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 first defendant, his wife, on the ground that he was guilty of legal cruelty; The plaintiff's case is that he married the first 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 first defendant had no issue, that the first defendant left him about 19 months before he filed his plaint, at the instigation of the second 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 first defendant. The first 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. Mr. T.M. Krishnaswami Aiyar who appears for the appellant contests the findings of fact arid argues that, on the facts found, no legal cruelty has been established. The admitted facts are, that the first defendant was married to the plaintiff when she was quite young that she lived with him as man and wife for about 10 years, that, as she had no issue, the plaintiff married a second wife, about 1913, that the first defendant continued in her husband's house for about five years after the second marriage 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 22nd February 1919 and the revision petition by the plaintiff against that order was dismissed by the High Court on 28th July 1919. He filed this suit on 7th April 1919.
3. The plaintiff, as his first witness, swears that he lived with the first defendant as man and wife till she left Mm without any ostensible reason. His suggestion for her leaving him is that the father applied to him for a loan of Rs. 1,006 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. No. 3, his peternal 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 first defendant has been examined as D.W. No. 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 got up from his unfinished meal and said that he would not drink from her hand even in his 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 that she, unable to bear the cruel treatment, left the house and went to Korkady 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 her husband's house. D.W. No. 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 peternal aunt showed him a. Karundagam (a small metallicbox) and asked him to open it and he did so and it emitted a bad smell. He was told that the first defendant was keeping that medicine, for poisoning her husband. He asked that the first defendant should be sent for and as she was, unable to, go to hint she sent word that it was kept by her lot) stomach-ache and he was afterwards told that she proved the innocuousness of the medicine by taking it herself. The other I witnesses support he evidence of the first defendant that the husband consider-i ed her to be a disgusting woman and said: that he would have no relations with her.
4. The learned District Judge, after carefully examining all the evidence, 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 for Conjugal rights and to grant relief when the parties are Hindus, or Muhammadans. Vide Surjyamini Dasi v. Kali Kanta Das 28 C. 37 : 5 C.W.N. 195. 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 a 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 Aiyar strongly pressed on out attention the case of Russell v. Russell (1897) A.C. 395 : 66 L.J.P. 122 : 75 L.T. 249 : 61 J.P. 756 and contended that a mere allegation of the commission of an offence would not amount to cruelty and that his client, though hastily, thought that the first defendant was capable of poisoning him but 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 remebered that the plaintiff does not admit of having made an unfounded charge but denies having made it. He does not plead that he has forgiven his wife or that he had misled her 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 and regard to the future welfare of his wife. In Russell v. Russell (1897) A.C. 395 : 66 L.J.P. 122 : 75 L.T. 249 : 61 J.P. 756 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 evidence of legal cruelty to entitle the husband to a judicial separation.' The case was decided by a majority of five Lords against four. 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. 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 23 they were directed to determine them as he 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 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 whole sale into India is as injudicious as it is in equitable. 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, there fore, if a wife or a husband refuses to cohabit or to render to one another marital duties, the other party cannot have any relief except 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 tie 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 one 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 to her to live with him not merely with any degree of comfort but without danger to her that the question for consideration is, should the Court enforce the strict rule in 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 whole-sale into 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 rides of the Ecclesiastical Law as regards the 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. Russell (1897) A.C. 395 : 66 L.J.P. 122 : 75 L.T. 249 : 61 J.P. 756 the wile 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, although 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 one since 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 Lindley, define cruelty thus: 'There must be danger to life, limb or health, bodily or mental, or reasonable apprehension of it.' The leading judgment in that case was delivered by Lord Harschell who held that the wife's persistence in making a false charge against her husband Slowing 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 (1790) 161 E.R. 466 : 1 Hag. Con. 35 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 (1790) 161 E.R. 466 : 1 Hag. Con. 35 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 head no 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 sometimes lead to results which I can only call barbarous. I need seek no better illustration of this than the case of Holmes v. Holmes (1755) 2 Lee 116 : 161 E.R. 283 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 lies 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 repentance 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 might well refuse to afford its assistance to one who acted thus. And, notwithstanding the decision to which I have referred, there are not wanting aid of eminent Judges, and notably, of Lord Stowell that something short of legal cruelty might That 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. XXI, 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 XXI, Rule 33, Civil Procedure Code, as regards the execution of decrees in such cases. Lord Halsbury, who differed from the majority, says at page 420: 'In the view the Ecclesiastical Courts took of the sanctity and perpetual obligation of the rights between the 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 the 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 things. 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 (sic) ought 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 acts, 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 (1828) 1 Hag. Ecc. 163 : 163 E.R. 543. 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 macte by this husband against his wife.'
9. Cruelty in the legal sense seed net necessarily be physical cruelty A course of conduct which, it persisted in, would undermine the health of the wile, is a sufficient justification for refusing to the husband a decree for restitution of conjugal rights. In Kelly v. Kelly (1870) 2 P. & D. 59 : 39 L.J. Mat. 28 : 22 L.T. 308 : 18 W.R. 767 it was held 'If force, whether physical or moral, is systematically exerted, to compel the submission of a wile 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 binding 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. Channell, 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 for judicial separation for cruelty is to free the injured consort from a cohabitation which has been rendered, or which there is imminent reason to believe, will to rendered, unsafe by ill-usage of the party complained of. It is obvious that the modes by which one of two married persons may make the life or the 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 : 60 L.J.P. 18 : 3 L.T. 259. The President of the Probate Division Sir James Hannen gave a decree for divorce on the ground of adultery coupled with cruelty the cruelty consisting 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 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 15 Ind. Cas. 886 : 39 C. 295 and Armour v. Armour 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 (1850) 3 H.L.C. 308 : 88 R.R. 101 : 10 E.R. 120 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 them to join in those insults, and to treat her with contumely and with scorn,-- if such a case, v.eie 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 Consistory Courts of this country would so far relax the rigour of their negative rule, at present somewhat vague, as to extend the remedy of 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 prison.
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 meal.
4. He sent word through a servant that if she went back to him she would be dragged out by a pariah arid slipered.
5. He threatened her with violence by saying that he would hash her to pieces with a knife and allowed the second wife to abuse her and to say that she (meaning the first defendant) deserved to be made to stand up in the road and be spat on by passers by, (sic); it was enough that she had not wrung its (child's) neck and thrown it into the well and that if she touched the child again she would be beaten with a broom-stick.
6. He used personal violence by pushing her by the neck. The mother-in-law and the peternal aunt who treated her with kindness turned against her after the charge of an attempted murder was ventilated by the husband.
7. I think these circumstances are Sufficient to make out cruelty under the English Law. But in India where the conditions are different it is not necessary to implicity 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 utmost respect, yet it is not binding upon the Indian Courts and where the decision rests not upon the principles of the Common Law but upon the peculiar principles of the Ecclesiastical Law of England, the Courts in India are not bound to follow the decisions 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 first defendant--for a period of more than seven or eight years and it would be cruel now to force the wife to go back, to the husband against her will.
11. Mr. Krishnaswami 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. Krishnaswami Aiyar. No doubt sometimes, 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.
12. 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 be 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 peternal aunt or any of his female relations to fetch her. I am not prepared to put any faith in the protestations of Mr. Krishnaswami Aiyar 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 his 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 the facts established 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 Courts 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.
13. 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 could 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.
14. In the result, the appeal fails and is dismissed with costs.