JUDGMENT
Melvill, J.
1. In this case the plaintiff asks that his wife, the first defendant, may be compelled to return to him, and that the second defendant, in whose house she has been living and who has opposed her return, may be ordered to deliver her up.
2. It has been faintly argued at the bar that a suit for the restitution of conjugal rights will not lie in our Courts, or, at all events, that a decree ordering such restitution cannot be enforced; and, in support of this argument we have been referred to a judgment of Mr. Justice Markby, reported 14 Beng. L.R., 298. That judgment does not deny, and the decision of the Privy Council in Moonshee. Buzloor Ruheem v. Shumsoonissa Begum (11 Moore I.A., 551) conclusively establishes that such a suit may be maintained. The question of the mode of enforcing the Court’s decree is at present premature, and we only allude to it as affecting the question of the admissibility of the suit. If it were admitted that a Court could not enforce its decree, that would be a strong ground for holding that the Court could not entertain the suit. In the case above referred to, the Privy Council has expressed an opinion (which Mr. Justice Markby does not notice) that disobedience to the order of a Court directing the wife to return to cohabitation would seem to fall within the 200th section of the Civil Procedure Code, and to be enforceable by imprisonment or attachment of property, or both. The Bengal High Court (6 Cal. W.R. 105 Civ. Rul.) had previously come to the same conclusion; and in Aidasar Jahanghir Framji v. Avabai (9 Bom. H.C. Rep., 290). I have treated the question as settled by authority. We see no reason to entertain any doubt on the subject now. We are unable to agree with Mr. Justice Markby that a decree, which orders a wife to return to her husband’s protection, amounts to nothing more than a declaration that the relation of husband and wife exists between the parties. In nine cases out of ten there is no dispute as to the existence of that relation; and a declaratory decree to that effect is not what the plaintiff asks, nor what the Court professes to give him. The policy of entertaining and enforcing such claims may be open to question; but, so long as their jurisdiction is not barred by legislation, our Courts have no discretion in the matter. In the case of Parsis the Legislature has, by Act XV of 1865, made express provision for such suits and for the enforcement of the decree [section 36]: and the cases to which we have referred are, we think, sufficient authority to support the action of our Courts in similar suits between Hindus and Muhammadans.
3. The question which we have to decide, as between the plaintiff and his wife, is whether the latter has proved a legal justification for the admitted refusal to return to her husband’s house.
4. The written statement of the first defendant Yamunabai, in answer to the plaint, is as follows:
1. I have been observing my husband to be an idiot ever since the day on which my marriage took place. He has not sense enough to manage his own property, or to protect me, or to gain his livelihood by any acquirement, skill, or ingenuity.
2. My father-in-law died about 10 months ago; [and my] mother-in-law died about 5 months ago. Now I have on one [left] on the side of [my] father-in-law except [my] idiotic husband. After the death of my father-in-law I was living even with my mother-in-law, who was a very old [woman]. There being [residing] in the dwelling house of my father-in-law and mother-in-law and husband, Ramchandra Mahadev and many other persons of young age, it came to pass that I could not live in that house with respectability [decency]. As the husband of my aged mother-in-law was dead, there was a difficulty in the way of [her] going out [of her house] owing to the custom of Brahman caste. On this account, and as my husband was an idiot, they could not restrain Ramchandra Mahadev and others of [his] kinsmen. Therefore my mother-in-law with the consent of Sowbhagyavati (an epithet of respect prefixed to the names of women whose husbands are living), Godavaribai Natu, the grand-daughter of my mother-in-law, sent me, on account of the [aforesaid] difficulty, to reside in the house of the defendant No. 2, Narayan Jaganath Bhide, son-in-law to my mother-in-law. My mother-in-law was to come there after with my husband to reside at [the said] Bhide’s; [but in the meantime] she died at Bhade.
3. I do not believe that the present suit is instituted against me by my husband of his own sense. He has not sense enough to do this. Ramchandra Mahadev Pendse has got my idiotic husband under his hand (influence), and has put forth his [my husband’s] name, and caused this suit to be instituted. Therefore [I pray that] the Court will be so gracious as to make him [Ramchandra Mahadev Pendse] another plaintiff or defendant [in this case], that is to say, enter his name as one of the parties opposed to me.
