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Report No. 89

Chapter 22

Section 22: Continuing Wrongs

22.1. Section.-continuing breaches and torts.- Section 22 provides that in the case of a continuing breach of contract or in the case of a continuing tort1, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues. The object of the section is to enable the injured party to wait for so long as the breach or the wrong is persisted in and then to bring a suit to recover all the damage he may have suffered, instead of being compelled to bring innumerable separate suits, one after the other2.

1. Compare section 2(.-definition of tort.

2. Secy. of State v. Venkayya, 1977 ILR 40 Mad 910 (920, 921).

22.2. History.- Section 23 of the Act of 1877, which dealt with the subject, ran as unde.-

"23. In the case of a continuing breach of contract and in the case of a continuing independent of contract, a fresh period of limitation begins to at every moment of the time during which the breach or the wrong, as the case may be, continues."

22.3. This section was continued verbatim as section 23 of the Limitation Act, 1908.

When the draft bill for the Act of 1908 was circulated for comments, the section came to be noticed in a rather oblique way. Article 35 of the Limitation Act of 1877 provided for a period of limitation of two years for a suit for restitution of conjugal rights and provided (in the third column) that the time would begin to run when restitution is demanded and is refused by the husband or wife, being of full age and sound mind.

22.4. Dealing with this article, the Statement of Objects and Reasons anne.ced to the Bill of 1907 stated as unde.-

"Article 35 of the Act is also proposed to be omitted.

The scope of this article is very limited. It does not apply to cases arising under the Indian Divorce Act. The Allahabad High Court has held that it does not apply to Hindus or Muhammadans, as their personal law does not require an antecedent demand to sustain a suit for restitution of conjugal rights, nor make restitution unenforceable against a minor, and it has further held that the withholding of conjugal rights by either party is a continuing wrong, and that a claim for restitution cannot be barred by limitation; Binda v. Kausilia, ILR 13 All 126 (146).

The same view was taken in Bai Sari v. Saukla, ILR 16 Bom 714. Those views have been so far modified by the rulings of the Calcutta and Madras High Courts and by the later rulings "of the Bombay High Court as to make the article applicable to Hindus and Mohammedans in cases of suits preceded by demand and refusal as mentioned in the third column; Thunijibhoy v. Hirabai, ILR 25 Born ILR 28 Mad 436.

The operation of the article may be easily avoided; Asirunnissa v. Bugloo, ILR 34 Cal 79; Saravanal v. Poovavi, party if he simply refrains from making a demand which, it may be noted, is not, under the Hindu or Mohammedan Law, necessary to give rise to a cause of section. It is a very usual thing in Hindu and Mohammedan families for a wife to go and stay with her parents or brothers and the effect of this article is that if owing to any domestic quarrel the wife should in a fit of temper refuse to return, the husband would be compelled to take the matter into court within two Years."

22.5. The Government Pleader1, Assam Valley Districts, and the Judge2 of the Assam Valley Districts, while commenting on the Statement of Objects and Reasons quoted above, noted as under.-

"It appears from Objects and Reasons under Article 35 that the Legislature would adopt the suggestion [made in ILR 13 All 126 (145)1 that withholding of restitution of conjugal rights is a continuing wrong. In a recent Calcutta case (11 CWN 437) it has been held that section 23 (now section 25) does not apply to such a case. In view of this decision of the Calcutta High Court, the intention of the legislature should be made clear by an illustration."

1. Babu Kali Charan Son.

2. Mr. W.B. Brown.

3. On 3rd September, 19.-National Archives File.

22.6. This omission of Article 35 of the Act of 1877 from the Act of 1908 was noticed by Wazir Hasan, A.J.C. in an Oudh case1, in which a comparison was drawn between the cause of action for a suit for restitution of conjugal rights and that for dissolution of marriage. It was observed that in the former case the cause of action is founded on a breach of contract of marriage, in which the breach continues so long as the person of the wife is withheld from the husband, while, in the latter case the residuary Article 120 (of the Act of 1908) applied.

1. Hamidullah Khali v. Mt. Bakhurljahan &gam, AIR 1922 Oudh 109.



The Limitation Act, 1963 Back




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