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Tekait Mon Mohini Jemadai Vs. Basanta Kumar Singh - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1901)ILR28Cal751
AppellantTekait Mon Mohini Jemadai
RespondentBasanta Kumar Singh
Cases ReferredHamidunnessa Bibi v. Zohiruddin Sheik
hindu law - marriage-wife--conjugal rights, suit for enforcement of--residence of wife at her parental house--agreement contrary to hindu law and opposed to public policy--conditions imposed by decree on husband--bengal, north western provinces and assam civil courts act (xii of 1887), section 37, clause (1)--contract act (ix of 1872), section 23. - ghose, j.1. the appeal arises out of a suit for enforcement of conjugal rights.2. the plaintiff and the defendant were married on the 9th falgun 1292 amli, corresponding to the 18th february 1885, at a time when they were both minors. the defendant is the daughter of the rajah of kattikari in the district of midnapur. the rajah was then dead, and the defendant was given away in marriage by her mother. the plaintiff's parents agreed that their son should be married to the defendant, and at the time of the marriage an agreement, described in this suit as pratijna patra, was executed by them, and it ran as follows:that we solemnly promise that you, having decided to keep my eldest son sriman rai basanta kumar singh babajiban in your own house, after having married your eldest daughter to.....

Ghose, J.

1. The appeal arises out of a suit for enforcement of conjugal rights.

2. The plaintiff and the defendant were married on the 9th Falgun 1292 Amli, corresponding to the 18th February 1885, at a time when they were both minors. The defendant is the daughter of the Rajah of Kattikari in the district of Midnapur. The Rajah was then dead, and the defendant was given away in marriage by her mother. The plaintiff's parents agreed that their son should be married to the defendant, and at the time of the marriage an agreement, described in this suit as pratijna patra, was executed by them, and it ran as follows:

That we solemnly promise that you, having decided to keep my eldest son Sriman Rai Basanta Kumar Singh Babajiban in your own house, after having married your eldest daughter to him, and having asked for my permission and that of my wife thereto, we both give our consent thereto and execute this pratijna patra, to the effect that neither I nor my wife shall ever propose to take our said son to our own house, nor shall we be competent to take him there. He will live for ever at your qarh (house) at Kuttikari, and will very happily continue to carry on the business of the Raj. To this effect we, of our own accord, execute this pratijna patra (deed of promise in the presence of respectable and other men of this place. Finis. Dated the 9th of Falgun 1292.' To this were added the following lines: 'I, Sri Rai Basanta Kumar Singh (i.e., the plaintiff) being bound by this deed of promise, do promise that I shall not be competent to take my wife from this place to my own father's house or to any other place. I shall always carry out your orders, and I shall not be competent to do any act or to go to any place without your permission. Finis.'This document was signed by the plaintiff's parents, and by the plaintiff.

3. The plaintiff lived at Kuttikari in the house of his father-in-law for about 15 years, but subsequently disagreement broke out between the plaintiff, on the one hand, and the defendant and defendant's mother, the Rani, on the other, the result being that the plaintiff was not agreeable to live with the defendant in her father's house, and demanded that she should come over and live with him in his own house at Jahanabad in the district of Hughli, which, it is alleged, she refused to do; and thereupon the present suit was brought for a decree directing the defendant to live with the plaintiff at his own house. 4. The suit was defended by the defendant upon the ground that it was against the custom of the family for the daughter of the Rajah to go and live in the house of her husband; that the claim was against the provisions of the ekrarnama of the 9th Falgun 1292; that the plaintiff always lived in the house of her father, and was being maintained from the allowance given by the defendants' mother; that the plaintiff had been guilty of cruelty to the defendant; that he had no means of his own to maintain the defendant, and so forth, And the defendant further alleged that on account of the violence committed by the plaintiff and his ill-treatment of the defendant, a complaint was lodged before the Collector as representing the Court of Wards (in whose hands the Kuttikari estate then was) and thereupon the plaintiff was forbidden to enter the house of the defendant's father, and also that in a previous suit between the parties which had for its object the obtaining of possession of the defendant by the plaintiff as his wife, there was a compromise between the parties to the effect that the defendant would forgive the plaintiff and pay him maintenance allowance at the rate of Rs. 30 to enable him to live separately and that the suit was therefore barred by res judicata.

