JUDGMENT
1. The plaintiff in this case is a Hindu of the Rajbansi caste. He has brought this suit for restitution of conjugal rights against defendant No. 1 (who is described in the plaint as a minor) through her next friend and guardian, her paternal grandmother. He has joined as defendants in the suit the paternal grandmother as defendant No. 2, Bishwambhar Das as defendant No. 3, who is alleged by the defence to have contracted a marriage with defendant No. 1, and Amir Chand Das and Gobind Das as defendants Nos. 4 and 5, who are described as uncles of defendant No. 1 and her nearest male agnates.
2. The allegations in the plaint are that defendant No. 1 was given in marriage to the plaintiff in Joistha 1303 by defendant No. 2, her paternal grandmother, and next of kin and guardian: that the marriage was performed with all the customary rites, as required by the Shastras and the caste to which the parties belong, and, that from the time of the marriage to Joistha 1304, plaintiff lived in the house of defendant No. 2 with defendant No. 1, and cohabited with her as his wife. It is stated that in Joistha 1304 the defendant No. 2 at the instigation of defendants Nos. 4 and 5 drove plaintiff out of her house, denied the marriage of defendant No. 1, with him and refused to let defendant No. 1 go and live with him, defendant No. 1 also refused to go and live with plaintiff. The motive of the defendants Nos. 4 and 5 is suggested to be to appropriate some jote jama land belonging to defendant No. 1 and in order to carry out their object they are said to have caused defendant No. 3 to be introduced into the house of defendant No. 2 with the object of marrying him to defendant No. 1. Plaintiff, therefore, alleged that defendant No. 1 being his legal wife was legally liable to come under his protection and to live in cohabitation with him, and the other defendants have no right or power to dissuade the defendant No. 1 or keep her back therefrom. He accordingly prayed for a decree declaring his marriage to be valid and directing defendant No. 1 to go and live with him.
3. A written statement was put in by defendants Nos. 1, 2 and 5 alleging: that defendant No. 1 was not the legally married wife of plaintiff; (2) that the suit was not legally maintainable against the defendant No. 1; (3) that defendant No. 1 had been married to Bishwambhar Das, defendant No. 3, and (4) that the suit was brought in order to get possession of the property of defendant No. 1.
4. Issues were fixed by the Munsif and the suit came on for hearing on the 27th September 1898. Witnesses for the plaintiff were examined from the 27th to the 30th September. On the 1st October it was adjourned to the 3rd October. The examination of the plaintiffs last witness was completed on that day and the defendant applied for one day’s adjournment to produce their witnesses. One day’s time was allowed. On the 4th October, however, the case was not taken up as the Court was engaged in other work, and on the 5th October, to which date it was adjourned, one witness for the defendants was examined. On the 6th October four witnesses for the defendants were examined and the defendants then put in a petition praying for a day’s adjournment on the ground that, owing to the delay in the trial, their witnesses had gone away and had not returned, as it was not expected that the examination of the witnesses, who were present, would be concluded that day. The prayer was refused and the case disposed of. The Munsif after discussing the evidence in his judgment states his finding in the following terms: “From the evidence and circumstances of the case, I am inclined to hold that the plaintiff was lawfully married to defendant No. 1.” Previously in his judgment he remarks: “A cursory perusal of the evidence on the defendants’ side would convince any one that the marriage of defendant No. 1 was not celebrated with defendant No. 3.” He finds that the plaintiff is entitled to the relief prayed for, and in decreeing the suit with costs and interest, he orders “that the plaintiff was lawfully married to defendant No. 1 and he is entitled to restitution of conjugal rights, and the defendant No. 1 shall present herself to the plaintiff within a fortnight for that purpose.”
5. The defendants appeal. The grounds of appeal appear to have been (1) that there was no legal marriage between the plaintiff and defendant No. 1, and, therefore, he was not entitled to any decree for restitution of conjugal rights; (2) that the suit was not maintainable against defendant No. 1, as he was a minor; (3) that the lower Court was wrong in not granting an adjournment to defendants, so as to enable them to produce the rest of their witnesses; (4) that there was no demand by plaintiff to defendant No. 1 and refusal by defendant No. 1; and (5) that having regard to the provisions of Article 35, Schedule II, of the Limitation Act, the suit was not maintainable.
