1. This is an appeal by the husband against the decree of the District Judge of South Arcot, dismissing his suit for restitution of conjugal rights against the 1st defendant, his wife, on the ground that he was guilty of legal cruelty. The plaintiff's case is that he married the 1st defendant about 18 years ago, that he lived with her as husband and wife till she left him, that he had to marry a second wife as the 1st defendant had no issue, that the 1st defendant left him about 19 months before he filed his plaint at the instigation of the 2nd defendant, her father, and the other defendants have induced her to stay away from the husband and that he was entitled to restitution of conjugal rights against the 1st defendant. The 1st defendant pleaded that the husband was guilty of cruelty, that she was ill-treated by him, that he falsely charged her with an attempt to poison him and that when she went to the husband's house at the request of her father, he pushed her out by the neck and threatened to slipper her if she ever crossed his threshold. The learned District Judge has believed the evidence of the defendants and their witnesses and refused the plaintiff any relief.
2. M.T.M. Krishnaswami Iyer who appears for the appellant contests the finding of fact and argues that on the facts found no legal cruelty has been established. The admitted facts are that the 1st defendant was married to the plaintiff when she was quite young, that she lived with him as man and wife for about ten years, that as she had no issue the plaintiff married a second wife about 1913, that the 1st defendant continued in her husband's house for about five years after the second marrige and has left the husband's protection. She filed a petition for maintenance on 14th November, 1918 before the Sub-Divisional Magistrate of Tindivanam and he passed an order in her favour on 22-2-1919 and the revision petition by the plaintiff against that order was dismissed by the High Court on 28-7-1919. He filed his suit on 7-4-1919.
3. The plaintiff as his 1st witness swears that he lived with the 1st defendant as man and wife till she left him without any ostensible reason. His suggestion for her leaving him is that her father applied to him for a loan of Rs. 1,000 for the purpose of prosecuting a case against one Kamalatchi Ammal and he refused to lend him money whereupon the father took the daughter away and refused to send her back. He denies the allegation that he suspected his wife of an attempt to poison him and denies the acts of cruelty. The plaintiff is a man in well-to-do circumstances and seems to be very influential in his own village. His evidence is supported by P.W. 3 his paternal aunt, a widow living in his family. The other witnesses on his side do not throw any light on the matters in dispute. On the other hand, the 1st defendant has been examined as D.W. 1 and she says that there were no marital relations between her and the plaintiff after he married his second wife, that he would not even speak to her, that he took away her jewels on some pretext, that she was made to do household work like a servant, that he abused her when she took some butter-milk to him to be taken with his food, that he did not drink the butter-milk but he got up from his unfinished meal and said that he would not drink from her hand even in the next birth, that he would not allow her to touch the child of the second wife though the child was attached to her, that when he suffered from a slight ailment, he charged her with, having put poison in his coffee, that he used very violent language to her, that he and his mother gave directions that she should not enter the kitchen which was the only room she had entered up to that time after the second marriage and tint she unable to bear the cruel treatment left the house, and went to Korakady to live with her father and mother and that the father after sometime brought her to her husband's house and when she entered the house he came from inside and necked her out. Her evidence is supported by that of her father as regards her being pushed out by the neck when he took her to the husband's house. D.W. 4, the Village Munsif of the place against whom no serious motive has been alleged says that he was sent for on one occasion by the plaintiff, that when he went to his house his mother and paternal aunt showed him a Karandagum (a small metallic box), and asked him to open it and he did so and it emitted a bad smell. He was told that the 1st defendant was keeping that medicine for poisoning her husband. He asked that the 1st defendant should be sent for and as she was unable to go to him she sent word that it was kept by her for stomache-ache and he was afterwards told that she proved the innocuousness of the medicine by taking it herself. The other witnesses support the evidence of the 1st defendant that the husband considered her to be a disgusting woman and said that he would have no relations with her.
4. The learned Dt. Judge after carefully examining all the evidences has come to the conclusion that her version of the case is better entitled to weight than that of the plaintiff. I have no hesitation in agreeing with him inasmuch as no arguments have been put forward on the side of the plaintiff which could in any way induce me to consider that the learned Judge has not correctly appreciated the evidence in the case.
