Das, J.

1. The plaintiff in this suit is the wife of the defendant.Both of them belong to the Jewish community and profess the Jewish faith. Theyare domiciled residents of the town of Calcutta within the ordinary originalcivil jurisdiction of this Court. They were married on 15th June 1924 accordingto Jewish rites and rituals. There are four children of this marriage. Themarriage, however, did not prove to be a happy one. In 1928 there were troublesbetween the husband and wife but a reconciliation was brought about. Again in1930, they fell out but were again brought together through the good offices offriends and relations. In 1934 the differences between the husband and the wifebroke out once more and led the husband to suggest an amicable separationbetween them upon certain terms set forth in his solicitors letter to the wifedated 20th June 1934. The differences, however, were happily composed and therewas a reconciliation between the husband and the wife. Towards the end of 1937unpleasant incidents occurred again and the parties went to the Police Courtover them. The husband was, however, eventually acquitted and amity wasrestored. A deed of joint declaration was executed and the differences wereadjusted on certain terms. The disputes unfortunately arose again and came to ahead in 1941. It is neither profitable nor necessary to refer to thecorrespondence or to attempt to apportion the blame for the unhappyestrangement. Suffice it to say that eventually the husband again put forwardthe suggestion for a deed of separation The draft was prepared by hissolicitors The terms having been finally agreed upon between the parties a deedof separation was executed by them on 13th February 1941. By this deed thehusband agreed to pay to the wife, so long she should lead a chaste life,maintenance at the rate of Rs. 50 per month commencing from 1st October 1940and the wife agreed that she should not by any means compel the husband toallow her any maintenance further than the said monthly maintenance of Rs. 50until such time as there be an increase in the husbands income. It was alsoagreed that the said sum of Rs. 50 would be liable to proportionate decreasewith the decrease in the husbands income. The custody of the children wasgiven to the husband and a provision was made for allowing the wife to havereasonable access to the children. It was agreed that the wife might at alltimes thereafter live separate from the husband as if she were unmarried and inall respects free from the control and authority of the husband. Each partyagreed not to molest or disturb the other or in any manner compel the other tocohabit with him or her or endeavour restitution of conjugal rights. Finally itwas provided that if the husband or the wife should thereafter at any time bymutual consent come together and cohabit with each other or if their marriagebe dissolved, her maintenance should thereupon be determined and cease to bepayable and all covenants and provisions contained in the deed should becomevoid. The sum of Rs. 50 is said to have been fixed on the basis of thehusbands income being Rs. 150 per month at the time.

2. Pursuant to this deed of separation, the husband and wifelived apart, the children remained in the custody and under the care of thehusband and the husband went on paying maintenance to the wife at the rateprovided therein In April 1942, the husband notified the wife that he would notpay any further maintenance as he would lose his employment from June thennext. Obviously the husband relied on the terms of the deed which provided thatthe wifes maintenance would decrease with the decrease in his income. On 4thMay 1942, however, the defendants father, who was a very wealthy gentleman,died. Under the deed of trust and under the will of the father the defendant isalleged to have come into a large fortune and his income is said to have goneup considerably. The wife was not slow in taking advantage of the changedcircumstances and in demanding an enhancement of her maintenance proportionateto the alleged rise in the income of the husband and through her solicitorsasked for particulars of the husbands income. Evidently she also relied on theterms of the deed of separation providing for increase of her maintenance withthe increase in the husbands income.

3. The husband proposed that the disputes should be composedand the parties should come and live together. Whether his suggestion was theoutcome of a genuine change of heart or was made to enable him to get rid ofthe deed, it is not necessary at this stage to discuss. The wife did not agreeto the suggestion. Then the husband offered to pay to the wife maintenance atthe enhanced rate of Rs. 100 which was considered by the wife to be inadequate.The present suit has been filed by the wife for maintenance at the rate of Rs.1000 per month and other incidental reliefs. The suit has been filed in theordinary original civil jurisdiction of this Court.

4. The defendant has entered appearance and filed hiswritten statement. In his written statement the defendant admits the executionof the deed of separation but contends, amongst other things, that the same isnot valid and binding on him according to the Jewish law, that the suit doesnot lie at the instance of the wife against the husband. The defendant statesthat the plaintiff is a person of quarrelsome and insulting disposition,careless in household and domestic affairs and neglectful of the children andthat her behaviour is wholly inconsistent with her duties as a wife under theJewish law. The defendant concludes by saying that without prejudice to hisright to have the plaintiff to return to and live with him, he had offered topay Rs. 100 per month to the wife. It is clear from the written statement thatthe defence is mainly founded on the Jewish law which, it is contended, doesnot sanction a contract of separation between a husband and a wife. Twoquestions, therefore, arise, namely:

(A) Is the Jewish law at all applicable to the contract insuit

(B) If yes, what is the Jewish law on the subject and theeffect of that law, in the facts of this case, on the contract in suit

5. As to (A) - The first point, namely, whether Jewish lawis at all applicable to the contract in suit was argued before me as apreliminary point. After hearing learned counsel I came to the conclusion thatas the parties to this suit are of Jewish persuasion and the dispute is withregard to a contract, this Court in exercise of its ordinary original civil jurisdictionwill have to take into consideration their personal law, if there be anyprovision therein applicable to a contract of this description. The suit had tobe adjourned to enable the parties to adduce such evidence as to the Jewish lawas they might be advised to do. The defendant has now adduced evidence of theJewish law. No evidence has been adduced by the plaintiff. Before discussingthe merits of the case on the evidence now before me, it is right that I shouldset out the respective contentions of the parties on the preliminary point asto the applicability of the Jewish law in this suit and my reasons for comingto conclusion which I have mentioned above.

6. Mr. Isaacs who appeared for the plaintiff (the wife) atthe earlier stage of this suit contended as follows: This is a suit on acontract. The contract was made in Calcutta and was and is to be performed inCalcutta. The contract had been drawn up in English form by solicitors trainedin English law and practising on the original side of this Court and thereforethe parties must be taken to have contracted with reference to the general lawprevailing in Calcutta. Therefore having regard to the place where the contractwas made and the place of its performance and the intention of the parties, theproper law of this contract must be the law of contract in force in Calcuttawhich, according to him, is the Indian Contract Act. The Jewish law is not thelaw in force in Calcutta and therefore cannot be the lex loci contractus or thelex loci solutions and therefore the contract in suit is not hit by S. 23,Indian Contract Act. He referred me to Diceys Conflict of Laws, 5th Edn., Rr.155, 160 and 184 and several judicial decisions.

7. The argument of Mr. Surita who appears for the defendant(the husband) on the other hand, was as follows: This is not an ordinarycontract like a contract of loan or of sale of goods or sale of land but it isin relation to a Jewish marriage and affects the marital relations between theparties. Both of them are of Jewish persuasion and are therefore subject to theJewish, law which is their personal law. The dictum of Lord Hobhouse in (1894)A. C. 165 Parapano v. Happaz (1894) 1894 A. C. 165 : 63 L. J. P. C. 63 : 70 L.T. 254 at pp. 169-170, quoted by Ameer Ali J. in I. L. R. (1942) 2 Cal. 165Noor Jehan Begum v. Eugene Tiscenko (42) 29 A. I. R. 1942 Cal. 325 : I. L. R.(1942) 2 Cal. 165 : 200 I. C. 176 (S.B.) at p. 188, clearly shows that there isno territorial law or law of domicile in India and the personal laws of allcommunities have always been left intact. The Indian Contract Act is not anexhaustive code and therefore if the relevant provisions of the Jewish law arenot repugnant to any express provision of the Indian Contract Act or any otherlaw in force in Calcutta and are not opposed to natural justice then suchJewish law should be applied by this Court in determining whether the contractin suit is valid or not. It is on this principle that the Courts in thiscountry have always recognized and applied the Jewish law to regulate therights and obligations of parties who are subject to that personal law. He hasalso referred me to several other judicial decisions.

8. It appears to me that the arguments of Mr. Isaacs proceedupon assumptions and in effect amount to begging the question. He assumes thatthe only law of contract in force in Calcutta is what is contained in theContract Act, an assumption which is not correct. Off hand one may point to therule of damduput which is a rule of the Hindu law of Contract which is in forcein Calcutta and the Presidency Town of Bombay and is applicable to thecontracts of Hindus. His other major premise is that the Jewish law is not inforce in Calcutta, a proposition which really begs the question, for thepreliminary issue is whether the Jewish law is in force in Calcutta so far asthe Jews and their contracts are concerned. After a careful consideration ofthe matter and for reasons stated hereafter, I am unable to accede to thecontentions of Mr. Isaacs. In my judgment the ultimate conclusion contended forby Mr. Surita must be upheld, although I am unable to accept all the reasonsadvanced by him in support of his contentions. For instance I do not agree withMr. Surita that the Jewish law has always been recognized or applied by theCourts in this country and at any rate by this Court or its predecessor theSupreme Court of Calcutta in exercise of its original civil jurisdiction orthat the Courts have applied the Jewish law merely because it is not repugnantto the Contract Act or is not opposed to natural justice. It will be seenhereafter that whenever the Courts in this country have applied any personallaw to persons subject thereto, they have done so, because they had beenenjoined, or considered themselves to have been enjoined, to administer thatpersonal law.

9. In order to come to a right decision on this question ithas to be borne in mind that this Court is a creature of Statutes and Chartersand the jurisdictions and powers conferred on it and the law to be administeredby it are clearly defined and prescribed by the Statutes and Charters creatingit. This Court has, generally speaking, inherited the jurisdictions and powersof the Supreme Court with certain modifications. Therefore, one ought to take noteof the historical background. It is not, however, necessary for me to gofurther back than the year 1726. Those who are interested in the subject mayusefully refer to the very erudite and comprehensive judgment delivered byWestropp J. in 4 Bom. H. C. R. (O.C.) 1 Naoroji Beramji v. Henry Rogers (67) 4Bom. H. C. R. (O.C.) 1 where the earlier Charters of Queen Elizabeth, KingJames I and King Charles II have been clearly and concisely summarised. It isenough for me to start with the Letters Patent granted by King George I to theUnited Merchants of England trading to the East Indies bearing date 24thSeptember 1726 (13 Geo. I). These Letters Patent established and constitutedMayors Courts in Madras, Bombay and Fort William in Calcutta. The Mayors Courtof Calcutta which was established as a Court of record was authorised to try,hear and determine all civil suits, actions and pleas between party and partythat should or might arise or happen or that had already arisen or happenedwithin the said town or factory of Calcutta at Fort William in Bengal or withinany of the factories subject or subordinate thereunto. Its jurisdiction couldbe invoked upon complaint to be made in writing by or on behalf of any personor persons against any other person or persons whatsoever then residing orbeing or who at the time when such cause of action did or should accrue did orshould reside or be within the said town of Calcutta at Fort William in Bengalor the precincts , districts or territories thereof. It was to give sentence orjudgment according to justice and right. The Governor or President and Councilwere empowered to make constitute and ordain byelaws, rules or ordinancesagree, able to reason and not contrary to the laws or statutes of England.