6. The findings of the Subordinate Judge were against the defendants on all the points and he dismissed the appeal with costs. Defendants Nos. 1, 2 and 5 have appealed and in this Court the contentions have been: (1) that the suit is not maintainable against defendant No. 1 who is admittedly a minor, regard being had to the provisions of Article 35 of Schedule II of the Limitation Act; (2) that the Courts below have both failed to find what rites and ceremonies were necessary to constitute a legal marriage in the Rajbansi caste, to which the parties belong, and that those rites and ceremonies were performed in the case of the alleged marriage between plaintiff and defendant No. 1 so as to constitute a valid marriage; (3) that the Munsif in refusing to grant the adjournment prayed for by the defendant for the examination of her witnesses failed to exercise a sound and wise discretion, and that the defendants have been prejudiced thereby; and (4) that a suit for restitution of conjugal rights does not lie in the case of Hindus.
7. It will be convenient to consider first the first and fourth points. The learned pleader for the appellant admits that so far as Bombay and the N.W. Provinces are concerned, the High Courts of Bombay and Allahabad have held that a suit for the restitution of conjugal rights will lie in the case of Hindus. His suggestion is that in this Court the question has never been in contest, and that it has been assumed rather than directly held that such a suit would lie. We are unable to accept his contention. The learned pleaders on both sides have referred us to the various cases in the different High Courts in which restitution of conjugal rights has been sought by a husband. On going through them we find as follows:
8. In Bengal there does not appear to have ever been any doubt that under the Hindu law a husband had a right to have brought under his protection a wife who had either run away from his house or who was being kept from coming to his house by other persons. The only matters about which there appears to have been doubt were what form of suit the husband could bring for relief, and by what Courts such a suit would be heard. In the case of Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 Moore’s I.A. 551 the Privy Council set at rest the latter question and decided that a suit for restitution of conjugal rights whether brought under the Mahomedan or Hindu law could be entertained by the Civil Courts in India.
9. As regards the form of suit which a husband should bring for the recovery of his wife it was decided by this Court in the case of Chotun Bebee v. Ameerchund (1866) 6 W.R. 105 that a suit will not lie by a husband to recover possession of the person of his wife, but a suit will lie in the nature of a suit for restitution of conjugal rights. Some doubt having arisen as to the form in which a decree in a suit of this nature should be framed it was held by this Court (Loch, J, and Dwarka Nath Mitter, J.) in the case of Koobur Khansama v. Jan Khansama (1867) 8 W.R. 467 following the principle laid down in the case referred to above, that the form of the decree in such a suit should be “that the plaintiff is entitled to his conjugal rights and that his lawful wife be ordered to return to his protection;” and the same two Judges arrived at a similar decision in the case of Melaram Nudial v. Thanooram Bamun (1868) 9 W.R. 552. Subsequently it was held in the case of Kuroona Moyee Debee v. Gunga Dhur Surmah (1873) 20 W.R. 50 that a decree requiring a wife to return to her husband is not illegal, and is in conformity with what is asked for in a suit for restitution of conjugal rights; and in the case of Lall Nath Misser v. Sheoburn Pandey (1873) 20 W.R. 92 it was held that an order to third parties to send back the plaintiff’s wife with her jewels could hardly issue without an order to the wife to return to her husband. These cases all support the view that a suit for restitution of conjugal rights among Hindus is maintainable, and in the case of. Gatha Ram Mistree v. Moohita Kochin Atteah Domoonee (1875) 14 B. L.R. 298; 23 W.R. 179 the Judges (Markby, J. and Romesh Chunder Mitter, J.) held that there was neither doubt nor difficulty in saying that such a suit would lie. A similar view was held by the Judges (Garth, C.J., and Pontifex, J.) who decided the case of Jogendrammdini Dossee v. Hurry Doss Ghose (1879) I.L.R. 5 Cal. 500 though in that case they thought fit to impose a condition on the husband that he should provide a house for the reception of his wife such as would be in every respect fit for the reception of a virtuous and respectable wife.
