Authored By : S.C. Ghose, J.F. Stevens

S.C. Ghose, J.

1. The appeal arises out of a suit for enforcement ofconjugal rights.

2. The plaintiff and the defendant were married on the 9thFalgun 1292 Amli, corresponding to the 18th February 1885, at a time when theywere both minors. The defendant is the daughter of the Rajah of Kattikari inthe district of Midnapur. The Rajah was then dead, and the defendant was givenaway in marriage by her mother. The plaintiffs parents agreed that their sonshould be married to the defendant, and at the time of the marriage anagreement, described in this suit as pratijna patra, was executed by them, andit ran as follows:

That we solemnly promise that you, having decided to keep myeldest son Sriman Rai Basanta Kumar Singh Babajiban in your own house, afterhaving married your eldest daughter to him, and having asked for my permissionand that of my wife thereto, we both give our consent thereto and execute thispratijna patra, to the effect that neither I nor my wife shall ever propose totake our said son to our own house, nor shall we be competent to take himthere. He will live for ever at your qarh (house) at Kuttikari, and will veryhappily continue to carry on the business of the Raj. To this effect we, of ourown accord, execute this pratijna patra (deed of promise in the presence ofrespectable and other men of this place. Finis. Dated the 9th of Falgun1292." To this were added the following lines: "I, Sri Rai BasantaKumar Singh (i.e., the plaintiff) being bound by this deed of promise, dopromise that I shall not be competent to take my wife from this place to my ownfathers house or to any other place. I shall always carry out your orders, andI shall not be competent to do any act or to go to any place without yourpermission. Finis. "This document was signed by the plaintiffs parents,and by the plaintiff.

3. The plaintiff lived at Kuttikari in the house of hisfather-in-law for about 15 years, but subsequently disagreement broke outbetween the plaintiff, on the one hand, and the defendant and defendants mother,the Rani, on the other, the result being that the plaintiff was not agreeableto live with the defendant in her fathers house, and demanded that she shouldcome over and live with him in his own house at Jahanabad in the district ofHughli, which, it is alleged, she refused to do; and thereupon the present suitwas brought for a decree directing the defendant to live with the plaintiff athis own house. 4. The suit was defended by the defendant upon the ground thatit was against the custom of the family for the daughter of the Rajah to go andlive in the house of her husband; that the claim was against the provisions ofthe ekrarnama of the 9th Falgun 1292; that the plaintiff always lived in thehouse of her father, and was being maintained from the allowance given by thedefendants mother; that the plaintiff had been guilty of cruelty to thedefendant; that he had no means of his own to maintain the defendant, and soforth, And the defendant further alleged that on account of the violence committedby the plaintiff and his ill-treatment of the defendant, a complaint was lodgedbefore the Collector as representing the Court of Wards (in whose hands theKuttikari estate then was) and thereupon the plaintiff was forbidden to enterthe house of the defendants father, and also that in a previous suit betweenthe parties which had for its object the obtaining of possession of thedefendant by the plaintiff as his wife, there was a compromise between theparties to the effect that the defendant would forgive the plaintiff and payhim maintenance allowance at the rate of Rs. 30 to enable him to liveseparately and that the suit was therefore barred by res judicata.

4. The Subordinate Judge, before whom the suit wasinstituted, laid down, amongst others, the following issues:

First.--Is the suit res judicata

Third.--Whether the plaintiff is precluded from compellingthe defendants removal from her fathers house either by contract, familycustom or otherwise

Fourth.--Is the defendants allegation of ill-treatmenttrue

Fifth.--What relief, if any, is plaintiff entitled to

5. That officer held that the suit was not barred by resjudicata; that the plaintiff was under age at the time of the contract, andthat it was not binding upon him; that the custom pleaded by the defendant wasnot proved; that the plaintiff was entitled under the Hindu Law to theenforcement of his marital right; that the agreement pleaded by the defendantof the 9th Falgun 1292 was without any consideration, and was no bar to the maintenanceof the suit; but that the plaintiff had been guilty of rather harsh treatmenttowards the defendant and therefore though he (the plaintiff) was entitled tothe decree claimed, it must be subject to certain conditions which he thoughtought to be imposed, One of the conditions that he did impose was that theplaintiff should not be allowed to take his wife to the District of Hugh, butthat he must reside with her in the town of Midnapur in a suitable house whichhe must provide, and that to insure the comfort of the defendant, he mustengage a sufficient number of servants.