10. These Letters Patent of 1726 were surrendered by theEast India Company to King George II and the company obtained fresh LettersPatent in 1753. No substantial change in the constitution and power of theMayors Court was made by the Letters Patent of 1753. Then came what iscommonly called the Regulating Act of 1773 (statute 13 Geo. III C. 63) whichempowered His Majesty by Charter to erect and establish a Supreme Court at FortWilliam. The relevant provisions of this Act, so far as the present case isconcerned, are contained in Ss. 13, 14, 16, 19 and 36. Then came the Charter ofKing George III dated 26th March 1774. Clause 2 of this Charter established aCourt of record to be called the Supreme Court of Judicature at Fort"William in Bengal. For our present purpose Cls. 13, 14, 17, 18, 19, 22,25 and 38 are relevant.

11. It will appear from the provisions of Regulating Act andthe Charter to which I have referred that the Supreme Court of Fort William inthe exercise of its criminal, ecclesiastical, infancy and admiraltyjurisdiction was expressly enjoined to administer the English law. It will alsobe noticed that the civil jurisdiction of the Supreme Court was mainly confinedto "British subjects" resident in Bengal, Bihar and Orissa andpersons in their employment. It is well known that up to the year 1857 when theCrown took over the administration of British India from the East India Companythe expression "British subjects" in English statutes applicable toIndia meant only British born subjects of His Majesty. It will be furthernoticed that the Supreme Court was given jurisdiction over all inhabitants ofIndia residing in Bengal, Bihar and Orissa in respect of contracts in writingentered into by any such inhabitant with any British subject provided the causeof action exceeded Rs. 500 in value and the parties agreed by the contractitself to submit to the jurisdiction of the Supreme Court. As regards the lawto be administered by the Supreme Court in the exercise of its civiljurisdiction no specific provision was made except that it was to give judgmentaccording to justice and right as the Mayors Court had been previouslyenjoined to do. The principles of English equity were, however, expresslyintroduced into India and the Supreme Court was empowered to administer thesame. The Mayors Court and after it the Supreme Court in the exercise of itscivil jurisdiction, however, came to administer the English law and equity asprinciples of justice and right and it became well established that the law tobe administered by the Supreme Court at Fort William in exercise of its civiljurisdiction was the English law and equity and the rules, ordinances andregulations made by the Governor-General in Council. The next enactment to beconsidered is what is commonly called the Act of Settlement 1781 (stat. 21,Geo. III C. 70). For our present purpose the provisions of S. 17 of this Actare important. This section provided as follows:

Provided always, and be it enacted that the Supreme Court ofJudicature at Fort William in Bengal shall have full power and authority tohear and determine, in such manner as is provided for that purpose in the saidCharter or Letters Patent, (i. e., those dated 26th March 1774) all and allmanner of actions and suits against all and singular, the inhabitants of theCity of Calcutta; provided that their inheritance and succession to lands,rents and goods, and all matters of contract and dealing between party andparty, shall be determined, in the case of Mahomedans, by the laws and usagesof the Mahomedans, and in the case of Gentoos, by the laws and usages ofGentoos; and where only one of the parties shall be a Mahomedan, or Gentoo, bythe laws and usages of the defendant.

12. Having considered the jurisdiction and powers of theSupreme Court of Calcutta and the law to be administered by it in exercise ofits original civil jurisdiction I shall very briefly deal with the Statutes andCharters establishing the Recorders Courts and then the Supreme Courts atMadras and Bombay. Statute 37, Geo. III, C. 142 authorised His Majesty byCharter to erect and establish Recorders Courts at Madras and Bombay replacingthe Mayors Courts at those places. Under S. 13 of this Statute the said Courtsso to be erected were to have full power to hear and determine all suits andactions that might be brought against the inhabitants of Madras and Bombay inthe manner that should be provided by the said Charter yet nevertheless theirinheritance and succession to lands, rents and goods and all matters of contractand dealing between party and party should be determined in the case ofMuhammadans by the laws and usages of the Muhammadans and where the parties areGentoos by the laws and usages of the Gentoos or by such laws and usages as thesame would have been determined by if the suit had been brought and the actioncommenced in a native Court and where one of the parties shall be a Muhammadanor Gentoo by the laws and usages of the defendant. By Charter 38, Geo. IIIRecorders Courts were established at Madras and Bombay. Similar provisionspreserving the personal laws are to be found in this Charter as in statute 37Geo. III C. 142. Then Statute 4 Geo. IV C. 7 authorised the Crown to establishSupreme Courts at Bombay and Madras. By Charter 4 Geo. IV the Supreme Court wasestablished at Bombay in 1823. All the powers of the Mayors Court andRecorders Court were conferred on it. The provision as to applicability of thepersonal law was same as before. It may be argued that the powers of theSupreme Courts of Madras and Bombay in the matter of application of personallaws were larger than those of the Supreme Court at Calcutta, for the SupremeCourt at Madras and Bombay were also empowered to decide cases according tosuch laws or usages as would have been applied if the suit had been brought ina Native Court.

13. It will be convenient here to refer to the laws thatwere being administered by the Moffusil Courts in India established by the EastIndia Company. Under Bengal Regulation 3 [III] of 1793, S. 7, all natives andother persons not British subjects were amenable to the jurisdiction of theZilla and City Courts. Under S. 8 the Zillah and City Courts were empowered totake cognizance of all suits and complaints respecting the succession or rightto real or personal property, land rents, revenues, debts, accounts, contracts,partnerships, marriage, caste, claims to damage for injuries and generally allsuits and complaints of civil nature in which the defendants a native or otherperson not British subject provided the land to which the suit related wassituated or in all other cases the cause of action arose or the defendant atthe time of the commencement of the suit resided within the limits of theCourt.

14. Under Regn. 4 [IV] of 1793, passed on the same day theZillah and City Courts were enjoined to give judgment according to justice andright. Under S. 15 of this Regulation in suits regarding succession,inheritance, marriage and caste and all religious usages and institutions, theMuhammadan law with regard to the Muhammadans and the Hindu law with regard toHindus were to be considered as the general rules by which the Judges were toform their decisions. This provision was reiterated in S. 16 of Regn. 3 [III]of 1803. Section 9 of Bengal Regn. 7 [VII] of 1832 provided that whenever inany civil suit the parties to the suit might be of different pursuasions whenone party should be of the Hindu and the other of the Muhammadan persuasion orwhere one or more of the parties to the suit should not be either of the Hinduor Muhammadan persuasion the law of his persuasion should not be permitted tooperate to deprive such party or parties of any property to which, but for theoperation of such laws, they should have been entitled. In all such cases the decisionshould be governed by the principles of justice, equity and good conscience, itbeing clearly understood, however, that these provisions should not beconsidered as justifying the introduction of the English or any foreign law orthe application to such cases of any rules not sanctioned by those principles.Reference may here be made to S. 37, Bengal Agra and Assam Civil Courts Act (12[XII] of 1887), which is now in force. It is as follows :-

37. (i) Where in any other proceeding it is necessary for aCivil Court to decide any question regarding succession, inheritance, marriageor caste or any religious usage or institution, the Mahomedan law in caseswhere the parties are Mahomedans and the Hindu law in cases where the partiesare Hindus shall form the rule of decision except in so far as such law has, bylegislative enactment, been altered or repealed.

(ii) In cases not provided for by sub-s. (i) or by any otherlaw for the time being in force, the Court shall act according to justice,equity and good conscience.

15. As regards the Mofussil Courts in Bombay and MadrasPresidencies they were governed by Bombay Regn. 4 [IV] of 1827 and Madras Regn.2 [II] of 1802. On a comparison of the provisions relating to the laws to beadministered by the Supreme Court of Calcutta and the laws to be administeredby the Supreme Courts of Bombay and Madras and those to be administered by theCompanys Courts in the Mofussil and the Sudder Dewanny Adawlut hearing appealstherefrom it will appear that the laws to be administered by the Supreme Courtat Calcutta were the rules of English law and rules of equity and the rules,ordinances and regulations made by the Governor General in Council and under S.17 of 21 Geo. III C. 70 the Muhammadan law in case where both the parties wereMuhammadans or the Gentoo law in case where both the parties were Gentoos orthe law of the defendant where one of the parties was a Muhammadan or Gentoo.It should be noticed, however, that only the personal laws of the Muhammadansand Gentoos were expressly preserved and that only in matters relating toinheritance and succession to lands, rents and goods and in matters of contractand dealing between party and party and the Supreme Court of Calcutta wasempowered to administer those two personal laws in those specified matters onlywhen persons subject to those personal laws were parties to the suit. No otherpersonal law was preserved and the Supreme Court of Calcutta was not empoweredto administer any other personal law, e. g., the personal laws of the Armeniansor Parsees or Jews. The Supreme Courts of Bombay and Madras under S. 13 of 37Geo III C. 142 were enjoined to administer in those matters the Muhammadan lawor Gentoo law where parties were Muhammadans or Gentoos and in other cases thelaw which would have been applied to the case if it had been filed in thenative Courts. Thus, the powers of the Supreme Courts of Bombay and Madras maybe said to have been extended to the application of all personal laws, e. g.,of Parsees, Armenians and Jews, although they were limited to the severalspecified matters, namely to matters of inheritance and succession to lands,rents and goods and matters of contract or dealing between party and party. Onthe other hand the Mofussil Courts under their Regulations freely administeredthe Muhammadan law where both the parties were Muhammadans or the Hindu lawwhere both the parties were Hindus and in all other cases they applied whatthey considered to be rules of justice, equity and good conscience. The onlyprohibition enjoined on those Courts was that they were not to import anyEnglish or foreign law. It was, therefore, open to and easy for the MofussilCourts to apply, not only in some matters but in all matters, the personallaws, not only of Muhammadans and Gantoos but of all communities as principlesof justice, equity or good conscience just as the Supreme Court in exercise ofits civil jurisdiction let in the English law and equity as rules of justiceand right. The Supreme Court of Calcutta, however, could not administer anypersonal law other than the personal laws of the Muhammadans and the Gentoos incertain specified matters. Attempts were made to introduce the personal laws ofother people on the ground that all non-Muhammadans came within the category of"Gentoo" but they were always repelled by the Supreme Court.

16. At this stage reference may be made to a few cases. Thusin (1815) 2 Morleys Digest p. 30, Doe d. Araton Gasper v. Paddolochan Doss(1815) 2 Morleys Digest p. 30 the Supreme Court applied the English law to thecase in which one of the parties was an Armenian. In Clerks Addl. cases 56,Jebb v. Lefevre Clerks Addl. cases 56 the English law was applied to thePortuguese by the Supreme Court.