4. The Subordinate Judge, before whom the suit was instituted, laid down, amongst others, the following issues:

First.--Is the suit res judicata?

Third.--Whether the plaintiff is precluded from compelling the defendant's removal from her father's house either by contract, family custom or otherwise?

Fourth.--Is the defendant's allegation of ill-treatment true?

Fifth.--What relief, if any, is plaintiff entitled to?

5. That officer held that the suit was not barred by res judicata; that the plaintiff was under age at the time of the contract, and that it was not binding upon him; that the custom pleaded by the defendant was not proved; that the plaintiff was entitled under the Hindu Law to the enforcement of his marital right; that the agreement pleaded by the defendant of the 9th Falgun 1292 was without any consideration, and was no bar to the maintenance of the suit; but that the plaintiff had been guilty of rather harsh treatment towards the defendant and therefore though he (the plaintiff) was entitled to the decree claimed, it must be subject to certain conditions which he thought ought to be imposed, One of the conditions that he did impose was that the plaintiff should not be allowed to take his wife to the District of Hugh, but that he must reside with her in the town of Midnapur in a suitable house which he must provide, and that to insure the comfort of the defendant, he must engage a sufficient number of servants.

6. The defendant appealed against this decree, and the District Judge on appeal has confirmed the judgment of the Subordinate Judge, but has modified the decree in regard to some of the conditions which that officer imposed. I may here mention that the Judge sets out in his judgment the various points that were urged on behalf of the defendant before him, and he has dealt in his judgment with all those points.

7. In second appeal before us by the defendant, the main point urged by the learned Counsel on her behalf is that, having regard to the terms of the contract entered into between the parties on the 9th Falgun 1292, the plaintiff is not entitled to a decree for the relief claimed in the plaint, and that, accepting the findings of the Courts below that the plaintiff was under age at the time of the agreement, the case should be remanded for a finding upon the point whether the agreement was ratified by him after arrival at majority. It has also been contended that conjugal rights were never refused to the plaintiff, and that this suit could not therefore be maintained.

8. I may dispose of the last point very shortly by stating that the suit is not so much for restitution properly so-called as for enforcement of conjugal rights, the defendant having refused to go and live with the plaintiff at his own house, and that such suit does certainly lie.

9. Turning then to the main question raised in this appeal, the first observation that I have to make is that the parties being Hindus, their respective rights, as flowing from the marriage, being in question, we have to guide ourselves by the Hindu Law unless it be that the plaintiff has entered into a valid and lawful agreement, such that it may be said he has contracted himself out of the rights conferred upon him by the said marriage.

10. Clause (1) of Section 37 of Act XII of 1887 provides:

11. Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste or any religous usage or institution, the Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law in cases where the parties are Hindus, shall form the rule of decision, except in so far as such law has, by Legislative enactment, been altered or abolished.' The rest of the section is not material for the purpose of the question arising in this case.

12. It will be observed that the section speaks of the Hindu Law being 'the rule of decision, except in so far as such law has, by Legislative enactment, been altered or abolished.' There is no Legislative enactment in this country modifying the Hindu Law of Marriage, and the rights which flow from such marriage; nor does the section apparently contemplate the said 'rule of decision' being controlled by any contract between the parties.

13. In Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 Moore'e I.A. 551 which was a case between two Muhammadans, but in which the general principle underlying such a case was considered, the Judicial Committee, with reference to the question raised, namely, whether a suit could be brought by a Muhammadan husband in the Civil Courts of India to enforce his marital rights under the Muhammadan Law by compelling his wife against her will to return to co-habitation with him, observed, among other matters as follows:

