Decided on December 16,1935



Macklin, J. - (1.) THE plaintiff in this case sued for restitution of conjugal rights and made his wife defendant No.1 and her mother defendant No.2. He alleged that he had been married to her for many years and that she had borne him five children but was now living with another man by name Bhimappa and refused to return to him. THE wife contended that she had been divorced by her husband many years ago and since then she married Bhimappa and had borne him four children. THE trial Judge held that the divorce was proved and that therefore the plaintiff could not bring this suit. In appeal the District Judge held that there was no custom of divorce proved among Jains, to which caste the parties belonged, that the fact of this particular divorce was not proved, and that the plaintiff must therefore get a decree. THE defendant comes in second appeal.
(2.) IT is contended as a point of law that the learned District Judge has overlooked certain important evidence in the case and that that evidence, taken in conjunction with the evidence which the District Judge has not ignored, proves that the divorce took place. The defendant alleged the existence of a deed of divorce which she said had been given by the plaintiff to her cousin and had been then given by her cousin to her present husband. That deed is said to be lost. The learned District Judge says that there is no evidence apart from the alleged existence of a lost deed of divorce to substantiate the allegation of the divorce having taken place. In addition to that evidence there is some circumstantial evidence, namely, the undoubted fact that the defendant and her present husband did go through a form of marriage, that they are recognised as married by their neighbours, that the children born during the continuance of that marriage are recognised as the children of that marriage, and that the names of those children have been entered in the birth register as the children of the defendant's present husband. IT is suggested that the learned District Judge has ignored this evidence. In my opinion he has not ignored it. He refers to it, but says that although there is normally a presumption that a marriage ceremony is valid, that presumption cannot exist in a case like the present, where there has admittedly been a former marriage, where the husband of the former marriage is alive, and where that husband still claims the defendant to be his wife. In other words the learned Judge holds that the existence of a second marriage does not prove that a divorce took place. I entirely agree. We have the fact that a second marriage took place; but even if we assume that the defendant is telling the truth when she says that her last four children are the children of her second husband, and even if we assume that there really was a deed of divorce, I still do not think that that is enough to prove that there was an actual divorce. IT is not as if divorces were recognised by the Hindu law in general. Even assuming that divorce is recognised by the Jain caste, which in fact the learned District Judge held to be not proved, still it is a matter outside the ordinary Hindu custom, and one would expect better evidence of it than a mere allegation of the existence of a deed of divorce which has now been lost. No one speaks to any ceremony of divorce, and no one speaks to any deed or words of the divorcing husband apart from his having handed a deed of divorce to his wife's cousin. But upon the written statement in this case a question of limitation would arise, and it is necessary to consider whether the suit was in time. The article applicable is Article 120, providing a period of six years from the time when the right to sue accrued. If the defendant is telling the truth when she says that she has been married to her present husband for nine or ten years and has borne him four children, then the suit is out of time unless it can be brought in time by some exemption provided by the Act. It is argued that such an exemption is to be found in Section 23, which provides for a fresh period of limitation arising at every moment of the time during which a continuing wrong continues. The question then is whether a refusal of a wife to live with her husband is a continuing wrong. There is no authority upon the point that I have been able to discover since the present Limitation Act came into force in 1908. Under the old Act suits for restitution of conjugal rights were governed by Article 35 of that Act, which provided a period of two years from the date of demand and refusal. In Bai Sari v. Sankla Hirachand (1892) I. L. R. 16 Bom. 714 it was held that Section 23 applied to suits for the restitution of conjugal rights although such suits were governed by Article 35. In Fakirgauda v. Gangi (1898) I. L. R. 23 Bom. 307 their Lordships refused to express any opinion as to the applicability of Section 23 to such suits, evidently considering that the matter had not been authoritatively decided and that it was a difficult question. In Dhanjibhoy Bomanji V. Hirabai (1901) I. L. R. 25 Bom. 644 : s. c. 3 Bom. L. R. 371 the point was finally set at rest so far as the then existing Act was concerned. It was there held by a full bench that having regard to Section 23 of the Indian Limitation Act of 1877 and Article 35 of that Act a suit under the Parsi Marriage and Divorce Act for the restitution of conjugal rights would be barred within two years of demand and refusal. That was a case in which the question was with special reference to the Parsi Marriage and Divorce Act; but the principle underlying the decision is, I think, applicable not only to the old Act of 1877 and is also applicable generally and not only to Parsi marriages. The reasoning of the learned Chief Justice was based upon the wording of Article 35 as it stood, and he held that Section 23 of the Act being only general in its terms and Article 35 being particular in its terms, if there were any repugnancy between the section and the article, then the particular provision would have to prevail and the period for a suit for restitution would be two years from the date of demand and refusal in spite of Section 23. All the authorities have assumed that the continuing wrong referred to in Section 23 would include failure of a wife to return to her husband, and the only reason why the full bench held that Article 35, as it then was, prevailed over Section 23 was that Article 35 dealt with a particular instance of a wrong, while Section 23 dealt with continuing wrongs only generally. But Article 35 is no longer part of the law and its place has been taken by Article 120, which provides a period of six years from the time when the plaintiff's right to sue accrued. That is itself an article of general rather than particular application and cannot be held override a section of the Act merely because the section is in general terms. Moreover in the present case there is evidence to show that the first actual refusal took place within six years of the suit, and a statement to that effect was made in the plaint and was not denied in the written statement. On both grounds, therefore, the suit is in time. The decree of the lower appellate Court must be upheld, and this appeal is dismissed with costs. .;

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