History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c28.s2.49

v2.c28.s2.49

As it was the husband's duty to provide residence and maintenance for the wife and as the wife was bound to stay with the husband, it follows that either party could after marriage enforce his or her rights in a court of law if the other party refused to perform her or his duties. In modern times a suit for restitution of conjugal rights can be brought and the decree can be executed against the wife by the attachment and sale of her property (if she has any), but not by detention in civil jail and against the husband by the court ordering the husband to make periodical payments of money for the maintenance of the wife and securing such payments by creating a charge on his property (vide Civil Procedure Code of 1908 Order 21 rules 32 and 33). To such a suit by the husband Indian Courts have recognised certain valid defences, such as desertion, cruelty or such conduct as endangers the health of the wife, change of religion, or keeping a concubine in the house or the husband's being afflicted with a loathsome disease (like leprosy). Vide *Bai Premkunvar v. Bhika* 5 Bom. H. C. R. (A. C. J.) p. 209 (leprosy), *Yamunabai v. Narayan* 1 Bom. 164 (cruelty), *Paigi v. Sheo Narain* 8 All. 78, *Dular Koer v. Dwarkanath* 34 Cal. 971, *Bai Jivi v. Narsingh* 51 Bom. 329. Where the courts make the husband pay maintenance, they are in principle following Yāj. I. 76 and Nārada (p. 569). Vide *Binda v. Kaunsilia* 13 All. 126 where many original Sanskrit texts are cited.