alimony, pendent lite”—wife did not purusue suit
10. Khursedball v. Bazenjee Dossaboy Baxterna—Parsee—Bombay Supreme Court—filed
1854, decided 1855—“for alimony”—wife won421
These precedents highlight several features of conjugal rights in early nineteenth-century India. Members of three of India’s minority religious groups used the idea of conjugal rights in the first half of the nineteenth century to pursue alimony and cohabitation rights under the Ecclesiastical jurisdiction of the Bombay Supreme Court. Of the ten suits, four were dropped for various reasons. Of the remaining six suits, five wives won their cases. The one suit in which the wife lost (#4) was overturned upon her appeal (#8). This dispute then gave rise to the 1856 Privy Council decision in Aradaseer Cursetjee and Perozeboye, discussed in the next section.422 The courts usually though not always were sympathetic to wives, providing
them with maintenance (1,10); ordering the husband to take the wife home and treat her well (5,6); and for these two remedies together (8). There seems to have been a large gap between the use of the remedy by Armenian and Muslim litigants in the period between 1802 and 1815 and its use by Parsis beginning in 1841.
Along with the set of ten unreported precedents gathered from the records of the Bombay Supreme Court and Recorder’s Court, there were three additional reported precedents on conjugal rights discussed in Ardaseer Cursetjee that proved important to the
421 These are discussed in the Ardaseer Cursetjee judgment, 375-6. The use of the term libel should not be
confused with the modern use of the term. Instead it refers to the initial statement that kicked off Ecclesiastical proceedings, containing “a very detailed statement of the grounds for relief sought.” See Waddams, Law, Politics, and the Church of England, 106.
Privy Council’s reasoning.423 The most important of these was Mihirwanjee Nuoshirwanjee,424
which was important to the final judgment in the Privy Council’s decision in Aradaseer Cursetjee. It showed that conjugal rights suits could be pursued under the civil jurisdiction of the Indian courts, rather than Ecclesiastical jurisdiction.
The Privy Council decision in Moonshee Buzloor Ruheem from 1867 brought forward additional precedents that showed the use of RCR in civil courts. These all involved Muslim litigants: Maulvi Abdual Wahab v. Mussumat Hingu (1832);425 Mussumaut Ameena v. Kuttoo Khan
(1841);426 and Mussumat Doeen Beebee v. Sheikh Mennoo (1832).427 Buzloor Ruheem used these
precedents before the Privy Council to make the point that “a suit for restitution of conjugal rights will lie in the Civil Court.”428 Coming as these did from the Bengal Sudder Dewani
Adalat (appellate court for civil matters in Bengal),429 these suits showed that there were
precedents that allowed RCR outside of the Ecclesiastical side of the Bombay High Court. The practices of the lower courts on the civil side in Bengal as well as on the Ecclesiastical side in Bombay (until stopped by the Privy Council in 1856) each supported the use of conjugal rights suits.
423 Only the first case (Mihirwanjee Nuoshirwanjee) was discussed in the Privy Council’s final decision in Aradaseer
Cursetjee.
I. Mihirwanjee Nuoshirwanjee v. Awan Bae, 1825, (discussed on 353, 383).
II. Buchaboye v. Merwanjee Nasserwanjee, 1844, mentioned by both of the Bombay Supreme Court’s judgments (by Yardley and Jackson) but not discussed in the Privy Council’s final judgement. (discussed on 353, 371) Perry’s Oriental Cases, 73; in Perry’s Oriental Cases, it is spelled “Buchaboye v. Merwangee Nasserwangee.”
III. Beebee Muttra’s case, 1833 (discussed on 365, 368, 369)
Andries v. Andries and Lindo v. Belisario (1 Hagg. Cons. Rep. Appx. 9), about the Jewish use of London consistory courts, was also discussed on 371.
424 Ardaseer Cursetjee v. Perozeboye, 6 MIA 348 at 391, the citation for Mihirwanjee Nuoshirwanjee is 2 Borr. Bom.
Sud. Dew. Rep., 209, 1825.
425 5 Ben. Sud. Dew. Ad. Rep. p. 200 discussed in Moonshee Buzloor, 570. 426 7 Ben. Sud. Dew. Ad. Rep., p. 27, discussed Ibid., 570.