5. The next question pressed by the appellant is that the acts of cruelty found are not sufficient to establish a good defence to the plaintiff's suit for restitution of conjugal rights. It is now settled that Courts in India have jurisdiction to entertain suits for restitution of conjugal rights and to grant re lief when the parties are Hindus or Mahomedans, Vide Surjyamoni Debt v. Kali Kant a Das (1901) 28 Cal. 37. But the difficult question is under what circumstances would a Court be justified in refusing to grant the relief asked for in such a case. In this case the parties are Hindus. Mr. Mayne in his book on Hindu Law sums up the law thus : 'When the marriage is once completed if either party refuses to live with the other, the case is no longer one for specific performance of contract but for restitution of conjugal rights.' (Section 96). 'Nothing will justify her in leaving her home except such violence as renders it unsafe for her to continue there, or such continued ill-usage as would be termed cruelty in any English matrimonial Court' (Section 456). Mr. Krishnaswami Iyer strongly pressed on our attention the case of Russell v. Russell (1898) A.C. 307, and contended that a mere allegation of commission of an offence would not amount to cruelty and that his client though hastily thought that the 1st defendant was capable of poisoning him, he repented of it and that inasmuch as he was anxious to live with her he entertained no fear of her poisoning him and therefore she was not entitled to live away from him. He also contended that the only act of actual cruelty in the popular sense was her being shoved out when she went to his house after leaving him for a time. In this connection, it must be remembered that the plaintiff does not admit having made an unfounded charge but denies having made it. He does not plead that he has forgiven' his wife or that he was misled into thinking that she was capable of committing a heinous offence but totally denies having made any such charge. Therefore, there can be no repentance on his part and the way in which this case has been pressed shows that he is anxious to have a decree in his favour without any regard to the future welfare of his wife. In Russell v. Russell (1898) A.C. 307 the House of Lords held that 'a false charge of having committed an unnatural criminal offence brought by a wife against her husband although published to the world and persisted in after she did not believe in its truth, is not sufficient legal cruelty to entitle the husband to judicial separation.' The case was decided by a majority of 5 Lords against 4. Before considering the English authorities it is to be borne in mind that the Matrimonial Law of England is the Canon Law of the church and matrimonial causes were heard and determined by Ecclesiastical Courts. According to Canon Law strict monogamy is the rule. The Roman Church even now does not recognise divorce. The Anglican Church though it allows divorce is still leaning towards strict monogamy. It was only under the Matrimonial Causes Act 20 and 21 Vict. Chap. 85 that the King's Courts were given jurisdiction to entertain matrimonial causes and by Section 22 they were directed to determine them as far as possible on the principles of the ecclesiastical law. That jurisdiction is now exercised by the Probate Division of the High Court of Justice. The legislature did not alter the Canon Law except in a few matters and the judges who administer the law are bound by the precedents which were established in the Ecclesiastical Courts. To import the Ecclesiastical law of England wholesale into India is as injudicious as it is inequitable. In the Christian countries monogamy is the rule. No man or woman can marry a second time when the first marriage is subsisting. In England therefore if a wife or husband refuses to cohabit or to render to one another marital duties, the other party cannot have, any relief except such as is granted by the Courts and that is the reason why Courts were strict in enforcing the marital duties and were jealous of the rights of the parties to the marriage and would not allow any violation of the marital tie, and compelled the recalcitrant party to submit to the embraces of the other, and forced them to live as man and wife. In India the Hindu Law permits a man to have more than out wife at the same time, but among the higher castes, a woman can marry only once. When a man marries more than one wife and ill-treats one of his wives in such a way as to make it impossible for her to live with him not merely with any degree of comfort but without danger to her health, the question for consideration is should the Court enforce the strict rule of English Ecclesiastical law or should it consider whether the circumstances of each case would justify its using its power to compel the wife to live with her husband who hates and loathes her, and when by such residence her health is likely to be seriously impaired. The Courts in India are enjoined to decide according to justice, equity and good conscience in cases where no specific rule exists and they naturally look to the English decisions for guidance. The common law of England furnishes precedents which are in conformity with equity, justice and good conscience. But the Ecclesiastical law of England is not the common law of England and the former is applicable to a state of things which does not obtain in India and therefore great care should be exercised in importing wholesale in India the strict principles of the Ecclesiastical law of England which are embodied in the decisions of the English Courts. Even in England the tendency of the latter cases is to relax the extreme stringency of the rules of Ecclesiastical law as regards marital rights and duties in order to give relief where a Court of equity would consider such relief to be proper.