4. As said above, I came from the house of [my] husband to the house of the defendant No. 2 in or about the month of last Bhadrapad [September 1872]; since that day I have never at all been invited by [my] husband. [My] mother-in-law had directed [me] not to go to the house of the Pendses, unless I was invited by [my said] mother-in-law herself. Accordingly I never went [thither].
5. On the day of the [institution of this] suit, my husband and Ramchandra Mahadev Pendse came to [the said] Bhide’s, house, and [my] husband remained standing near the gattar [outside the house]. As he [my husband] could not say anything Ramchandra Mahadev came inside and asked me to go to [my] father-in-law’s [i.e., my husband’s] house. Then I said that my husband was an idiot, that he (Ramchandra) should not allure him with a bait and deceive him, that he should not ruin him and me, but that he should make over [my] husband to me. I said this on that day, and I had sent messages [to the same effect] once or twice before. But Ramchandra did not attend to it. And on the aforesaid day he took away [my] husband. At present I am feeding and maintaining myself with respectability (decency) in the said Bhide’s house, by assisting his daughter-in-law at her toilette, and doing other light work, and at times of inconvenience by cooking and winnowing grain, etc., and doing other light work.
6. So long as my husband is ‘in the hands (i.e., ‘under the control’) of Ramchandra Mahadev and other kinsmen [of my husband], that is to say, those who are entitled to be heirs [to my husband], after his [my husband’s] [death], I am not willing to go to my husband at the house of the Pendses, and under [their] control. For [my] husband is an idiot, and if they should impute to me adultery and various other crimes, I shall be defeated of my right of succession to my husband’s property and of [my] right of [getting] food [and] clothes [maintenance] [from that property after his death], and the right will be gone to Ramchandra Mahadev and others. I am [therefore] unwilling to go under the control of such persons, without any protection. And from their former conduct I entertain the greatest apprehensions that they will do so.
7. [I pray that] the Court will [be pleased to] consider whether my aforesaid statements are proper or not, and to eater the name of Ramchandra Mahadev as one of the parties opposed [to me], and to reject my husband’s claim and to award all my costs against the said Ramchandra Mahadev.
5. It has hardly been attempted to maintain that any of the allegations contained in this statement would, if proved, constitute a sufficient justification for the defendant’s refusal to live with her husband. The plaintiff, as the Assistant Judge says, is admittedly a man of very low mental capacity, on the border line of idiocy. But Yamunabai has not alleged that she entertains any apprehensions to her safety on this account, nor indeed that she is unwilling to live with her husband on this account. On the contrary, on the same day on which the present suit was filed, she filed a counter suit to obtain possession of her husband, alleging that he was of unsound mind, and that she was the proper person to have charge of him, but, that his cousin, Ramchandra refused to give him up. Her objection was not to living with her husband, but with her husband’s relatives. Now it is easy to conceive that the annoyances of married life must be often much aggravated by the necessity which a Hindu wife is under of living in the same house with the whole of her husband’s family; and ill-treatment at the hands of her husband’s relations, from which he was powerless to protect her, might reasonably be urged as a ground for refusing to live with him. But no such ill-treatment has been alleged in the defendant’s written statement. It has, indeed, been suggested to us by the learned Counsel for the special appellants that that statement implies much more than it expresses; that the first defendant left her husband’s house in consequence of an attempt made upon her virtue by her husband’s cousin Krishnaji; and we are asked to order the examination of certain witnesses, whose evidence, it is said, would establish this fact. Undoubtedly no Court would order a wife to return to her husband’s house if she were liable to be exposed to an outrage of this description. But it is impossible to pay any attention to a mere verbal allegation made at this late period of the proceeding’s. If the defendant had so good a defence, she should have made it distinctly, and have raised an issue regarding it. She should, at least, have come forward to give evidence. She was summoned as a witness, and her pleader twice obtained an adjournment in order to produce her. But she remained absent, and her absence has never been accounted for. It is out of the question that the Court should now order an inquiry into the truth of an allegation which does not even appear on any part of the record, and which the person making it does not venture to substantiate upon oath.