Of authority negativing the jurisdiction there is none. It has been argued that the proper remedy, if there be one, is the denial of maintenance to the rebellious wife, or at most, a suit for damages; because a suit to compel the wife to return to her husband, though obviously a more complete remedy than either of them, is in the nature of a suit for specific performance; and being founded on the contract of marriage, which Muhammadan Law regards as a civil contract, the Court entertaining the suit must be prepared to enforce all the obligations, however minute, which, according to that law, flow from the contract, whichever party has a right to insist upon them.' And later on they observed: 'Upon authority, then, as well as principle, their Lordships have no doubt that the Muhammadan husband may institute a suit in the Civil Courts of India for a declaration of his right to the possession of his wife, and for a sentence that she return to co-habitation; and that that suit must be determined according to the principles of Muhammadan law. The latter proposition follows not merely from the imperative words of Reg. IV of 1793, Section 15 (which has been substituted by Section 37 of Act XII of 1837), but from the nature of the thing. For since the rights and duties resulting from the contract of marriage vary in different communities; so, especially in India, where there is no general marriage law, they can be only ascertained by reference to the particular law of the contracting parties.

14. I refer to this case for the purpose simply of emphasising what I have already said, that the question raised between the parties in the present case has to be determined by the particular law that is, the Hindu Law which governs them. And the same view has been expressed by the Bombay High Court in the well-known case of Dadaji Bhikaji v. Rukmabai (1886) I.L.R. 10 Bom. 301 in the following words:

15. We may, however, remark that, although no text may be found in the Hindu Law books which provide for the King ordering a husband or wife to return, no text was cited forbidding or deprecating compulsion, and that it was admitted that the duties appertaining to the relationship of husband and wife have always been the subject of caste discipline, and, therefore, that with the establishment of a systematic administration of justice, the Civil Courts would properly and almost necessarily assume to themselves the jurisdiction over conjugal rights as determined by Hindu Law, and enforce them according to their own modes of procedure.

16. This brings us to the consideration of the question what is the Hindu Law upon this subject. It may be premised that though marriage under the Hindu Law is a contract, it is also a sacrament, it is more religious than secular in character; the union is indissoluble, for it is a 'union of flesh with flesh, bone with bone.' During the husband's lifetime, he is to be regarded by the wife as a god and the wife is declared to be half the body of her husband, equally sharing the fruit of pure and impure acts, and no sacrifice or religious rite is allowed to her apart from the husband's. Hence it is that after the husband's death, the widow is regarded as the surviving half of his body: the union is a sacred tie and subsists even after the death of the husband. See Manu, Ch. II, v. 67; Ch. Ill, v. 43; Ch. V, vv. 154, 155, 156, 157, 158, 160, 165; Ch. IX. v. 29; Dayabhaga Ch. IV, v. 14; Ch. XI, Section 1, v. 2; and Hindu Law on Marriage by Dr. Banerjee, p. 131.

17. The marital dominion which a husband under the Hindu Law acquires over his wife is due, as I understand it, to two causes: First, the gift by the parents of the girl, and secondly, the troth plighted by the husband. And it is owing to these causes, we may take it, that the husband is the lawful guardian of his wife, when a minor. See Manu, Ch. V, v. 151, 152, Ch. III., v. 27, 28; In the matter of Dhuronidhur Ghose (1889) I.L.R. 17 Cal. 293.

18. Having made these prefatory remarks, I proceed to refer to some of the texts as bearing upon the question at issue. I shall begin with a text of Manu: ' In childhood must a female be dependant on her father, in youth on her husband, her lord being dead, on her son... A woman must never seek independence. Never let her wish to separate herself from her father, her husband or her sons, for by a separation from them, she exposes both families to contempt.'See Colebrooke's Digest of Hindu Law, Vol. II, p. 137, Ed. 1871

19. The next is a text of Devala:

Dependence, attendance on her husband and in his religious ceremonies, respectful behaviour to those who are entitled to veneration from him, hatred to those who bear enmity to him, no ill-will towards him, constant complacency, attention to his business, are the duties of woman.' (Colebrooke, Vol. II, p. 138).


Accompanying of her husband, reverence of his father, of spiritual parents, of duties and guests, great cleanliness in regard to the domestic furniture and care of the household vessels, avoiding the use of philters and charms, attention to auspicious customs, austerities after the death of her husband, no frequenting of strange houses, no standing at the door or window, dependence in all affairs, subjection to her father, husband and son in childhood, youth and age: such are the duties of a woman.' (Colebrooke, Vol. II, p. 138, v. 92).