17. In (1844) 1 Fultons Rep. p. 420 Musleah v. Musleah(1844) 1 Fultons Rep. p. 420 it was held by Seton J. and Peel C. J., Grant J.dissenting, that the succession to land situate in the Moffusil and belongingto a Jew who was an inhabitant of Calcutta at the time of his death would in asuit in the Supreme Court of Calcutta be regulated by the English law. Incourse of his judgment Seton J. observed as follows :

It has been decided by the Court of Chancery in England,that lands in the Mofussil, part of a zemindary, and held by pottahs, are of aquasi freehold tenure, (1819) 1 Jac. & W. 22 Gardiner v. Fell (1819) 1 Jac.& W. 22. In that case the lands belonged to a British subject; but thedecision did not proceed on that ground but on the nature of the tenure. Asimilar decision has been made by this Court in the case of Armenians, (1819) 1Jac. & W. 229 Emin v. Emin (1819) 1 Jac. & W. 229, a decision whichmust have proceeded not on the ground of any personal law applicable to theparties as British subjects, this Court having no jurisdiction to administerthe personal law of the parties except in the case of Hindus and Mahomedans,but on the ground that the parties and the property being alike subject to thejurisdiction, and the parties not being within the exception, the English wasthe only law which the Court was competent to administer between them. For thispurpose there can be no distinction between Jews and Armenians, neither beingwithin the excepted classes. The law of England makes no distinction betweenJews and other persons, except as to their laws of marriage, and as to certainincapacities for office. Their law of descent must be governed by the tenure ofthe lands to which it is incident, and where this is quasi freehold, as it isfound to be by the decisions of this Court and those of the Court of Chancerywhich are binding on it, the law of primogeniture must prevail. If the lands inquestion had been held by any customary tenure subject to the Jewish law ofdescent, the case might have been different. But there is no allegation of anysuch custom, and, consequently, the ordinary rule must prevail.

18. The learned Judge concluded his judgment with thefollowing observations :

With respect to any supposed anomaly arising from thedecision of this Court being different from what would be that of the MofussilCourts upon this point, it is to be considered how far this anomaly would beremoved by holding that lands belonging to the same individual, and held by thesame tenure within and out of Calcutta, were subject by the same Court todifferent rules of descent. But anomalies of this sort are considerations notfor Courts of Justice but for the Legislature.

Grant J. agreed that as regards the real property inCalcutta the same must descend according to English law but held that propertyin the Moffusil should descend according to the law of the domicile of originof the intestate as a rule of justice, equity and good conscience. Peel C. J.observed as follows at page 440:

The lands unaffected by any Lex Loci should on one side of aditch, (and being in no sense extra-territorial) be declared to go in onecourse of descent by a Court; and that the same Court in the same suit shoulddeclare the lands on the other side should go in another course of descent;that it should decide one law for British subjects, and another for Europeans,not of British origin, one law for the Armenian and another for the Jew, andanother for the Parsee, and that it should be forced to collect the law onwhich it is to decide the facts by reference to testimony, all these must beadmitted, to be most grave inconveniences; it remains to be considered whetherthe law, to which this Court is bound to conform, forces them upon us.

At page 441 :

This case is not affected by any such considerations. Therebeing no special real law, what law is to govern the decision of the case Ianswer the English law, which law alone this Court, except in excepted cases,amongst which this case does not range itself, is empowered to administer. Ishall support my view of this case by the consideration of the authorities.

19. Then after reviewing the authorities the learned ChiefJustice observed as follows at page 443 :

These authorities appear to me to be decisive of thequestion. The Crown has erected Courts of Justice in India. The Supreme Courtof this presidency, one of those Courts, has jurisdiction to try causesrelating to lands within the three provinces of Bengal, Bihar and Orissa. Itsprocess goes against them directly. An ejectment lies for them. They aresequestered under its decrees, partitioned, redeemed, foreclosed on mortgagesuits, receivers appointed for them, in short there is no power which the Courtcan exercise over lands in Calcutta, which it cannot exercise over lands withinthe three provinces before mentioned. The local boundaries of Calcuttacircumscribe its jurisdiction over persons not over things. The laws by whichit is to decide are prescribed. It has no discretionary power, is not a Courtof conscience, and must decide by those laws alone which are ordained for it.The general law of the Court is the English law. The exceptions are statutory,and the introduction of those very exceptions proves the general rule. TheCourts of the East India Company are concurrent, and not exclusive Courts.Their course is prescribed by regulations. Their constituent authority is theEast India Company, ours the Crown. Each must proceed in the course prescribed.The regulations, so far from enjoining a general law, prohibit them from theadoption of any general law, either English or Foreign, as the law of theirCourt. They are enjoined to proceed according to the principles of justice,equity and good conscience, it being clearly understood, however, that thisprovision shall not be considered as justifying the introduction of the Englishor any foreign law, or the application to such cases of any rules notsanctioned by those principles-See Regulation-7 [VII] of 1832, Section 9.Their decision then cannot be viewed as evidence of any general law; and ifthey were, that law is not only not obligatory on a Court of concurrentjurisdiction for which another course is ordained, but it is not in the powerof the latter to adopt it.

Finally at page 445 :

I think that this Court is bound to decide that the lands inquestion descend according to the course of the English law. A British subjecthas no privilege in this Court to have a special law applied to his case. Thesame law applied to all and the law of descent is one and the same for all thesuitors of this Court, except Hindus and Mahomedans.

20. The same case came up before the Supreme Court on reviewafter the infant defendant attained majority and those later proceedings arereported in (1856) 1 Boulnois Rep. 234 Musleah v. Musleah (1856) 1 Boulnois Rep.234. On this rehearing the earlier decision was confirmed by Colvile C. J. andBuller and Jackson JJ. The case in which the moffusil Courts administered thepersonal laws of persons other than Muhammadans or Hindus will be foundreferred to in (1844) 1 Fultons Rep. 420 Musleah v. Musleah (1844) 1 FultonsRep. p. 420 and it is not necessary for me to refer to them in any greaterdetail. It is enough to say that the moffusil Courts administered all personallaws as rules of justice, equity and good conscience as they had been by theirRegulations enjoined to do.

21. The next case that I need deal with is that in 6 M. I.A. 348 Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C.375 : 1 Suth. 265 : 1 Sar. 548 (P.C.). This was a suit instituted on theecclesiastical side of the Supreme Court at Bombay by a Parsee wife against herParsee husband for restitution of conjugal rights and for maintenance. Thehusband contended that the parties being Parsees that Court had no jurisdictionto administer towards them the ecclesiastical law as at the date of the Charterwas used and exercised in the Diocese of London. It was held by their Lordshipsof the Judicial Committee that the Supreme Court of Bombay, on itsecclesiastical side had no jurisdiction to entertain such a suit, as thereexisted such a difference between the duties and obligations of a matrimonialUnion among Parsees from that of Christians, that the Court, if it made adecree, had no means of enforcing it, except according to principles governingthe matrimonial law in Doctors Common, which were, in such a case,incompatible with the laws and customs of Parsees. Towards the end of thejudgment delivered by the Right Hon. Dr. Lushington it was observed as follows:

For the reasons we have stated, we think that a suit for therestitution of conjugal rights, strictly an Ecclesiastical proceeding, couldnot, consistently with the principles and rules of Ecclesiastical law, beapplied to parties who profess the Parsee religion; but we should much regretif there were no Court and no law whereby a remedy could be administered to theevils which must be incidental to married life amongst them. We do not pretendto know what may be the duties and obligations attending upon the matrimonialunion between Parsees, nor what remedies may exist for the violation of them,but we conceive that there must be some laws, or some customs having the effectof laws, which apply to the married state of persons of this description. Itmay be that such laws and customs do not afford what we should deem, as betweenChristians, an adequate relief; but it must be recollected that the partiesthemselves could have contracted for the discharge of no other duties andobligations than such as, from time out of mind, were incident to their owncaste, nor could they reasonably have expected more extensive remedies, ifaggrieved, than were customarily afforded by their own usages. Such remedies weconceive that the Supreme Court on the civil side might administer, or at leastremedies as nearly approaching to them as circumstances would allow. In suitscommenced on the civil side, the peculiar difficulties which belong to theexercise of Ecclesiastical jurisdiction in some matrimonial cases would not,arise. Proceedings might be conducted on the civil side with such adaptation tothe circumstances of the case as justice might require, though on theEcclesiastical side such modification would be wholly irreconcilable withEcclesiastical law.

We have been led to make these observations, not merely bygeneral considerations, but more particularly by the case in 2 Borr. Bon. Sud.Dew. Rep. 209 Mihirwanjee Nuoshirwanjee v. Awan Baee 2 Borr. Bon. Sud. Dew Rep.209. That case shows that the Sudder Adawlut at Bombay will take cognizance ofmatrimonial suits between Parsees, and will afford them such relief as a dueregard to their own laws and customs will allow; it also proves, as indeed mustbe expected, that those laws and customs are wholly at variance with theprinciples which govern the matrimonial law of the Diocese of London, andincompatible with the Ecclesiastical law, as in such cases is administered. Oneinstance will suffice. It appears that, under many circumstances, the husbandis permitted to take a second wife, the first being alive.

22. It is unfortunate that while making the above comparisontheir Lordships did not advert to the statutory difference in the laws to beadministered by the two Courts, the Supreme Court of Bombay and the SudderDewany Adawlut of Bombay which I have tried to show above. It is true that theSupreme Court of Bombay on its civil side could entertain all civil suits butits powers in the matter of the law to be administered by it were restricted.It could not administer any personal law except in certain specified matters.The Moffusil Courts were not so fettered and the Sudder Dewany Adawlut hearingappeals from Moffusil Courts were equally free to administer any personal lawin all matters as principles of justice, equity and good conscience. Thisimportant distinction was not pointed out by their Lordships when theysuggested that the Supreme Court on its civil side might entertain such suitsand give such remedies as the personal laws of the Parsees would entitle themto have. The difference is stronger in the case of the Supreme Court ofCalcutta and the Sudder Dewany Adawlut of Calcutta, for the Supreme Court ofCalcutta was authorised to administer only the personal laws of Muhammadans andGentoos and of no other community and that only in certain specified matters,while the Sudder Dewany Adawlut of Calcutta could freely administer allpersonal laws in all matters as principles of justice, equity and goodconscience. Therefore the recommendations of their Lordships could only be carriedout by amending the law.