6. There is one circumstance in this case, and one only, which raises any doubt as to the right of the plaintiff to the relief which he seeks. Soon after this suit was instituted, the plaintiff lodged a complaint before the Magistrate, charging the second defendant with having committed adultery with the first defendant. He swore that he had himself witnessed circumstances leading to the conclusion that adultery had taken place. He was disbelieved, and his complaint was rejected without inquiry. He then brought the matter before the Higher Courts, but without success. In the present suit he has again put forward this charge of adultery, and has called his relations to support it. The Assistant Judge has found that the imputation is utterly groundless. We must take it, then, that the plaintiff and his relations, in their endeavour to gratify their hatred against the second defendant, have not hesitated to asperse the character of the plaintiff’s wife. In his deposition before the Magistrate the plaintiff used a very opprobrious expression in reference to his wife, and when pressed with his inconsistency in wishing to recover possession of a wife whom he held in such low esteem, he said that, if she returned to him, it would be inconsistent with his religion to receive food and water from her hands, though in other respects he should treat her with the affection due from a husband to a wife. It has been much pressed upon us that the unjust aspersions cast by the plaintiff on his wife amount to cruelty, and that the treatment to which he has himself said-that he intends to subject her, would also amount to cruelty, and that on these grounds the defendant should not be compelled to return to his house.
7. In Moonshee Buzloor Ruheem v. Shumsoonissa Begum (11 Moore I.A. 551) their Lordships of the Privy Council say: “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” (11 Moore I.A. 615). In the present case we are only concerned with the question of cruelty; and on that point their Lordships, in another part of the same judgment, say: “The Mahomedan law, on a question of what is legal cruelty between man and wife, would probably not differ materially from our own, of which one of the most recent expositions is the following: ‘There must be actual violence of such a character as to endanger personal health or safety; or there must be a reasonable apprehension of it”. “The Court’, as Lord Stowell said in Evans v. Evans, “has never been driven off this ground,” (Moore I.A. 611). The recent case, to which the Privy Council refer, was no doubt the case of Milford v. Milford (I.L.R. (P, and D.) 295). A number of earlier cases have been quoted to us as showing that to constitute legal cruelty, it is not necessary that there should be actual violence; and, no doubt, some of those cases do indicate a desire on the part of the English Judges to enlarge the definition of cruelty, so as to embrace certain cases of peculiar hardship. But the authority of the later cases is conclusive as to the present state of the English law. In Milford v. Milford the Judge Ordinary took time to consider his judgment, observing: “The question of cruelty requires a very critical examination. It is just one of those cases in which the Court is bound to take care that it is not induced, by the desire of giving full relief to the wife, to trespass beyond the limits assigned by the law to the definition of legal cruelty”. And afterwards, in delivering judgment, he said: “The essential features of cruelty are familiar. There must be actual violence of such a character as to endanger personal health or safety, or there must be the reasonable apprehension of it. The Court, as Lord Stowell once said, has never been driven off this ground. Nor do the cases cited in the argument, whatever general expressions may have fallen from the Court, affect to decide that anything short of this will be sufficient to found a decree upon cruelty. The ground of the Court’s interference is the wife’s safety, and the impossibility of her fulfilling the duties of matrimony in a state of dread”. In the still more recent case of Kelly v. Kelly (39 L.J. 59 Mat. Ca.) the Judges stated the law in similar terms, and granted a judicial separation on the ground that, if force, whether physical or moral is systematically exerted to compel the submission of a wife to such a degree and during such a length of time as to injure her health, and render a serious malady imminent, although there be no actual physical violence such as would justify a decree, it amounts to legal cruelty. In that case, then, the Judges were careful to keep within the limits laid down in previous cases. The question for us to decide is whether, in this country, we ought to extend those limits, and to enlarge the definition of legal cruelty so as to allow a wife to justify her desertion of her husband upon grounds which in England would not amount to a justification. After a careful consideration of this question we have come to the conclusion that we ought not to do so. Native law and custom is, at least, as stringent as English law in regard to the duty of a wife to live with her husband. As the Judicial Committee say of the Mahomedan law, so we would say of the Hindu law, that, on a question of what is legal cruelty between man and wife, it would probably not differ materially from our own. Any difference there might be, would be in the direction of greater