6. The defendant appealed against this decree, and theDistrict Judge on appeal has confirmed the judgment of the Subordinate Judge,but has modified the decree in regard to some of the conditions which thatofficer imposed. I may here mention that the Judge sets out in his judgment thevarious points that were urged on behalf of the defendant before him, and hehas dealt in his judgment with all those points.

7. In second appeal before us by the defendant, the mainpoint urged by the learned Counsel on her behalf is that, having regard to theterms of the contract entered into between the parties on the 9th Falgun 1292,the plaintiff is not entitled to a decree for the relief claimed in the plaint,and that, accepting the findings of the Courts below that the plaintiff wasunder age at the time of the agreement, the case should be remanded for afinding upon the point whether the agreement was ratified by him after arrivalat majority. It has also been contended that conjugal rights were never refusedto the plaintiff, and that this suit could not therefore be maintained.

8. I may dispose of the last point very shortly by statingthat the suit is not so much for restitution properly so-called as forenforcement of conjugal rights, the defendant having refused to go and livewith the plaintiff at his own house, and that such suit does certainly lie.

9. Turning then to the main question raised in this appeal,the first observation that I have to make is that the parties being Hindus,their respective rights, as flowing from the marriage, being in question, wehave to guide ourselves by the Hindu Law unless it be that the plaintiff hasentered into a valid and lawful agreement, such that it may be said he hascontracted himself out of the rights conferred upon him by the said marriage.

10. Clause (1) of Section 37 ofXII of 1887 provides:

11. Where in any suit or other proceeding it is necessaryfor a Civil Court to decide any question regarding succession, inheritance,marriage or caste or any religious usage or institution, the Muhammadan Law incases where the parties are Muhammadans, and the Hindu Law in cases where theparties are Hindus, shall form the rule of decision, except in so far as suchlaw has, by Legislative enactment, been altered or abolished." The rest ofthe section is not material for the purpose of the question arising in thiscase.

12. It will be observed that the section speaks of the HinduLaw being "the rule of decision, except in so far as such law has, byLegislative enactment, been altered or abolished." There is no Legislativeenactment in this country modifying the Hindu Law of Marriage, and the rightswhich flow from such marriage; nor does the section apparently contemplate thesaid "rule of decision" being controlled by any contract between theparties.

13. In Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 MooI.A. 551 which was a case between two Muhammadans, but in which the generalprinciple underlying such a case was considered, the Judicial Committee, withreference to the question raised, namely, whether a suit could be brought by aMuhammadan husband in the Civil Courts of India to enforce his marital rightsunder the Muhammadan Law by compelling his wife against her will to return toco-habitation with him, observed, among other matters as follows:

Of authority negativing the jurisdiction there is none. Ithas been argued that the proper remedy, if there be one, is the denial of maintenanceto the rebellious wife, or at most, a suit for damages; because a suit tocompel the wife to return to her husband, though obviously a more completeremedy than either of them, is in the nature of a suit for specificperformance; and being founded on the contract of marriage, which MuhammadanLaw regards as a civil contract, the Court entertaining the suit must beprepared to enforce all the obligations, however minute, which, according tothat law, flow from the contract, whichever party has a right to insist uponthem." And later on they observed: "Upon authority, then, as well asprinciple, their Lordships have no doubt that the Muhammadan husband mayinstitute a suit in the Civil Courts of India for a declaration of his right tothe possession of his wife, and for a sentence that she return toco-habitation; and that that suit must be determined according to theprinciples of Muhammadan law. The latter proposition follows not merely fromthe imperative words of Reg. IV of 1793, Section 15 (which has been substitutedby Section 37 ofXII of 1837), but from the nature of the thing. For sincethe rights and duties resulting from the contract of marriage vary in differentcommunities; so, especially in India, where there is no general marriage law, theycan be only ascertained by reference to the particular law of the contractingparties.

