Judgment:
S.D. Singh, J.
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.'
4. The idea underlying the section is that exclusion from any religion or caste should not inflict on any person forfeiture of rights or property or impair or affect his right of inheritance. In this particular case the findings of the two Courts are that the plaintiff has been out-casted. That finding may be taken as final and binding in second appeal. It is obvious therefore, that the plaintiff has been deprived of his caste. No question of inheritance or right in property is involved in this suit. The only question for decision, therefore, is whether there is any forfeiture of right under the custom as is being alleged on behalf of the defendants. The plaintiff filed the suit for the restitution of conjugal rights. Every husband is entitled to the society of his wife as, indeed, a wife is entitled to the society of her husband. This right is recognised in law and the suits for the restitution of these rights are entertained and even decreed. Even the very right for the enforcement of which the plaintiff filed the suit is called 'restitution of conjugal rights'. The plaintiff, therefore, had a right to the society of his wife. The custom which is being set up by the defendants has the effect of forfeiting that right to the plaintiff. It deprives him of his right to claim restitution of conjugal rights. The case is clearly, therefore, one which is covered by the provisions of Section 1 of the aforesaid Act.
5. The custom which is alleged on behalf of, the defendants would easily be covered by the expression 'any law or usage now in force within India.' In fact, it was in enforcement of this custom as a law that the two Courts below dismissed the suit. Since this custom having the force of, law, has the effect of forfeiture of the right of the ptaintiff as a husband to the society of his wife, it will be deemed to have ceased to be enforceable as law in the Courts. Restitution of conjugal rights cannot, therefore, be refused to the plaintiff on that ground.
6. No other point was raised during the hearing of this appeal.
7. The appeal is consequently allowed. The suit of the plaintiff will stand decreed with costs througnout.
8. Leave to appeal is refused.