father for partition of the ancestral properties and joined amongst others, his mother, the present appellant as a defendant. On the 26th March 1900, the Subordinate Judge made a decree for partition and allotted a share to the appellant. The present respondent preferred an appeal to the Judicial Commissioner who, on the 21st January 1901, held that the wife was not entitled to any share. On the 7th May 1901, the wife preferred an appeal to this Court and on the 13th May following, the plaintiff instituted the present suit against the wife for restitution of conjugal rights. The Court of first instance held that there was no valid defence to the claim and made a decree in favour of the plaintiff. Upon appeal by the defendant, the learned Subordinate Judge has affirmed the decree for restitution with this variation that certain conditions are imposed on the husband; these conditions substantially are that the appellant is to have a room and a maid servant for herself, and that her daughter, daughter-in-law and grand children, but not her son, are to be allowed access to her. The learned Subordinate Judge has assigned as reasons for his conclusions, the circumstances that the plaintiff is still keeping his prostitute in his house, and that the defendant is an old lady of about 60 years of age and requires to be carefully nursed and looked after. Against this decree, the wife has appealed to this Court, and on her behalf it has been contended, first, that the conduct of her husband towards her, constituted legal cruelty which entitled her to live separate, and secondly, that in any event the conduct of her husband, even if it does not amount to cruelty, has been of such a character as to disentitle him to any assistance from a Court of justice, equity and good conscience. The learned vakil for the appellant also invited our attention to the fact that the appeal preferred by her in the suit for partition already referred to, has been allowed by this Court: see Dular Koeri v. Dwarka Nath Misser (1904) I.L.R. 32 Calc. 234 where the learned Judges held that a son under the Mitakshara law is entitled to demand a partition of the joint ancestral property in the lifetime of his father against his father’s wishes, and upon such partition the mother is entitled not only to a share equal to that of her husband and son, but also to have such share separately allotted, to be enjoyed by her during her husband’s lifetime. I am of opinion that the contentions advanced on behalf of the appellant are well-founded and must prevail.

12. As regards the first point, it cannot be disputed upon the authorities that although a Hindu husband is entitled to maintain a suit for the restitution of conjugal rights, there are cases in which no relief will be granted to him, for instance, if he is proved to have been guilty of what amounts in law to cruelty: see Buzloor Ruheem v. Shumsoonnissa (1867) 11 Moo. I.A. 551, 615, where their Lordships of the Judicial Committee pointed out “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 there may be cases in which the Court would qualify its interference by imposing terms on the husband.” The question, what constitutes legal cruelty sufficient to bar a claim for restitution of conjugal rights, within the meaning of the rule thus laid down by the Judicial Committee, is by no means free from difficulty. But as was observed by Mr. Justice Melville in Yamuna Bai v. Narayan (1876) I.L.R. 1 Bom. 164, the Hindu law on the question of what is legal cruelty would not differ materially from the English law. The same view was taken by Mr. Justice Mahmood in an elaborate judgment in the case of Binda v. Kaunsilia (1890) I.L.R. 13 All. 126, 160, where that learned Judge pointed out that although 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, yet the general principles of humanity upon which our Courts act in such matters, have led to a long course of decisions which recognise the rule that legal cruelty of the husband would be a sufficient cause for refusing restitution of conjugal rights. I am not unmindful of the observations thrown out by Sir Richard Garth C.J. in Jogendro Nundini v. Hurry Doss (1879) I.L.R. 5 Calc. 500, that the same state of circumstances which would justify a suit for restitution of conjugal rights, or which would be an answer to such a suit in the case of a European, might not be equally so in the case of a Hindu; but although by reason of a well marked difference between the habits and customs of the Indian and European communities as regards the marriage state, the same rules may not be always applicable in such a matter as a suit for the restitution of conjugal rights, yet there can be no doubt that the principles upon which relief ought to be granted or refused would be substantially identical in the two cases.

