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Ayesha and ors. Vs. Fiaz Husain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.124
AppellantAyesha and ors.
RespondentFiaz Husain
Cases ReferredBinda v. Kaunsilia
Excerpt:
limitation - suit for restitution of conjugal rights--limitation act (ix of 1908), sections 28, 29--limitation act (xv of 1877), sections 2, 28, schedule ii, article 35. - .....(2) that it did not arise within the jurisdiction of the court of first instance and (3) that the suit is barred by limitation. the facts disclosed by the plaint beyond doubt gave the plaintiff a cause of action. we agree with the lower court that at least a portion of the cause of action did arise within the jurisdiction of the court of first instance. in view of the decision of this court in binda v. kaunsilia 13 a. 126 and in view of the fact that articles 34 and 35 have been removed from the present limitation act, we are of opinion that the suit is not barred by limitation. moreover, there is the fact that a right to restitution of conjugal rights is not one which is extinguished under section 28 of the act of 1877 or of 1905. the result of the expiry of the period of limitation in.....
Judgment:

1. This was a suit by Faiyaz Hmain against his wife, her mother and brother and a fourth party, for restitution of conjugal rights and for perpetual injunction against defendants Nos. 2, 3 and 4, restraining them from offering any interference as might prevent Musammat Kulsum, defendant No. 1, from going to the plaintiff's house. The substance of the plaint is, that on the 7th of May 1906, defendants Nos. 2 and 3 took away defendant No. 1 from the plaintiff's house on the promise that they would send her back after the wedding of defendant No. 3, that when she did not return, he went to defendants Nos. 2 and 3 and made an inquiry, bit was told by them that they had no knowledge of her whereabouts, that, in November, 1909, he learnt that defendant No. 1 had contracted some connection with defendant No. 4 and was at Hasanpur where he resides and that he (plaintiff) was prosecuting him criminally under Section 498, Indian Penal Code. The defence set up by Chhida Khan was, that the plaintiff had divorced defendant No. 1, and he had married her after the divorce, and that no cause of action arose within the limits of the jurisdiction of the Court of first instance. That Court decreed the claim. That decree was affirmed by the lower Appellate Court, In second appeal, three points are taken: (1) that there is no cause of action; (2) that it did not arise within the jurisdiction of the Court of first instance and (3) that the suit is barred by limitation. The facts disclosed by the plaint beyond doubt gave the plaintiff a cause of action. We agree with the lower Court that at least a portion of the cause of action did arise within the jurisdiction of the Court of first instance. In view of the decision of this Court in Binda v. Kaunsilia 13 A. 126 and in view of the fact that Articles 34 and 35 have been removed from the present Limitation Act, we are of opinion that the suit is not barred by limitation. Moreover, there is the fact that a right to restitution of conjugal rights is not one which is extinguished under Section 28 of the Act of 1877 or of 1905. The result of the expiry of the period of limitation in respect of such a right under the Indian Limitation Act, 1877, is that the remedy only is barred, and the portion of Section 2 of the same Act which enacts that 'nothing herein or in that Act contained shall be deemed to affect any title acquired, or to revive any right to sue barred under that Act or under any enactment thereby repealed,' has not been re-produced in Section 29 of the Limitation Act of 1908. The plaintiff's remedy under the present Limitation Act, therefore, subsists. For these reasons, we dismiss the appeal with costs.


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