About eighteen months ago, it will remembered, the press in India wrote energetically of the hard case of Rukhmibai, a girl married to a consumptive poor man when she was a child, and now very anxious to get away from her husband. The case has turned up afresh at Bombay on appeal. A Bombay paper's report says:—
The plaintiff in this suit sought for the institution or restitution of conjugal rights from the defendant, and that the latter may be restrained by injunction from continuing to live in the house of Dr. Sakharam Arjoon and may be ordered to take up her residence with the plaintiff. Mr. Viccajee and Mr. Mankar, instructed by Messrs. Chalk, Walker, and Smetham, appeared for the plaintiff; and Mr. Inverarity, and the Hon. Mr. Telang, instructed by Messrs. Payne, Gilbert, and Sayani, for the defendant.
It will be remembered that a suit similar to the present was heard before Mr. Justice Pinhey, who on the 21st September, 1885, passed judgment in favour of the defendant. The plaintiff appealed from the decision, submitting that Mr. Justice Pinhey erred in holding that plaintiff could not maintain the suit, because the marriage between him and the defendant had not been consummated; that he ought to have held that the marriage was complete according to Hindoo law; and that he erred in permitting his judgment to be influenced by considerations of social expediency rather than by the law applicable to the case. The appeal was heard on the 12th and 18th March, 1886, before the Chief Justice and Mr. Justice Bayley, who reversed the decree of Mr. Justice Pinhey, ordering the suit to be remanded to the lower court and further heard on the merits. The costs of the appeal were to await the result of the retrial. Mr. Justice Pinhey has since retired from the bench of the High Court, and the case was accordingly heard at Bombay a few days ago before Mr. Justice Farran.
Mr. Viccajee opened the pleadings in the case. The plaint, which was declared in 1884, stated that the plaintiff was lawfully married to the defendant Rukhmibai about ten years ago. The plaintiff was then nineteen years of age, and the defendant of the age of thirteen years or thereabouts. The marriage was solemnized according to the approved form. After the marriage the defendant continued to live with Dr. Sakharam Arjoon, her step-father, visiting during the first year after her marriage the house in which the plaintiff resided. Since that period the defendant had not visited his house, but be had been a constant visitor at the house of Dr. Sakharam Arjoon. The marriage had not been consummated, though the defendant had long since attained the age of puberty, as Dr. Sakharam was averse to an early consummation. The plaintiff was desirous that the defendant should come and live with him as his wife. Difficulties in the way of her doing so were made by Dr. Sakharam. On the 19th March, 1884, when requested to send the defendant to the plaintiff's house. Dr. Sakharam sent a reply on the 22nd March that he was willing that the plaintiff should take her to his house, and further stated that her stay at his house had been by the consent of the relations on both sides because of the unfortunate circumstances of the plaintiff. The plaintiff was entirely ignorant as to what circumstances were referred to in the letter, and he knew no reason why the defendant should not come and live with him as his wife. On the 24th March, the plaintiff sent his uncle, Narayan Dhurmajee, and his elder brother, in company with Gunpatrao Raojee, to bring the defendant to the house in which the plaintiff resided, but the defendant refused to accompany them, saying that the plaintiff was not in a position to provide her with a suitable house and maintenance. The plaintiff, therefore, caused his solicitors to write to the defendant a letter, dated the 25th March, 1884, requesting her to join him forthwith, the plaintiff undertaking to give her suitable maintenance and lodging according to his rank and position. The defendant caused a reply to be sent to that letter, stating that the plaintiff was in such a state of health that the defendant could not safely live with him, and in fact refused to live with the plaintiff on the ground that he was not in a position to make provision for her proper lodging, maintenance, and clothing. The plaintiff said that he was in a position to provide for her lodging, maintenance and clothing. The true reason, the plaintiff believed, why the defendant refused to live with him, was that she was prevented by her mother Jaentibai, and her mother's father, Harrichand Yadowjee, from doing so, lest she should, if she went to live with the plaintiff, assert her right to the property of her deceased father, Janardhan Pandoorang, which, the plaintiff contended, devolved upon her upon the remarriage of Jaentibai with Dr. Sakharam Arjoon, and which property was now in the enjoyment of Jaentibai and of her father who was the executor of the will of the late Janardhan Pandoorang. The plaintiff, therefore, prayed that the court would decree an institution or restitution of conjugal rights to the plaintiff by the defendant Rukhmabai &c.
The defendant, in her written statement, stated that at the time of her marriage she was only 11 years of age, and had not then arrived at years of discretion. It was also true that the plaintiff visited at the house of Dr. Sakharam Arjoon only for the purpose of medical treatment. The plaintiff had filed this suit, not because he was really desirous that she should live with him, but at the suggestion of certain evil-minded persons, who had instigated him to do so for their own sinister purposes. The defendant further stated that the unfortunate circumstances referred to in the plaint were, the entire inability of the plaintiff to provide for the proper residence and maintenance of himself and his wife, the defendant; secondly, the state of the plaintiff's health in consequence of his suffering frequently from asthma, and other symptoms of consumption; and thirdly, the character of the persons under whose protection the plaintiff was and is living. These were the only true reasons for her refusing to live with the plaintiff. Under the circumstances the defendant prayed that the present suit be dismissed and that her costs be provided for.
Mr. Inverarity said that in this case his client never consented to the marriage which was now sought to be enforced. But having regard to the decision of the Appeal Court, the learned counsel did not think that the evidence he had at his disposal would be necessary for the purposes of the suit. He would be able to prove that the defendant never consented to the marriage, which had been practically admitted, that she had never regarded the plaintiff as her husband, and that the plaintiff unhealthy and a poor man, who was quite unable to maintain the defendant. The first two grounds had been held by the Appeal Court not to form any defence by a Hindoo in a suit of that kind, and on the remaining grounds, he (Mr. Inverarity) did not think he would be justified in asking the Court to have further evidence, inasmuch as they had been practically admitted by the plaintiff in his cross-examination, and other witnesses examined in the case. He did not propose to call any evidence before his Lordship; but he would contest himself with protesting against the decree which the court would no doubt consider it proper to make.The defendant had determined not to live with the plaintiff as husband and wife, and the only result would be that the former would render herself liable to imprisonment for six months. She certainly would not make any attempt to obviate, but, on the contrary, was ready to bear the consequences. He asked the learned counsel on the other side as a matter of courtesy, to give notice to the defendant before a bailiff was sent to her house. He asked that the plaintiff should pay his client's costs.
Mr. Viccajee observed that his learned friend had practically surrendered and had given up the defence. The learned counsel then addressed the court and cited cases on the question of costs. He said that under the circumstances the court had no other alternative but to name a particular day for the return of the defendant to the house of the plaintiff.
His Lordship gave a decree for the plaintiff, and passed an order that the defendant should within one month from this day go or return to the house of the plaintiff, and certify through her solicitors this fact to the Court. As regards the question of costs, his Lordship said that it was hard that a husband should be made to pay the costs for restitution of conjugal rights. If the defendant had expressed her intention of obeying the decree of the court, he would have made a different order as to costs. Under the circumstances the defendant should pay the plaintiff's costs of the original hearing, the costs of appeal being borne by each party.