6. With these preliminary remarks I will examine the cases relied upon by the appellant. In Russell v. Russel (1898) A.C. 307, the wife brought a suit for restitution of conjugal rights and the husband resisted it on the ground of cruelty by the wife. The cruelty proved was 'that from that time, after the trial, al though she had heard the verdict in favour of her husband at the close of the trial, that she thenceforth wrote letters, made statements, pursued her husband, practically insisted on the same charge not by one single act or by any single letter, but by a continuance and persistence in conduct of that sort.' The charge was that he was guilty of an unnatural offence. The case was tried before Pollock B with a jury. He pronounced a decree for a judicial separation. The Court of appeal held that the husband was not entitled to a decree for judicial separation. Two of the learned Lords Justices, Lopes and Lindlcy, define cruelty thus : 'There must be danger to life, limb or health, bodily or mental, or reasonable apprehension of it.' The leading judgment in thaf.case was delivered by Lord Herschell who held that the wife's persistence in making a false charge against her husband knowing the charge to be false, however culpable such conduct was, did not amount to legal cruelty. He followed the dictum of Lord Stowell in Evans v. Evans L. Hegg. Cons. P. 35 161 E.R. 466 and held that the plaintiff's act did not amount to legal cruelty. Lord Stowell in the course of the judgment in Evans v. Evans L. Hegg. Cons. P. 35 161 E.R. 466 observes : 'I take it the rule cited by Dr. Bever from Clarke and the other books of practice, is a good general outline of the Canon Law, the law of this country, upon this subject. In the older cases of this sort which I have had an opportunity of looking into, I have observed that the danger of life, limb or health is usually inserted as the ground upon which the Court, has proceeded to a separation. This doctrine has been repeatedly applied by the Court in the cases that have been cited. The Court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it and I have heard no one case cited in which the Court granted a divorce without proof given of a reasonable apprehension of bodily hurt. 'After an examination of a number of cases Lord Herschell observes at page 455' I think the law of restitution of conjugal rights as administered in the Courts did some times lead to results which I can only call barbarous. T need seek no better illustration of this than the case of Holmes and Holmes decided in 1755 which is relied on for the proposition that the Courts can only refuse restitution on grounds which would justify a divorce. Conduct of a most revolting character on the part of the husband was held to afford no answer to his claim for a restitution of conjugal rights. Indeed, if the broadest definition of cruelty which has been contended for in this case were accepted, it would still be to my mind unsatisfactory that a husband who, though stopping short of cruelty in that sense, had by insult and outrage driven his wife to leave him, should, without repentence for the past or any assurance of amendment for the future, be able to invoke the assistance of the Court and call for the strong arm of the law to force his wife under pain of imprisonment to resume cohabitation. One would think that the Court may well refuse to afford its assistance to one who acted thus, and notwithstanding the decision to which I have referred there are not wanting dicta of eminent Judges, and notably, of Lord Stowell, that 'something short of legal cruelty' might bar a suit for restitution. However that may be, the matter is of less importance than it formerly was, as the legislature has interposed; and even if the Court is still bound to make a decree for restitution, it is no longer bound to enforce it as before.' Lord Davey who agreed with Lord Herschell was obliged to confess 'My only duty is to say whether the appellant's contention is conformable to the principles on which the Ecclesiastical Courts formerly acted and gave relief. I am constrained to say that in my opinion it is not.'
7. Considering the rigour of the Ecclesiastical Law the legislature interposed and made it optional with the Court to enforce the decree for restitution of conjugal rights by imprisonment. Order 21, Rule 32 of the Civil Procedure Code prescribes the mode in which a party could be compelled to obey a decree for restitution of conjugal rights; but I am not aware that the Court could refuse the execution of a decree unless it be that the health of the party against whom the decree is sought to be executed, would suffer by such restitution. The latitude given to the English Courts has only been recently given to the Indian Courts by Order 21, Rule 33, C.P.C. as regards the execution of decrees in such cases. Lord Halsbury who differed from the majority says at p. 420 : 'In the view the Ecclesiastical Courts took of the sanctity and perpetual obligation of the rights between spouses, it is intelligible enough that they should have sternly enforced the duty of continued cohabitation except in such cases as, to use the phrase continually recurring, 'when the facts show an absolute impossibility that the duties of married life can be discharged.' With regard to the conduct of the plaintiff, he observes 'For my own part I believe an accusation of this kind is an incurable injury to the person against whom it is directed.' Lord Hobhouse who was also in the minority in considering what would be 'cruelty' observes as follows. 'That violence and bodily danger are far the most common forms of cruelty accounts for the frequent repetition of the formula; relating to such cases. But we find not only judicial recognition that there may be other forms of cruelty but judicial dicta and decisions taking a wider range and quite irreconcilable with the rigid line by which it is now sought to confine the jurisdiction of the Court;' and after an examination of the cases on the point, he says : 'The conclusion I draw from the authorities is that there is no rigid rule to exclude from the consideration of Judge or jury a case where nets cruel in their nature are so grave as to destroy the foundations of conjugal life. I do not think that any rule can be laid down less wide than that of Lord Stowell 'That the causes must be grave and weighty and such as to show an absolute impossibility (meaning of course a moral impossibility) that the duties of married life can be discharged. The fact that violence and personal danger are far the most common ground alleged for separation has led to repeated statements of the doctrine of danger in terms applicable and appropriate to those cases. But they are only one class of the broader category indicated by Lord Stowell.'