13. Now, if we consider for a moment what amounts to legal cruelty under the English law as a valid defence to a suit for restitution, we find the rule to be fairly well settled by the decision of the House of Lords in the case of Russell v. Russell (1897) A.C. 395. It was there pointed out that it was not sufficient to prove cruelty in a popular or wide sense of the term, but that it was necessary to show that the conduct complained of was such as to have caused danger, or a reasonable apprehension of danger, to life, limb, or health, which is obviously far more comprehensive in scope than mere physical violence. This is amply supported, as is shown in the speech of Lord Herschell, by a series of authorities beginning with Lord Stowell’s judgment in Evans v. Evans (1790) 1 Hag. Con. 35, which is the great authority on questions of legal cruelty. Now it is obvious that in the application of this doctrine to the facts of a case like the present, there may be room for argument whether the particular conduct complained of does or does not fall within the mischief of the rule. This is well illustrated by the cases of Popkin v. Popkin (1794) 1 Hag. Ecc. 766, Anthony v. Anthony (1860) 1 Sw. & Tr. 594, Swatman v. Swatman (1865) 4 Sw. & Tr. 135 and Cousen v. Cousen (1865) 4 Sw. & Tr. 164. In the first of these cases, Popkin v. Popkin (1794) 1 Hag. Ecc. 766, Lord Stowell held that the attempts of the husband to debauch his own female servants are strong acts of cruelty, perhaps not alone sufficient to divorce, but which might weigh in conjunction with others as an act of considerable indignity and outrage to bis wife’s feelings. Lord Herschell in Russell v. Russell (1897) A.C. 395, takes this to mean cruelty in the popular and not in the legal sense. In the second case Anthony v. Anthony (1860) 1 Sw. & Tr. 594, Sir C. Cresswell in granting a petition for separation by a wife held that the Court should take into consideration the position in which a wife is placed in the family, by reason of any authority or control exercised, over her by the servants by the direction of the husband, and the state of feelings of the wife arising from reasonable suspicion of undue familiarity between her husband and a maid-servant. In the third case, Swatman v. Swatman (1865) 4 Sw. & Tr. 135, it was held that where the evidence of actual violence used by the husband towards the wife is not sufficient of itself to warrant a decree for dissolution of marriage on the ground of cruelty, the Court will take into consideration his general conduct towards her, and if this is of a character tending to degrade the wife and subjecting her to a course of annoyance and indignity injurious to her health, will feel itself at liberty to pronounce the cruelty proved: see also the observations of Smith, L.J., in Aubourg v. Aubonrg (1895) 72 L.T. 295. In the fourth case, Cousen v. Cousen (1865) 4 Sw. & Tr. 164, the same learned Judge who decided the case just referred to, appears to have held that indifference, neglect, aversion to the wife’s society, and cessation of matrimonial intercourse, without personal violence or words of menace do not amount to legal cruelty, even though the husband is carrying on an adulterous intercourse with a servant under the same roof, where he is residing with his wife. In this country, the question has been raised under somewhat similar circumstances in more than one case. Thus in Lalla Gobinda v. Dowlutbuttee (1870) 14 W.R. 451, Bayley and Dwarka Nath Mitter, JJ., held that where a Hindu husband keeps a Mahomedan woman and by such conduct compels the wife under her religious feelings to leave the house, he is bound to give her maintenance; the learned Judges pointed out that under the circumstances disclosed, the conduct of the husband rendered it impossible for the wife to live any longer consistently with her self-respect and religious feelings. Again in Paigi v. Sheonarain (1885) I.L.R. 8 All. 78, Mr. Justice Straight held that when asked to employ coercive process to compel a wife to return to her husband, a Court cannot disregard any reasonable objection she may raise, either on the ground that she has been subjected before to personal injury or cruelty at the hand of her husband, or that she goes in fear of one or the other, or that the husband is actually living in adultery with another woman, or that if she resume cohabitation or association with him, he being outcasted, she will herself incur the risk of being put out of caste. Similarly in the case of Dular Koeri v. Dwarka Nath Misser (1904) I.L.R. 32 Calc. 234, which was heard in appeal by this Court against the decree in the partition suit between these very parties, the learned Judges (Ghose and Geidt, JJ.) expressed an opinion that the keeping of a concubine in the house by the husband would be a sufficient justification for the wife to ask for separate habitation and separate maintenance. The case of Jogendronundini v. Hurry Doss (1879) I.L.R. 5 Calc. 500, is, I think, clearly distinguishable. It is true that although the husband in that case lived a profligate life, 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, yet the learned Judges gave the husband a decree for the restitution of conjugal rights, and imposed upon him a condition that the house to be provided for his wife must be in every respect fit for the reception of a virtuous and respectable lady. It is manifest, however, from the judgment that the circumstance which weighed strongly with the learned Judges, was the fact that the wife, though she had left her husband’s house and gone to live with her mother under the protection of her own family, had allowed her husband to visit her there and cohabit with her as man and wife, and that such conduct on her part amounted to condonation and reconciliation.

