Prinsep and Banerjee, JJ.
1. This is an application for leave to appeal to Her Majesty in Council.
2. It is first claimed that the petitioner has a right of appeal, inasmuch as the subject-matter of the suit was of a value exceeding Rs. 10,000. In support of this we have been referred to the amount of the suit as stated in the plaint, and also in the appeal to this Court made by the defendant. We have also been reminded that it was only on a consideration of such value that the suit was tried in the Court of the Subordinate Judge and by this Court in first appeal.
3. On these grounds, and especially because the defendant in a way consented to the value stated by the plaintiff by adopting it in her petition of appeal, we have been asked to hold that the subject-matter of the suit is above Rs. 10,000, and therefore appealable as a matter of right to Her Majesty in Council. We think that the action of the parties in this case cannot affect the question of jurisdiction, In respect of the trial by this Court of the case on first appeal, we would observe that the point was never raised, and was never considered at the trial. On the other hand, we find that this point has been directly decided by a Division Bench of this Court in a case of Golam Rahman v. Fatima Bibi I.L.R. 13 Cal. 232 with which decision we entirely agree. It was there laid down that a suit of this description for restitution of conjugal rights and possession of a wife was not one to which any special money value can be attached for the purposes of jurisdiction.
4. We observe that this was a matter which it was apparently contemplated by the Legislature should be dealt with under Act VII of 1887, but no specific rules being passed on the subject, the matter has remained as it was when the judgment to which a reference has been made was passed. Under such circumstances we are unable to hold that, by reason of the value of the subject-matter of the suit, an appeal necessarily lies to Her Majesty in Council.
5. We have next been asked to certify that this is a fit case for appeal to Her Majesty in Council within the terms of Section 595(c) of the Code. We have had some difficulty in deciding this point, but having regard to the facts found in the judgment of this Court read with the allegations made in the affidavit put in by the opposite party, the defendant in the suit, and which statements have not been contradicted on behalf of plaintiff, we are unable to certify that in our opinion this case is a fit one for appeal, and we therefore leave it to the petitioner, if so advised, to make an application to the Judicial Committee.
6. The application is refused with costs.