MOHAN LAL Vs. SHANTI DEVI

JUDGEMENT

(1.) This second appeal arises out of a suit for restitution of conjugal rights. The plaintiff-appellant filed the suit for the aforesaid relief against his wife Shanti Devi and three others, two of whom are her parents. The suit was resisted by the defendants on the sole ground that the plaintiff has been out-casted and that there is a custom in the 'biradari' which entitles a wife to refuse to go to her husband, who has been out-casted. This custom was admitted by the plaintiff. In his statement on oath he clearly admitted. "There is a custom in the 'biradari' that if a person is turned out of 'biradari', his wife can refuse to go and live with him," Both the Courts below have held that Shanti Devi is entitled to refuse to submit herself to the conjugal rights of the plaintiff on account of this custom and the suit has consequently been dismissed.

(2.) Reliance was placed on behalf of the plaintiff on Sub-section (2) of Section 9 of the Hindu Marriage Act, 1955, which says: "Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce." The Civil Judge held that the Hindu Marriage Act, 1955, will not apply to the suit on the main ground that Sub-section (2) of Section 9 refers to a plea in answer to a petition of restitution of conjugal rights, which petition is filed under Sub-section (1) of Section 9 in the District Court while the present suit was filed prior to the commencement of the Hindu Marriage Act, 1955 and was filed in the Court of the Munsif. I would agree with the Civil Judge, therefore, that the provisions of the Hindu Marriage Act, 1955 will not apply to the decision of the present dispute.

(3.) The question, however, still remains whether the custom aforesaid can be enforced and restitution of conjugal rights refused only because the plaintiff has been out-casted by members of his 'biradari'. Section 1 of the Caste Disabilities Removal Act (Act 21) of 1850, is a complete answer to that contention. This section, as it stands amended, reads: "1. So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court."