Calcutta High Court
Asirunnessa Khatun vs Buzloo Meah on 1 January, 1800
Equivalent citations: (1907)ILR 34CAL79
JUDGMENT
Chunder Madhub Ghose and Caspersz, JJ.
1. This appeal arises out of a suit for restitution of conjugal rights. The action was by the husband against the wife and certain other persons, who were siding with the wife. It has been found by the Lower Appellate Court that the woman was married to the man and, so far as this particular matter is concerned, it is concluded by the finding of that Court. The question, and, we may say, the main question that has been raised before us in this appeal by the defendant appellant is, whether or no the suit is barred by limitation under Article 35 of the second schedule of the Limitation Act. The Court of first instance, for reasons set out in its judgment, held that the suit was barred; but the Subordinate Judge, in appeal, has held that the period of limitation applicable to the suit is not that which is prescribed in Article 35, but what is indicated in Article 120 of the Limitation Act, namely, six years from the time when the right to sue accrues. The Subordinate Judge in expressing his opinion upon this question does not give any reasons. He broadly lays down that Article 120 is applicable, and that the suit having, been brought within six years from the date of the demand and refusal is not barred by limitation. It seems to us, however, that the decision of the Subordinate Judge upon this matter cannot be supported. Article 35, in distinct terms, lays down "for the restitution of conjugal rights--Two years from the time when the restitution is demanded and is refused by the husband or wife being of full age and sound mind." If this article is applicable it is obvious that Article 120 will not apply; for that article refers to suits, for which no period of limitation is provided elsewhere in the schedule. It has however been said by the learned vakil for the respondent that, having regard to the provisions of Section 23 of the Limitation Act, there would be no limitation to a suit like the present. We are unable to accept this view; for, to accept it would be to bold that Articles 34. and 35 are surplusage. In the case of a marriage between two Mahomedans, there is certainly a contract. There may be something more than a contract in such a marriage; but still, if there is a contract and there is a breach of such a contract, a case of section would arise entitling the party complaining of the breach to institute a suit--; and if in such a case, we were to proceed upon Section 23, there would be absolutely no use of the two articles, to which we have just referred. The present suit is essentially a suit for restitution of conjugal rights and, according to the view as expressed by the Legislature, there is a cause of action afforded when the restitution is demanded and is refused. The question as to the applicability of Section 23 or Article 35 in a case like this was fully considered by a Full Bench of the Bombay High Court in the case of Dhanjibhoy Bomanji v. Hirabai (1901) I.L.R. 25 Bom. 644; and, although the parties to that suit were Parsees, yet the principles underlying the decision in it are applicable to this case as well. And we may say that we concur in the views that were expressed in that case by the majority of the Judges composing the Full Bench, and who hold that Article 35 of the Limitation Act, notwithstanding the provisions of Section 23 of the Act, is applicable to a case like the present.
2. The Subordinate Judge, however, has not considered the question, which is involved in Article 35, namely, whether the wife was at the time of the demand and refusal of full age and sound mind; for, if she was not of full age and sound mind at the time, then the said article would not apply, and necessarily Article 120 would apply. We therefore, think it necessary to send back the case to the Lower Appellate Court with a view that this question may be determined. and, if the Subordinate Judge be of opinion that, at the time of the demand and refusal, the wife was of full age and sound mind, he should hold that the claim is barred by limitation; otherwise, not.
3. Costs will abide the result.