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TMI Blog1901 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... algun 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d'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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indus 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 inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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