14. I refer to this case for the purpose simply ofemphasising what I have already said, that the question raised between theparties in the present case has to be determined by the particular law that is,the Hindu Law which governs them. And the same view has been expressed by theBombay High Court in the well-known case of Dadaji Bhikaji v. Rukmabai (1886)I.L.R. 10 Bom. 301 in the following words:

15. We may, however, remark that, although no text may befound in the Hindu Law books which provide for the King ordering a husband orwife to return, no text was cited forbidding or deprecating compulsion, andthat it was admitted that the duties appertaining to the relationship ofhusband and wife have always been the subject of caste discipline, and,therefore, that with the establishment of a systematic administration ofjustice, the Civil Courts would properly and almost necessarily assume tothemselves the jurisdiction over conjugal rights as determined by Hindu Law,and enforce them according to their own modes of procedure.

16. This brings us to the consideration of the question whatis the Hindu Law upon this subject. It may be premised that though marriage underthe Hindu Law is a contract, it is also a sacrament, it is more religious thansecular in character; the union is indissoluble, for it is a "union offlesh with flesh, bone with bone." During the husbands lifetime, he is tobe regarded by the wife as a god and the wife is declared to be half the bodyof her husband, equally sharing the fruit of pure and impure acts, and nosacrifice or religious rite is allowed to her apart from the husbands. Henceit is that after the husbands death, the widow is regarded as the survivinghalf of his body: the union is a sacred tie and subsists even after the deathof the husband. See Manu, Ch. II, v. 67; Ch. Ill, v. 43; Ch. V, vv. 154, 155,156, 157, 158, 160, 165; Ch. IX. v. 29; Dayabhaga Ch. IV, v. 14; Ch. XI, Section1, v. 2; and Hindu Law on Marriage by Dr. Banerjee, p. 131.

17. The marital dominion which a husband under the Hindu Lawacquires over his wife is due, as I understand it, to two causes: First, thegift by the parents of the girl, and secondly, the troth plighted by thehusband. And it is owing to these causes, we may take it, that the husband isthe lawful guardian of his wife, when a minor. See Manu, Ch. V, v. 151, 152,Ch. III., v. 27, 28; In the matter of Dhuronidhur Ghose I. L. R. (1889) Cal. 293.

18. Having made these prefatory remarks, I proceed to referto some of the texts as bearing upon the question at issue. I shall begin witha text of Manu: " In childhood must a female be dependant on her father,in youth on her husband, her lord being dead, on her son... A woman must neverseek independence. Never let her wish to separate herself from her father, herhusband or her sons, for by a separation from them, she exposes both familiesto contempt. "See Colebrookes Digest of Hindu Law, Vol. II, p. 137, Ed.1871

19. The next is a text of Devala:

Dependence, attendance on her husband and in his religiousceremonies, respectful behaviour to those who are entitled to veneration fromhim, hatred to those who bear enmity to him, no ill-will towards him, constantcomplacency, attention to his business, are the duties of woman."(Colebrooke, Vol. II, p. 138).

Vishnu:

Accompanying of her husband, reverence of his father, ofspiritual parents, of duties and guests, great cleanliness in regard to the domesticfurniture and care of the household vessels, avoiding the use of philters andcharms, attention to auspicious customs, austerities after the death of herhusband, no frequenting of strange houses, no standing at the door or window,dependence in all affairs, subjection to her father, husband and son inchildhood, youth and age: such are the duties of a woman." (Colebrooke,Vol. II, p. 138, v. 92).

Vasistha:

The abode of faithful wives, who are fond of home and trulyrigid and who have subdued their passions, shall be the same with that of theirlords; but the mansions of shakals are assigned to disloyal wives."(Colebrooke, Vol. II, p. 148).

Manu (Ch. IX, vv. 45 and 46):

The husband is even one person with his wife for alldomestic and religious, not for all civil purposes.

Neither by sale nor desertion can a wife be released fromher husband.

