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Bai Jamna Vs. Dayalji Makanji - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number Second Appeal No. 356 of 1918
Judge
Reported in(1920)22BOMLR214; 57Ind.Cas.571
AppellantBai Jamna
RespondentDayalji Makanji
Excerpt:
restitution of conjugal rights - decree-injunction against parents of the wife not to harbour her.;in decreeing a suit for restitution of conjugal rights, it is not proper for the court to issue an injunction to the parents of the wife restraining them from keeping her under their roof.; tamunahai v. narayan moreshvar pendse (1876) i.l.r. 1 bom. 164, distinguished. - - i think on the merits it should not be allowed to stand, and even if it were good on the merits, it would remain a farce on the very finding of the court that the 1st defendant shall not be compelled, to obey it.norman macleod, kt., c.j.1. the plaintiff filed this suit against his wife and his wife's parents to obtain a decree for restitution of conjugal rights against his wife, and a personal injunction restraining the parents from obstructing his wife from living with him and from allowing her to live in their house. in the first court the suit was dismissed. in first appeal the plaintiff got a decree for restitution of conjugal rights, although the judge directed that the decree should not be executed by detention in prison. the plaintiff was also granted an injunction restraining the 2nd and 3rd defendants from harbouring the first defendant in their house.2. now it appears that in 1913 the first defendant left her husband's house and went to her parents' house for her confinement, and she.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed this suit against his wife and his wife's parents to obtain a decree for restitution of conjugal rights against his wife, and a personal injunction restraining the parents from obstructing his wife from living with him and from allowing her to live in their house. In the first Court the suit was dismissed. In first appeal the plaintiff got a decree for restitution of conjugal rights, although the Judge directed that the decree should not be executed by detention in prison. The plaintiff was also granted an injunction restraining the 2nd and 3rd defendants from harbouring the first defendant in their house.

2. Now it appears that in 1913 the first defendant left her husband's house and went to her parents' house for her confinement, and she did not return to live with her husband before the suit was filed in 1915. She has alleged in her defence to the plaintiff's claim that the plaintiff had been guilty of cruelty towards her whilst she was living with him, and that after she left the plaintiff's house, he had written to her letters of a most indecent description accusing her of the grossest immorality. She, therefore, said that she apprehended danger to her safety if she returned to the plaintiff's house.

3. Now the learned first appellate Judge has apparently dig regarded the effect of the letters written by the plaintiff after defendant 1 left his house, because they were written after she had gone to her parents' house in the ordinary course for her confinement. He also considered that the 1st defendant's story as regards cruelty was untrue. That no doubt is a question of fact. But I think the way the first appellate Judge has dealt with the letters written after 1913 has caused him to err in his appreciation of the 1st defendant's evidence as regards what happened whilst she was living with her husband. Now it is obvious that the plaintiff was an extremely jealous person, and was always accusing his wife whilst she was living with him of immorality, and after she left his house in 1913, his letters were very obscene, and from the nature of those letters I think it may be safely inferred that there may be considerable truth in the defendant's story regarding the plaintiff's conduct while they were living together. In any event it seems clear to me that the 1st defendant is justified in saying that she is apprehensive that there will be danger to her health and to her happiness if she returns to live with her husband unless he entirely alters his attitude towards her, of which there does not seem much prospect. The decree as it stands cannot be executed by detention of the 1st defendant in prison. The result would be that the decree would be a dead-letter. The only effect of it would be to prevent the first defendant from claiming maintenance from her husband, but her pleader has said that she has no intention of claiming maintenance. If this decree remains on the record it will be an absolute farce.

4. Then as regards the order against the 2nd and 3rd defendants, that appears to me to be founded on a misapprehension of what was stated by the Court in Yamunabai v. Narayan Noreshwar Pendse ILR (1876) 1 Bom. 164. No doubt if a woman goes and lives with a stranger in adultery, the husband may have a claim against that man, and may get an order from the Court restraining him from keeping the woman under his roof. But in this case the wife has gone to live with her parents, and if this injunction were to stand, the unfortunate 1st defendant would have nowhere to live. I presume the object of getting that injunction from the Court was to force the 1st defendant to go back to her husband, although it was expressly stated that she would not be imprisoned if she disobeyed the order. But if her parents were obliged to turn her' out of the house, then it must follow that either she would have to return to her husband, or go to live under the protection of some other person. Therefore in any event I should say this order against the parents restraining them from allowing their daughter to live under their roof was wrong. However that may be, in my opinion it is certainly not desirable, whatever view one takes of the case, that this decree should stand. I think on the merits it should not be allowed to stand, and even if it were good on the merits, it would remain a farce on the very finding of the Court that the 1st defendant shall not be compelled, to obey it. We, therefore, think that the decree appealed from should be set aside and the suit dismissed. The husband always has the privilege of paying the wife's costs.

Heaton, J.

5. I concur.


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