427 Sel. Rep., 103; discussed Ibid., 570. 428 Ibid., 570.
Though a full account of the development of early nineteenth century marital litigation is beyond the scope of this dissertation, a cursory and hypothetical narrative of the incorporation of conjugal rights is possible from the brief account presented above. Some of the very earliest conjugal rights suits involved Armenian Christians on the Ecclesiastical side of the Bombay High Court; they were likely descendants of India’s long-standing Armenian trading communities. As noted, though Christians, Armenian Christianity was deemed to lack religio-juridical apparatus suitable for application in the British courts in India, so instead Armenians used English law.430 As Christians, it perhaps made sense to turn to the
Ecclesiastical courts in the Bombay Supreme Court. But this was not an entirely religious matter. To contemporary lawyers, the Ecclesiastical courts would also have been natural forums for such arguments because many aspects of matrimonial and personal relationships were litigated in the Ecclesiastical division.431
Then, Parsis effectively took up the same remedy in the Bombay Ecclesiastical division.432 This was relatively successful until barred by the Privy Council in 1856. This
seems to be a yet another example of the Parsi facility and persistence in using the common law in India. Reiterating the argument made by Mitra Sharafi, one could hypothesize that enterprising Parsi lawyers took up the practice of using the Ecclesiastical courts through observation of earlier Armenian and Muslim use of the courts for conjugal rights, as in cases 1-3. But it should also be reiterated that Ecclesiastical jurisdiction was one natural forum for such suits.
430 Sharafi, Law and Identity, 134-5. The cases Sharafi gives for the application of English law to Armenians in
India are Aratoon Harapriet Aratoon v. Catherina Aratoon (1956), cited in William H. Morley, An Analytical Digest of All The Repeorted Cases Decided in the Supreme Courts of Judicature in India…., NS, v. 1, (London: Allen, 1852), pp. 182-3; Jacob Joseph v. Rowand Ronald, (Ind. Dec. (O.S.) I: 68 (1818)) and Emin v. Emin cited in Stephen v. Hume (Ind. Dec. (O.S.) I: 778), found by Sharafi in Jain, Outlines of Indian Legal History, 5th ed. (1990), 418. 431 See discussions, passim., in Ardaseer Cursetjee and Moonshee Buzloor Ruheem.
Simultaneously, lower civil courts in Bengal also heard conjugal rights suits under their general civil jurisdiction during the first half of the nineteenth century, as in the three Muslim cases brought forward by Moonshee Buzloor Ruheem. This showed that conjugal rights suits were not limited to Bombay or its Ecclesiastical jurisdiction. It also suggests that the practice may have developed along two separate trajectories with independent origins, primarily in the Ecclesiastical courts in Bombay Presidency (mostly Bombay city), and on the civil side in the Bengal Presidency. Finally, looking at the chronology of the cases, and the gap in dates between its initial use in Bombay and Parsi use in 1840s Bombay, we might surmise that Parsi lawyers drew on the more recently reported Bengal precedents in reviving its use in Bombay. This, however, does not explain why they turned to Ecclesiastical courts while their counterparts in Bengal used civil jurisdiction.
Ardaseer Cursetjee and Perozeboye, 1856
The aforementioned records were unearthed by the 1856 Aradaseer Cursetjee proceedings, which called into question the validity of this earlier use of Ecclesiastical jurisdiction. The Aradaseer Cursetjee decision by the Privy Council in 1856 sprang out of the unhappy 1830 marriage of two Bombay Parsis. The wife did not go to live with her husband, nor consummate the marriage, until three years later. Even after this, she frequently returned to visit her natal home, in part due to her young age. On one such trip, her husband failed to invite her back to his home. Her father corresponded with the husband’s father and
eventually the wife was returned to her husband’s home. But there she met with her husband’s continued ill-treatment of her, and he finally expelled her from the matrimonial home.433
For the rest of her father’s life, he supported her in his home but, after his death, she fell on hard times and was forced to sell her possessions and take on loans. Meanwhile, her husband had married a second wife and borne children with her. The first wife asked the Bombay Supreme Court to order her husband to take her back “and treat her with conjugal kindness” or, barring that, to at least provide her maintenance to live separately as well as her maintenance in arrears at the high rate of Rs. 1,000/month.434 The husband protested that
Ecclesiastical courts could not entertain such suits between a Parsi husband and wife, especially given that a Parsi husband could, under Parsi law, contract a second marriage, while this was not possible under Christian law.
When the case came before the Ecclesiastical division of the Bombay Supreme Court, it produced two different opinions on the question of whether Parsis could use Ecclesiastical jurisdiction to obtain orders of cohabitation and “conjugal kindness.”435 Chief
Justice Yardley and Judge Jackson each offered separate opinions. Each opinion accepted the general existence of the Ecclesiastical courts as well as the continued use of them for some forms of matrimonial relief. However, the junior Judge, Jackson, rejected the use of Ecclesiastical courts for enforcing cohabitation among Parsis.