8. In Bray v. Bray Hagg. E.C.P. 163 Sir John Nicholl observes with regard to the conduct of the husband who accused his wife of the most abominable intercourse that can possibly be conceived, no less than incest with one of her nearest relations 'It is not I think possible to conceive cruelty of a more grievous character (except perhaps great personal violence) than the accusation made by this husband against his wife.'
9. Cruelty in the legal sense need not necessarily be phiysical cruelty. A course of conduct which, if persisted in, would undermine the health of the wife, is a sufficient justification for refusing to the husband a decree for restitution of conjugal rights. In Kelly v. Kelly L.R. 2 P.& D. 59 it was held 'if force whether physical or moral is systematically exerted to compel the submission of a wife to such a degree and during such a length of time as to injure her health and render a serious malady imminent, although there be no actual physical violence such as would justify a decree it is legal cruelty and entitles her to a judicial separation. 'In that case, the husband adopted a deliberate system of conduct towards his wife with the view of bending her to his authority. No physical violence was found against the husband but only a course of conduct which was a kind of tyranny to the wife. Channel B. in the course of the judgment observes 'It would be difficult to frame a definition of legal cruelty which should be applicable to all the cases which may arise. The object of the matrimonial Court in exercising its jurisdiction in decreeing judicial separation for cruelty is to free the injured consort from a cohabitation which has been rendered, or there is imminent reason to believe will be rendered, unsafe by the ill usage of the party complained of., It is obvious that the modes by which one or two married persons may make the life or health of the other insecure are infinitely various, but as often as perverse ingenuity may invent a new manner of producing the result, the Court must supply the remedy by separating the parties.' In Bethune v. Bethune (1891) p. 205 the President of the Probate Division Sir James Hannen gave a decree for divorce on the ground of adultery coupled with cruelty, the cruelty convsisting of a long course of systematic neglect and insult. The law is summed up in Halsbury's Laws of England, Vol. 16, Section 976 'A course of conduct calculated to break the spirit of the sufferer (more usually the wife) continued till health breaks down or is likely to break down under the strain sometimes termed 'constructive cruelty' is also a ground for relief,' and reliance is placed for the proposition upon a number of cases. In India there are three cases in which it was held that it was not necessary to prove physical violence in order to deny the husband a decree for restitution of conjugal rights, vide Thompson v. Thompson I.L.R.(1913) C. 395 and Armour v. Armour (106) 1 A.L.J. 318.
10. The facts proved in this case are sufficient in my opinion to deny the plaintiff the relief claimed by him. When a husband, who is guilty of a course of conduct which would be regarded as cruel to the wife, comes before a court seeking its aid to compel his wife to submit to his embraces, it is the duty of the Court to see whether the health of the wife is likely to suffer by forcing her against her will to live with him. The observations of Lord Brougham in Paterson v. Paterson 3 H L Case 308 seem to be peculiarly applicable to the present case. 'If the husband, without any violence or threat of violence to the wife - without any maltreatment endangering life or health, or leading to an apprehension of danger to life or health - were to exercise mere tyranny, to utter constant insults, vituperation, scornful language, charges of gross offences, (utterly groundless) charges of this kind made before her family, her children, her relations, her friends, her servants, insulting her in the face of the world, and of her own domestics, calling upon those servants to joint in those insults, and to treat her with contumely and with scorn - if such a case were to be made out or even short of such a case, viz., injurious treatment which would make the married state impossible to be endured, rendering life itself almost unbearable, then I think the probability is very high that the Chancery Courts of this country would so far relax the rigour of the negative rule, at present somewhat vague, as to extend the remedy by a divorce a mensa et thoro to a case such as I have put'. This observation was made before the Matrimonial Causes Act gave a salutory relief in hard cases. The facts found in this case are:
(1) The husband charged the wife with the attempted murder of her husband by poison.
(2) He insulted her on more than one occasion and called her by the most vile epithet.
(3) He treated her with loathing and disgust and abused her when she took some butter-milk to him, and he expressed his disgust by getting up from his unfinished meals.
