Norman Macleod, Kt., C.J.
1. This is a suit brought by the plaintiff, the husband, for restitution of conjugal rights against his wife, the 1st defendant. The suit was dismissed by the trial Court. In appeal the plaintiff got a decree. The 1st defendant was ordered to go and live with her husband. Order XXI, Rule 38, gives the Court discretion to order that such a decree shall not be executed by detention in prison. The learned appellate Judge has considered that rule, but considered that as the wife had already suffered rigorous imprisonment for three years on a criminal charge, and was quite accustomed to that life, it would not be any violence to her feelings to be asked to go to jail for wilful disobedience of the Court's order.
2. Now it may be admitted that the Court has power to give a husband a decree for restitution of conjugal rights, and no doubt the Court has power to order the wife, if she does not obey the decree, to go to jail. But the Code especially provides that the Court may order that the decree shall not be executed by detention in prison. Generally the tendency of modern legislation is against sending women to jail in civil matters. Section 56 of the Code provides that they shall not be arrested or detained in a civil prison in execution of a decree for payment of money, and except in very serious questions of contempt of Court, I doubt whether a Court would ever order a woman to be sent to jail merely for refusing to obey a decree of an ordinary nature. It may be said that the decrees for restitution of conjugal rights are of a particular nature, that the law recognises that the husband is entitled to have his wife living with him, and that the only way to enforce obedience to such an order would be ordering he detention of the wife in prison if she refused to comply with the decree. But the days are past when a wife was considered as a mere slave or chattel of the husband. In my opinion a decree for the restitution of conjugal rights, which can be enforced by imprisonment, is a relic from the barbarous and middle ages. It is recognised, and has been recognised for many years in England, that a decree for restitution of conjugal rights is merely a preliminary step to enable a wife to get a divorce when she would not otherwise be able to do so, since the refusal of the husband to obey a decree for restitution of conjugal rights is considered as desertion, arid desertion equivalent to cruelty, and, therefore, such desertion, coupled with adultery, will be sufficient to enable a wife to get a decree for divorce That is the only use to which proceedings for restitution of conjugal rights are now put in England. In this country they may be used by the husband as a means for preventing the wife from claiming maintenance), since, if the Court passes an order against a wife to go and live with her husband, and she refuses to do so, then she is debarred herself from making any claim to maintenance. For a wife is only entitled to separate maintenance if she has some good reason for living apart from her husband. In my opinion it is a sufficient consequence for the refusal to obey a decree for restitution if she has to maintain herself, and cannot make any claim against her husband for maintenance. In any event in this case the reasons given by the learned Judge for refusing to exercise his discretion in favour of the defendant cannot be supported. I should, therefore, amend the decree of the lower appellate Court by directing, under Order XXI, Rule 33, that the decree shall not be executed by detention in prison. The appellant will have the costs of the appeal.
3. A decree in this case for restitution of conjugal rights is no doubt justified by the circumstances which have come to light in the course of the case. But when the appellate Judge came to consider whether he should or should not make a direction such as is contemplated by Order XXI, Rule 33, of the Civil Procedure Code, that is, a direction that the decree shall not be executed by detention in prison, he decided that he would ;not make any such direction. For that decision ho gave what if; to me an astonishing reason: he thought that because the wife had already suffered rigorous imprisonment for three years, mud was quite accustomed to that life, it would not do any violence to her feelings to require her to go to jail for wilful disobedience of the Court's orders. It would be interesting to ascertain in how many cases of persons who had once been sent to jail, it would not do violence to their feelings to be required to go to jail a second time. I imagine the number would be singularly few.
4. Then the Judge gave another reason. He said the decree would be a nullity, and that if he were to give such a direction the object of taking and giving it would be frustrated. That is not no either. The decree for restitution of conjugal rights accompained by a direction that the decree shall not be executed by imprisonment is not a nullity. It is a declaration that the marital obligation of living with her husband rests on the wife, and it protects the husband against any proceedings for maintenance which the wife may institute under Section 488 of the Criminal Procedure Code. Such a decree, therefore, does serve a really useful purpose. In this case I feel not the slightest hesitation in saying that the direction that the decree shall not be executed by imprisonment ought to be added, for though it is perfectly true that the wife certainly ought not to be able, to secure separate maintenance, it is equally true that it would be ludicrous to send her to jail for refusing to live with her husband whom she at one time apparent had attempted to murder. I therefore agree with, the order proposed.