14. If now the principle deducible from those decisions be applied to the facts of the present case, the conclusion seems to me to be irresistible that the appellant has a valid defence to the claim for restitution of conjugal rights. It is undeniable that the plaintiff, after he had transferred his favours to his concubine, habitually ill-treated the appellant, that he grossly insulted the religious feelings of his wife by making his concubine live in the house as a member of his family, and subsequently drove the appellant out of the family residence at the instance of the prostitute. I have no hesitation in holding that the conduct of the husband constituted in the language of Lord Stowell “a grave, weighty, and serious matrimonial offence,” and that it amounted to cruelty within the meaning of the law, which fully justified the wife in living separate from her husband. Moreover, as it has been found that the husband is still living with the prostitute in his house, I do not think that this is a case in which I should be justified in making a decree for restitution of conjugal rights in favour of the husband, subject to conditions to be imposed on him. But I am further of opinion that even if the conduct of the husband constituted grave matrimonial offence short of cruelty, the plaintiff would not be entitled to succeed, and this brings me to the second ground urged by the appellant.

15. The second ground advanced on behalf of the appellant is that the conduct of her husband towards her, even if it does not amount to cruelty, has been of such a character as to disentitle him to any assistance from a Court of justice, equity and good conscience. It has been argued on the other hand by the learned vakil for the respondent that if. the conduct of his client does not amount to cruelty, the Court has no discretion in the matter and is bound to make a decree for restitution of conjugal rights in his favour. Now, so far as the law in England is concerned, it appears to be settled that previously to 1857, when the Matrimonial Causes Act was passed, the Court had no discretion to refuse a decree for restitution of conjugal rights to a husband or a wife, whose conduct was unbearable, though it fell short of cruelty in the technical sense of the word: see the judgment of Dr. Lushington in Dysart v. Dysart (1844-7) 8 Notes of Cases 324, and the judgment of Mr. Justice Crompton in the Irish case of Seaver v. Seaver (1861) 2 Sw. & Tr. 665. It appears to be equally settled in England that under the Matrimonial Causes Act, 1857 (20 and 21 Vict., C. 85), the principles and rules acted on by the old Ecclesiastical Courts in cases of restitution and separation, was to be followed by the new Court of Divorce and Matrimonial Causes, subject to the creation of anew ground for separation by reason of desertion without cause: see Burroughs v. Burroughs (1861) 2 Sw. & Tr. 303, Scott v. Scott (1865) 34 L.J. (p. & M.) 23; 4 Sw. & Tr. 113, Manning v. Manning (1873) L.R. 7 Eq. 520 and Julius v. Bishop of Oxford (1880) 5 App. Cas. 214. This view appears to have been accepted as applicable to this country by Mr. Justice Mahmood in the case of Binda v. Kaumilia (1890) I.L.R. 13 All. 126, where that learned Judge held that if 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, and supported his conclusion by the analogy of the English rule that “facts pleadable in bar to a suit for restitution are such only as, upon proof, will entitle the party who pleads them to a sentence of separation, such sentence being prayed for.” The learned Judge then went on to point out that the law in England as to the restitution of conjugal rights had been amended by Statute 47 and 48 Vict., C. 68. It is now well-settled in England that by this Statute, the old law as to restitution of conjugal rights has been materially altered, and that under it, the Court has power to refuse a decree which it had not before: see the judgment of Lopes, L.J., in Russell v. Rusell (1895) P. 315. It is not necessary for me to examine the precise limits of the rule as it now obtains in England, which in the case of Oldroyd v. Oldroyd (1896) P. 175 is stated in these terms: “In cases where the conduct of the petitioner has 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 has power to refuse to pronounce a decree compelling the respondent to return to cohabitation with the petitioner,” although such misconduct on the part of the petitioner, may not be sufficiently grave to enable the respondent to obtain a judicial separation. It is quite clear that the tendency of recent legislation and judicial decisions in England has been to recognize a wider limit of the grounds upon which a decree for restitution of conjugal rights may be refused. I do not see any good grounds why the Courts in this country as Courts of equity, justice and good conscience should not exercise a similar jurisdiction. I am fortified in my views by the observations of Lord Herschell in two recent cases, observations which, I am not unmindful, have not been always accepted as well-founded by other eminent Judges. In Mackenzie v. Mackenzie (1895) A.C. 384 which was heard by the House of Lords as an appeal against an interlocutor of the Court of Session in Scotland, Lord Herschell, L.C., in the course of his speech observed: ” I am not prepared without further consideration, to assent to the proposition that a spouse who seeks a decree of adherence is in all cases entitled to obtain it unless a case can be established by the defender which will justify a decree of separation. It Seems to me open to question whether the Courts ought in all cases to disregard the conduct of the party who invokes their aid in an action for