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This Case Analysis on “Dadaji Bhikaji v. Rukhmabai” prepared by Jatin Rana is one of the landmark decisions of the High Court of Bombay on the restitution of conjugal rights. In fact, this was the first case dealing with the restitution of conjugal rights, and as such, no precedents were available on such matters. The Court gave a broader perspective to the consent of females and their choice especially when she got married in her childhood. This case even encourages women to take a stand for themselves.
Title of the case: Dadaji Bhikaji v. Rukhmabai
Citation: 1885 ILR 9 Bom 529
Court: Bombay High Court
Facts of the Case
The defendant Rukhmabai was a daughter of Jayantilal who lost her husband when Rukhmabai was only 2 years old. Jayantilal before her remarriage to Dr. Sakaram Arjun transferred all her property to her daughter.
When Rukhmabai was only eleven years old, she was married to her step-father’s cousin (petitioner) who was nineteen years old. Soon after the marriage, their family made a contract that Rukhmabai will live with her family to receive her former education at the same time her husband was suffering from tuberculosis due to which he dropped his education and started living with his uncle (step-father of Rukhmabai) as he was a doctor.
When Rukhmabai attained the age of twenty-two years, she was asked by her husband to live with him at his residence and to cohabit with him to complete the religious ceremony of marriage but she refused to do so. After trying many times, Bhikaji moved to Bombay High Court to file a suit for Restitution of Conjugal Rights against his wife.
The argument advanced on behalf of the petitioner
- The present Petition is maintainable: The petition is for restitution of conjugal rights that can be brought by either of the party (husband or wife) within 2 years from the day when either of them denied cohabiting.
- His wife should live with him and cohabit: After marriage in Hindu Law, the wife lives with her husband in his residence and the husband can claim to the court for the recovery of his wife.It is the duty of the wife to serve her husband and his family after marriage leaving behind her own family. The husband gets the right over the body of her wife after marriage even without her consent. Consent of the wife is immaterial with respect to marriage and to cohabit because it is not a contract, it is a religious duty and the religious duty of marriage is only completed after cohabitation between both the spouses.
The argument advanced on behalf of the defendant
1. The present petition is not maintainable: The petition for Restitution of Conjugal Rights is not maintainable as it was infancy marriage. The defendant was only 11 years old at the time of her marriage and it was without her consent. Now the defendant is 22 years old and capable to give her ‘intelligent consent’ and denies living with her husband and making a conjugal relationship with her husband.
2. Incapability of the petitioner to provide maintenance to her wife: Defendant dropped his education and now he is uneducated and unemployed while her wife is an educated and globally famous writer. Defendant also has some health issues. He was suffering from tuberculosis and always has some ill health issues.
He also does not have a proper place of residence and due to his ill health, he lives with his uncle for the treatment. This all shows that he is not able to provide maintenance to his wife.
Principles of Law argued
1. Indian Limitation Act, 1877
- Schedule II, Article 34, and Article 35.
- Article 34 stated that the husband has the right to claim to the court for the recovery of his wife.
- Article 35 stated that both the spouses have the to file a suit for Restitution for Conjugal Rights against either of them within two years from the day when either of them denied to cohabit.
- None of the above-mentioned articles include the word ‘consent’ of the wife and the age-relevant to give her ‘intelligent consent’. It is because the consent of the wife is considered immaterial when her parents had already given on behalf of her.
2. Indian Penal Code, 1860
- Under this code, the age of consent for marriage and after that cohabitation was ten years.
- The defendant published two letters in ‘The Times Of India’ under ‘The Hindu Lady’ regarding the increment in the age of the consent of females from ten years to fifteen years because children of age ten years are not mentally able to understand the futuristic consequences and results of their consent.
Original Jurisdiction of the Bombay High Court
- Phiney of Bombay High Court adopted the principle of Justice, Equity, and Good Conscience giving his judgment in the favor of Rukhmabai that it is a matter of consent and denies the decree of Restitution of Conjugal Rights asked by Bhikaji.
- After the original jurisdiction of the Bombay High Court, Bhikaji filed an appeal in the Privy Council.
Appellate Jurisdiction of Privy Council
- Sargent and J. Bailey accepted the suit and conclude that the consent of the female is not mandated; it is immaterial for her marriage when her parents had already given on behalf of her.Child marriage is not an exception to it.
- Privy Council returned the case to the Bombay High Court for retrial.
Rewritten Judgment of Bombay High Court
- Farran followed the words of the Appellate Court and ordered Rukhmabai to live with her husband within one month from jurisdiction and threatened her with six months imprisonment and payable cost to Bhikaji if she does not follow the order and Rukhmabai did the same. She denied living with her husband. Thus, the court sentenced her to six months imprisonment for contravening the jurisdiction.
- Rukhmabai filed an appeal in Privy Council.
Appellate Jurisdiction of Privy Council
- Sargent and J. Bailey introduced an agreement between Bhikaji and Rukhmabai. Rukhmabai paid 2000 rupees to Bhikaji and for that, Bhikaji agreed not to file a suit of Restitution of Conjugal Rights against Rukhmabai.
- After receiving 2000 rupees Bhikaji remarried.
