Singh v Singh (C.C. No. 13/35.) [1935] EACA 149 (1 January 1935)

ORIGINAL CIVIL.

Before GAMBLE, Ag. J.

PAL SINGH, Plaintiff

AMER SINGH, Defendant.

C. C. No. $13/35$ .

Husband and Wife—Harbouring Wife—Notice.

$Held$ (17-6-35).—(1) An action for harbouring will lie at the instance of a husband when the parties are married according to Hindu Law.

(2) A condition precedent to an action for harbouring is a notice by the husband to the person concerned not to continue to harbour the wife.

Khanna for plaintiff.

Russell for defendant.

Law quoted: Trevelyan's Hindu Law, 2nd Edn.; Yamunabai v. Narayan Moreshvar Pendse (1 Bom. 164); Winsmore v. Greenback (Willes, 577); Place v. Searle (1932, 2 K. B. 497); Addison on Torts, 8th Edn.; Philp v. Squire (Peake 114).

RULING.—The plaintiff in this suit is claiming Sh. 3,000 damages from the defendant in that it is alleged the defendant enticed, procured and harboured the plaintiff's wife.

By the defence it is admitted that the plaintiff's wife has been living in the defendant's house and working for him as housekeeper.

Mr. Khanna submits that in law the defence is an admission of harbouring and that the only issue before the Court is the quantum of damages.

The point as far as I am aware is a novel one in this Colony and I have thought it best to defer my decision until my return to Nairobi in order to consult authorities which were not available on circuit.

Mr. Russell contends that as this is a Hindu marriage, the parties being Sikhs, the principles of English Law are not But a reference to Trevelyan's Hindu Law, 2nd applicable. Edn. at p. 74, shows that there is no great divergence between the Hindu Law on this subject and English Law. "The husband is also entitled to recover damages from the person harbouring • his wife or enticing her away, whether or not for improper purposes, and to obtain an injunction against such person from interfering with his wife rejoining him."

$\mathcal{H}$

The head-note to Yamunabai v. Narayan Moreshvar Pendse (1 Bom. 164) reads as follows: "Every person who receives a married woman into his house and suffers her to continue there after he has received notice from the husband not to harbour her, is liable to an action for damages or injunction, unless the husband has by his cruelty or misconduct forfeited his marital rights, or has turned his wife out of doors, or has by some insult or ill-treatment compelled her to leave him."

The leading case on this aspect of marital relations is Winsmore v. Greenback (Willes 577) approved and followed in Place v. Searle (1932, 2 K. B. 497).

In the former case per WILLES, L. C. J.: "Every moment that a wife continues absent from her husband without his consent it is a new tort and every one who persuades her to do so does a new injury and cannot but know it so." There might therefore be an actionable tort in harbouring apart from any question of persuasion, procuring or enticing. It is, however, laid down that no action is maintainable for harbouring the wife, from principles of humanity, against one who believes whether rightly or wrongly that she was thereby being protected from her husband's ill-treatment or when the husband's misconduct has been the cause of the wife's leaving him.

In the plaint in this case there are two distinct allegations: one of active persuasion and enticement and one of harbouring: if the plaintiff intends to rely on persuasion and enticement he must prove these facts in the ordinary way, this allegation being specifically denied in paragraph 3 of the plaint.

If Mr. Khanna intends to rely on the allegation of harbouring alone I am against him on his submission that the defence is an admission of harbouring and that the only issue left is the question of damages.

An essential ingredient of the tort of harbouring a wife is suffering her to continue to reside after notice from the husband.

In Addison on Torts, 8th Edn. at p. 853 occurs the following: "Every person who receives a married woman into his house and suffers her to continue there after he has received notice from the husband not to harbour her, is liable to an action." And see Philp v. Squire (Peake 114) where the question of notice is stressed. And also in the passage from the Bombay case quoted above, notice to the harbourer appears an essential preliminary to a suit.

In these pleadings paragraph 5 of the plaint alleges a demand and a refusal by the defendant to deliver up the wife. I would be prepared to hold that such demand and refusal was equivalent

to notice. But as in the written statement of defence at paragraph 6 such demand and refusal is specifically denied it becomes a vital issue on the question of harbouring.

For the above reasons, I cannot support Mr. Khanna's submission that no defence is disclosed to the issue of harbouring and the suit must proceed to hearing in the ordinary way.

In the event of notice to the defendant being proved at the hearing, Mr. Russell's application to amend his defence by an allegation of ill-treatment on the husband's part may then be considered. To allow such an amendment at this stage, would I consider be premature, as I have refrained from giving a decision whether an action for harbouring would lie when a husband has forfeited his marital rights by ill-treatment or misa chil conduct.