“To Lord Selborne the married women of this country owe a further debt
of gratitude for his introduction in 1884 of the Matrimonial Causes
Act of that session, which put an end to the punishment by
imprisonment of the husband or wife who refused to obey the decree of
the Court for restitution of conjugal rights. The arguments of Mr.
Lankester and Mr. Finlay in the Clitheroe case, based upon this
abolition of the power of the Court to imprison for disobedience, are
known to everyone. It would be destructive not only to personal
freedom, but a gross infraction of justice and common-sense, were a
husband to be permitted to exercise on his own behalf and at his own
pleasure a prerogative of punishment which had been withdrawn from the
Court.
“That this power of imprisonment was not a mere _brutum fulmen_, but a
terrible reality in former days, may be learned from a Suffolk case,
early in the present century. A wife in contempt of court, a lady of
good family in Suffolk, was imprisoned in Ipswich goal for disobeying
a decree requiring her to render conjugal rights to her husband. At
the end of a year and ten months she became in want of the common
necessaries of life, and was reduced to the gaol allowance of bread
and water; she suffered from rheumatism and other maladies, which were
aggravated by the miseries of her imprisonment; and after many years
of such suffering died in prison—for she never went back to her
husband.”—(“The Decision in the Clitheroe Case and its Consequences,”
p. 9.)
But while the law has thus been needfully amended in England, a further
evil effect has meantime supervened in our dependency of India; for this
faculty of imprisonment by the Courts for non-compliance with their
order in the event specified, which has been abolished in England, seems
to be still existent and appealed to in our Indian Courts. (See Note
XXII., 2.) The strange thing is that the suit for the restitution of
conjugal rights is not a matter of native law, but an inadvertent and
apparently entirely unintentional introduction from our English system;
the very judges who administer the Indian Law being at a loss to account
for its appearance in their practice. One authority, in seeking the
solution of the problem, declares that—“Mr. —— ‘could not find any
enactment directly establishing suits for the restitution of conjugal
rights, and believed there were none; but that they had been recognised
in a Stamp Act, and again in the Limitation of Suits Act passed in
1871.’ The material point is that Indian lawgivers have not consciously
given this remedy to those who did not possess it before; but that it
has slipped into our law without design. Mr. —— thinks ‘That this class
of suits was known in the old Supreme Courts, in the Presidency towns,
and as between Europeans; and it was not an improper subject of
legislation as regards Stamp Duty or Limitation by Time: but being
spoken of without qualification was held by the High Courts to be
available for all classes of the Indian communities.’ If this theory be
true, it accounts in an easy way for a change effected without any
intention of the Rulers at all. It is worth enquiry into under this
aspect.” Yes, enquiry and rectification hand in hand!
_Id._—“... _and part divine_.”
The fact has been that male lawgivers, in whatever land, have generally
asserted for their code of feminine ethics or conduct a divine origin,
and have announced the punishment for breach thereof as a divine
injunction. In very few instances, indeed, was there any attempt to
decree an equal punishment to the male who was partner with the female
in a mutual breach of this morality, and very frequently no punishment
of the male attached at all; and even in the few cases where such a
punishment was nominally threatened, the man’s share in the offence was
most generally connived at, and passed unpunished. This double code of
morality has a flagrant exemplification in the English Law of Divorce,
by which, while a man can procure a Decree of Divorce on the simple
ground of the adultery of his wife, a woman cannot obtain a like decree
for her husband’s adultery unless that offence be accompanied by such
treatment of herself as the Court will recognise as “cruelty,” or with
“desertion.” The double scheme of sexual morality, so revoltingly
tolerated, in so far as man is concerned, by “society” in the present
day is too patent to need further words here. And the repulsive cant is
still that, while the man is allowed to go free, the punishment of the
woman is due and commendable as in accordance with “divine law.” (See
Note XIV., 3.)