Manu (Ch. IX, v. 102):

Let a man and woman united by marriage constantly beware,lest at any time disunited they violate their mutual fidelity." Manu (Ch.V, vv. 164, 165, 166):

A married woman who violates the duty which she owes to herlord brings infamy on herself in this life, and in the next shall enter thewomb of a shakal or be afflicted with elephantiasis and other diseases whichpunish crimes; while she, who slights not her lord, but keeps her mind, speechand body devoted to him, attains his heavenly mansion, and by good men iscalled sadhwi or virtuous.

Yes, by this course of life it is that a woman, whose mind,speech and body are kept in subjection, acquires high renown in this world, andin the next, the same abode with her husband.

20. These texts, among other matters, establish that it isthe bounden duty of the wife to live with her husband, wherever he may chooseto reside, to submit herself to his authority, never to separate from him andto attend upon him and in his religious ceremonies, and that the violation ofsuch duty is a great sin, which results in terrible punishment in the nextworld. I shall now turn to the views expressed on the subject by some of themodern writers on Hindu Law.

21. Mr. Justice Banerjee, in his book on the Hindu Law ofMarriage and Stridhana, at page 108, makes the following observations:

It follows from the very nature of the matrimonial relationthat the husband and wife must each be entitled to the society of the other. Itis one of the express conditions in the nuptial vow of the Hindus, that eachparty is to become the associate of the other. Accordingly Manu declares: Letmutual fidelity continue till death. Let a man and woman united by marriageconstantly beware lest at any time disunited they violate their mutualfidelity. And the sages denounce the desertion or neglect of either party bythe other without just cause as an act punishable in this world and in thenext.

22. And later on, at page 112, he observes:

The duty of attendance on her husband, which is so stronglyinculcated, obliges her to follow him wherever he chooses to reside. And it isa general principle of law that the domicile of the wife follows that of herhusband. She is also bound to refrain from going to any place where her husbandforbids her to go.

23. Mr. Mayne, in his book on Hindu Law, Chapter XIV,paragraph 414, says:

As soon as the wife is mature, her home is necessarily inher husbands house. He is bound to maintain her in it while she is willing toreside with him and to perform her duties. If she quits him of her own accord,either without cause or on account of such ordinary quarrels as are incidentalto married life in general, she can set up no claim to a separate maintenance.Nothing will justify her in leaving her home except such violence as renders itunsafe for her to continue there, or such continued ill-usage as would betermed cruelty in an English Matrimonial Court.

24. Babu Golap Chunder Sarkar, in his book on Hindu Law, p.67, says as follows:

Although the conjugal relation is based upon a contract ofeither of the parties to the marriage or their guardians, the rights and theduties of the married couple do not arise from any implied-contract, but areannexed by law to the connubial relation as its incidents. The wife is bound toreside with the husband wherever he may choose to live. The fact of the husbandhaving another wife will not relieve her from that duty; nothing short ofhabitual cruelty or ill-treatment will justify her to leave her husbands houseand reside elsewhere.

25. Dr. J. N. Bhattacharjee, quoting a text of Manu in hisbook entitled Commentaries on Hindu Law, p. 123, says:

Where the wife is sui juris and refuses to live with herhusband, he can, according to Hindu Law, keep her by force under hisprotection. Under the Indian Penal Code, the husband cannot be punished formerely keeping his wife under restraint without using violence or subjectingher to cruel treatment.

26. Let us now refer to some of the decided cases bearingupon the matter. In Kateeram Dokanee v. Gendhenee (1875) 23 W.R. 178 where thesuit was for recovery of possession of the person of the wife by a Hinduhusband, Markby, J., made the following observations:

The marriage of an infant being under the Hindu Law a legaland complete marriage, the husband, in my opinion, has the same right as inother cases to demand that his wife shall reside in the same house as himself.I do not think that any Court can deprive the husband of this right, exceptupon some tangible and definite grounds, which show that under the specialcircumstances of the case the wife is absolved from this duty, and her parentsor guardians from the duty of surrendering her to her husband and, we cannot,in my opinion, say, without contravening the Hindu Law, that the infancy of thewife constitutes such a ground, though it might, I think, be right in the caseof a very young girl to require the husband to show that she would be placed byhim under the immediate care of some female member of his family.