10. The cases heard in the Bombay High Court show that it has all along been held that a suit would lie against a wife by a Hindu husband for restitution of conjugal rights and for damages and an injunction against those harbouring her. See Yamunabai v. Narayan Moresvar Pendse (1876) I.L.R. 1 Bom 164 In the well-known case of Dadaji Bhikaji v. Rukmabai (1886) I.L.R. 10 Bom. 301 it was held that a suit for restitution of conjugal rights was maintainable, and that Courts 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 on which the Divorce Court in England would refuse relief in Scott v. Scott (1876) 34 L. J. N. S. P&M. 23 It is to be observed that in that case it was held that the suit would lie equally for institution as for restitution of conjugal rights. The same view was entertained in the cases of Bai Sari v. Sankla Hirachand (1892) I.L.R. 16 Bom. 714 and Fakirgauda v. Gangi (1898) I.L.R. 23 Bom. 307
11. In the Allahabad High Court it was held in the case of Paigi v. Sheonarain (1885) I.L.R. 8 All. 78 that a suit for restitution of conjugal rights among Hindus was maintainable, though the Judges expressed the opinion that, whereas in that case there were special circumstances requiring such a course, a Civil Court was entitled, while recognising the civil right of the husband to his wife, to put such conditions on the enforcement of his rights by legal process as the circumstances of the case might fairly demand. and again, in the later case of Binda v. Kaunsilia (1890) I.L.R. 13 W.All 126 in which the law and authorities on the subject are reviewed by Mr. Justice Mahmood in a careful and elaborate judgment, it was definitely laid down that the Civil Courts of British India can properly entertain a suit between Hindus for the restitution of conjugal rights, and that it was not necessary as a condition precedent to such suits, the parties being Hindus, that there should be any demand by the plaintiff and refusal by the defendant.
12. All these cases leave, in our minds, no doubt that a suit for restitution of conjugal rights between Hindus is maintainable, and we are therefore unable to accept the contention of the learned pleader for the appellant that such a suit would not lie.
13. The authorities to which we have been referred, namely, Mr. Banerjee’s Lectures on Hindu Law of Marriage and Stridhana, 2nd Edition, p. 114, and Mayne on Hindu Law and Usage, paragraph 91 fully support this view.
14. The next question raised is whether such a suit is maintainable by a Hindu husband against his minor wife having regard to Article 35, Schedule II, of the Limitation Act. On this point the view taken by Mr. Banerjee in his Lecture on the Hindu Law of Marriage is that where the wife is qualified by her age to perform her conjugal duties the proper remedy for a husband in a case where the wife refuses to live under his protection is a suit for restitution of conjugal rights. And in the case of Suntosh Ram Doss v. Geru Pattuck (1874) 23 W.R. 22 it appears to have been assumed that such a suit would lie, as it was held that, where there is a custom that a child-wife should not go to live with her husband till a certain event happened, the Court was right in refusing a decree for restitution of conjugal rights until such an event had happened.
15. That a Hindu husband has the right of guardianship over his minor wife cannot be doubted, and in the case of Kateeram Dohanee v. Gendhenee (1875) 23 W.R. 178 the Judges of this Court (Markby, J. and Romesh Chunder Mitter J.) held that, according to Hindu law, after marriage a husband is the legal guardian of his wife’s person and property whether she is a minor or not. The marriage of an infant being under the Hindu Law legal and complete, marriage, the husband has the same right as in other cases to demand that the wife shall reside in the same house with him, except upon some trangible and definite grounds which show that under the special circumstances of the case the wife is absolved from this duty, and the Judges remarked that they could not say without contravening the Hindu law that the infancy of the wife constituted such a ground, though they thought it might be right in the case of a very young girl to require the husband to show that she would be placed by him under the immediate care of some female member of his family.
16. If, as legal guardian of the person and property of his minor wife, a Hindu husband is entitled under the law to insist that she shall live with him, it seems useless to argue that he is not entitled to similar relief in a suit for restitution of conjugal rights, if the wife has attained an age at which she is considered fit to discharge her conjugal duties, though in the eye of the law she may still be a minor.