23. However, while the judicial decisions were in theaforesaid state there came the Indian High Courts Act of 1861 (24 and 25 Vic.C. 104). It authorised Her Majesty by Letters Patent to erect a High Court ofJudicature at Fort William in Bengal and like High Courts at Madras and Bombay.It provided that upon the establishment of the High Courts the Supreme Courtand the Court of Sudder Dewany Adawlut and Sudder Nizamut Adawlut at Calcuttaand the corresponding Courts at Madras and Bombay would be abolished. Under S.9 of this Act each of the High Courts to be so established should have andexercise all such civil, criminal, admiralty, testamentary, intestate andmatrimonial jurisdiction and original and appellate, and all such powers andauthority for and in relation to the administration of justice in thePresidency for which it is established, as Her Majesty might by such LettersPatent as aforesaid grant and direct, subject, however, to such directions andlimitations as to the exercise of original civil and criminal jurisdictionbeyond the limits of the Presidency towns as might be prescribed thereby; and,save as by such Letters Patent might be otherwise directed, and subject andwithout prejudice to the legislative powers in relation to the mattersaforesaid of the Governor-General of India in Council, the High Court to beestablished in each presidency should have and exercise all jurisdiction andevery power and authority whatsoever in any manner vested in any of the Courtsin the same Presidency abolished under this Act at the time of abolition ofsuch last mentioned Courts. Section 11 made all existing provisions then inforce in India of Acts of Parliament, Orders of Her Majesty in Council and Actsof Indian Legislature which applied to the Supreme Court applicable to the HighCourt, so far as the same might be consistent with the provisions of this Actand the Letters Patent to be issued. Thus save as might be otherwise directedby the Letters Patent to be issued the High Court to be established in anyPresidency was to be successor of the jurisdiction and powers not only of theSupreme Court but also of the Sudder Dewany Adawlut and Sudder Nizamut Adawlutof that Presidency. One would think that this meant that in exercise of itscivil jurisdiction the High Court will have power and jurisdiction to apply thepersonal laws of all communities as principles of justice, equity and goodconscience. It may be that Parliament was giving effect to the suggestions ofthe Judicial Committee made in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye(1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. 548 (P.C.).This provision was, however, made subject to the provisions of the LettersPatent to be issued. It is, therefore, necessary to see whether the LettersPatent which Her Majesty was authorised by this Act to issue in any waymodified this result.

24. The Letters Patent of 1862 established this High Court.Clauses 11 to 17 conferred civil jurisdictions on this High Court, namely,ordinary original, extraordinary original, appellate, infancy and lunacy andinsolvency jurisdictions. Clauses 18 to 20 laid down the law to be administeredby this High Court in civil cases. Thus, under cl. 18 such law or equity was tobe applied by this High Court in its ordinary original civil jurisdiction toeach case as would have been applied to it by the Supreme Court of Calcutta.Clause 19 ordained that such law or equity and rule of good conscience shouldbe applied by this High Court in the exercise of its extraordinary originalcivil jurisdiction to each case as would have been applied to it by the localCourt having jurisdiction. Clause 20 ordained that such law or equity and ruleof good conscience should be applied by this High Court in its appellatejurisdiction to each case as would have been applied to it in the Court inwhich it was instituted. It will thus be seen that these Letters Patent tookthis High Court back to the position of the Supreme Court of Calcutta in thematter of the laws to be administered by it in exercise of its original civiljurisdiction. Like, wise the corresponding provisions of the Letters Patentswhich established the High Courts at Bombay and Madras enjoined those HighCourts to administer the same laws as used to bo administered by the respectiveSupreme Courts of those Presidencies. In this connexion reference may be madeto the despatch from the Secretary of State to the Governor-General in Councildated 14th May 1862 and in particular to paras. 17 and 34 thereof which are asfollows :

17. The terms of cl. 12, defining the original jurisdictionof the High Court as to suits, are nearly similar to those employed in S. 5,Civil P. C., (Act 8 [VIII] of 1859), and are intended to include every descriptionof case over which the Mofussil Courts have jurisdiction. By the 8th section ofthe 21st George III, C. 70, the Supreme Court is precluded from exercising anyjurisdiction in any matter concerning the revenue. Further, a decision of theJudicial Committee of the Privy Council, pronounced in April 1856, ruledagainst the exercise of the Ecclesiastical Jurisdiction of the Supreme Court inmatters matrimonial between others than Christians, and even expressed somehesitation as to whether that Court should administer a remedy in such cases onthe civil side. It is one object of the present Charter to do away with allsuch restrictions and limitations, as far as this can be done without trenchingon the proper province of legislation. It has, therefore, been sought to investthe High Court, in the exercise of its original civil jurisdiction, with asample powers in receiving and determining cases of every description, and inapplying a remedy to every wrong as are exercised by the Courts not establishedby Royal Charter, and thus to place the Courts of first instance in thePresidency Towns and in the interior of the country in this respect, as nearlyas may be, on the same footing.

34. The object of the proviso at the end of clause 35 is toobviate any doubt that may possibly arise as to whether by vesting the HighCourt with the powers of the Court for Divorce and Matrimonial causes inEngland, it was intended to take away from the Courts within the divisions ofthe Presidency not established by Royal Charter any jurisdiction which theymight have in matters matrimonial, as for instance, in a suit for alimonybetween Armenians or Native Christians. With any such jurisdiction it is notintended to interfere.

25. In my humble opinion, however, these Letters Patent didnot really succeed, in giving full effect to the recommendations of theJudicial Committee made in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye(1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. 548 (P.C.)to which I have referred and which is referred to in para. 17 of the Secretaryof States Despatch. In fact what was sought to be achieved by Ss. 9 and 11 ofthe High Courts Act, 1861 was, effectually nullified by cl. 18 of these LettersPatent. A perusal of Cl. 18 of these Letters Patent will clearly show that thisHigh Court in exercise of its ordinary original civil jurisdiction wasauthorised to apply only such law or equity as would have been applied by theSupreme Court of Calcutta and that was, as we have seen, nothing but Englishlaw and rules of Equity and Indian enactments, with a reservation in favour ofthe Hindu and Muhammadan laws only in certain matters as mentioned in 21st Geo.III C. 70, S. 17. Thus although the jurisdiction of this High Court in exerciseof ordinary original civil jurisdiction was by Cls. 11 and 12 made flexible andenlarged yet in the matter of the laws to be administered by it in exercise ofits ordinary original civil jurisdiction it was relegated to the position ofthe Supreme Court of Calcutta. This statutory restriction cannot be ignored andmust be recognised and accepted by the Court. The result may be paradoxical butit appears to be that a Court was found to entertain all civil suits but thatCourt was not provided with all the necessary laws.

26. These Letters Patent of 1862 were replaced by theLetters Patent of 1865. The scheme of these Letters Patent is similar to thoseof 1862. Clauses 19 to 21, Letters Patent of 1865 correspond to Cls. 18 to 20of that of 1862. No material alteration was made in any of these clauses. UnderCl. 19, Letters Patent of 1865, this High Court in exercise of its ordinaryoriginal civil jurisdiction is empowered to apply such law or equity as wouldhave been applied by the High Court if these Letters Patent had not beenissued. This throws us back to the Letters Patent of 1862, cl. 18 of whichagain throws us further back to the Indian High Courts Act, 1861, and thence tothe Act of Settlement 1781 21st Geo. III C. 70 the provisions of whichincluding those of S. 17 I have summarised above. In my opinion, therefore,this High Court even after the Letters Patent of 1865 had no power to apply anypersonal law other than those of Muhammadans and Hindus in certain specifiedmatters only and had to apply the English law and equity and the enactmentsmade by the Governor-General in Council. The legislative powers of theGovernor-General in Council were preserved by Cl. 44, Letters Patent of 1865.

27. In the same year when these Letters Patent of 1865 wereissued, the Parsee Marriage and Divorce Act and the Parsee Intestate SuccessionAct were passed. If the High Courts Act, 1861, the Letters Patent of 1862 andthe Letters Patent of 1865 empowered the High Court to administer all thepersonal laws of the Parsees, Jews and Armenians in exercise of its ordinaryoriginal civil jurisdiction then there would seem to be no reason for soquickly bringing those Acts on the Statute Book. The Indian Succession Act wasalso passed in the same year 1865. The Jews were held to be governed by thatAct : see 1 Cal. 148 [LQ/CalHC/1951/285] Gabriel v. Mordakai (75) 1 Cal 148 [LQ/CalHC/1951/285] . This also shows thatthe personal laws of the Jews were not recognised at any rate as regardstestamentary and intestate succession. In chap. 3 of the second edition of SirCourtney Ilberts book on the Government of India published in 1907 will befound a digest of statutory enactments then in force relating to the Governmentof India with marginal reference in square brackets indicating the enactmentsreproduced. Part IX of the Digest dealt with the Indian High Courts underseveral headings namely "constitution," "jurisdiction,""law to be administered" and "Advocate-General" Paragraph108 under the heading "Law to be administered" was as follows:

Subject to any law made by the Governor-General in Councilthe High Courts, in the exercise of their Original Jurisdiction, shall, inmatters of inheritance and succession to lands, rents, and goods, and inmatters of contract and dealing between party and party, when both parties aresubject to the same personal law or custom having the force of law, decideaccording to that personal law or custom and when the parties are subject todifferent personal laws or custom having the force of law, decide according tothe law or custom to which the defendant is subject.

28. This para. 108 purported to reproduce the provisions of21 Geo. III C. 70, S. 17 and 37 Geo. III C. 142, S. 13. On a reference to 21Geo. III C. 70, S. 17 which I have summarised above it will appear, as I havealready said, that only the personal law of the Muhammadans and Gentoos incertain cases were to be administered by the Supreme Court of Judicature atFort William. Therefore this para. 108 in chap. 3 of Sir Courtney Ilbertsbook, so far as it purported to reproduce the provisions of S. 17 of 21 Geo.III C. 70 appears to be too wide and general and not warranted by the languageof that Statute. It overlooked the provisions of Cl. 19, Letters Patent of 1865and Cl. 18, Letters Patent of 1862 to which I have referred in some detail andI am not prepared to accept para. 108 of Chap. 3 of Sir Courtney Ilberts bookas a correct statement of the law then in force, so far as the Supreme Court ofFort William or this High Court is concerned. It may he a correct statement ofthe law so far as the Supreme Courts and the High Courts of Bombay and Madrasare concerned.

