N MAY MARGARET Vs. M S PREMANANDAM

JUDGEMENT

(1.) This Revision Petition raises the question as to whether the Court of the District Munsif has jurisdiction to entertain a suit filed by a Christian husband against his wife for restitution of conjugal rights.

(2.) The petitioner is the legally wedded wife of the respondent. The parties are Indian Christians. The respondent jnstituted O.S. No. 144 of 1955 on the file of the District Munsif's Court of Adoni for restitutipn of Conjugal rights alleging inter alia that in spite of repeated letters and Notices By him to the petitioner demanding her to return and live with him, she" has' not cared to do so. The petitioner pleaded inter alia that the suit was excluded from the jurisdiction of the ordinary Civil Courts by the provisions of the Indian Divorce Act. On this the District Munsif framed a preliminary issue which reads :- "Whether this Court has no jurisdiction to try this suit ?" By consent of parties the preliminary issue was tried in the first instance and the District Munsif held that he had jurisdiction. Hence this revision. Now, section 9 of the Code of Civil Procedure provides :-

(3.) The general rule of law is that when a legal right and an infringement thereof are alleged, a cause of action is disclosed, and unless there is a bar to the entertainment of a suit, the ordinary civil Courts are bound to entertain the claim. To exclude the jurisdiction of the civil Courts, the exclusion must be explicitly expressed or clearly implied. Where the liability it statutory as opposed to a liability under the common law, the party must adopt the remedy given to him under the statute. The following passage from Wolverhampton New Water Works Company v. Hawkesford, (1859) 6 C.B, (N.S.) 336, Neville v. London Express Newspapers, Ltd,, L.R. 1919 A.C. 368 at 391. lays down the principle in this regard :-