Report No. 83
6.72. Earlier English rule as to husband's control over wife.-
The provision in section 19(a) is reminiscent of the earlier English rule, under which, as soon as the daughter married, the father's natural jurisdiction over her, and his right to her custody during infancy, was determined.
"For the happiness and the honour of both parties, it (the law) places the wife under the guardianship of the husband, and entitles him, for the sake of both, to protect her from the danger of unrestrained intercourse with the world by enforcing cohabitation and a common residence."1
This was the view taken by Coleridge J. The authority of this view was shaken by a later case2 where it was stated that a husband had no such right to "custody" as a parent has over his child. In that case a wife was, by her own desire, living with her son (and apart from her husband). The Court refused to restore her to his custody.
Clause (a), if construed literally, would create an anomaly-for example, where the husband himself is a minor. In an early Punjab case,3 which was a suit for the custody of a wife when both the husband and the wife were found not to have attained puberty, the decree was refused and it was held that in Muslim law a husband is not entitled to custody of the minor wife too young for intercourse. The case was not decided under section 19. If the matter arose under section 19, the Court can refuse the order only by regarding the husband as "unfit".
1. Cochrane (in re:), (1840) 8 Dowe 633.
2. R. v. Leggatt, (1852) 18 QB 781.
3. Dinu v. Abdulla, 1894 Punjab Record 97-98 (Civil Judgment No. 351).