29. In 1911 the case in 38 Cal. 708 Mozelle Joshua v. SophieArakie (11) 38 Cal, 708 [LQ/CalHC/1911/277] : 12 I. C. 485 came before Harrington J. sitting onthe Original Side of this Court. That was a suit by a Jewish widow to enforceher claim to a sum of Rs. 10,555 settled by way of dower under the Jewish lawin terms of her marriage contract called "Ketubah" and for adeclaration that she was entitled to that sum in priority to the othercreditors of her deceased husband who had died intestate leaving debtsexceeding his assets. Gentlemen of Jewish Persuasion gave evidence as to theeffect of the document "Ketubah" amongst them. Harrington J. heldthat a "Ketubah" did not create any charge in favour of a widowagainst her deceased husbands estate but that it gave a right enforceable byan innocent wife when she was divorced by her husband. Mr. Hyam appearing forthe defendant did take the point that this Court had no jurisdiction to administerthe Jewish law and relying on (1844) 1 Fultons Rep. 420 Musleah v. Musleah(1844) 1 Fultons Rep. p. 420 contended that the document in question should beconstrued according to the law of British India. In the judgment I find noreference whatever to this argument. Harrington J. dealt with the evidence andproceeded on the construction of the "Ketubah" and based his decisionon the following grounds, namely (i) that he did not believe the Ketubahintended to create any charge; (ii) that while all the witnesses agreed that itgave rights to the wife in the event of a divorce, every witness said that nocase had ever occurred in which it had been contended that it gave any otherright to the widow until the present suit; and (iii) that there was evidencethat, where it was desired to settle the property on the wife notwithstandingthe existence of a Ketubah a marriage settlement was executed. In the resultthe suit was dismissed. The defendant did not suffer any injury by reason ofthe point of law raised by counsel not being decided.

30. There was an appeal from the judgment of Harrington J.and the judgment of the Court on appeal consisting of Jenkins C. J. andWoodroffe J. will be found reported in 40 Cal. 266 [LQ/CalHC/1912/488] Mozelle Joshua v. SophieArakie (13) 40 Cal. 266 [LQ/CalHC/1912/488] : 18 I. C. 132. After the appeal was opened anadjournment was granted to enable the parties to adduce further evidence in theshape of appropriate books of reference or affidavits of acknowledgedauthorities in support of their rival contentions, which was done. Again I findthat learned counsel for the defendant respondent took the point, relying on(1844) 1 Fultons Rep. 420, Musleah v. Musleah (1844) 1 Fultons Rep. p. 420that the Court had no jurisdiction to administer the Jewish law. Again I findthat this point was not dealt with by Jenkins C. J. in his judgment. Thelearned Chief Justice on a consideration of the materials on record held thatthe Ketubah was a necessary but formal incident of the marriage contract andceremonial but created no such right as claimed by the plaintiff and dismissedthe appeal. It is quite clear that both the trial Court and the appeal Courtallowed evidence of Jewish law to be adduced and decided the case on theevidence so adduced before them. Ordinarily I would be bound by the decision ofthe Court on appeal but in the face of the express words of the Statute andCharter I have referred to and the clear enunciation of the legal position in(1844) 1 Fultons Rep. 420 Musleah v. Musleah (1844) 1 Fultons Rep. p. 420 Ifind it difficult to regard this case as a positive and affirmative authorityfor the proposition that this Court in the exercise of its ordinary originalcivil jurisdiction under the Letters Patent of 1865 was empowered to administerthe personal laws of the Jews where the parties were of Jewish persuasion. Irather think that, in the view the learned Judges took of the evidence and themeaning of the Ketubah on a true construction thereof, it was unnecessary forthem to deal with the broader general proposition as to the applicability ofJewish law to that case that was raised by learned counsel for the defendant inthat case.

31. Paragraph 108 of Chapter III of the third edition of SirCourtney Ilberts book on the Government of India which was published in 1915reproduced verbatim para. 108 of Chapter III of the second edition of his book.I have already said that in my opinion this paragraph was somewhat wider thanthe provisions it purported to reproduce, so far as this Court was concerned. Thencame the Government of India Act, 1915. Part IX of this Act, dealt with theIndian High Courts. The scheme of Part IX of this Act, followed the scheme ofPart IX of Chapter III of Sir Courtney Ilberts book. Section 101 (1) of thisAct provided that the High Courts referred to in this Act are the High Courtsof Judicature for the time being established in British India by LettersPatent. Section 106 (1) was as follows :

The several High Courts are Courts of Record and have suchjurisdiction, Original and Appellate including Admiralty jurisdiction inrespect of offence committed on the high seas, and all such powers andauthority over or in relation to the administration of justice, including powerto appoint clerks and other ministerial officers of the Court, and power tomake rules for regulating the practice of the Court, as are vested in them byLetters Patent, and subject to the provisions of any such Letters Patent, allsuch jurisdictions, powers and authority as are vested in those Courtsrespectively at the commencement of this Act.

32. Section 112 under the heading "Law to beadministered" provided as follows :

The High Courts at Calcutta, Madras and Bombay in theexercise of their original jurisdiction in suits against inhabitants ofCalcutta, Madras or Bombay, as the case may, shall, in matters of inheritanceand succession to lands, rents and goods, and in matters of contract anddealing between party and party, when both parties are subject to the samepersonal law or custom having the force of law, decide according to thatpersonal law or custom, and when the parties are subject to different personallaws or customs having the force of law, decide according to the law or customsto which the defendant is subject.

The last mentioned section appears to have been bodily takenfrom para. 108 of Sir Courtney Ilberts book. The result of these provisionsappears to be that each High Court has all the jurisdictions, powers andauthorities given to it by the respective Letters Petent relating to it. Thereforethis High Court in exercise of its ordinary original civil jurisdiction underCl. 19, Letters Pattent of 1865 read with Cl. 18, Letters Patent of 1862 isstill enjoined to administer the same law and equity as the Supreme Court ofCalcutta was enjoined to administer subject to this qualification that under S.112 of this Act, each of the High Courts in exercise of its ordinary originalcivil jurisdiction was enjoined, in matters of inheritance and succession tolands, rents and goods and in matters of contract and dealing between party andparty, when both parties are subject to the same personal law or custom havingthe force of law, to apply that law and, when the parties are subject todifferent personal laws or customs to apply the law or custom to which thedefendant is subject. Thus the personal law or custom of all communities cannow, in the specified matters, be applied, whereas previously only the personallaw and custom of Muhammadans and Gentoos in those specified matters could beapplied by this High Court in the exercise of its ordinary original civiljurisdiction. It will be noticed, however, that the specified matters arematters of inheritance and succession to lands, rents and goods and contractsand dealing between party and party. Marriage and caste and religious usagesand institutions which were included in the Regulations governing the moffusilCourts were not included in the Act of Settlement in connection with Hindu orMuhammadan laws and are not included in the matters specified in the Governmentof India Act 1915. Therefore personal law relating to marriage or caste orreligions usages and institutions of none of the communities are even now to berecognised by any of the High Courts in exercise of its original civiljurisdiction except in so far as they may be material for the purpose ofdetermining matters of inheritance and succession to lands, rents and goods andcontract and dealing between party and party In this respect the moffusilCourts of Bengal have wider power to apply, as principles of justice, equityand good conscience, the personal laws of all communities in all matters underS. 37. Bengal Agra and Assam Civil Courts Act of 1887 and this Court, inexercise of its civil appellate jurisdiction, under Cl 21, Letters Patent of1865 is empowered to apply the same personal law of marriage and caste of allcommunities.

33. The case in 50 Bom. 369 [LQ/BomHC/1925/218] Rachel Benjamin v. BenjaminSolomon (26) 13 A. I. R. 1926 Bom. 169: 50 Bom. 369 94 I. C. 59 was a caseinstituted in the Original Side of the Bombay High Court by a Jewish wifeagainst her Jewish husband for dissolution of her marriage on grounds ofadultery and cruelty and for recovery of the amount specified in the Ketubahand for maintenance. The defendant husband denied the allegations of crueltyand asserted that his second marriage was valid and that the Court had nojurisdiction to entertain a suit of this nature between parties professing theJewish faith. Crump J. held that Jewish law was applicable and gave relief to theplaintiff. The learned Judge referred to the observations and suggestions madeby their Lordships of the Privy Council in 6 M. I. A. 348 Ardaseer Cursetjee v.Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar.548 (P.C.) and the Despatch of the Secretary of State accompanying the LettersPatent of 1862 and certain clauses of those Letters Patent and concluded thatsince 1862 the High Court of Bombay in exercise of its ordinary original civiljurisdiction under Clause 12, Letters Patent of 1862 was empowered toadminister the Jewish law of marriage in a matrimonial suit between Jewishparties filed on the original side of that High Court. With great respect I amunable to support this decision on the broad and general ground on which it isbased. Curiously enough the learned Judge did not even refer to all therelevant clauses of the Letters Patent of the Bombay High Court which dealtwith the laws to be administered by that High Court in exercise of its ordinaryoriginal civil jurisdiction. With the utmost respect to the learned Judge I amconstrained to say that the learned Judge failed to notice that under theLetters Patent of the Bombay High Court the law and equity to be administeredby that High Court in the exercise of its ordinary original civil jurisdictionwere the same as those which used to be administered by the Supreme Court ofBombay, under Statute 37 Geo. III C. 142 S. 13 and the Charter establishing theSupreme Court of Bombay, namely English law and equity as modified by IndianActs and with a reservation in favour of the personal laws of Muhammadans andGentoos and others in certain matters only. The learned Judge also failed tonotice that statute 37 Geo. III C. 142 S. 13 which let in all personal laws didso only in respect of certain specified matters and did not authorise the HighCourt of Bombay in exercise of its ordinary original civil jurisdiction toadminister the personal law of marriage of any community except perhaps in sofar as such personal law was material for determining the specified matters. Inmy humble opinion the learned Judge overlooked the fact that in spite of theweighty observations and recommendations of the Privy Council and theobservations of the Secretary of State in his Despatch, the Letters Patent ofthe Bombay High Court or even the Government of India Act 1915 did not bringabout any change in the law to be administered by the High Court of Bombay inthe exercise of its ordinary original civil jurisdiction.