The abode of faithful wives, who are fond of home and truly rigid and who have subdued their passions, shall be the same with that of their lords; but the mansions of shakals are assigned to disloyal wives.' (Colebrooke, Vol. II, p. 148).

Manu (Ch. IX, vv. 45 and 46):

The husband is even one person with his wife for all domestic and religious, not for all civil purposes.

Neither by sale nor desertion can a wife be released from her husband.

Manu (Ch. IX, v. 102):

Let a man and woman united by marraige constantly beware, lest at any time disunited they violate their mutual fidelity.' Manu (Ch. V, vv. 164, 165, 166):

A married woman who violates the duty which she owes to her lord brings infamy on herself in this life, and in the next shall enter the womb of a shakal or be afflicted with elephantiasis and other diseases which punish crimes; while she, who slights not her lord, but keeps her mind, speech and body devoted to him, attains his heavenly mansion, and by good men is called sadhwi or virtuous.

Yes, by this course of life it is that a woman, whose mind, speech and body are kept in subjection, acquires high renown in this world, and in the next, the same abode with her husband.

20. These texts, among other matters, establish that it is the bounden duty of the wife to live with her husband, wherever he may choose to reside, to submit herself to his authority, never to separate from him and to attend upon him and in his religious ceremonies, and that the violation of such duty is a great sin, which results in terrible punishment in the next world. I shall now turn to the views expressed on the subject by some of the modern writers on Hindu Law.

21. Mr. Justice Banerjee, in his book on the Hindu Law of Marriage and Stridhana, at page 108, makes the following observations:

It follows from the very nature of the matrimonial relation that the husband and wife must each be entitled to the society of the other. It is one of the express conditions in the nuptial vow of the Hindus, that each party is to become the associate of the other. Accordingly Manu declares: 'Let mutual fidelity continue till death.' 'Let a man and woman united by marriage constantly beware lest at any time disunited they violate their mutual fidelity.' And the sages denounce the desertion or neglect of either party by the other without just cause as an act punishable in this world and in the next.

22. And later on, at page 112, he observes:

The duty of attendance on her husband, which is so strongly inculcated, obliges her to follow him wherever he chooses to reside. And it is a general principle of law that the domicile of the wife follows that of her husband. She is also bound to refrain from going to any place where her husband forbids her to go.

23. Mr. Mayne, in his book on Hindu Law, Chapter XIV, paragraph 414, says:

As soon as the wife is mature, her home is necessarily in her husband's house. He is bound to maintain her in it while she is willing to reside with him and to perform her duties. If she quits him of her own accord, either without cause or on account of such ordinary quarrels as are incidental to married life in general, she can set up no claim to a separate maintenance. 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 an English Matrimonial Court.

24. Babu Golap Chunder Sarkar, in his book on Hindu Law, p. 67, says as follows:

Although the conjugal relation is based upon a contract of either of the parties to the marriage or their guardians, the rights and the duties of the married couple do not arise from any implied-contract, but are annexed by law to the connubial relation as its incidents. The wife is bound to reside with the husband wherever he may choose to live. The fact of the husband having another wife will not relieve her from that duty; nothing short of habitual cruelty or ill-treatment will justify her to leave her husband's house and reside elsewhere.

25. Dr. J. N. Bhattacharjee, quoting a text of Manu in his book entitled Commentaries on Hindu Law, p. 123, says:

Where the wife is sui juris and refuses to live with her husband, he can, according to Hindu Law, keep her by force under his protection. Under the Indian Penal Code, the husband cannot be punished for merely keeping his wife under restraint without using violence or subjecting her to cruel treatment.