27. In the case of Surjya Moni Dasi v. Kali Kanta Dass I. L.R. (1900) Cal. 37 where a Hindu husband brought a suit for the restitution ofconjugal rights against his minor wife represented by her paternal grandmother,a Division Bench of this Court, after referring to the case of Kateeram Dohaneev. Gendhenee (1875) 23 W.R. 178 which I have just noticed, made the followingobservations;

If, as legal guardian of the person and property of hisminor wife, a Hindu husband is entitled under the law to insist that she shalllive with him, it seems useless to argue that he is not entitled to similarrelief in a suit for restitution of conjugal rights, if the wife has attainedan age at which she is considered fit to discharge her conjugal duties, thoughin the eye of the law she may still be a minor.

28. In the case of Sitanath Mookerjee v. Haimabutty Ddbee(1876) 24 W.R. 377 which was a suit by a Hindu wife against her husband formaintenance, Sir Richard Garth, in delivering the judgment of the Court,observed as follows:

Now what is the Hindu Law upon the subject

It is dear that according to that law, a wifes first dutyto her husband is to submit herself obediently to his authority and to remainunder his roof and protection; and although it might be very difficult todeduce from the authorities at the present day any definite rule as to thecauses which would justify a wife in leaving her husbands house, it may safelybe affirmed that mere unkindness or neglect short of cruelty would not be asufficient justification.

29. And in the case of Binda v. Kaunsilia I. L. R. (1890)All. 126 Mahmood, J. examined the texts and authorities most carefully and heldthat the texts of the Hindu Law relating to conjugal co-habitation and imposingrestriction upon the liberty of the wife and placing her under the control ofher husband, are not merely precepts, but rules of law, and that the rights andduties which they create maybe enforced by either party against the other.

30. Having regard to the texts of the sages and theexposition thereof by different authors and eminent Judges, I think we maysafely take it that the duty imposed upon a Hindu wife to reside with herhusband wherever he may choose to reside is not only a moral duty, but a ruleof Hindu Law.

31. Section 23 of the Contract Act provides:

The consideration or object of an agreement is lawful,unless it is forbidden by law, or is of such a nature, that, if permitted, itwould defeat the provisions of any law; or is fraudulent, or involves orimplies injury to the person or property of another, or the Court regards it asimmoral, or opposed to public policy. In each of these cases, the considerationor object of an agreement is said to be unlawful. Every agreement of which theobject or consideration is unlawful is void.

32. Now it seems to me that, if it is a rule of Hindu Lawthat for the fulfilment of the duties which the law imposes upon a wife shemust reside with her husband wherever he may choose to reside; an agreement onthe part of the husband that he will not be at liberty to remove his wife fromher parents abode to his own abode, would, if permitted, defeat the clear ruleof Hindu Law on the subject, and I may in this connection refer to some of theobservations by Mr. Justice Banerjee in his Book on Hindu Law of Marriage, p.107. He says:

The Hindu Law upon this subject still retain its archaiccharacter. Marriage in that law is not merely a contract but also a sacrament,and i the rights and duties of the married parties, are determined solely bythe law, and are incapable of being varied by their agreement. As Manuemphatically declares neither by sale nor desertion, can a wife be releasedfrom her husband.

33. I might also here notice the case of Paigi v. SheonarainI. L. R. (1886) All. 78 where, in a suit by a Hindu against his wife forrestitution of conjugal rights, the defendant (the wife) pleaded an agreementsimilar to that which has been relied upon in this case, the Court held thatthe plea was unsound and could not be seriously maintained and therefore neednot be any further noticed.