34. The two cases referred to by the learned Judge, namely10 Bom. 301 Dadaji Bhikaji v. Rukmabai (86) 10 Bom. 301 (a Hindu case) and 21Bom. 77 A v. B (97) 21 Bom. 77 (a Muhammadan case) proceeded no the groundthat since the expression of opinion by the Privy Council in 6 M. I. A. 348Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 :1 Suth. 265 : 1 Sar. 548 (P.C.) the civil courts of this country should affordremedies for the evils incidental to married life. The aspect of the matterwhich I am emphasising was not adverted to at all. With great respect to thelearned Judge I am bound to point out that he proceeded not on what the law wasbut what it should be. This, in my opinion, was the province of theLegislature. In my judgment the decision of Crump J. cannot be supported excepton the basis that Jewish marriage is purely a matter of contract only and theJewish marriage laws are laws of contract. In any event so far as our HighCourt is concerned it has inherited the powers and jurisdictions of the SupremeCourt of Calcutta which under S. 17 of statute 21 Geo. III C. 70 was authorisedto administer the personal laws to the Muhammadans and Gentoos in certainspecified matters and of no other community. The Letters Patent of 1862 orthose of 1865 did not bring about any change in this respect. It is only afterthe Government of India Act, 1915, that this High Court in exercise of itsordinary original civil jurisdiction can apply all personal laws but it can doso only in certain matters. If the Letters Patent of 1862 and of 1865 did notallow any personal laws other than those of Muhammdans and Hindus to be appliedat all, if the Government of India Act, 1915, did not allow the application ofany personal law to any matter not specified therein it is not for this Courtto apply the same. The powers and jurisdictions of this Court are defined byStatutes and Charters and the powers and jurisdictions of the moffusil Courtsof Bengal are likewise well defined by their Regulations and now by the Act of 1837.It is not good logic at all to argue that because the moffusil Courtsadminister all personal laws in all matters, therefore the High Court must havethe power to administer all personal laws on all matters. Each Court is boundby the Statutes or Regulations constituting it and cannot go beyond them. In myopinion, the reasoning that held good when (1844) 1 Fultons Rep. 420 Musleahv. Musleah (1844) 1 Fultons Rep. p. 420 had been decided equally holds goodtoday. If any change in the law is necessary it is for the Legislature to bringabout such change. In the face of the clear enunciation of the law made in(1844) 1 Fultons Rep. 420 Musleah v. Musleah (1844) 1 Fultons Rep. p. 420 andre-iterated in the same case on review reported in (1856) 1 Boulnois Rep. 234,as to the law which was to be applied by the Supreme Court of Calcutta and inview of the provisions of Cl. 19, Letters Patent of 1865 read with Cl. 18,Letters Patent of 1862 I cannot hold that this Court in exercise of itsordinary original civil jurisdiction could, before the Government of India Act,1915, administer any personal law other than the personal laws of theMuhammadans and the Gentoos in certain specified matters. Since 1915, this HighCourt in exercise of its ordinary original civil jurisdiction has beenempowered to apply all personal laws but only in certain specified matters andin no other matter. 34 C. W. N. 319 : 57 Cal. 1089 [LQ/CalHC/1929/306] R. K. Samuel v. F. H. T.Samuel (30) 17 A. I. R. 1930 Cal. 558 : 57 Cal. 1089 [LQ/CalHC/1929/306] : 127 I. C. 559 : 34 C.W. N. 319 was a suit brought by a Jewish wife against her Jewish husband forjudicial separation. Panckridge J. refused to make an order for payment ofcosts to the wife on an application by the wife. I gather this suit wasultimately settled and there was no decision of the Court as to theapplicability of the Jewish law.

35. The next case where the applicability of Jewish law wasconsidered is that reported under the heading In the Goods of Saran Ezra (31)18 A. I. R. 1931 Cal. 560 : 58 Cal. 761 [LQ/CalHC/1930/231] : 134 I. C. 443. This was anapplication for letters of administration by the brother of the deceased. Theillegitimate son of the deceased entered a caveat and amongst other thingscontended that under the Jewish law he was entitled to the estate of her mother.Panckridge J. held that under the Charters and Letters Patent English lawapplied until the Succession Act was passed in 1865 and that since then theJews are governed by that Act. In that case this Court was exercisingtestamentary jurisdiction and not ordinary original civil jurisdiction andpresumably, therefore, learned counsel for the caveator conceded that S. 112,Government of India Act, 1915, did not alter the position. In 55 Bom. 803 [LQ/BomHC/1931/59] DavidSassoon Ezekiel v. N. N. Reuben (31) 18 A. I. R. 1931 Bom. 402 : 55 Bom. 803 [LQ/BomHC/1931/59] :134 I. C. 550 Wadia J. applied Jewish law simply following the observation ofCrump J. in 50 Bom. 369 [LQ/BomHC/1925/218] Rachel Benjamin v. Benjamin Solomon (26) 13 A. I. R.1926 Bom. 169 [LQ/BomHC/1925/218] : 50 Bom. 369 94 I. C. 59. Before the Appeal Court the applicabilityof Jewish law was not questioned at all. In A. I. R. 1935 Rang. 190 Ezekiel M.Saul v. Ramah Saul (35) 22 A.I.R. 1935 Rang. 190 : 156 I. C. 795 Page C. J. andMya Bu J. remanded the case to the Original Side with a direction to takefurther evidence as was done in 40 Cal. 266 [LQ/CalHC/1912/488] Mozelle Joshua v. Sophie Arakie(13) 40 Cal. 266 [LQ/CalHC/1912/488] : 18 I. C. 132. There was no discussion as to the terms ofthe Letters Patent and the learned Chief Justice guarded his expression ofopinion with the reservation "as at present advised." In A. I. R.1944 Bom. 15 [LQ/BomHC/1943/73] Paul Engel v. Edith Engel (44) 31 : A.I.R. 1944Bom. 15 : I. L. R. (1944) Bom. 481 [LQ/BomHC/1943/73] : 211 I. C. 51 Blagden J. followed 50 Bom.369 Rachel Benjamin v. Benjamin Solomon (26) 13 A. I. R. 1926 Bom. 169: 50Bom. 369 94 I. C. 59 without any discussion. The Government of India Act, 1935,has brought about no further change in the jurisdiction of the High Courts orin the law to be administered by the High Courts. Section 223 runs as follows:

Subject to the provisions of this Part of this Act, to theprovisions of any Order in Council made under this or any other Act and to theprovisions of any Act of the appropriate Legislature enacted by virtue ofpowers conferred on that Legislature by this Act, the jurisdiction of, and thelaw administered in, any existing High Court, and the respective powers of theJudges thereof in relation to the administration of justice in the Court,including any power to make rules of Court and to regulate the sittings of theCourt and of members thereof sitting alone or in division Courts, shall be thesame as immediately before the commencement of Part III of this Act.

36. On a review of the Statutes of Parliament, Charters andLetters Patent, Bengal Regulations and the Government of India Acts of 1915and,1935 and the judicial decisions, I have come to the conclusion that thisHigh Court in the exercise of its ordinary original civil jurisdiction has to -

(a) receive, try and determine suits of every description asprovided in Cl. 12. Letters Patent of 1865, and

(b) apply the same law or equity to each case which wouldhave been applied by the Supreme Court of Calcutta namely rules of English lawand rules of Equity of the High Court of Chancery in Great Britain subject toIndian Legislative enactments; but

(c) in suits against an inhabitant of Calcutta in matters ofinheritance and succession to lands, rents and goods and in matters of contractand dealing between party and party, apply, when both parties are subject tothe same personal law or custom having the force of law that personal law orcustom and when the parties are subject to different personal law or custom,the law or custom to which the defendant is subject.

37. The present suit is one based on a contract. Both partiesto the suit are Jews and subject to Jewish law. The suit is filed in theordinary original civil jurisdiction. The defendant claims that the contract insuit is invalid by reason of the provisions of the personal law of the parties.In my opinion it is incumbent on this Court now to as certain what thatpersonal law is and what effect that law has on the facts of this case ingeneral and on the contract in suit in particular. In this view of the matter Ihave allowed evidence to be given as to the Jewish law.

38. As to (B). - I now pass on to consider the secondquestion namely what is the Jewish law on the subject and the effect thereof,in the facts of this case, on the contract in suit. The only oral evidenceadduced before me, on the question of Jewish law, is that of David GirjeeRaymond who claims to be a Rabbi and as such well versed in and an expertexponent of the Jewish law.

39. Mr. Chatterjee who now appears for the plaintiff (thewife) submitted that no expert evidence on Jewish law was admissible. Heformulated his objection as follows : When this Court indicated that in a suitbetween parties who were Jews and which was based on a contract this Courtwould have to take into consideration the Jewish law on the subject, this Courtmust have proceeded under S. 112, Government of India Act 1915. That Act madeit obligatory on this Court to administer the Jewish law in matters specifiedtherein. The Jewish law, therefore, became the law of this country in thosespecified matters so far as the Jews are concerned. Since 1915, therefore, theJewish law cannot be regarded as foreign law. He then cited S. 45, IndianEvidence Act, and contended that as expert evidence is admissible in respect offoreign law under that section and that as Jewish law is not foreign law, noexpert evidence of Jewish law is admissible. I am unable to accede to thiscontention. In many circumstances this Court has to apply the laws of othercountries, e. g. the law of the country where the land in dispute is situate,or where the contract in suit was made or was to be performed as the rules setout in Diceys Conflict of Laws, to which Mr. Isaacs referred, will clearlyshow. This is done pursuant to the rules of private international law adoptedby the Courts of all civilised countries. This circumstance, however, does notmake the law of those countries part of the law of this country and it cannotbe argued that no expert evidence is admissible in respect of those foreignlaws. Likewise, when the Government of India Act, 1915, enjoined theapplication of Jewish law in certain specified matters the Jewish law did notcease to be foreign law and did not become part of the law of this country. Thesituation appears to me to be the same in both cases, the only difference beingthat in one case foreign law is applied under the rules of privateinternational law and in the other case foreign personal laws, e. g., the lawsof the Jews or of the Armenians in certain specified matters are applied underthe Government of India Act, 1915. I see no difference in principle between thetwo cases. In my judgment no foreign law becomes part of the law of thiscountry merely by the circumstance that it is to be applied by the Courts inthis country. Such foreign law remains a foreign law and consequently under S.45, Indian Evidence Act, expert evidence is admissible in respect of suchforeign law. I may also mention that in the cases to which I have alreadyreferred expert opinion on Jewish law has been admitted in evidence. InEngland, although the Marriage Acts recognise the rights of the Jews tocontract and solemnise marriages according to their own usages, such usageshave to be proved in the same way as foreign laws are proved. See note (e) atp. 989 of Halsburys laws of England, 2nd Edition Vol. XI.

40. Mr. Chatterjee next contended that Mr. David GirjeeRaymond was not a Rabbi but was a mere Haakam authorised to expound onlycertain branches of the Jewish law and was not an expert at all. He furthercontended that Mr. Raymond was a mere shohet or slaughterer of animals andfowls. He was and is a private tutor of the children of the defendant and wasfor sometime a tenant of his and was otherwise under obligations to thedefendant and consequently he was not a disinterested person on whose evidenceany weight ought to be attached by this Court. It is not necessary for me to gointo the criticisms of Mr. Chatterjee too closely. I do not think thosecriticisms really affect the present case, for Mr. Raymond in his evidence hasonly referred to certain verses from Eben-Ha-Ezer which is the third volume ofthe series collectively called Shulchan Aruch compiled by Rabbi Joseph Kareu.That Shulchan Aruch has obtained a general authority amongst the Jewish peopleon all questions of marriage and divorce, was accepted by Wadia J. in 55 Bom.803 David Sassoon Ezekiel v. N. N. Reuben (31) 18 A. I. R. 1931 Bom. 402 : 55Bom. 803: 134 I. C. 550. Mr. Surita in his argument proceeded rather on thetexts of Eben-Ha-Ezer than on the personal opinion of Mr. Raymond. Mr.Chatterjee on behalf of the plaintiff has called no substantive evidence on theJewish law but in cross-examination put to Mr. Raymond certain verses andparticularly verse 1 (a) Chap. 70 headed "Laws concerning support,etc." from Part 4 of the Code of Jewish Jurisprudence compiled by Rabbi J.L. Kadushin and published in America in 1923. This is also an authoritativebook containing translations of verses taken from earlier books of acceptedauthority and grouped under different heads in the form of a comprehensive codeof the Jewish law. I therefore propose, for the purpose of this judgment, toproceed principally on these two authoritative works, which are the onlyauthorities to which my attention was drawn.

