Krishna Aiyar vs Balammal

Krishnaswami Ayyar, J.—The suit is by a husband for restitution of conjugal rights. The District Judge has dismissed it as barred by

limitation. We are unable to agree with him. It is true Article 35 of the Limitation Act of 1877 bars the suit for restitution if there has been a demand

and refusal more than two years before. The decisions of this Court and of the Bombay and Calcutta High Courts are clear [Saravanai Perumal

Pillai v. Poovayi ILR (1905) Mad. 436, Dhanjibhoy Bomanji v. Hirabai ILR (1901) Bom. 644, Asirunnessa Khatun v. Buzloo Meah ILR (1907)

Cal. 79.]

But in this case a suit was brought after a demand and refusal for restitution of conjugal rights (Original Suit No. 313 of 1903). And that was

compromised on the 25th July 1904. By the compromise (exhibit I) the parties agreed to live together ""according to the custom of the world."" The

agreement further provides ""If on any day subsequent to this and for any reason whatever you (the wife) should not like to live with me but want to

go away from me, I agree to give you Rs, 350."" It is impossible to contend after this agreement that the previous demand and refusal furnish the

starting point for the running of time. The parties have made up their differences and agreed to live together as husband and wife. Unless there is a

fresh demand and refusal time cannot run against the plaintiff''s claim for restitution. It is nowhere alleged that subsequent to the agreement there

has been a demand and refusal. It is true the wife did not return to conjugal life. But we should be strict in applying Article 35 according to the

letter. It may be worthy of note having regard to the difference of opinion between the Allahabad High Court and the other Indian High Courts as

to the applicability of the article to Hindus and Muhammadans that it does not find a place in the new Limitation Act. We would therefore overrule

the Judge''s view as regards limitation. We come next to the important question as to whether the agreement itself bars the present suit. According

to the strict tenour of the language it has no application to the facts of this case assuming it to be valid. It requires the parties to come together and

only provides for separation on a subsequent day after they have once come together. The wife never joined the husband after the agreement and it

may therefore be sufficient to say that under the terms of the agreement there is no defence to the action. But we desire to rest our decision on a

broader ground. The parties are Hindus and Brahmans. The law to be applied in determining their marital obligations is the Hindu Law (see Section

16 of Madras Act; III of 1873). It may be doubted whether under that law any agreement between husband and wife to live apart from each other

is valid. It may well be deemed to be forbidden by the Hindu Law. The authorities on the subject are set out and discussed in considerable detail

by Mr. Justice GHOSE in Tekait Mon Mohini Jemadai v. Basanta Kumar Singh ILR (1901) Cal. 751. It is unnecessary to consider whether there

are any exceptions recognised by the Hindu Law. It is perfectly clear that the present case is not such an exception. Even apart from the Hindu

Law the agreement, we think, must be regarded as opposed to public policy and therefore not enforceable. The decision of Mr. Justice Batchelor

in Mherally v. Saker-khanoobai (1907) 7 Bom. L.R. 602 is a case exactly in point though the parties were Khojas. Even if the question fell to be

decided under the English Law there can be no doubt that the agreement in this case to live apart is invalid. It is true that though the old

ecclesiastical courts refused to admit a deed of separation as a bar to a suit for restitution of conjugal rights it was held by the House of Lords in

Wilson v. Wilson 9 E.R. 870 that an agreement for a present separation was enforceable. The decisions in Marshall v. Marshall (1879)5 P.D. 19

Clark v. Clark (1885) 10 P.D. 188, Besant v. Wood (1879) 12 Ch. D. 605 on which Mr. Venkatrama Sastri relied are not cases of agreement

for a future separation like the present case. The English cases are fully discussed by Mr. Justice Batchelor in the Bombay case we have already

referred to. It is unnecessary to add anything further. Even if we applied the English rule we should be quite prepared to hold that the agreement in

this case being one for future separation would be invalid and constitute no answer to a suit for restitution of conjugal rights, We reverse the decree

of the District Judge and restore that of the Munsif with costs in this and in the lower Appellate Court.

Sankaran Nair, J.

I concur.