The Chief Justice’s position prevailed because he was the senior judge. He argued that Parsis could use Ecclesiastical courts to enforce conjugal rights for three main reasons. First, marriage was a total status with certain rights and privileges that could not be separated out from each other. As Chief Justice Yardley put it, “it is suggested that the wife, in a case like the present, might sue her husband, either on the equity or plea side of the Court, and that at all events persons supplying her necessaries might sue him [since he was her legal
434 Ibid., 350. 435 Ibid., 351.
representative].”436 The problem with such a contention, according to Justice Yardley, was
that the rights upon marriage especially for the Parsi wife went far beyond just “the right to be maintained at the expense of her husband” and “under it a female acquires a status, rights, and privileges which would be very inadequately vindicated by any action for necessaries.”437
It was only in the Ecclesiastical side of the court that the wife could enforce her non-material rights, such as her right of cohabitation and even “conjugal kindness” by the husband, rights that were a part of total package of rights and obligations of marriage.438
Second, the Chief Justice reasoned, Ecclesiastical law was imported directly to India without many modifications so that it should be practiced in India as much as possible as in England, “so far as was consistent with the circumstances of the country and its
inhabitants.”439 If an English wife could sue for conjugal rights in that forum, so too could
an Indian wife. Third, the Ecclesiastical jurisdiction over conjugal rights had the force of time and institutions working for it. The Chief Justice stated that the practice of hearing such suits in the Ecclesiastical division met Lord Mansfield’s standard of “‘a rooted and
established practice.’”440
The junior judge, Jackson, made clear his pains to protect Parsi women’s rights, but suggested that Ecclesiastical jurisdiction in India did not extend to include ordering
cohabitation. Jackson put forward two main reasons for ending the practice of allowing suits for cohabitation by non-Christians on the Ecclesiastical side of the Bombay Supreme Court. The first reason involved Jackson’s statutory interpretation of the early charters founding the Calcutta and Bombay Supreme Courts. These statutes and subsequent legislation delineated
436 Ardaseer Cursetjee, opinion of Chief Justice Yardley, from the Bombay Supreme Court, 362. 437 Ibid., 362-3.
438 Ibid., 362-3.
439 Ibid., 363. See also Setalvad, Common Law, 25. 440 Ibid., 363.
two separate categories: “British subjects” and “inhabitants of Bombay.” The two groups had different relationships to Ecclesiastical jurisdiction, Jackson argued: British subjects, as well as “native Christians” and “Portuguese,” could avail of Ecclesiastical jurisdiction.441
Inhabitants of Bombay could use the Ecclesiastical division but their ambit was more limited, primarily “to Probates and Letters of Administration.”442 Here Judge Jackson
reasoned that, unless some discrimination in the use of Ecclesiastical jurisdiction had been intended by the charters, two separate categories of subjects of the law would not have been delineated in the charters. In this way, for the most part, non-Christians would be excluded from Ecclesiastical jurisdiction.
This first reason contributed to Jackson’s second, culturalist reason, that applying Christian marriage standards to a Parsi or other Indian marriage would be incorrect most especially because of the problem of polygamy (or strictly speaking polygyny). The obligation of cohabitation, “appears to me to be an adjudication applicable to Christians only, and somewhat anomalous when applied to Asiatics…”443 Were the court to grant this right to
members of other Indian religions, it would be doing an injustice to the historic right of India’s religions to maintain their own personal laws as well as to Christian religious morality. Parsi marriage was different than Christian marriage. According to Jackson, in contrast to Christian marriage, Parsi marriage did not enjoin an obligation or right of cohabitation:
…I think we should hesitate before we introduced among Asiatics so peculiar a form of proceeding as this. The jurisdiction to compel cohabitation seems to flow
peculiarly from the Canonist’s notions of indissolubility of a Christian marriage, and the obligation, under dread of spiritual censure, to perform all conjugal duties, and is, therefore, I think, inapplicable to natives, who are not bound by any law that I know to live with their wives, and are allowed great facilities of divorce. If a suit of this
441 Ardaseer Cursetjee, opinion of Jackson, from the Bombay Supreme Court, 364-7, esp. top 367. Citing the
charter, Jackson, from the Bombay Supreme Court, 369; point about Portuguese and “native Christians,” 368. Opinion of Sir Edward Ryan, Beebee Muttra’s case, discussed by Jackson top of 368.
442 Ibid., 368. 443 Ibid., 372.
nature can be entertained, we may be called on hereafter to compel a native woman to return to her husband’s roof, under which he has other wives, who monopolise his attentions, or we may compel a Mussulmanee to return to her husband’s house, to be divorced the minute afterward, by an imprecation.444
Judge Jackson wanted the Christian law to have no part in endorsing polygamy, which it would if it helped a Parsi wife return to a polygamous marriage. Presumably, in Jackson’s view, the more appropriate remedy would have been to require the husband to maintain the wife separately.