17. In the case of Binda v. Kaunsilia (1890) I.L.R. 13 All. 126 it was held that Article 35 of Schedule II of the Limitation Act could not be held to apply to such suits but that the limitation applicable was Article 120, Schedule II, read with Section 23 of that Act. In the Bombay High Court a contrary view was expressed in the case of Fakir gauda v. Gangi (1898) I.L.R. 23 Bom. 307 but in that case it was held that the demand and refusal contemplated by Article 35 of Schedule II of the Limitation Act must be a demand to, and a refusal by, a wife being of full age and sound mind, and that it would not run in the case of a minor.
18. There seems to be little doubt that the Legislature in framing Article 35 of Schedule II of the Limitation Act had not in contemplation the fact that a suit for restitution of conjugal rights would, under the Hindu law, lie against a minor wife, but at the same time there can be no doubt that the Limitation Act is not intended to define or create causes of action, but simply to prescribe the period within which existing rights may be enforced in the Courts of law. See Jivi v. Bamji (1879) I.L.R. 3 Bom. 207. and the Privy Council have laid down with sufficient emphasis in the case of Buzloor Raheem v. Shumsoonissa (1867) 11 Moore’s I.A. 551 that in all suits regarding marriage and caste and all religious usages the Hindu law with regard to Hindus is to be considered as the general rule by which Judges are to form their decisions.
19. In this case the Lower Courts have both found that the defendant No. 1 is of a sufficient age to be fit to live with her husband as his wife, and, if all the facts as alleged on behalf of the plaintiff in this case are proved, we are of opinion that we are bound by the balance of the authorities to which we have referred to hold that the present suit for the restitution of conjugal rights against the defendant No. 1 brought by the plaintiff is maintainable in spite of the fact that she is still in the eye of the law a minor. We must, therefore, decide this point against the appellants.
20. There is, however, one point with regard to suits of this nature which we think we ought to notice as it appears to arise out of the facts in this case and not to have received direct attention in cases previously tried. We think that there can be no doubt that the law contemplated, when a decree in a suit of this nature is passed directing a wife to return to her husband, that the wife should return to her position as a wife in the household. We mention this because there are undoubtedly certain acts which, if committed by a wife during her absence from her husband would have the effect of at least placing her out of caste. Amongst these would certainly be cohabitation when another man has his wife. In this case the defendant No. 1, who is at most hardly more than a girl and seems to be quite under the influence of her relatives, is alleged to have been living for some time with defendant No. 3 as his wife. If this be a fact, there seems little doubt that a mere decree of a Civil Court directing her to return to her husband could not of itself restore her to her position as wife of the plaintiff in his household, as she would be out of caste. The learned pleader for the respondent has assured us that the restoration to caste would be a simple matter and would be arranged by the plaintiff as a matter of course. This may be the case, but there can be no doubt that if the defendant No. 1 were not restored to caste she would be placed in a position of serfdom in the house of the plaintiff. We do not believe that it is contemplated by the law that such should be the result of a decree issued by a Civil Court in a case of this nature.
21. Their Lordships of the Privy Council in the case of Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 Moore’s I.A. 551 (615) laid down that there may be cases in which the Court would qualify its interference by imposing terms on the husband. In the case of Paiji v. Sheonarain (1885) I.L.R. 8 All. 78 the Judges of the Allahabad High Court followed that view and imposed conditions on the husband; and similarly also the Judges of this Court imposed certain conditions on the husband in the case of Jogendronundini Dossee v. Hurry Doss Ghose (1879) I.L.R. 5 Cal. 500.
22. In this case the defendant No. 1 appears to have some landed property. Whether that fact has or has not had any influence on the institution of this suit we do not pretend to say. But in a case like the present, where the defendant is a mere girl and where, if she has been put out of caste, the act involving the loss of caste has been done under the influence of others, a Court passing a decree directing her return to her husband should be careful to see that the decree is not made use of simply for the purpose of obtaining her property and reducing her to a state of serfdom in the house of her husband. It would seem in such a case to be a necessary condition to impose on the plaintiff, when granting the decree, that he should make all the arrangements necessary for the restoration of the defendant to caste and to her position as his wife in his household, supposing it to be a fact that she has become out of caste.