26. Let us now refer to some of the decided cases bearing upon the matter. In Kateeram Dokanee v. Gendhenee (1875) 23 W.R. 178 where the suit was for recovery of possession of the person of the wife by a Hindu husband, Markby, J., made the following observations:

The marriage of an infant being under the Hindu Law a legal and complete marriage, the husband, in my opinion, has the same right as in other cases to demand that his wife shall reside in the same house as himself. I do not think that any Court can deprive the husband of this right, except upon some tangible and definite grounds, which show that under the special circumstances of the case the wife is absolved from this duty, and her parents or guardians from the duty of surrendering her to her husband and, we cannot, in my opinion, say, without contravening the Hindu Law, that the infancy of the wife constitutes such a ground, though it might, I think, be right in the case of a very young girl to require the husband to show that she would be placed by him under the immediate care of some female member of his family.

27. In the case of Surjya Moni Dasi v. Kali Kanta Dass (1900) I.L.R. 23 Cal. 37 where a Hindu husband brought a suit for the restitution of conjugal rights against his minor wife represented by her paternal grandmother, a Division Bench of this Court, after referring to the case of Kateeram Dohanee v. Gendhenee (1875) 23 W.R. 178 which I have just noticed, made the following observations;

If, as legal guardian of the person and property of his minor wife, a Hindu husband is entitled under the law to insist that she shall live with him, it seems useless to argue that he is not entitled to similar relief in a suit for restitution of conjugal rights, if the wife has attained an age at which she is considered fit to discharge her conjugal duties, though in the eye of the law she may still be a minor.

28. In the case of Sitanath Mookerjee v. Haimabutty Ddbee (1876) 24 W.R. 377 which was a suit by a Hindu wife against her husband for maintenance, Sir Richard Garth, in delivering the judgment of the Court, observed as follows:

Now what is the Hindu Law upon the subject?

It is dear that according to that law, a wife's first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection; and although it might be very difficult to deduce from the authorities at the present day any definite rule as to the causes which would justify a wife in leaving her husband's house, it may safely be affirmed that mere unkindness or neglect short of cruelty would not be a sufficient justification.

29. And in the case of Binda v. Kaunsilia (1890) I.L.R. 13 All. 126 Mahmood, J. examined the texts and authorities most carefully and held that the texts of the Hindu Law relating to conjugal co-habitation and imposing restriction upon the liberty of the wife and placing her under the control of her husband, are not merely precepts, but rules of law, and that the rights and duties which they create maybe enforced by either party against the other.

30. Having regard to the texts of the sages and the exposition thereof by different authors and eminent Judges, I think we may safely take it that the duty imposed upon a Hindu wife to reside with her husband wherever he may choose to reside is not only a moral duty, but a rule of Hindu Law.

31. Section 23 of the Contract Act provides:

The consideration or object of an agreement is lawful, unless it is forbidden by law, or is of such a nature, that, if permitted, it would defeat the provisions of any law; or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

32. Now it seems to me that, if it is a rule of Hindu Law that for the fulfilment of the duties which the law imposes upon a wife she must reside with her husband wherever he may choose to reside; an agreement on the part of the husband that he will not be at liberty to remove his wife from her parent's abode to his own abode, would, if permitted, defeat the clear rule of Hindu Law on the subject, and I may in this connection refer to some of the observations by Mr. Justice Banerjee in his Book on Hindu Law of Marriage, p. 107. He says:

The Hindu Law upon this subject still retain its archaic character. Marriage in that law is not merely a contract but also a sacrament, and i the rights and duties of the married parties, are determined solely by the law, and are incapable of being varied by their agreement. As Manu emphatically declares neither by sale nor desertion, can a wife be released from her husband.

33. I might also here notice the case of Paigi v. Sheonarain (1886) I.L.R. 8 All. 78 where, in a suit by a Hindu against his wife for restitution of conjugal rights, the defendant (the wife) pleaded an agreement similar to that which has been relied upon in this case, the Court held that the plea was unsound and could not be seriously maintained and therefore need not be any further noticed.