adherence, and to decree it in all cases where a matrimonial offence cannot be established by the defender. It is certain that a spouse may, without having committed an offence which would justify a decree of separation, have so acted as to deserve the reprobation of all right-minded members of the community. Take the case of a husband who has heaped insults upon his wife, but has just stopped short of that which the law regards as sxvitia or cruelty; can he, when his own misconduct has led his wife to separate herself from him, come into Court, and avowing his misdeeds, insist that it is bound to give him a decree of adherence? It is not a notion 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 matrimonial offence, has been the primary cause of the difficulty and has led to the refusal to adhere.” The same noble Lord referred to this matter again in his speech in Russell v. Russell (1897) A.C. 395:–“I think the law of restitution of conjugal rights as administered in the Courts did sometimes lead to results which I can only call barbarous. I need seek no better illustration of this than the case of Holmes v. Holmes, (1755) 2 Lee 116 which is relied on for the proposition that the Courts can only refuse restitution on grounds which would justify a divorce. Conduct of a most revolting character on the part of the husband was held to afford no answer to his claim for a restitution of conjugal rights. 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 a 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; and notwithstanding the decision to which I have referred, there are not wanting dicta of eminent Judges, and notably of Lord Stowell, that “something short of legal cruelty’ might bar a suit for restitution.” The view thus indicated by Lord Herschell is substantially in agreement with that of Stuart, C.J., and Pearson, J., in Moola v. Nundy (1872) 4 All. A.C. 109, the facts of which case bear some resemblance to those of the case now before us. There a Hindu husband and wife had been married, while the latter was a girl of about 13 years of age; she had cohabited with him for a few months, but was ill-treated and expelled by him in consequence of his having formed an illicit connection with his brother’s widow, whom he had 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 further appeared that the dispute had been considered by a punchayet which adjudged a separation of the married couple. Thirteen years later, the husband, sued to enforce restitution of conjugal rights. The learned Judges declined to make a decree in favour of the husband, having regard to the circumstances under which the separation took place and also to the circumstances existing at the date of the suit. This decision is referred to by Mr. Justice Mabmood in Binda v. Kaunsilia (1890) I.L.R. 13 All. 126, as an authority for holding that the Court, may in exceptional cases, exercise judicial discretion by withholding relief of restitution of conjugal rights, although the learned Judge expresses a doubt whether the decision is strictly consistent with Hindu law. I am inclined to hold that there may be case 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. No doubt, there is authority for the proposition that the mere fact of marrying a second wife and the consequent unkindness to the first wife, is not by itself sufficient to disentitle a Hindu husband from claiming restitution of conjugal rights: Jeebodhon v. Sundhoo (1872) 17 W.R. 522, Sitanath v. Haimabutty (1875) 24 W.R. 377. There is also authority for the proposition that conjugal infidelity on the part of a Hindu husband is not by itself sufficient to bur his claim for restitution of conjugal rights: Jagendramnundini v. Hurry Doss (1879) I.L.R. 5 Calc. 500, Paigi v. Sheonarayan (1885) I.L.R. 8 All. 78. There is also authority for the proposition that the Court will not dismiss a petition for restitution of conjugal rights, solely on the ground of unreasonable delay: Beanclerk v. Beanclerk (1896) P. 220. It is also true, as pointed out by Sir James Hannen in Marshall v. Marshall (1879) 5, P.D. 19,23, “that so far are suits for restitution of conjugal rights from being in truth and in fact what theoretically they purport to be, proceedings for the purpose of insisting on the fulfilment of the obligation of married persons to live together, I have never known an instance in which it has appeared that the suit was instituted for any other purpose than to enforce a money demand.” It may be perfectly true, therefore, that the finding of the learned Subordinate Judge, namely, that the present action is not bona fide, instituted to obtain the return to cohabitation of the appellant, but that the real object is to compel her to withdraw from the appeal preferred by her in the partition suit, may not by itself be sufficient to justify a dismissal of the action. But although each of these element separately may not be sufficient to put the plaintiff out of Court, in my opinion, their cumulative effect taken along with other circumstances which I have already set out, is to disentitle the plaintiff to any relief. To use the language of Lord Herschell, the plaintiff who has by insult and outrage driven his wife to leave him, has neglected her for a period of 26 years, ought not without repentance for the past or any assurance of amendment for the future, succeed in a suit instituted not bona fide for restitution of conjugal rights but with an ulterior object in view.

16. The result, therefore, in my opinion, is that this appeal ought to be allowed, the decision of the Subordinate Judge reversed, and the suit dismissed with costs in all the Courts.

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