34. Then, is not the contract in question opposed to publicpolicy also The plaintiff is said to have agreed that he would not becompetent to take his wife away from her fathers house, that he would carryout the orders of the mother of the defendant, and that he should not becompetent to dp any act or to go into any place without her permission. Thisagreement imposes upon the plaintiff a permanent restriction against removinghis wife to any place that he may select for their residence; and it alsoimposes a permanent restraint upon his own action and movement. He in factgives himself up absolutely to the disposal of the defendants mother in allrespects. It has been said that the latter part of the agreement may not bebinding, as the former is; but it is rather difficult to separate the twoportions. The learned Counsel for the appellant has in support of hiscontention that the agreement in question is valid, called our attention tocertain cases in the English Reports in which it has been held, that a deed ofseparation containing a covenant that either the husband or the wife should notsue for restitution of conjugal rights, has been held to be valid . But let ussee upon what principle are these cases based. Looking at Marshall v. Marshall(1879)L.R. 5 P. D. 19 I find that Sir James Hannen, at page 23, observed:

But since the decision of the House of Lords in Wilson v.Wilson (3) it can no longer the contended that there is anything illegal orcontrary to public policy in an agreement between married persons that no suitfor restitution of conjugal rights shall be instituted by either of them, Formy own part, I must say that the opinion I have formed after several yearsexperience in the administration of the law in this Court, is that, it is inthe highest degree desirable for the preservation of the peace and reputation,that such agreements should be encouraged rather than that the parties shouldbe forced to expose their matrimonial differences in a Court of Justice.

35. And referring to the case of Wilson v. Wilson (1864) 1H.L.C. 538 I observe that the Lord Chancellor, among other cases, relied uponthe judgment in Westmeath v. Westmeath (1821) 1 Jac. 142 where Lord Eldon saidas follows:

I apprehend that any instrument which provides for a presentseparation and which prospectively looks to the parties living together againand then to a future separation, that such a deed so far as it provides forthat future separation will never be carried into effect.

36. Then referring to Addison on Contracts, p. 75, I find itstated upon the authority of Merryweather v. Jones (1868) 4 Giff. 509 that"contracts providing for the future separation of husband and wife arecontrary to public policy. But a contract between the husband and a trustee onbehalf of the wife, providing for the terms of present separation, will beenforced."

37. The principle underlying the cases in which it has beenheld that contracts providing for present separation are valid, is, as Iunderstand it, the preservation of the peace and reputation of families; whileon the other hand, an agreement for future separation is bad and opposed topublic policy.

38. There is a fundamental difference between a case wherean agreement for separate living for a time is entered into during thecontinuance or marriage and an agreement before or at the time of marriagecontrolling the rights of the parties which the law confers upon them after themarriage and which, if enforced, might make the marriage itself nugatory orinfructuous. Such an agreement would seem to be opposed to public policy.

39. The agreement with which we are concerned is anagreement of that latter character. It permanently controls the rights of thehusband,-as conferred upon him by the Hindu Law, so soon as the marriage iseffected, and it is an agreement which, if enforced, might practically lead tothe separation of the husband and wife in future. And the mischief of such anagreement is pointed out by the defendant herself in her written statement; forshe says therein that the plaintiff has been forbidden by the Collector upon acomplaint made to him, to enter the house of her father, the result being thathe cannot get access to his wife, nor can he, by reason of the agreement,remove her to his own abode.

40. I am of opinion that the agreement is opposed to publicpolicy.

41. Upon all these grounds, I hold that the agreement reliedupon by the defendant is no just answer to the plaintiffs claim in the presentcase.

42. I need scarcely say that we are not concerned in thisappeal by the defendant (and there is no cross-objection by the plaintiff) withthe conditions which have been imposed by the District Judge upon the plaintiffbefore he can compel his wife to reside with mm. I may, however, say that inconsideration of the welfare, personal safety and health of the wife, it hasbeen held in several cases that such conditions may well be imposed. SeeBuzloor Buheem v. Shamsoonnissa Begum (1867) 11 Moo I.A. 551: Paigi v.Sheonaratn I. L. R. (1885) All. 78; Jogendronundini Dossee v. Hurry Doss GhoshI. L. R. (1879) Cal. 500.

43. The result is that this appeal is dismissed, and withcosts.

J.F. Stevens, J.

44. After full consideration, I concur with my learnedcolleague in thinking that a pre-nuptial contract, such as that which has beenset up in this case, is not a sufficient answer to a claim like the present,where the parties are Hindus. Such a contract seems to be not only inconsistentwith the theory of the relation between husband and wife according to the HinduLaw, but against public policy.