41. Mr. Raymond in his evidence stated that there was nosuch thing as a deed of separation known to Jewish law (Q. 30). At the end ofhis evidence I asked him (QS. 263-272) whether by his answer inexamination-in-chief (Q. 30) he meant that there was an express prohibitionagainst such a contract in the Jewish law or that there was an absence of anyreference to such a contract. He replied that there was no mention in theJewish law of deed of separation between a husband and a wife and added that itis not permissible because the Jewish law says that a man cannot live apartfrom his wife. He then referred again to certain verses in Eben-Ha-Ezar andconcluded by saying that barring what was mentioned therein there was nothingelse in the Jewish law on the subject. It is clear, therefore, that accordingto Mr. Raymond there is no express mandatory prohibition in the Jewish lawagainst a contract of separation between a husband and a wife but that such aprohibition is to be inferred from certain verses of Eben-Ha-Ezer quoted byhim. Mr. Raymond in his evidence referred to the following verses ofEben-Ha-Ezer: Chapter 1 verse 8 page 3; Chap. 70 verse 2 page 303; Chap. 76Verse 1 page 313; Chap. 76 verse 5 page 313; Chap. 77 verse 1 page 315; Chap.77 verse 2 page 316. Mr. Chatterjee put to Mr. Raymond Verse 1 (a) and Verse 14of Chap. 70 of the Code of Jewish Jurisprudence Part IX pages 410 and 413 whichMr. Raymond accepted as correct. The parties have also put in agreed Englishtranslations of the verses and commentaries of Eben-Ha-Ezer referred to by Mr.Raymond and certain other verses therefrom. These have been marked as exhibits.These are all the materials now before me as to what the Jewish law on thesubject is.

42. Mr. Surita for the defendant argued as follows: TheJewish law is to be taken as a whole and the Court should take a comprehensiveview in the matter. Kedushins book is only a translation of some text withoutany comment whereas Joseph Kareus Eben-Ha-Ezar is an authoritative book whichgives the verses as well as the explanations and commentary thereon. The versesof Eben-Ha-Ezar clearly show that the Jewish law requires that husband and wifemust live together and propagate the Jewish race. Propagation andmultiplication of the race are the fundamental principles governing the normalstate of matrimony under the Jewish law. Even if a man has children it issinful for him to live without a wife and he must marry and if he cannot affordhe can even sell the holy books. If a fresh marriage for the propagation of theJewish race is the injunction of the Jewish law in the case of a man who haslost his wife, even when he has children by her, the underlying reason of thisinjunction must apply all the more to the case of a man whose wife is livingand consequently the husband and wife must live together for the propagation ofthe Jewish race. Therefore ordinarily a contract of separation between thehusband and the wife is repugnant to the basic principle underlying the Jewishlaw of marriage. It is only in exceptional circumstances and for a limitedperiod only that a husband and wife may, by consent, live apart from each otheras laid down in Eben-Ha-Ezer. Mr. Surita concluded by submitting that Verses 1(a) and 14 referred to by Mr. Chatterjee from Kadushins book must be readwith, and regarded as modified by, the verses of Eben-Ha-Ezer spoken to by Mr.Raymond and referred to above.

43. In appreciating and construing the relevant versesrelied on by the parties it has to be remembered, as pointed out in theintroduction to Eben-Ha-Ezer, that there are many laws in the ancient bookswhich are not observed amongst the Jews in modern times. After the overthrow ofthe Jewish Kingdom the Jews have scattered all over the world and they have toconform to the secular laws of the place they happen to live in. This isenjoined by the Talmud in the words "deens de mulkhutha deena," i.e.,the law of the land is the law. The laws to be applied to the Jews, therefore,are not uniform and they vary according to the laws of domicile. The originalTalmudi law has thus been modified and liberalised by modern systems ofjurisprudence in important particulars, e. g., law of crimes, law of purchaseand sale, usury and the like.

44. If the verses above referred to are the only provisionsof the Jewish law on the subject-and no other has been placed before me-it willbe observed that apart from the verses dealing with marital relations there isno general law, either of marriage or of contract, which forbids a contract ofseparation between husband and wife. It will be further observed that even inthe verses dealing with marital relations there is no express mandatoryprohibition against a contract of separation between a husband and a wife. Onthe contrary, as Mr. Chatterjee contended, there is express sanction, evenaccording to the commentators noted in Eben-Ha-Ezer, for such separation incertain cases although for a limited period of time. Therefore, the separationbetween a man and his wife is not wholly unknown to Jewish law even as expoundedin Eben-Ha-Ezer. But because certain specific cases are mentioned there, is itto be inferred that a contract of permanent separation is not permissible underany circumstances Mr. Surita, as I have already pointed out, wants me to infersuch prohibition and he relies on verse 8 of Chap. 1 and verses 1, 2, 4 and 5of Chap. 76 of Eben-Ha-Ezer which enjoin the right and duty of co-habitationand sexual intercourse for the purpose of multiplying the Jewish race. Theancient indigenous Jewish law recognised polygamy and at that time it was notnecessary to draw any inference of prohibition against separation of man andwife from these verses for propagation of the race, for the husband could,after separation, take another wife and multiply the race. Again, is theimplied prohibition contended for by Mr. Surita, if it exists at all, to beregarded as a rule of positive law so that a violation of it is an illegalityor is it to be regarded merely as a religious or moral precept the violation ofwhich amounts to nothing more than an irregularity which the law does not takeany notice of or may condone Is the alleged implied prohibition, if any, tobe regarded as a matter of public policy which nobody can ignore or renounce orto be regarded as mere safeguard for the private rights of the husband or thewife, as the case may be, which the parties concerned can abandon or waive These are questions which are bound to arise in the process of theconsideration and application of any ancient system of jurisprudence wherepositive law is intermingled with religion and morality. The duty of the Court,I conceive, is to disentangle the positive law from mere religious or moralprecepts, or to use the language of Hindu law to distinguish Vyavahara fromAchara. In this connection this Court has to constantly bear in mind theobservations of the Privy Council in 26 I. A. 113 Sri Balasu Gurulinga Swami v.Balara Ramalakshanamma (99) 22 Mad. 398: 21 All. 460 : 26 I.A. 113 : 7 Sar. 330(P.C.) at p. 136 which are as follows :

Their Lordships had occasion in a late case to dwell uponthe mixture of morality, religion and law in the Smritis. They then said : Allthese old text books and commentaries are apt to mingle religious and moralconsiderations not being positive laws with rules intended for positive laws.They now add that the further study of the subject necessary for the decisionof these appeals has still more impressed them with the necessity of greatcaution in interpreting books of mixed religion, morality and law, lest foreignlawyers accustomed to treat as law what they find in authoritative books, andto administer a fixed legal system, should too hastily take for strict lawprecepts which are meant to appeal to the moral sense, and should thus fetterindividual judgments in private affairs, should introduce restrictions intoHindu society, and impart to it an inflexible rigidity, never contemplated bythe original lawgivers.

The above observations enjoining caution in the matter ofthe consideration of old text books of the Hindu law, I apprehend, apply withequal force in the consideration of text books of the Jewish law, anotherancient system of law. I have already set out the principal terms of the deedof separation on which this suit is founded. It is nothing more or less than astatement by the husband that he will maintain the wife in a particular manner,that he will take the children into his custody and maintain and educate thembut that he will not live with the wife, and a statement by the wife to the husbandthat she accepts the position and consents thereto. Is there any provision inthe Jewish law which expressly prohibits such an agreement None has beenbrought to my notice. On the contrary I find that this deed of separationbrings about a situation which is contemplated and sanctioned by necessaryimplication by verse 1 (a) of Chap. 70, p. 410 of the Code of JewishJurisprudence which is in the following words:

1 (a). If the husband wants to support his wife withoutliving together with her that cannot be done without her consent (Ketubah 646,Tur.)

This appears to be consonant with Verse 2 of Chap. 70 ofEben-Ha-Ezer, although the commentator restricts this verse to the case wherethe husband goes to another city for work or study. It appears to me that thecommentator only gives some illustrations of the general rule and theillustrations do not limit the rule or exhaust its application. The versesenjoining and encouraging sexual intercourse between man and wife can at bestbe regarded as religious or moral precept or social duty for the preservationof the race and can hardly be said to be a part of the positive law which alonethe civil Courts can enforce. The verses from Eben-Ha-Ezer, namely, Verses 1and 2 of Chap. 77 appear to me to contemplate and provide for quite a differentsituation, namely when the husband or the wife is rebellious. I do not see howthose verses, which deal with a situation where the husband and wife are atarms length and which is brought about by one spouce against the will of theother, can have any application to a situation where both the spouses put theirheads together and arrive at a reasonable agreement with regard to theirmatrimonial differences.

45. In my judgment I cannot regard the verses ofEben-Ha-Ezer as a prohibition express or implied against such mutualarrangement. On the contrary verse 1 (a) of the Jewish Jurisprudence ofKadushin and verse 2 of Chap. 70 of Eben-Ha-Ezer sanction such arrangement bynecessary implication. I read the commentators notes to the last mentionedverse as merely illustrative and not exhaustive. Further the right and duty ofsexual intercourse laid down in such minute detail can hardly form thesubject-matter of positive law. If anything they are to be regarded as mere religiousor moral precepts or canons of social duty which civil Courts administeringsecular and civil laws cannot enforce and will not therefore uphold. Amicableseparation is not an offence against the Jewish law or the law of this land,nor is it opposed to public policy. In my opinion the injunction of regularcohabitation and the alleged prohibition against separation of man and wife tobe implied therefrom are in any event nothing in the world more than provisionsby way of safeguards and protection of the private marital rights of thehusband or the wife. I see nothing in the Jewish law to prevent the partiesconcerned from renouncing or waiving such right. This deed of separation cameinto being at the instance of the defendant and has been acted upon forsometime and was insisted upon by him when it suited his purpose. In my opinionhe is bound in conscience to honour its terms. True, this Court is enjoined toadminister the personal laws of the parties in certain specified matters but itis also authorised and empowered to administer the rules of Equity. I can seeno reason why this Court, as a Court of equity, should treat this contract in amanner different from that in which the Court of Equity in England dealt withsimilar prohibitions of the old Ecclesiastical laws of England.