34. Then, is not the contract in question opposed to public policy also? The plaintiff is said to have agreed that he would not be competent to take his wife away from her father's house, that he would carry out the orders of the mother of the defendant, and that he should not be competent to dp any act or to go into any place without her permission. This agreement imposes upon the plaintiff a permanent restriction against removing his wife to any place that he may select for their residence; and it also imposes a permanent restraint upon his own action and movement. He in fact gives himself up abolutely to the disposal of the defendant's mother in all respects. It has been said that the latter part of the agreement may not be binding, as the former is; but it is rather difficult to separate the two portions. The learned Counsel for the appellant has in support of his contention that the agreement in question is valid, called our attention to certain cases in the English Reports in which it has been held, that a deed of separation containing a covenant that either the husband or the wife should not sue for restitution of conjugal rights, has been held to be vaild. But let us see upon what principle are these cases based. Looking at Marshall v. Marshall (1879)L.R. 5 P. D. 19 I find that Sir James Hannen, at page 23, observed:

But since the decision of the House of Lords in Wilson v. Wilson (3) it:can no longer the contended that there is anything illegal or contrary to public policy in an agreement between married persons that no suit for restitution of conjugal rights shall be instituted by either of them, For my own part, I must say that the opinion I have formed after several years experience in the administration of the law in this Court, is that, it is in the highest degree desirable for the preservation of the peace and reputation, that such agreements should be encouraged rather than that the parties should be forced to expose their matrimonial differences in a Court of Justice.

35. And referring to the case of Wilson v. Wilson (1864) 1 H.L.C. 538 I observe that the Lord Chancellor, among other cases, relied upon the judgment in Westmeath v. Westmeath (1821) 1 Jac. 142 where Lord Eldon said as follows:

I apprehend that any instrument which provides for a present separation and which prospectively looks to the parties living together again and then to a future separation, that such a deed so far as it provides for that future separation will never be carried into effect.

36. Then referring to Addison on Contracts, p. 75, I find it stated upon the authority of Merryweather v. Jones (1868) 4 Giff. 509 that 'contracts providing for the future separation of husband and wife are contrary to public policy. But a contract between the husband and a trustee on behalf of the wife, providing for the terms of present separation, will be enforced.'

37. The principle underlying the cases in which it has been held that contracts providing for present separation are valid, is, as I understand it, the preservation of the peace and reputation of families; while on the other hand, an agreement for future separation is bad and opposed to public policy.

38. There is a fundamental difference between a case where an agreement for separate living for a time is entered into during the continuance or marriage and an agreement before or at the time of marriage controlling the rights of the parties which the law confers upon them after the marriage and which, if enforced, might make the marriage itself nugatory or infructuous. Such an agreement would seem to be opposed to public policy.

39. The agreement with which we are concerned is an agreement of that latter character. It permanently controls the rights of the husband,-as conferred upon him by the Hindu Law, so soon as the marriage is effected, and it is an agreement which, if enforced, might practically lead to the separation of the husband and wife in future. And the mischief of such an agreement is pointed out by the defendant herself in her written statement; for she says therein that the plaintiff has been forbidden by the Collector upon a complaint made to him, to enter the house of her father, the result being that he cannot get access to his wife, nor can he, by reason of the agreement, remove her to his own abode.

40. I am of opinion that the agreement is opposed to public policy.

41. Upon all these grounds, I hold that the agreement relied upon by the defendant is no just answer to the plaintiff's claim in the present case.

42. I need scarcely say that we are not concerned in this appeal by the defendant (and there is no cross-objection by the plaintiff) with the conditions which have been imposed by the District Judge upon the plaintiff before he can compel his wife to reside with mm. I may, however, say that in consideration of the welfare, personal safety and health of the wife, it has been held in several cases that such conditions may well be imposed. See Buzloor Buheem v. Shamsoonnissa Begum (1867) 11 Moore's I.A. 551; Paigi v. Sheonaratn (1885) I.L.R. 8 All. 78; Jogendronundini Dossee v. Hurry Doss Ghosh (1879) I.L.R. 5 Cal. 500.

43. The result is that this appeal is dismissed, and with costs.

Stevens, J.

44. After full consideration, I concur with my learned colleague in thinking that a pre-nuptial contract, such as that which has been set up in this case, is not a sufficient answer to a claim like the present, where the parties are Hindus. Such a contract seems to be not only inconsistent with the theory of the relation between husband and wife according to the Hindu Law, but against public policy.

