Mrs. Wolstenholme Elmy further tells us that:—

“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pleasure a prerogative of punishment which had been withdrawn from the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.)

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