45. I may say that a consideration which caused me to hesitatebefore finally coming to this conclusion, is that in fact it is not uncommonamong Hindus for a husband to live with his wife in the house of her parents,and I understand that there is nothing in such an arrangement which interfereswith the attainment of all the objects of marriage, including the fulfilment ofthe strictly religious obligations which marriage between Hindus involves. How,it might be asked, can a formal pre-nuptial agreement for a permanentarrangement of that kind, by which all the objects of matrimony understood byHindus can be and, in practice, are attained, be properly said to be againstHindu Law or against public policy

46. The answer, I think, is that the objection to such anagreement lies in its permanent and unconditional character. By the contractbefore us, the husband puts himself without any reference to conditions whichmay arise in future, permanently and unreservedly into complete subjection tohis mother-in-law; he practically gives up his general marital authority to aconsiderable extent, and in particular he puts it entirely out of his power tochange his residence, however intolerable the situation may become to himselfand to his family, and however important a change of residence may become, notonly in his own interests, but in those of his children, or even of his wifeherself. It is not that he merely abandons one particular right incidental tohis status as a husband and affecting himself alone, but he places himself in ageneral position of subordination, entirely inconsistent with his status ascontemplated by the Hindu Law; and as regards the particular right which heabandons, that of choice of domicile, I think it may fairly be said, looking tothe possible interests of the children in respect of their bringing up andeducation, that it cannot properly be regarded as a mere jus pro seintroductum, which a man may give up at his will.

47. The practical working of such an agreement is seen inthe present case, on the wifes own representation of the facts in her writtenstatement. Finally quarrels arise, the husband is turned out of the house andeventually it is sought to induce him to live apart from his wife on anallowance from her mother. It can scarcely be disputed that such a separation,save for very serious cause, would be wholly incompatible with the Hindu Law ofMarriage; and the District Judge has found upon the evidence that nothing moreserious ever took place than occasional quarrels between husband and wifethough her witnesses sought to greatly exaggerate the facts.

48. The only reported case which seems to me to have adirect bearing on the question is that of Paigi v. Sheonarain : I. L. R. (1885) All. 78 which has been referred to by my learned colleague.It was held in that case, which was a suit for restitution of conjugal rights,that a plea that the wife had been married to the husband on condition that hewould live with her in the house of her mother after marriage and that havingbroken that condition by leaving the house, he was not entitled to enforce hismarital rights, was so absurd as not to need serious notice. It may be said, asindeed it was said by the learned Counsel who addressed us for thedefendant-appellant, that there was apparently this distinction between thatcase and the present, that there the wife sought to withdraw herself from herhusband altogether, whereas in the case before us she is willing to resumeco-habitation, but insists on residing on her mothers premises. Thedistinction, however, if it exists, is perhaps not practically very great, ifthe plaintiff in this case is liable to be ejected from the house, whenever afamily disagreement occurs.

49. As. the parties before us are Hindus, this case has tobe dealt whit on the principles of Hindu Law; but, it if be conceded as thelearned Counsel for the defendant-appellant contended, that the right of thehusband to the choice of domicile is common to that and to other systems oflow, it must still be said that no cases have been shown us, nor have I beenable to find any, under any system of low, which recognise the validity of aore-nuptial contract giving up the right in question. The English cases whichhave been cited do not touch the point and do not seem to me to assist the appellantscase in any way. Assuming for a moment that a decision on the same point,arising in a suit between Muhammadans, might be taken as a guide on thequestion of general principle , the only reported Muhammadan case in which thepoint seems to have been raised, namely that of Hamidunnessa Bibi v. ZohiruddinSheik I. L. R. (1890) Cal. 670 left it undecided on the ground that whether ornot such a stipulation as to residence could be valid in any case, the terms ofthe kalinnama, and the subsequent conduct of the parties in that particularcase prevented it from being a sufficient answer to the claim for restitutionof conjugal rights.

50. There thus appears to be really no authority in supportof the contention which has been raised for the defendant appellant, in favourof the validity of the pre-nuptial contract set up by her, and I agree with mylearned brother that the appeal must be dismissed with costs.

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Tekait Mon Mohini Jemadaivs. Basanta Kumar Singh(20.03.1901 - CALHC)