45. I may say that a consideration which caused me to hesitate before finally coming to this conclusion, is that in fact it is not uncommon among Hindus for a husband to live with his wife in the house of her parents, and I understand that there is nothing in such an arrangement which interferes with the attainment of all the objects of marriage, including the fulfilment of the strictly religious obligations which marriage between Hindus involves. How, it might be asked, can a formal pre-nuptial agreement for a permanent arrangement of that kind, by which all the objects of matrimony understood by Hindus can be and, in practice, are attained, be properly said to be against Hindu Law or against public policy

46. The answer, I think, is that the objection to such an agreement lies in its permanent and unconditional character. By the contract before us, the husband puts himself without any reference to conditions which may arise in future, permanently and unreservedly into complete subjection to his mother-in-law; he practically gives up his general marital authority to a considerable extent, and in particular he puts it entirely out of his power to change his residence, however intolerable the situation may become to himself and to his family, and however important a change of residence may become, not only in his own interests, but in those of his children, or even of his wife herself. It is not that he merely abandons one particular right incidental to his status as a husband and affecting himself alone, but he places himself in a general position of subordination, entirely inconsistent with his status as contemplated by the Hindu Law; and as regards the particular right which he abandons, that of choice of domicile, I think it may fairly be said, looking to the possible interests of the children in respect of their bringing up and education, that it cannot properly be regarded as a mere jus pro se introductum, which a man may give up at his will.

47. The practical working of such an agreement is seen in the present case, on the wife's own representation of the facts in her written statement. Finally quarrels arise, the husband is turned out of the house and eventually it is sought to induce him to live apart from his wife on an allowance from her mother. It can scarcely be disputed that such a separation, save for very serious cause, would be wholly incompatible with the Hindu Law of Marriage; and the District Judge has found upon the evidence that nothing more serious ever took place than occasional quarrels between husband and wife though her witnesses sought to greatly exaggerate the facts.

48. The only reported case which seems to me to have a direct bearing on the question is that of Paigi v. Sheonarain (1885) I.L.R. 8 All. 78 which has been referred to by my learned colleague. It was held in that case, which was a suit for restitution of conjugal rights, that a plea that the wife had been married to the husband on condition that he would live with her in the house of her mother after marriage and that having broken that condition by leaving the house, he was not entitled to enforce his marital rights, was so absurd as not to need serious notice. It may be said, as indeed it was said by the learned Counsel who addressed us for the defendant-appellant, that there was apparently this distinction between that case and the present, that there the wife sought to withdraw herself from her husband altogether, whereas in the case before us she is willing to resume co-habitation, but insists on residing on her mother's premises. The distinction, however, if it exists, is perhaps not practically very great, if the plaintiff in this case is liable to be ejected from the house, whenever a family disagreement occurs.

49. As. the parties before us are Hindus, this case has to be dealt whit on the principles of Hindu Law; but, it if be conceded as the learned Counsel for the defandant-appellant contended, that the right of the husband to the choice of domicile is common to that and to other systems of low, it must stil be said that no cases have been shown us, nor have I been able to find any, under any system of low, which recognise the validity of a ore-nuptial contract giving up the right in question. The English cases which have been cited do not touch the point and do not seem to me to assist the appellant's case in any way. Assuming for a moment that a decision on the same point, arising in a suit between Muhammadans, might be taken as a guide on the questio0n of general pronciple, the only reported Muhammadan case in which the point seems to have been raised, namely that of Hamidunnessa Bibi v. Zohiruddin Sheik (1890) I.L.R. 17 Cal. 670 left it undecided on the ground that whether or not such a sitpulation as to residence could be valid in any case, the terms of the kalinnama, and the subsequent conduct of the parties in that particular case prevented it from being a sufficient answer to the claim for restitution of conjugal rights.

50. There thus appears to be really no authority in support of the contention which has been raised for the defandent appellant, in favour of the validity of the pre-nuptial contract set up by her, and I agree with my learned brother that the appeal must be dismissed whith costs.

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