(4) He sent word through a servant that if she went back to him she would be dragged out by a Pariah and slippered.
(5) He threatened her with violence by saying that he would lash her to pieces with a knife and allowed the second wife to abuse her and to say that she (meaning the 1st defendant) deserved to be made to stand in the road and be spat on by the passers-by, that it was enough that she had not wrung its (childs) neck and thrown it into the well and that if she touched the child again she would be beaten with broom stick.
(6) He used personal violence by pushing her by neck. The mother-in-law and the paternal aunt who treated her with kindness turned against her after the charge of an attempted murder was ventilated by the husband. I think these circumstances are sufficient to make out cruelty under English Law. But in India where the conditions are different it is not necessary to implicitly follow the precedents of the Ecclesiastical Courts in considering what is equitable in the circumstances. The Indian Courts are Courts of justice, equity, and good conscience and though a decision of the House of Lords is to be regarded with the almost respect, yet it is not binding upon the Indian Courts and where the decision rests not upon the principles of Common Law but upon the peculiar principles of the Ecclesiastical Law of England, the Courts in India are not bound to follow the decision; for the simple reason that the Ecclesiastical Law of England is not the law of this country and monogamy, so far as the husband is concerned, is not the rule of Hindu Law. The Hindu Law does not recognise any divorce. It permits a husband to have as many wives as he likes. The husband in this case had no marital relations with his wife (the 1st defendant) for a period of more than 7 or 8 years and it would be cruel now to force the wife to go back to her husband against her will.
11. Mr. Krishnaswamy Aiyar argued that the plaintiff was anxious to have his wife back, that he had repented of his past conduct and that he is willing to treat her as a wife should be. He also urged that in country places personal violence towards the wife by the husband is excusable and that we should not apply to the parties the principles which would govern a case where the parties are educated and enlightened. I am not prepared to believe that domestic relations in the moffusil and in the country places are as described by Mr. Krishnaswamy Aiyar. No doubt, some times the Hindu society overlooks personal violence to the wife by the husband, but when a Court's intervention is asked for, the Court should not be guided by the public opinion in a country village, but by what is just and equitable in the circumstances. In this case the plaintiff is a man of influence in his own village. There is no public opinion at all in that place. Is there safety or security for the wife, if the husband chooses to charge her again with an attempt to poison him and hands her over to the Police on his becoming slightly ill and for which illness he could not find any reason? There is no guarantee that the suspicion which he once entertained will not be revived again if he or his second wife or his second wife's child should fall ill. If he was really anxious to have his wife back, he could very well have gone to her and offered to treat her properly. When the maintenance proceedings were before the Sub-Divisional Magistrate, he suggested that the parties should settle the matter out of Court and the plaintiff in order to make out that he was willing to settle the matter sent his handyman to fetch his wife and she rightly refused to go with him as she thought that the plaintiff was attempting to dupe her. If he was in earnest he could have sent his paternal aunt or any of his female relations to fetch her. I am not prepared to put any faith in the protestations of Mr. Krishnaswami Iyer on behalf of his client. A Hindu wife looks upon her husband as her lord and master and she has no happiness outside her husband's house. Knowing the conditions in India as we do, I am not prepared to believe that a Hindu wife would stay away at the instance of her father or other relations when there was no sufficient reason for her conduct, for she considers her husband's home is her proper place and she would not leave it without the gravest reason as she has nothing to look forward to here or hereafter. There is a civil suit pending in which the wife seeks to recover her jewels from the husband. I am satisfied that the plaintiff has brought this suit only to satisfy his vanity and to defeat the order made in favour of the wife for maintenance and this suit is not a bona fide attempt to get back his wife to continue the marital relations. I consider that the facts establish sufficient cruelty on the part of the husband which would justify the Court in refusing the plaintiff the relief he seeks. The case might perhaps be different if the Court is asked to dissolve the marriage; but in a case of restitution of conjugal rights, the Court need not consider what would be sufficient to grant a divorce according to the matrimonial law of England. On the other hand, before passing a decree in favour of the husband the Court should be satisfied that by giving its aid to him it does not thereby endanger the life, limb, liberty or the health of the wife. If there is danger to any of these, the Court would be amply justified in refusing to give a decree for restitution of conjugal rights.
12. The learned Judge has decreed separate residence to the wife. There is no counter-claim by the defendant to the plaintiff's suit and I do not see how the Court should grant a decree for separate residence when there is no proper claim for it. That portion of the decree of the lower Court should be expunged.
13. In the result the appeal fails and is dismissed with costs.