Original Jurisdiction of Bombay High Court
- Phiney of Bombay High Court stated that he found no precedent relating to the present situation. The suit for Restitution of Conjugal Rights was adopted from English laws and it has no origin and reflection in Hindu personal law of India. Even England also dropped these types of suits.
- Phiney also said that it will be cruel to force any young and educated woman to conjugate with her husband when her marriage was against her will or in the absence of her consent. And the denial of the decree of Restitution Conjugal Rights was not because of the poor state of the defendant. Both the rich and poor have equal rights over their respective wives.
Appellate Jurisdiction of Privy Council
- Sagent and J. Bailey stated that the consent of the female in case of marriage is immaterial when her parents have already given the same on behalf of the girl. If the courts give judgment in the favor of Rukhmabai on the basis of her infancy marriage and absence of consent, it will directly affect society as every married woman will deny living with their husband on the basis of their infancy marriage and absence of their consent in it.
Jurisdiction of Bombay High Court
- Farran observed the words of the Privy Council and the poor condition of the Bhikaji and in the light of the other religious laws ordered a decree of Restitution of Conjugal Rights in the favor of Bhikaji.
Jurisdiction of the Privy Council
- Sagent and J. Bailey discussed the personal property owned by the Appellant (Rukhmabai) and also observed the global support in her favor especially due to her imprisonment for six months.
- On this basis, the court concludes that the respondent was able to pay the cost to the appellant. So the council made an agreement to pay a sum of money to the respondent and in return for it, the respondent would not file the suit of Restitution of Conjugal Rights again.
Jurisprudential value of the Judgment
In the original Jurisdiction of Bombay High Court J. Phiney adopted the principle of Justice, Equity, and Good Conscience and on the same track, gave judgment in the favor of Rukhmabai. Phiney adopted the principle of Justice, Equity, and Good Conscience because this was the first Hindu case for the Restitution of Conjugal Rights. There were no precedents relating to the case. Even the suit for Restitution for Conjugal Rights was adopted from English law and no part of its shadow overlaps the Hindu personal law of India.
England also later dropped these types of suits. Phiney found it cruel to force young and educated women to cohabit with their husbands without her consent and even when her marriage was infancy marriage. This judgment was not based on laws, it was all to provide Justice to Rukhmabai because consent is the most important face of the dice of marriage and having a conjugal relationship with a spouse. In the appellant jurisdiction of the Privy Council J. Sargent and J. Bailey gave their judgment on the basis of the law prevailing in society. The court said that the consent of the female is immaterial when her parents have already given the same on her behalf.
The appellant court returned the case to the Bombay High Court for its retrial.
Bombay High court stood steady on the words of the Appellate court and finally issued the decree of Restitution of Conjugal Rights in the favor of Bhikaji.
Again in the Appellant Court, the judgment of the High Court was reviewed. The Appellate Court observed the international interest and the massive support in favour of Rukhmabai and decided to end up this case in this last review of the High court Judgment.
The court keep aside both the principles of Rule of Law and Justice, Equity and Good Conscience and adopted the principle of consensus building, and introduced a reciprocal agreement between the appellant and respondent. The appellant paid the sum of 2000 rupees to the respondent and in return, the respondent agreed not to file a suit again for Restitution of Conjugal Rights against the appellant.
The appellant court takes this decision because of the absence of laws relating to the importance of intelligent consent of a young female in the matter of conjugal relationship with her husband.
Application of Law in Contemporary Times
1. Indian limitation Act, 1877
(Article 34 and 35 of Schedule II)
Article 34 states that the husband has the right to claim to the court for the recovery of his wife.
Article 35 states that both, husband and wife have a right to claim for Restitution of Conjugal Rights within 2 years from the day when either of them denied to cohabit.
In Hindu Marriage Act, 1955 it is stated that if either party (husband or wife) without any reasonable cause has withdrawn from the other’s society, the other party can file a suit for Restitution of Conjugal Rights.
In the same part, the exceptions are also added. The court can dismiss the suit if there is any legal ground that states that the application for Restitution of Conjugal Rights should not be granted.
In the case of Bhikaji v. Rukhmabai, the legal ground for denying the application can be the infancy of marriage and the absence of the consent of Rukhmabai.
2. Indian Penal Code, 1860
The age of consent for females in the Indian Penal Code, 1860 was 10 years. Children of 10 years were not mentally able to understand the futuristic consequences of their consent, so the need of the hour was to increase the age of consent.
The age of consent for girls was increased to 12 years by The Age of Consent Act, 1891. It was later increased to 14 in 1925, 16 in 1940, and finally 18 in 2013.
Now, if anyone consummates a girl less than the age of 18, it will lead to committing rape under sections 375 and 376 of the Indian penal code, 1860.
3. Mayne’s Hindu Law
Section 90 of Mayne’s Hindu law stated that the consent of the female for marriage and to cohabit is immaterial when her parents had already given the same on her behalf. Even if it was an infancy marriage.
Hindu Marriage Act, 1955 clearly states that no marriage will be valid if either of the spouses is not capable of giving valid consent or has not attained the age of 21 years (male) or 18 (female).
 Supra no. 4
Supra no. 4
 Rahul Dev v. State and Anr. on 1 August 2014
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