One of the key points distinguishing the two views revolved around the status of the wife. The Chief Justice found that the Parsi wife could turn to the Ecclesiastical jurisdiction for ordering cohabitation because of her status as a wife, a status that could not be pulled apart into separate rights with separate remedies. On the other hand, Jackson argued that the Indian wife was a feme sole (unmarried woman, in law French) or at the very least was usually treated as one by the Indian courts. Her rights as a married woman differed from that of a Christian feme covert. The chief difference between the two was that the Christian feme covert could not claim damages against her husband in civil court since at law they were one person.445 In contrast, the Indian wife, as “feme sole,” could sue her husband for damages in
civil court if her husband refused to maintain her at his home or she could claim for maintenance in equity. Jackson thus separated out the various rights and privileges of marriage from each other. According to Jackson, the three major Indian religions under consideration (besides Christianity), Islam, Hinduism, and Zoroastrianism, all treated the wife as feme sole rather than feme covert. He stated, “she seems to have just the same right to sue in respect of this breach, as any other person has to sue for any other breach of contract.”446
As an adjunct to this, Jackson argued that the wife, since she was a feme sole, could obtain
444 Ibid., 370-1.
445 Doggett, Marriage, Wife-Beating and the Law, 35, 83, 98, describes the victory of the fiction of marital unity. 446 Ardaseer Cursetjee, opinion of Jackson, from the Bombay Supreme Court, 373.
maintenance in a non-Ecclesiastical jurisdiction such as in equity jurisdiction.447 Her ability to
obtain a remedy in another forum obviated the need for her to use Ecclesiastical jurisdiction. Contemporary historians debate the import of marital status in determining women’s rights and social status. This difference of opinion within the Bombay Supreme Court shows that, in the nineteenth century as well, marital status had no one fixed meaning. It played an important role in adjudicating matrimonial disputes but its status was not always clearly defined or obvious.
Privy Council decision, 1856
These differing opinions gave rise to the Privy Council appeal by the husband, who sought vigorously to block his wife’s use of the Ecclesiastical division in her case. By the time the Privy Council reached its decision in 1856, the husband and wife had been litigating for at least thirteen years, since Perozeboye filed her first suit (which she lost) in the Bombay Supreme Court in 1843 (#4).
The Privy Council came to the same conclusion as Jackson, though for different reasons. It ruled that Parsis (and presumably Hindus and Muslims) could not bring a suit for conjugal rights on the Ecclesiastical side of the Bombay Supreme Court. Nevertheless, the Privy Council still maintained the possibility that RCR could be entertained under the civil jurisdiction of the court, leaving it open to the husband to institute a new suit in the civil jurisdiction. The author of this judgment was the great canon judge Stephen Lushington, writing along with the Right Honorable T. Pemberton Leigh and the Right Honorable Sir Edward Peel.448 A reformer, a Whig, anti-slavery campaigner, and sometimes radical,
Lushington served as a judge in the Consistory Court from 1828 to 1858 and as a judge in
447 Ibid., 372.
the Court of Arches from 1858 to 1867.449 The Consistory Court was the Ecclesiastical court
of the Diocese of London. The Court of Arches was the “highest English Ecclesiastical court.”450 Lushington surely knew that matrimonial jurisdiction would be excised from
Ecclesiastical jurisdiction when he made his decision in Ardaseser Cursetjee, because he sat on the commission that recommended such a change.451
Since Aradeseer Cursetjee had married a second wife, or at the very least was adulterous, the Privy Council was prohibited from using Ecclesiastical law to endorse such an arrangement. Lushington argued that the wife could not, under Christian law, be ordered to return to either a bigamous or an adulterous marriage. Lushington’s condemnation of bigamous marriage had racial and religious overtones, suggesting the superiority of a
Christian sacramental, monogamous marriage that the law made difficult to end. Lushington was reluctant to use Christian law to endorse bigamy. Notably, Justice Jackson’s earlier rejection on the ground of the Parsi wife as feme sole played no role here.
Lushington distinguished adjudication by Jews in the Ecclesiastical courts in England from the Parsi use of Ecclesiastical jurisdiction in India. Lushington noted that “the
Ecclesiastical Courts in England have exercised jurisdiction with respect to Jewish marriages, ascertaining their validity by Jewish laws; but the very great difficulties attending such
investigation, and the almost absurd consequences to which they lead, would not induce us to follow those precedents further than strict necessity requires.”452 Lushington did not
pursue a detailed rationale for distinguishing the two cases of minority religious groups’ use