Bombay High Court
Dadaji Bhikaji vs Rukhmabai on 21 September, 1885
Equivalent citations: (1885) ILR 9 Bom 529
Bench: Pinhey
1. Mr. Advocate-General, unless you are particularly anxious to make some remarks for the assistance of the Court, I think I need not trouble you as I am prepared to dispose, of the case at once. I have been considering the case since it was last before the Court on Saturday, and I have been looking into the authorities, and I have arrived at the opinion that the plaintiff cannot maintain this action.
2. It is a misnomer to call this a suit for the restitution of conjugal rights. When a married couple, after cohabitation separate and live apart, either of them can bring a suit against the other for the restitution of conjugal rights according to the practice in England, and according to the later practice of the Courts in India. But the present suit is not of that character. The parties to the present suit went through the religious ceremony of marriage eleven years ago when the defendant was a child of eleven years of age. They have never cohabited. And now that the defendant is a woman of twenty-two, the plaintiff asks the Court to compel her to go to his house, that he may complete his contract with her by consummating the marriage, The defendant, being now of full age, objects to going to live with the plaintiff, objects to allowing him to consummate the marriage, objects to ratifying and completing the contract entered into on her behalf by her guardians while she was yet of tender age. It seems to me that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will; and I am of opinion that neither the law nor the practice of our Courts either justified my malting such an order, or even justifies the plaintiff in maintaining the present suit.
3. I have looked through the reported decisions of the Courts in England and of the Court's in India; but I cannot find one that covers the ground covered by the facts of this case. There is not an instance, that I know of, in which a Court has compelled a woman, who has gone through the religious ceremony of marriage with a man, to allow that man to consummate the marriage against her will. It may, of course, be said that in England marriages are generally celebrated between persons of mature age, who usually consummate the marriage on the same day, and that, therefore, one must not expect to find a case on all fours with this among the English cases. But, then, on the other hand it must be remembered that the practice of allowing suits for the restitution of conjugal rights (and that is what is asked for in the plaint) originated in England under peculiar circumstances, and was transplanted from England into India. It has no foundation in Hindu law-the religious law of the parties to the suit. Under the Hindu law such a suit would not be cognizable by a Civil- Court. For many years after I came to India such suits were not allowed. It is only of late years the practice of allowing such suits has been introduced into this country from England; (I think only since the amalgamation of the old Supreme and Sadar Courts in the present High Courts has brought English lawyers more into contact with the mufassal),
4. This being so, I think I am not bound to carry the practice further than I find support for in the English authorities, especially when the granting of the relief prayed would produce consequences revolting not only to civilized persons, but even to untutored human beings possessed of ordinary delicacy of feeling. The practice of allowing those suits in England has become much discredited, and has been rendered almost inoperative by the legislation of the past year. See Stat. 47 & 48 Vic, cap. 68, Section 2. It is, in my opinion, matter for regret that it was ever introduced into this country. "As, however, it has been introduced into this country," I am bound to follow it so far as it has received the sanction of this Court or of the Privy Council. I find, however, neither precedent nor authority for granting the relief asked for in this suit, and I am certainly not disposed to make a precedent, or to extend the practice of the Court in respect of suits of this nature beyond the point for which I find authority. The defendant has not appeared in Court, but the evidence shows that she has been brought up in the enlightened and cultivated home of her step-father, the late much-lamented Dr. Sakharam Arjna, a well-known citizen of Bombay. I am glad, therefore, that, in the view of the law which I take, I am not obliged to grant the plaintiff the relief which he seeks, and to compel this young lady of twenty-two to go to the house of the plaintiff in order that he may consummate the marriage arranged for her during her helpless infancy.
5. Before concluding my remarks I wish to guard myself from being supposed to endorse the contention in the written statement, that the plaintiff was not entitled to claim the society of his wife because he is poor. A poor man has as much right to claim his wife as a rich man to claim his. The plaintiff gave much false evidence as to his pecuniary position; and his uncle, who was examined on plaintiff's behalf on the same point, gave, if possible, evidence less credible still. Nevertheless, the general result of the evidence shows that plaintiff can earn a livelihood and keep a wife (as he himself said repeatedly) "according to my poor circumstances." The poverty of the plaintiff is not one of the reason's which I should give for the rejection of plaintiff's claim. There will be decree for the defendant with costs.
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