“At length, in the year 1891, and, as in the case of the negro Somerset, upon the return to a writ of habeas corpus, there have been found judges bold enough and just enough to set aside the ancient saws and maxims, resting mainly upon obiter dicta and loose phrases of previous judges used in reference to hypothetical cases never actually before the Courts, and to declare plainly and straightly that the personal slavery of the wife is no part of the law of England. The actual words of the Lord Chancellor in dealing with the return to the writ are, as reported by the Times, March 20th, 1891, as follows:—
“After stating the circumstances of the marriage, the decree, and the refusal of the wife to cohabit, it states: ‘I therefore took my wife, and have since detained her in my house, using no more force or restraint than necessary to take her and keep her.’ That is the return which seeks to justify an admitted imprisonment of this lady. I do not know that I am able to express in sufficiently precise language the difference between ‘confinement’ and ‘imprisonment,’ but if there is any distinction, I can only say that upon these facts I should find an imprisonment, and looking at the return it is put as a broad proposition that the right of the husband, where there has been a wilful absenting of herself by the wife from her husband’s house—that it is his right to seize possession of his wife by force, and detain her in his house until she renders him conjugal rights. That is the proposition of law involved in the return, and I am not prepared to assent to it. The Legislature has expressly deprived the Matrimonial Court of the power of imprisoning the wife for refusal to comply with a decree for restitution of conjugal rights, and the result of such a system of law, if the husband had the power, would be that whereas the Court had no power to hand the wife over into her husband’s hands, but only to punish her for contempt by imprisonment under the control of the Court, and without any circumstances of injury or insult, and even that power was taken away, the husband might himself of his own motion seize and imprison her until she consented to the restitution of conjugal rights. That is the proposition I am called upon to establish by holding this return to be good. I am of opinion that no such right or power exists in law. I am of opinion that no such right ever did exist in our law. Whatever authorities may be quoted for any such proposition, it has always been subject to this condition: that where she has a complaint of, or is apprehensive of, ill-usage, the Court will never interfere to compel her to return to her husband’s custody. Now this brings me to the particular circumstances of this transaction. I am prepared to say that no English subject has a right to imprison another English subject (who is sui juris, and entitled to a judgment of his or her own) without any lawful authority, but if there were any qualification of that proposition I should be of opinion that on the facts of this case it would afford an ample justification to any Court for refusing to allow the husband in this case to retain the custody of his wife.
“On these and other grounds the Lord Chancellor declared that the return of the writ was bad, and ordered that the lady be restored to her liberty, the other judges concurring.”—(“The Decision in the Clitheroe Case and its Consequences,” pp. 3, 4.)
Lord Esher was one of the two other Judges, both concurring, who formed the Court of Appeal which granted the writ, and a few days subsequently he gave from his place in the House of Lords the following further statement of his judgment and views:—
“As I was a party to the judgment, which seems to have been more misunderstood than any judgment I recollect, I, perhaps, may be excused from making an observation. It was urged before the Court of Appeal that by the law of England a husband may beat his wife with a stick if she refuses to obey him, and that if a wife refused her husband conjugal rights, whatever that phrase may mean, which I have never been able to make out, he may imprison her until she restores him conjugal rights, or satisfies him that she will. All that the Court of Appeal decided was that a husband cannot by the law of England, if the wife objects, lawfully do either of those things. Those intelligent people who have declared that the judgment is wrong must be prepared to maintain the converse—namely, that if a wife disobeys her husband he may lawfully beat her; and if she refuses him a restitution of conjugal rights he may imprison her, it was urged, in the cellar, or in the cupboard, or, if the house is large, in the house, by locking her in it and blocking the windows. I thought, and still think, that the law does not allow these things....”—(The Times, 17th April, 1891.)
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.”