LENGA LALUNG Vs. PENGURI LALUNGANI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit which has been described as a suit for possession of a wife or for restitution of conjugal rights. The first defendant is the wife of the plaintiff and the second defendant is his father-in-law. The parties are Laungs, a semi- aboriginal tribe who are governed by many customs peculiar to themselves. One of their marriage customs is that the parents of the girl find a husband for her and take him to their house as a member of their family: the offsprings of the marriage enter the clan of the mother. The defendants place reliance upon this custom and contend that the plaintiff is not entitled to a decree for possession of his wife and for her removal from the residence of her father, as it is incumbent upon him to reside in the family of his father-in-law. They allege that the plaintiff is always welcome in the household of his father-in-law where he may have free access to the society of his wife. The Subordinate Judge has held that this custom cannot be disregarded in a Court of law and that the plaintiff is consequently not entitled to succeed in this litigation. On the present appeal it has been argued that the Lalungs are Hindus governed by the Hindu Law, and that the plaintiff is, under that law, entitled to possession of his wife, regardless of the custom, which, it is said, is, if not immoral, at least clearly opposed to public policy, as it serves to restrict the personal liberty of the husband.

(2.) It is not disputed that as was ruled in the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh 28 C. 751 : 5 C.W.N. 673 the duty imposed upon a Hindu wife to reside with her husband wherever he may choose to reside is a rule of Hindu Law and not merely a moral duty, and that, consequently, an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove his wife from her paternal abode would defeat that rule of Hindu Law and is invalid on that ground as well as on the ground that it is opposed to public policy. It is also not disputed that under the Muhammadan Law a condition that the wife shall, though adult, be at liberty to live in the house of her parents is void, though this question is by no means settled by authority, as is clear from the decision in Hamidunnessa Bibi v. Zohir- ud-din Sheik 17 C. 670. But there is nothing to show that the Lalungs are, governed by the Hindu Law, in all respects. Even if it be assumed, however, that the Lalungs are Hindus, their marriage relation must be governed by custom which prevails amongst the tribe, provided that the customs are neither immoral nor opposed to public policy. The case before us is clearly not of an immoral custom such as came before the Courts in Reg. v. Karsan Goja; Reg v. Bai Rupa 2 B.H.C.R. 117 at p. 124; Reg. v. Manohar Raiji 5 B.H.C.R. 17 Cr.; Uji v. Hathi Lalu 7 B.H.C.R. 133; Khemkor v. Umiashankar Ranchhor 10 B.H.C.R. 381; Narayan v. Laving 2 B. 140 : 2 Ind. Jur. 319; Koraga v. Queen 6 M. 374 : 8 Ind. Jur. 319. We are also unable to accept the contention of the appellant that the custom alleged in this case is opposed to public policy. As Mr. Justice Burrough observed in Richardson v. Mellish (1824) 2 Bing. 229 at p. 252 : 9 Moore 435 : I Car. & P. 241 : R. & M. 66 : 3 L.J. (o.s.) C.P. 265 : 27 R.R. 603 : 130 E.R. 542 public policy is a very unruly horse and when once you get astride of it you never know where it will carry you. These weighty words were adopted and approved by Lord Esher, M.R. in Cleaver v. Mutual Reserve Fund Life Association (1892) 1 Q.B. 147 : 16 L.J.Q.B. 128 : 66 L.T. 220 : 40 W.R. 230 : 56 J.P. 180. To the same effect are the observations of Cave, J., in Official Receiver, Ex parte, Mirams In re (1891) 1 Q.B. 594 : 60 L.J.Q. B. 397 : 64 L.T. 117 : 39 W.R. 464 : 8 Morrell 59. Judges are more to be trusted as interpreters of the law than as expounders of what is called public policy." We do not see that there is anything opposed to public policy" or the policy of the law", as Kekewich, J., puts it in Hope Johnstone v. Hope Johnstone (1904) 1 Ch. 470 : 73 L.R. Ch. 231 : 90 L.T. 253 : 20 T.L.R. 282 in a tribal custom which requires a son-in-law to reside in the family of his father-in-law; the plaintiff is also entitled to free access to his wife, if he chooses to go to the house of his father-in-law. It is worthy of note that the Courts have recognised the validity of a custom