1. It is common ground between the parties to these two second appeals, preferred against the decree of the District Court, at Broach, that they belong to the Kharwa community of Mahomedans, which has formed itself into a caste. The respondent, who is the husband of the first appellant, sued her in the Court of the Second Class Subordinate Judge at Broach, for restitution of conjual rights. The appellant resisted the claim upon the ground that the respondent had been excommunicated by the community to which they belonged and that until he should get himself re-admitted into it, she should not be compelled by the Court to go and live with him as his wife. The Subordinate Judge, having found the excommunica tion proved, allowed the appellant's defence and passed a conditional decree in favour of the respondent in these terms :-The appellant 'do return' to the respondent 'and live with him as his wife' but 'that as a condition precedent to the execution of the decree' the respondent 'do pay as deposit Rs. 251' to the second appellant (father of the first appellant) to enable the said second appellant 'to pay over the fine imposed by the caste of the parties.' From that decree the respondent having appealed, the District Court at Broach has varied it by striking out the portion as to the condition precedent.
2. The ground upon which the learned Judge of the District Court has proceeded is shortly this. He finds that the respondent has been excommunicated by the Kharwacom-munity to which the parties belong but he holds that the fact of such excommunication ought to have no bearing on the merits of the respondent's claim for restitution of conjugal rights because such claims must be determined solely with reference to the principles of the Mahomedan law; and that law does not regard excommunication from a caste as ''a recognised cause' entitling a Mahomedan wife to refuse conjugal rights to her husband, so long as such excommunication has not deprived him of 'his position as a Mahomedan.' The learned Judge has found upon the evidence that the respondent still retains his Position 'as a Mahomedan,' notwithstanding the sentence of excommunication passed upon him by his community. In the words of the judgment now under appeal, 'the only result is that he is debarred from social' intercourse with the other members of the community. He still attends the mosque and when he dies he may be buried in the usual burial ground, nor is there anything to prevent himfrom associating with other Mahomedans outside the community which he has offended. His position thus more closely resembles that of a person expelled from a social club than that of a Hindu outcaste.' So far as this is a finding of fact, it is binding upon this Court in second appeal and the only question is, whether'and how;'in point of law that finding affects the rights of the parties now in dispute.
3. It is an established principle of our Courts, sanctioned by the authority of the Judicial Committee of the Privy Council, that suits relating to marriage, where the parties are Mahomedans, must be determined according to the principles of the Mahomedan law. In laying down that principle in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum and Jadondth Bose v. Shumsoonnissa Begum (1867) 11 M.I.A, 551, the Judicial Committee point out that, marriage being, according to the Mahomedan law, a contract, 'gross failure by the husband of the performance of the obligations which the marriage contract imposed on him for the benefit of the wife, might, if properly proved, afford good grounds for refusing to him the assistance of the Court. And, as their Lordships have already intimated, there may be cases in which the Court would qualify its interference by imposing terms on the husband. But all these are questions to be carefully considered and considered with some reference to Mahomedan law.' Their Lordships are particular in using the words 'some reference to Mahomedan law,' which must be construed to mean reference to the spirit, not the letter, of the law and not to exclude any ground of refusal which, though not falling within the conditions annexed in express terms to the marriage contract by the Mahomedan law, is based upon the customary law of status to which the parties were subject at the time of marriage. It was held so long ago 'as 184-7 by Sir Erskine Perry in the Kojahs and Memons' case (1847) Perry O.C. 110 that ' customs conflicting with the express text of the Koran can be valid among a Mahomedan sect. ' And according to Mr. Ameer Ali in his Mahomedan Law, Vol. II, at p. 372 (2nd Edition): 'Every case, in which the question of conjugal domicil is involved, will depend, says De Menerville, upon its own special features, the general principle of the Mahomedan law being the same as in other systems of law, viz., that the wife is bound to reside with her husband, unless there is any valid reason to justify her refusal to do so. The sufficiency or validity of the reasons is a matter for the consideration of the Kazi or Judge, with special regard to the position in life of the parties and the usages and customs of the particular country in which they reside.'
4. It has been held by this Court in Abdul Kadir v. Dharma I L R (1895) 20 Bom. 190 that there may be a community amoug Mahomedans, having its own usages and forming a caste within the meaning of Bombay Reg. II of 1827. That is a distinct recognition by this Court of the existence and legal validity of the institution of caste, in some form or other, among Mahomedans. If a Mahomedan belonging to such community or caste marries a woman also belonging to it, the contract must be presumed, in the absence of evidence to the contrary, to have been entered into upon the faith that as both are Mahomedans of that caste, both shall continue as such so long as they live as husband and wife.
5. In the present case, the defence of the wife made in her write ten statement was that ' the parties and their caste people are Mussalman Kharwas and though they follow the Mahomedan faith, their manners and customs are like those of Hindus, that they have no intercourse whatsoever with other Mussalman communities and that to be put out of caste and continue as an outcaste is very annoying to the whole family. ' The Subordinate Judge, who tried the suit, held these allegations proved. The finding of the learned District Judge in appeal is substantially to the sam-effect. But he has negatived the defence in question upon the ground that the husband is still able, notwithstanding the excommunication, to retain his position as a Mahomedan. It may be that he is still able to attend the mosque and have social intercourse with Mahomedans other than those of the Kharwa community. But the effect of the excommunication is that he cannot have social intercourse with members of that community, in which he was born, to which both he and his wife have belonged and as members of which they have married. Such social intercourse may be of no moment to him ; but the wife pleads that it is of moment to her. At the time of marriage she was not only Mahomedan by faith but also a member of the Kharwa community. Occupying that status, she married the husband. Under these circumstances it was of the essence of the marriage contract that they married because they were members of that particular community and they must be regarded as having entered into the marital relation on the basis of that status. The learned District Judge further observes:-'There is here no case of an immemorial usage at variance with the ordinary Mahomedan law. It is not disputed that the marriage law prevailing among the Kharwas is the same as that followed by other Mahomedans.' The answer to that is that, though the marriage law is the same, it is subject to the stdtus of the parties as members of the Kharwa community. That law is annexed to the status.
6. On these grounds the decree of the District Court passed in appeal must be varied by adding the following words after: ' defendant 1 do return to the plaintiff and live with him as his wife and that defendant No. 2 do refrain from prohibiting her from doing so:'-
Upon the plaintiff securing readmission into the Kharwa community of Mahomedans of which he and defendant No. 1 were members at the time of marriage.
7. The appellant must pay to the respondents the costs throughout.