strictness, not of greater laxity,–at least in regard to the treatment of the wife by the husband. A Hindu wife cannot, any more than an English wife, claim a divorce on account of merely her husband’s inconstancy; but she may demand a separate maintenance if her husband ill-treat her on account of a favourite wife or mistress (Steele, 170). She may abandon a husband who communicates anything noxious (2 Colebrooke, 180). In the case of any undue chastisement, in the exercise of marital rights, our Courts would probably adopt the views expressed by Sir Thomas Strange (1 Stra. H.L., 49), though in the Presidency towns they might possibly be somewhat hampered by the provisions of 21 Geo. III., C. 70, Secion 18, and 37. Geo. III., C. 142, Secion 12. But we do not think that we should be justified under Hindu law, any more than under English law, in holding that an unfounded imputation upon a wife’s chastity, however gross an outrage, is by itself sufficient to constitute legal cruelty. An American writer (l Bishop on Marr. and Div. 724) refers to an old case in Scotland (Le Nac v. Moir, A.D., 1750) where a husband publicly and perseveringly reproached his wife falsely with lascivious behaviour and immoderate lust, and in which the Commissaries of the Court of Session held this a sufficient ground for a judicial separation; but the House of Lords reversed the decision. The observations of this writer on this subject are worth quoting. “The proposition”, he says, seems to be, on the whole, well established in England and in most of our States, that the harm to be apprehended must be bodily harm, in distinction from mental suffering. For, while it is admitted that pain of mind may be even more severe than bodily pain, and a husband disposed to evil may create more misery in a sensitive and affectionate wife by a course of conduct addressed only to the mind, than if, in fits of anger, he were to inflict occasional blows upon her person; still it is said that in such a case ‘the Court has no scale of sensibilities by which it can gauge the quantum of injury done and felt”. The rule, therefore, seems to have arisen, not from any notion of its inherent justice, but from the difficulty of practically administering the opposite rule, of regarding the mind the same as the body”. In this country generally, and particularly in the present case, in which imputations of lascivious behaviour are east by both sides with equal recklessness, it would, certainly be impossible to gauge by any scale of sensibilities the quantum of injury done and felt.
8. As to the statement of his intentions contained in the plaintiff’s deposition before the Magistrate, to which reference has been made, it is sufficient to say that, even if it be regarded as a menace seriously intended, it falls short of a justification of the first defendant’s refusal to return to her husband.
9. It follows that the first defendant has not, in our opinion, proved legal cruelty on the part of her husband or his relations. In a suit between Hindus we consider that the only safe and practical criterion of cruelty is that contained in the definition which guides the English Courts, namely, that there must be actual violence of such a character as to endanger personal health or safety; or there must be the reasonable apprehension of it. In a suit between Muhammadans the Privy Council has expressed its opinion that the same definition is applicable; and in the Parsi Chief Matrimonial Court of Bombay, over which I now preside, a similar definition was adopted at an early period of the Court’s existence (Fardunji v. Kurnetji Dinbai, 23rd November 1869).
10. The next question is whether the plaintiff, having established his right to compel his wife to return to his protection, is entitled also to a decree against the second defendant, Narayan Bhide. The law on this subject is correctly stated by the Assistant Judge. Every person who receives a married woman into his house, and suffers her to continue there after he has received notice from the husband not to harbour her, is liable to an action for damages, unless the husband has, by his cruelty or misconduct, forfeited his marital rights, or has turned his wife out of doors, or has, by some insult or ill-treatment, compelled her to leave him (Addison on Torts 802). The present plaintiff asks, not for damages, but for an injunction; and he is entitled to an injunction if he has proved his case, and if the conduct of the second defendant still continues to show a necessity for it. The Assistant Judge has found that the second defendant did harbour the first defendant after notice from her husband; and, looking to the conduct of the second defendant throughout the proceedings in the suit, we cannot entertain any doubt that he has been, and is, actively aiding and abetting the first defendant in her opposition to her husband’s wishes.
11. Our decree must be that the plaintiff is entitled to his conjugal rights, and that the first defendant, Yamunabai, be ordered to return to his protection, and that the second defendant, Narayan Bhide, do abstain from harbouring the first defendant, and from offering any obstruction to the return of the first defendant to her husband’s protection.
12. Having regard to the conduct of the parties, and to all the circumstances of the case, we think that each party should bear his and her costs throughout.
13. We amend the decree of the Court below accordingly.