23. As regards the second point taken by the learned pleader for the appellant it is necessary to notice the findings of the two Lower Courts as regards the question whether there was a legal marriage between the plaintiff and the defendant No. 1. If such a marriage was actually and properly celebrated it would be legal and binding, although it had been performed without the consent of the uncles, supposing that their consent ought to have been previously obtained (see Mayne’s Hindu Law and Usage, para. 91, and the case of Bai Rulyat v. Jeychund (1843) Bellasis 431 Mor. N.S. 181 on which the dictum is based). The question whether the uncles consented to the marriage, if there was a legal marriage, or not which was raised by the pleader for the appellant, would not appear therefore to be of importance under the circumstances of this case. The Munsif in his judgment says: “From the evidence on both sides it appears that the most essential ingredients, in the marriage of the Rajbansi caste to which the parties belong, are that a barber and two bairatis should officiate in the ceremony. In the case of well-to-do persons priests are engaged to perform the religious parts of the ceremony. A man is employed to throw water and he is called the mistar, hut his presence is not indispensably necessary. The plaintiff examined the priest, the barber, one of the two bairatis, the mistar, the marriage-broker and Ors. to prove his marriage with defendant No. 1. If their evidence be believed then it is to beheld that the plaintiff married defendant No. 1.”
24. Having thus stated what he considered to be the essentials of the marriage, he subsequently came to the following conclusion: “From the evidence and circumstances of the case I am inclined to hold that the plaintiff was legally married to defendant No. 1.”
25. In this judgment there is no statement of the rites and ceremonies necessary to constitute a legal marriage in the Rajbansi caste. The persons whose attendance was necessary, presumably to perform these ceremonies, are mentioned, but there is no finding how or whether the ceremonies were performed. The Subordinate Judge in appeal records the following finding: “As to the fact of marriage between defendant No. 1 and plaintiff! hold after careful perusal and weighing of all proofs and probabilities on both sides that the Lower Court has rightly held that such marriage had taken place in due form of the Hindu Rajbansi caste to which they belong. That being so, it should be seen if there be any legal bar against plaintiff getting a decree in the suit.” Subsequently holding that there was no such bar, he dismissed the appeal.
26. The Subordinate Judge does not definitely find what rites and ceremonies were necessary to constitute a legal marriage between the parties, or whether they had been performed.
27. Three rulings are relied on by the respondent to support the view that no special finding on those points were necessary and that, the fact of the celebration of the marriage having been proved, it should be presumed that the necessary rites were performed. The first is the case of Inderan Valungypuly Taver v. Ramasawmy Panaia Taver (1869) 3 B. L.R.P.C. 1; 13 Moore’s I.A. 141; 12 W.R. 41 (P. C) in which their Lordships of the Privy Council held that, when once you get to this that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. The question in that case, however, was whether there could be any legal marriage between the parties, the Pundits having held that there could not. The opinion of the Pundits was not accepted by the Privy Council. This was apparently a case of inheritance. The second is the case of Brindabun Chandra Kurmohar v. Chandra Kurmokar (1885) I.L.R. 12 Cal. 140 in which the Judges of this Court (Norris and Ghose, JJ.) held in a suit for restitution of conjugal rights that the fact of the celebration of the marriage having been established, the presumption, in the absence of anything to the contrary, is that all the necessary ceremonies have been complied with. In that case, however, there appears, to have been findings by both Lower Courts with regard to the rites and ceremonies performed at the alleged marriage, and on those materials the Judges of this Court who heard the case, were able to arrive at an independent opinion and at a finding reversing the findings of both Lower Courts. In this case there are absolutely no materials to enable us to come to any finding to this point. In the third case, viz., that of the Administrator-General of Madras v. Anandachari (1886) I.L.R. 9 Mad. 466 the Judges followed the ruling in the last mentioned case, and held that the fact of the celebration of the marriage being admitted, the presumption would be that all necessary ceremonies were performed in the absence of evidence to the contrary. That case was also one in which a question of inheritance was involved.
28. However much such a presumption may be taken as rightly arising in cases involving questions of inheritance, so as to avoid illegitimacy, we cannot agree that in a case like the present it could have the effect to which the learned pleader for the respondent would wish us to give it. In this case the validity and legality of the marriage is one of the most essential points in issue, and we cannot hold that we are entitled to presume, from the mere finding that the marriage was celebrated, that all the rites and ceremonies necessary to constitute a legal and valid marriage were performed. On this point the Lower Courts should have come to a distinct finding.
