1.This is a suit by a husband against his wife for restitution of conjugal rights. The parties are residents of the district of Sibsagur in Assam, where the marriage was contracted ; the plaintiff is a Dhubi or washerman, and the defendant is a fisherwoman. The defence in the lower Court was, first that there was no marriage; and, secondly, that the marriage, if contracted, was invalid in law, as the contracting parties belonged to different castes.
2. The Munsif held, first, that the marriage had been celebrated according to the usual Hindu rites; and, secondly, that there was no rule of law which would make an inter-marriage between persons belonging to different sects or sub-divisions of the Sudra caste invalid.
3. The case was then carried on appeal before the Judge of the Assam valley District, who has disposed of the matter in a very summary way. He gets over the question as to the validity of the marriage by holding that the Hindu law of marriage does not apply to Kochs and Keots in Assam. He then goes on to hold that the parties in this case were married in as formal a manner as persons in their position in life are usually married. The effect of his judgment is to uphold the Munsif's finding that a proper marriage ceremony had been performed. The Judge cites no authority for holding that the Hindu law of marriage does not apply to the particular classes to which these persons belong, and if the Hindu law does not apply, it is not apparent under what law, or under what custom, this marriage was celebrated. Admittedly there is no evidence of any custom on the record ; and it was the ease of the plaintiff that the marriage was celebrated according to, and consistently with, Hindu law ; and it was the case of the defendant that, inasmuch as the Hindu law did apply, the marriage was invalid. No party for a moment contended that the Hindu law was not applicable. The Judge was, we think, not right in disposing of the matter in this extremely summary manner.
4. The question remains, however, whether, according to Hindu law, this was a valid marriage. It was contended on the authority of a judgment of Mr. Justice Mitter in the case of Narain Dhara v. Rakhal Gain 1 C. 1 that marriage between two persons belonging to different subdivisions of the Sudra caste is invalid. But that, we think, amounted to no more than an expression of opinion. The opinion of Mr. Justice Mitter was dissented from by Mr. Justice Markby, and the case was not decided on that ground. We. further think that the opinion there expressed is inconsistent with the decision of the Judicial Committee of the Privy Council in the case of Inderun valungypooly Taver v. Ramaswamy Talaver 13 M.I.A. 141. The question there was whether the plaintiff, being illegitimate, and therefore, as it was argued, of no caste at all, could contract a legal marriage with a person of the Sudra caste, and their Lordships said : 'Their Lordships are not aware that there is any authority--there has been none quoted, and it does not appear that there is any authority supporting any such proposition as that which is contended for by the Pundits; and though their Lordships do not agree in everything that has been stated in the High Court of appeal, they are satisfied that in the Sudra caste illegitimate children may inherit and have a right to maintenance ; and that in this very instance the illegitimate father of the mother of the plaintiff, as well as his daughter, were treated as members of the family ; and, on the whole, seeing that these parties are both of the Sudra caste, and that the utmost that has been alleged really is that the zemindar was of one part of the Sudra caste, and the lady to whom he was married was of another part, or of a sub-caste, their Lordships hold the marriage to have been valid ; to hold the contrary would in fact be introducing a new rule, and a rule which ought not to be countenanced.
5. The same view was taken in the case of Ramamani Ammal v. Kulanthai Natchiar 14 M.I.A. 346. There a similar objection having been taken, their Lordships said (p. 352): 'On the argument of this appeal this objection was not insisted on; it was conceded on both sides that recent decisions had declared the legality of a marriage between persons of these two sub-classes of the Sudra caste.'
6. We think that those decisions are conclusive as to there bring no rule of law rendering such marriages invalid. It is true that the cases referred to were cases from the Madras Presidency, but it has not been shown to us that in this respect any principle of Hindu law followed in that Presidency is inapplicable to the Presidency of Bengal; nor has any case or any authority from ancient writers been cited to show that such marriages, are invalid. Mr. Mayne in his work on Hindu Law treats such marriages as obsolete and most probably they are so in the more advanced parts of Bengal, in which castes have become sub-divided in such a way that the sub-divisions are regarded as distinct castes in themselves. But the facts that these marriages are not resorted to is no ground for holding that they are invalid according to law. Our attention was also called to another case--an unreported one--(Reg. Ap., 274 and 322 of 1886), which came before Mr. Justice Wilson and Mr. Justice O'Kinealy. In that case it was not necessary to decide the precise point which is now before us, but both the learned Judges intimated very distinctly their opinion that, if it were necessary to dissent from the opinion of Mr. Justice. Mitter, in the case to which we have referred, they would have done so We hold, therefore, that there is nothing in the Hindu law prohibiting a marriage between the parties to this suit.
7. The appeal is dismissed with costs.