1. This is a suit brought by the plaintiff, Sheonarain, a sunar by caste, against Musammat Paigi, his wife, and Musammat Sarasuti, his mother-in-law, for restitution of conjugal rights.
2. His allegations are, that he was married to the defendant Musammat Paigi eight years ago; that she now refuses to cohabit with him, and that she is kept from doing so by the second defendant, her mother.
3. The defendants pleaded two matters in reply. In the first place, it was pleaded that, under an agreement of the 1st June 1876, the plaintiff had, prior to his marriage to the defendant No. 1, undertaken to live in the house of his mother-in-law, defendant No. 2, with his wife after marriage; that defendant No. 1 was married to him on that condition; that he has left the house and refuses to live in it, and is therefore not entitled to enforce his marital rights, and that the defendant No. 1 can consequently withdraw herself from him. In the second place, it was pleaded that the plaintiff, having taken a Muhammadan woman as his mistress, and having lived and eaten food with her, has been put out of caste; and that, under these circumstances, defendant No. 1 cannot be called upon to go back to him, as, if she did, she would be excluded from caste herself. As to the first of these defences, I need scarcely say it is absurd, and of course could not be seriously entertained in a Court of law, and need not be noticed further.
4. Both the Courts below have given the plaintiff a decree, and the defendants are appellants before us from the decision of the Subordinate Judge.
5. The pleas in appeal are in substance as follows:
1. That as the plaintiff is still out of caste, the defendant, his wife, is not bound to return to him.
2. That until he has been restored to caste no cause of action can accrue to him.
5. Now it has been found by both the Courts that the plaintiff did leave his wife and cohabit with another woman, whom now, however, he has given up, and was consequently turned out of caste; but that the impropriety and breach of caste rules and regulations of which he was guilty was of such a character and description as did not render him liable to perpetual excommunication; but that, upon his making certain amends, by feeding his caste-fellows, he can obtain restoration to his caste that of a sunar. This is now admitted to be so no both sides.
6. Now I need scarcely say that unless we can hold that by being excluded from caste under the circumstances I have mentioned, the plaintiff had extinguished his ordinary civil rights as a husband to require his wife to live with him, or that, in other words, the marriage had, under the Hindu law, thereby been dissolved, he is entitled to come into court to seek the relief he asks, if he is not otherwise disqualified from obtaining it. But while entertaining this view, we are, I think, bound, when asked to employ coercive process to compel a wife to return to her husband, not to disregard any reasonable objection she may raise to such process being granted, either on the ground that she has been subjected before to personal injury or cruelty at the hands of her husband, or that she goes in fear of one or the other, or that the husband is actually living in adultery with another woman, or that, if she resume cohabitation or association with him, he being outcasted, she will herself incur the risk of being put out of caste.
7. I therefore think that, in decreeing a claim of this description, a Court is entitled, if it sees good reason to do so, while recognizing the civil rights of a husband to his wife, to put such conditions upon the enforcement of his rights by legal process as the circumstances of the case fairly demand.
8. Applying this principle to the present case, it seems to me that the defendant Musammat Paigi may reasonably ask us, before compelling her to return to her husband, to make it a condition that he shall first obtain his restoration to caste, and to this extent I think her appeal should succeed. Having looked into the authorities on the subject, I am not prepared to hold, until corrected by a higher tribunal, that, under the Hindu law, the fact that a husband has had adulterous intercourse with another woman, which has ceased at the time of suit, is an answer to a claim by him for restitution of conjugal rights.
9. Before stating what the decree here should be in terms, I have to observe, with reference to Musammat Sarasuti, that no case whatever has been made out by the plaintiff for making her a party to the proceedings, and the suit as against her must be dismissed. It only remains for me to direct that the decree be framed in the following terms:
It is ordered and decreed that this appeal be decreed; that the suit in respect of Musammat Sarasuti do stand dismissed; and that it be declared that the plaintiff is entitled to his conjugal rights as to Musammat Paigi; and that, upon his obtaining his restoration to his caste, the defendant Musammat Paigi, his lawful wife, do and is hereby ordered to return to his protection within one month of such restoration to caste and of request by him to her to return thereto.
10. In the event of the plaintiff satisfying the condition of this decree, and the defendant Musammat Paigi wilfully failing to obey its directions, her obedience will be enforced in manner provided by Section 260 of the Civil Procedure Code.
11. The costs of this appeal will be paid by the respondent, who will also pay the costs of Musammat Sarasuti throughout the litigation.
12. The defendant No. 1 will pay her own costs in the Court below.
13. I concur.