29. It remains to consider lastly the third point raised in the appeal, viz., whether the Munsif in refusing to grant the adjournment prayed for by the defendants for the examination of their witnesses failed to exercise a sound and wise discretion, and whether the defendants have been prejudiced thereby. From the order sheet of the case in the Munsif’s Court it would appear that when the case came on for hearing the Munsif commenced by following a practice, which is not uncommon in the Mofussil Courts, when a number of witnesses are offered for examination in a contested suit, of taking up the case late in the day on several successive days, and of examining one or two witnesses only on each day. This may occasionally suit the convenience of the presiding officer of the Court, or may seem to him to be necessary having regard to the other current and possibly urgent work of the Court. But it is a course which this Court has always discouraged, and amongst its other and many disadvantages it has the effect of leading the parties to believe that not more than one witness, or possibly two witnesses, if their evidence is likely to be short, will be examined in a day, and so to lead them in order to save expense not to keep all their witnesses in attendance, but to bring them up the day after day as it seems likely that they will be examined. This is what we are informed happened in this case. The defendants were led to believe, from the course adopted by the learned Munsif in examining the witnesses for the plaintiff, that their witnesses, would be similarly examined in dribblets, and in consequence they were not careful to have all their witnesses present on the 5th October. Four witnesses were present, and it was thought that their examination would at least extend over one day if not over more. However, on the 5th October, the Munsif appears to have abandoned the dilatory procedure which he followed in the early stages of the trial, and to have had all the four witnesses for the defendants examined in succession on the same day. This is said to have taken the defendants completely by surprise, and when on the completion of the examination of the fourth witness they found that their other witnesses, who had gone away on account of the previous delay, had not returned, they put in an application praying for a day’s adjournment only, in order to secure their attendance. The Munsif rejected the application without recording any reason for his order, and the Subordinate Judge has held that he was right in not granting the indulgence asked for, which the defendants did not deserve. The Subordinate Judge’s reason for holding that the defendants did not deserve the indulgence apparently was that they did not move the Court for an adjournment on the last date of hearing until all the witnesses on their side had been examined. He does not appear to have taken into consideration the explanation of the defendants, that they were taken by surprise by the sudden change of procedure adopted by the Munsif in the trial.
30. In our opinion, especially in a case like the present, where the decisions of the points in issue in the suit are of the greatest possible importance to defendant No. 1, as in fact affecting possible the whole of her future life, the Court of first instance should take the greatest care consistent with reason that full opportunity is given to the defendants to lay before the Court all the evidence they may be able to produce to support their defence. and certainly when a Court by its own procedure has lulled a party into a sense of false security, if afterwards by a sudden change in procedure it takes that party by surprise, it ought not to refuse to that party a reasonable opportunity to recover from the false position in which he has been placed. The case of Akikunnissa Bibi v. Rup Lal Das (1898) I.L.R. 25 Cal. 807 to which we have been referred, I, does not appear to be on all fours with the present case. In this case the defendants’ failure to have all their witnesses in attendance on the 5th October is said to have been due to a belief, induced in them by the previous procedure of the Munsif in the case, that there was no chance of all their witnesses, who were present, being examined on that day, and, as we are unable to hold that the belief of the defendants in that respect was not reasonable, we differ from the Subordinate Judge, and are of opinion that the Munsif failed to exercise a wise and sound discretion when he refused to grant the application for an adjournment for one day only, in order to secure the attendance of the absent witneses. It is impossible for us with the facts before us to say that the evidence of the witnesses who were not examined could not have effected the merits of the case, and we are unable therefore to hold that the error or irregularity of the Munsif is covered by the provisions of Section 578 of the Code of Civil Procedure.
31. Until the defendants had had an opportunity of examining all their witnesses the questions of the legality and due performance of the alleged marriage also could not be satisfactorily determined.
32. We consider, therefore, that the judgments and decrees of the Lower Courts cannot be maintained. We accordingly set them aside, and direct that the suit be remanded to the Munsif with directions to give the defendants reasonable opportunity and assistance to secure the attendance of their witnesses, and, after examining the witness who may be produced, to dispose of the case on the whole evidence in view of the remarks contained in this judgment. Costs to abide the result.
33. Having regard to the view we have taken of the appeal, no order is necessary in the rule.
