1. This is a Letters Patent Appeal from the judgment of Butler, J. The facts are that the appellant here was the plaintiff in a suit in the Vellore District Munsif's Court. He there sued his wife, the 1st respondent here, for restitution of conjugal rights and he also claimed an injunction against the 2nd defendant, her father, restraining him from instigating the 1st defendant to stay away from her husband and from preventing her returning to him. In the District Munsif's Court five issues were framed one of which was whether that Court had jurisdiction to try the suit. The learned District Munsif held that he had jurisdiction to try it. The defendant's Vakil had no instructions to go on with the case so far as the other issues which dealt with the merits were concerned, and the learned District Munsif took ex parte evidence on behalf of the plaintiff and gave him a decree as prayed for. There was an appeal to the Subordinate Judge of Vellore and whilst agreeing with the District Munsif on the question of jurisdiction, he remanded the suit in order that the defendants might be given an opportunity to adduce evidence so that the suit could be disposed of on the merits. The case then came up on second appeal to the High Court and the only point argued was the question of jurisdiction.
2. The material facts are as follows: The parties were married in Bangalore in 1929 and were of full age at that time. The marriage admittedly has never been consummated and the parties have never lived together in British India. As both the defendants reside in Bangalore they are outside the jurisdiction of the District Munsif's Court, Vellore, and, therefore, the appellant was entitled to sue in Vellore only if the cause of action wholly or in part arose there. Butler, J. was of the opinion that no part of the cause of action arose in Vellore on the ground that the parties had never lived together within the jurisdiction, and therefore, it could not be said that the wife had absented herself from her husband's house. For the appellant it is contended that the cause of action was the wife's refusal to live with her husband and that it was immaterial whether she had previously lived with her husband within the jurisdiction. The question is, what is the cause of action in a suit for restitution of conjugal rights? In Lalitasagar Keshargar v. Bai Surja 18 B 316, the plaintiff sued his wife for restitution of conjugal rights in the Court of the Subordinate Judge of Borsad within whose local jurisdiction the plaintiff resided. The defendant contended inter alia that the Subordinate Judge of Borsad had no jurisdiction to entertain the suit on the ground that she was living outside his jurisdiction. The Subordinate Judge dismissed the suit for want of jurisdiction. On appeal by the plaintiff the decree was confirmed. On second appeal it was held, reversing the decree, that the Court of Borsad had jurisdiction as the cause of action in a suit by a husband for restitution of conjugal rights consists in the wife's absenting herself from her husband's house without his consent and it must, therefore, be deemed to arise at his house. It is true that in this case the parties had at one time lived together within the jurisdiction, that is to say, in the husband's house; but nevertheless this case is of importance as stating what the cause of action is. Sargent, C.J. says that:
The cause of action arises from the duty of the wife to reside with her husband unless he has been guilty of some matrimonial offence which justifies her, in the eye of law, in living apart from him.
3. If that is a correct statement of the law, as undoubtedly it is, then it is the breach without lawful cause of the duty of the wife to reside with her husband that gives rise to the cause of action; and it does not seem to me that the fact that the wife has not previously lived with her husband within the jurisdiction can make any difference. For instance, if the parties are living together in Calcutta and the husband receives an appointment in Madras comes here to take up that appointment and secures a residence here, it is the duty of his wife to reside with her husband here, and, if she refuses to join her husband in his residence here, can it be said that the husband is not entitled to file his suit in Madras but must file his suit in a Court in the jurisdiction of which she may then happen to be. In my opinion, clearly not. But for the respondents it was contended that in the present case the parties have never lived together at all anywhere. This case is distinguishable from the case in Lalitasagor Keshrgar v. Bai Surja 18 B 316, but it has been held that a suit for restitution of conjugal rights will lie and that the wife can be ordered to take up her residence with her husband even where the marriage has not been consummated and the parties have not previously lived together. That case is Dadaji Bhikaji v Rukna Bai 10 B 301. There, A, a Hindu aged ninteen years, was married by one of the approved forms of marriage to B, then of the age of eleven years with the consent of B's guardians. After the marriage B lived at the house of her step-father where A visited from time to time. The marriage was not consummated. Eleven years after the marriage the husband called upon the wife to go to his house and live with him and she refused and it was held that the suit was maintainable. It was there contended that a decree for restitution of conjugal rights implies that the marriage has been consummated and that what was really being asked for was a decree for 'restitution' of conjugal rights and that there was no authority for such a decree. In that case reference was made to Weldon v. Weldon (1885) 9 P D 52 : 53 L J P 9 : 32 W R 231, where Sir James Hannen cites the words of Balckstone as follows:
The suit for restitution of conjugal rights is brought whenever either the husband or the wife is guilty of the injuiry of subtraction, or lives separate from the other without any sufficient reason, in which case they will be compelled to come together again.
and Sargent, C.J. after this citation is of the opinion that:
the gist of the action for restitution of conjugal rights is that married persons are bound to live together and that one or other has withdrawn himself or herself without lawful cause as it was not contended that consummation was necessary by Hindu Law any more than it is by English Law to complete the marriage. It necessarily follows that whether the withdrawal or 'subtraction' as Black-stone terms it, be before or after consummation, there has been a violation of conjugal duty which entitles the injured party to the relief prayed.
4. I myself cannot see any distinction between the case of a wife who has never allowed her husband conjugal rights and refuses to do so and a wife who has done so and thereafter refuses to do so. It is true that there has been no case apparently in England where a wife has been ordered to go to her husband where the marriage has never been consummated; but the position is quite different in India where the parties are Hindus and it is often the custom for the wife after marriage to continue to live under her parent's roof until she attains puberty when she joins her husband. That is not the English custom. In Maune on 'Hindu Law and Usage' on p. 121, there is the following passage:
Prima facie, the husband is the legal guardian of his wife, and is entitled to require her to live in his house from the moment of the marriage, however, young she may be. But this right does not exist, where, by custom or agreement, the wife is to remain in her parent's house until puberty is established or in some tribes even afterwards. Such a custom is neither immoral nor opposed to public policy.
5. In the present case, as the parties were of full age at the time of the marriage, prima facie the husband was entitled to require the wife to live in his house and no agreement to the contrary was attempted to be set up in her written statement. It is the duty of husband and wife to live together prima facie in the place where the husband has a residence. In this case that was within the jurisdiction of the Vellore District Munsifs Court. In breach of her duty she lived with her parents in Bangalore. There has been a breach of the duty on the wife's part and it seems to me that the cause of action must be held to have arisen in the place where there has been that breach, namely, in the husband's home. This clearly gave the District Munsifs Court at Vellore jurisdiction to try the suit. I, however, agree with Butler, J. that the suit is not maintainable against the 2nd defendant. The Letters Patent Appeal must accordingly be allowed with costs here and in the second Appellate Court, the order of the second Appellate Court set aside and that of the Subordinate Judge restored.
6. I agree and I have nothing to add.