or contract whereby the wife is to remain in her parents house till puberty is established; Kateeram v. Gendhenee 23 W.R. 178; Suntosh Ram Dass v. Gera Pattuck 23 W.R. 22; In the matter of the petition of Dhurozidhur Ghose 17 C. 298; Surjyamoni Dasi v. Kali Kanta Das 28 C. 37 : 5 C.W.N. 195; Arumuga Mudali v. Viraraghava Mudali 24 M. 255 : 11 M.L.J. 69 though a different view is possibly indicated in Dadaji Bhikaji v. Rukmabai 10 B. 301. We are clearly of opinion that the Court should not assist the plaintiff to violate the tribal custom and to remove his wife from the home of her father. We are not prepared to say that it is injurious to the public interests, that is, to the interests of the tribe to which the parties belong, nor is it in conflict with any express law of the Ruling Power: Hirbae v. Sonabae (1847) Perry O.C. 110 : 4 Ind. Dec. (o.s.) 100; Howard v. Pestonji (1852) Perry O.C. 535 : 4 Ind. Dec. (o.s.) 488; Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 56; Bhau Nanaji Utpat v. Sundrabai 11 Bom. H.C.R. 249; Mathura v Esu 4 B. 545; and we are not bound by any rule of public policy to disregard this custom, subject to and with full knowledge of which the plaintiff married the first defendant.

(3.) The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs. 1914-0207 Case Note:Hindu Law - Will--Rules of construction--Bequest in favour of daughter-- Absolute estate, subject to the sheba--Charge on property--Testamentary power-- Gift by Hindu widow having absolute power of alienation--Gift in favour of daughter s daughter. 1. The question that arises in these three second appeals is principally one of interpretation of the Will of one Ananda Lal Sarkar, which has already been partially construed by a Bench of this Court in the case of Hara Kumari Dasi v. Mohim Chandra Sarkar 12 C.W.N. 412 : 7 C.L.J. 540. The position of the parties can be seen from the following genealogical tables- 2. Ananda Lal Sarkar died on the 11th March 1866, His widow Ichhamoye died on the 30th September 1898. Mahim Chandra Sarkar filed a suit against Hara Kumari on the 19th July 1904 for the construction of the Will of Ananda Lal, after withdrawing his suit for revocation of Probate but still setting up very prominently that the Will was a forgery. Maclean, C.J., in the opening of his judgment said: If the suit had come before me, I should have dismissed it summarily. But we are told that the appeal to this Court which was existing when the decision now appealed against was given, has since been withdrawn. So we will deal with the question of the construction upon the merits " He appears to have held that but for the gift over to Hara Kumari, the Will would have given the widow an absolute estate. Though there is no clear and absolute gift to the widow in the first portion of the operative clause of the Will, the words you will have the right and power to alienate by gift or sale all the afore said moveable and immoveable properties," would make it difficult to say that the widow did not take the property absolutely The gift over to the daughter however, follows in the following terms: my daughter Hara Kumar, shall become entitled to and possessor of whatever property will remain after your death"--the words are satyaban dakhalkar or literally, possessor with title--"and she shall enjoy the same keeping up and maintaining the aforesaid sheba, etc." Later on he says the said daughter shall have the same rights as you have (it should be equal rights) and he to whom my daughter may willingly give away those properties shall, while possessing the same and keeping and maintaining the sheba, enjoy them." We have put this last clause rather more literally than in the translation in the report of the case in the books, because on this turns one of the main contentions that the whole Will was a devolution in trust for the sole purpose of keeping up the sheba and provided merely maintenance for the daughter. 3. The question before the Court in that case was, what interest did the widow Ichhamoye take. The question before us now, is what interest did the daughter Hara Kumari take and that question does not appear to have been gone into in the previous case. The Court, however, held that the widow took for life with power of alienation; but to the extent to winch such power was not exercised the daughter took the property with equal rights to those conferred on the widow.