46. The case in (1862) 4 De. G. F. & J. 221 Hunt v. Hunt(1862) 4 De. G. F. & J. 221 : 31 L. J. Ch. 161 : 5 L. T. (N. S.) 778 : 10W. R. 215, to which I was referred by Mr. Isaacs, traces the process by whichcontracts of separation between husband and wife came to be recognised first bythe Court of Law and then by the Court of Equity in England. The LordChancellor (Lord Westbury) in his preliminary judgment administered twocautions, namely, first, that religious view of the question must not beconfounded with the view which alone ought to be taken in Courts sitting toadminister justice according to Civil Law, and second, that one must not forgetthe different state of the Ecclesiastical law as it existed in England before andafter the Reformation. The learned Lord Chancellor then went on to say thatbefore the Reformation marriage was regarded by the Church, and thereforeregarded by the law, as a sacrament, a contract of the highest possiblereligious obligation and all its duties and obligations were matters ofecclesiastical cognisance and the duty of cohabitation-the primary duty arisingfrom the contract-was enforced by spiritual tribunals by spiritual punishments.Voluntary separations, before the reformation, were forbidden by law andcontracts made for giving effect to voluntary separations were thereforeinvalid, as being contrary to the policy-that is, contrary to the prohibitionof the law. Then the Lord Chancellor referred to the reformation and thestatute of Henry VIII and pointed out that the Ecclesiastical law wassubordinated to the Common law and thenceforth, by Common law, voluntaryseparation, that is, the cessation, by mutual agreement, of the consortium vitaof matrimony, was not a thing forbidden, prohibited or in any manner made thesubject of punishment. The whole jurisdiction on the subject of marriage,however, remained vested in the Courts Christian and the power of institutingsuits for the restitution of conjugal rights was retained by those Courts.Those Courts refused to countenance any separation that had not been pronouncedby the authority of spiritual Court and did not permit a contract of voluntaryseparation to be pleaded in bar of the right to interfere by orderingrestitution of conjugal rights. The Common law Courts, however, treated thevoluntary separation as contracts capable of being enforced at Common law. Thelearned Lord Chancellor then referred to the cases in (1847) 1 H.L.C. 538 J. W.H. Wilson v. M. W. H. Wilson (1847) 1 H. L. C. 538 : 9 E. R. 870 and (1854) 5H. L. C. 40 J.W.H. Wilson v. M. W. H. Wilson (1854) 5 H.L.C. 40 : 23 L. J. Ch.697 and pointed out that as the infirmity of the process in Courts of Commonlaw prevented those tribunals from giving complete relief, the Courts of Equitysupplied, partly by their injunctions and partly by decrees of specificperformance, the infirmity and imperfect nature of the relief which was givenin a Court of Common law, for it would be a preposterous thing to allow thehusband with impunity to sue in the Court Ecclesiastical and thereby to defeatthe whole of the contract, and then to tender to the injured party the merecompensation which pecuniary damages assessed by a jury might afford. At p. 233the Lord Chancellor observed as follows :

The long series of eminent Judges whose observationspreceded the determination of the House of Lords are not to be weighed againstthe authority of that judgment, and if they are overborne or overruled by thatjudgment they can no longer be cited with propriety to induce the Court torefuse to give effect to the clear principle and determination involved in thatjudgment; but I see no departure from principle voluntary separation being nooffence by the common law however it may be regarded in a religious point ofview.

If it is not to be regarded as a civil offence againstsociety the power to institute a suit for the restitution of conjugal rights isnothing in the world more than a private remedy and a private right belongingto the husband. The general maxim applies, Quil ibet potest renunciare juri prose introducto. I beg attention to the words pro se because they have beenintroduced into the maxim to show that no man can renounce a right of which hisduty to the public and the claims of Society forbid the renunciation. But itthis voluntary separation is a state of things which by the consent of theparties may be created and created without offence, then it falls within thescope and ambit of the ordinary power of contracting, and there can be nodifficulty upon principle or upon the ground of the policy of the law as to thevalidity of such a contract.

47. After stating the doctrine of the Ecclesiastical Courtto which I have already referred the Lord Chancellor proceeded as follows :

Such is the doctrine of the Ecclesiastical Courts, but therelative obligations of fulfilling the duties of a marriage contract, which arethe basis of this ecclesiastical doctrine, the common law leaves to theconscience of the parties concerned. It regards a deed of separation as anyother legal contract. If the covenant of the husband not to sue forrestitution, which is a release of the right to compel cohabitation, be foundedupon a valuable consideration, an action may be maintained upon it as upon anyother legal covenant. A Court of Equity, in regarding these covenants, cannottake a higher or different ground. It is in this respect bound to follow thelaw; and the remark that a Court of Equity, in enforcing the covenant would betaking on itself the jurisdiction of the Court of Divorce, is no moreapplicable to this Court when granting its injunction than it would be to aCourt of law when supporting an action on the covenant.

48. In his final and reconsidered judgment the learned LordChancellor confirmed his first judgment. The only other English case on thissubject to which I need refer is the case in (1879) 12 Ch. D. 605 Besant v.Wood (1879) 12 Ch. D. 605 : 40 L. T. 445. At p. 620 Sir George Jessel, M. R.observed as follows:

For a great number of years, both ecclesiastical Judges andlay Judges thought it was something very horrible, and against public policy,that the husband and wife should agree to live separate, and it was supposedthat a civilised country could no longer exist if such agreements were enforcedby Courts of law, whether ecclesiastical or not. But a change came overjudicial opinion as to public policy; other considerations arose, and peoplebegan to think that after all it might be better and more beneficial formarried people to avoid in many cases the expense and the scandal of suits ofdivorce by settling their differences quietly by the aid of friends out ofCourt, although the consequence might be that they would live separately, andthat was the view carried out by the Courts when it became once decided thatseparation deeds per se were not against public policy.

49. The learned Master of the Rolls then referred to theearlier cases including (1862) 4 De G. F. & J. 221 Hunt v. Hunt (1862) 4De. G. F. & J. 221 : 31 L. J. Ch. 161 : 5 L. T. (N. S.) 778 : 10 W. R. 215;(1847) 1 H. L. C. 538 J. W. H. Wilson v. M. W. H. Wilson (1847) 1 H. L. C. 538: 9 E. R. 870 and (1854) 5 H. L. C. 40 J.W.H. Wilson v. M. W. H. Wilson (1854)5 H.L.C. 40 : 23 L. J. Ch. 697 mentioned above and finally to (1866) 1 H. L.SC. 63 Rowley v. Rowley (1866) 1 H. L. Sc. 63 which went up to the House ofLords and concluded as follows at pp. 624 -25 :

I believe, therefore, that so far as the general law isconcerned, though you cannot treat it as settled, but according to my opinionof what is the law and what it ought to be, the remedy is mutual, and thehusband as well as the wife is entitled to specific performance of theagreement to live apart.

50. It will thus be seen that in England contracts ofvoluntary separation came to be regarded as valid and enforceable. The judicialdecisions have since laid down that such agreement is valid provided it is madein contemplation of, and is followed by, an immediate separation but anagreement for future separation, however, is void as being contrary to publicpolicy. In England contracts for voluntary separation are now regarded in thesame way as any other legal contract governed by the ordinary rules of law andequity and not as a special kind of contract incidental to marriage or governedby the matrimonial law. The form and validity of these contracts are dealt within Halsburys Laws of England, Edn. 2, Vol. 16, Part 9, Art. 1162 et seq.

51. The position and status of the Jews in England after therestoration of Charles II will be found dealt with in Halsburys Laws ofEngland, Edn. 2, Vol. 11, Arts. 1742-1754, pages 981-987. Suffice it to saythat there is no reason to suppose that a contract of separation between aJewish husband and wife would not be treated on exactly the same footing as acontract of separation between an English husband and wife. I now pass on tothe Hindu Law. The case in 28 Cal. 751 [LQ/CalHC/1901/32] Tekait Mon Mohini v. Basanta Kumar (01)28 Cal. 751 [LQ/CalHC/1901/32] cited by Mr. Chatterjee was an appeal from the mofussil Court. ADivision Bench of this Court held upon the authority of various texts anddecided cases that the duty imposed upon a Hindu wife to reside with herhusband, wherever he may choose to reside, is a rule of Hindu law and notmerely a moral duty. It also held that an ante-nuptial agreement on the part ofthe husband that he will never be at liberty to remove his wife from herparental abode, would defeat that rule of Hindu law and is invalid on thatground, as well as on the ground that it is opposed to public policy. This wasa case of antenuptial agreement and therefore not in point. An agreement ofthis kind viewed as an ordinary contract will also be invalid under the EnglishLaw as being opposed to public policy and the learned Judges held it to be invalidalso as being opposed to public policy. There are passages in the judgments ofboth the learned Judges that after marriage a situation may arise when for thepreservation of peace and reputation of the family such separation may bepermissible.

52. In 39 Bom. L. R. 458 Purshottamdas Harjiwandas v.Rukmini (37) 24 : A.I.R. 1937 Bom. 358 [LQ/BomHC/1936/167] : I. L.R. (1938) Bom.1 : 170 I. C. 897 : 39 Bom. L. R. 458, which was also an appeal from themofussil Court, a Division Bench of the Bombay High Court held that apost-nuptial agreement between husband and wife to live separately, the husbandsetting apart a portion of his estate out of which the wife agreed to receivemaintenance, was not opposed to public policy or the spirit of Hindu law. The principlesenunciated in the English cases and the Bombay case I have just referred toappear to me to be applicable to the contract in suit. For reasons statedabove, I have no hesitation in holding that the deed of separation on whichthis suit is based is valid under the Jewish law and is not opposed to thespirit of the Jewish law and is therefore not hit by S. 23, Indian ContractAct. It is a contract which this Court administering alike the Jewish law ofcontract and the rules of equity must uphold and enforce. My judgment musttherefore be in favour of the plaintiff.

53. The amount of maintenance payable to the plaintiff underthe terms of the deed will depend on the amount of increase in the income ofthe defendant. I therefore refer it to the Registrar or such other officer ashe may nominate, to enquire and report as to the present income of thedefendant since the death of his father in May 1942 and what will be thereasonable and proper maintenance payable to the plaintiff in terms of the deedof separation. The plaintiff will be entitled to the arrears of maintenance upto date and from month to month hereafter at the rate to be ascertained by theofficer. All further considerations and directions are reserved until after theofficer makes his report. The plaintiff will also be entitled to the costs ofthis suit. Certified for two counsel.

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Beatrice Ezekiel Jacob vs. Ezekiel (11.01.1944 - CALHC)