Chandra Reddy, C.J.
(1) This appeal is field against the judgment of the Subordinate Judge, West Godavari at Eluru in O. P. No. 83 of 1958.
(2) The petition under section 9 giving rise to this appeal was founded on the allegations that the appellant was married to the respondent in or about the year 1948, that ever since he and his wife, impleaded as 1st respondent to the petition, lived in the house of the latter's foster-father, and that subsequently he was illtreated there and consequently he was reluctant to continue to live any longer in that house. For this reasons, he went back to his village and he requested his wife to come over to him, but she refused to do so. Hence the appellant was constrained to initiate proceedings under section 9 of the Hindu Marriage Act. To this petition, the foster-father of the 1st respondent was added as the 7th respondent.
(3) This petition was resisted by the wife on the pleas that under an agreement entered into between the parties prior to the marriage, they had to live in the house of her foster-father and it is pursuant to this agreement that they all along lived in his house, that a few years later, he became addicted to drinking and gambling and when the 1st respondent remonstrated, he started ill-treating her. When the 7th respondent advised him to give up his vices, he demanded that the 7th respondent should convey to him a portion of his property. The 7th respondent could not comply with this demand because of the petitioner's bad habits. It is for this reason that he left the house of the 7th respondent and not for any valid and justifiable reason.
(4) The trial court dismissed the petition in the view that the petitioner was not entitled to any relief since it was not incumbent upon the wife to join her husband at another place, having regard to the agreement referred to above, and that it was he that deserted his wife by leaving her foster-father's house.
(5) The trial Court found that the cruelty alleged in the said statement was true, but this finding seems to be based more on his view that the appellant has been cruel to the respondent 'by withdrawing himself from her society without just reasons'. Obviously, he equates the husband's leaving the house of the respondent's foster-father and demanding that she should live wherever he resides, with withdrawing himself from her society. It is not clear from the judgment whether it accepted the testimony of the witnesses who said that he was beating his wife and her foster-father.
(6) The learned Judge also had not discussed the question of the agreement and given a finding thereon. Assuming the existence of such an agreement, could it be posited that appellant was not entitled to enforce his martial rights by requiring his wife to live with him wherever he chooses to reside? The answer to this depends upon the nature of the rights which flow from his marriage with the respondent. These rights have to be determined with reference to Hindu Law. In our opinion, it is the bounden duty of the wife to live with her husband wherever he may, choose to reside. Her home is in her husband's house. The rules of Hindu Law impose an obligation and duty upon the wife to live with her husband wherever he may choose to reside. That seems to be the effect of the institutes of Hindu Law. That being the real position, could it be postulated that the appellant could contract himself out of the rights and enter into an anti-nuptial agreement contrary to the rules of Hindu Law.
(7) This question was elaborately dealt with by a Division Bench of the Calcutta High Court in Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, ILR 28 Cal 751. The learned Judges after citing the relevant text on Hindu Law on this topic stated : that it might be safely taken that the duty imposed upon a Hindu wife to reside with her husband wherever he might choose to reside was not only a moral duty, but a rule of Hindu Law. They relied upon the texts of Devalue, Vishnu, Vasishta and Manu in support of their conclusion that the husband had a right to demand that his wife should reside in the same house as himself.
(8) We may here refer to a passage from Maine's Hindu Law as extracted in that judgment, which is apposite in this context:
'As soon as the wife is mature, for home is necessarily in her husband's house. He is bound to maintain her in it while she is willing to reside with him and to perform her duties. If she quits him of her own accord, either without cause or on account of such ordinary quarrels as are incidental to married life in general, she can set up no claim to a separate maintenance. Nothing will justify as renders it unsafe for her to continue there, or such continued ill-usage as would be termed cruelly in an English Matrimonial Court.'
(9) The concept embodied in this passage is in consonance with the rule contained in clause (b) of section 10 of the Hindu Marriage Act.
(10) Be that as it may, it is now well established that it is the right of the husband to require his wife to live with him wherever he may choose to reside and that Courts cannot deprive him of his right, except under special circumstances which absolve the wife from that duty. It may be premised that though marriage under the Hindu Law is a contract, it is also a sacrament, it is more religious than secular in character.
(11) The case of ILR 28 Cal 751 is also an authority for the proposition that such agreements as are pleaded in this case are opposed to the principles of Hindu Law and are contrary to public policy and are, therefore unenforceable. After extracting the terms of section 23 of the Contract Act, their Lordship observed that a contract like the one in the case before us is opposed to public policy.
(12) In support of this view, the learned Judges relied on Paigi v. Sheonarain, ILR 8 All 78 which held that a plea based upon similar anti-nuptial agreement was not sound and could not be seriously maintained. This judgment of the Calcutta High Court was referred to with approval by a Division Bench of the Madras High Court in Krishna Aiyar v. Balammal, ILR 34 Mad 398.
(13) Our attention was not drawn to any decision which struck a dissenting note. However, Shri Veerabhadrayya relies on a passage in Hindu Law by Ganapathi Aiyar which occurs at page 525. The learned author refers to the case of ILR 28 Cal 751 and says : 'This is, however, stating that (sic) the principle too broadly'. He then extracts the observation of Justice Krishnaswami Ayyar in ILR 34 Mad 398 : 'It may be doubted whether under that law any agreement between the husband and wife to live apart from each other is valid. It may well be deemed to be forbidden by the Hindu Law.' The author does not say as to why the proposition could be said to have been stated too broadly.
(14) The principle underlying Tekait's case, ILR 28 Cal 751 which was noticed with approval by the Madras High Court in Krishna Aiyar's case, ILR 34 Mad 398 and is supported by the decision in ILR 8 All 78 and also by Govind Rani Dasi v. Radha Ballabh Das, 15 Cal W N 205 is based on the notions and ideas of the Hindu Law givers. It may that these rules of Hindu Law are not in harmony with the modern notions and may sound rather archaic. But we are concerned with the law as propounded by the law-givers and so long as it is unaltered, we are bound to follow it. It is true that since the rendering of the above judgments, various laws have been enacted improving the social status of women and equal status has been accorded to women along with men, but that does not enable us to ignore the principles of Hindu Law as remain altered. It is for the Legislature to change the law in these respects and to give equal rights in every field to women. It is not for us to alter the law, out duty being only to interpret it.
(15) We, therefore, hold that even if the agreement is proved, that would not affect the right of the husband to demand that his wife should live with him wherever he chooses to reside.
(16) But this does not decide the matter, as there are allegations that the husband was beating the wife which may amount to cruelty within the contemplation of clause (b) of S. 10 of the Hindu Marriage Act. The trial Judge had not applied his mind seriously to these matters. He did not discuss the evidence of the petitioner and P. W. 2 on this aspect of the issue, although he had made casual reference to the evidence of R. Ws. 1, 3 and 4 who also deposed that the petitioner was beating her now and then. The trial court has to discuss these matters with reference to the evidence on record and also see whether the cruelty was of such a nature as to leave an impression in the mind of the wife that it would be harmful or injurious for her to live with her husband.
(17) We, therefore, set aside the judgment under appeal and remand the matter to the trial court for disposal according to law. Both sides will be afforded an opportunity to lead further evidence. Costs will abide the final result.
(18) Case remanded.