JUDGMENT 1. This appeal arises out of a suit for restitution of conjugal rights. The action was by the husband against the wife and certain other persons who were siding with the wife. It has been found by the lower Appellate Court that the woman was married to the man; and, so far as this particular matter is concerned, it is concluded by the finding of that Court. The question, and we may say, the main question that has been raised before us in this appeal by the Defendant-Appellant, is whether or no the suit is barred by limitation under Art. 35 of the Second Schedule of the Indian Limitation Act. The Court of first instance, for reasons set out in its judgment, held that the suit was barred, but the Subordinate Judge, in appeal, has held that the period of limitation applicable to the suit is not that which is prescribed in Art. 35, but what is indicated in Art. 120 of the Limitation Act, namely, six years from the time when the right to sue accrues. The Subordinate Judge, in expressing his opinion upon this question, does not give any reasons. He broadly lays down that Art. 120 is applicable, and that the suit having been brought within six years from the date of the demand and refusal is not barred by limitation. It seems to us, however, that the decision of the Subordinate Judge upon this matter cannot be supported. Art. 35, in distinct terms, lays down " for the restitution of conjugal rights - two years from the time when the restitution is demanded and is refused by the husband or wife being of full age and sound mind." If this article is applicable, it is obvious that Art. 120 will not apply; for, that article refers to suits for which no period of limitation is provided elsewhere in the schedule It has however been said by the learned vakil for the Respondent that, having regard to the provisions of sec. 23 of the Limitation Act, there would be no limitation to a suit like the present. We are unable to accept this view; for, to accept it would be to hold that Arts. 34 and 35 are surplusage. In the case of a marriage between two Mahomedans, there is certaily a contract. 23 of the Limitation Act, there would be no limitation to a suit like the present. We are unable to accept this view; for, to accept it would be to hold that Arts. 34 and 35 are surplusage. In the case of a marriage between two Mahomedans, there is certaily a contract. There may be something more than a contract in such a marriage; but still, if there is a contract and there is a, breach of such contract, a cause of action would arise, entitling the party complaining of the breach to institute a suit. And if in such a case, we were to proceed upon sec. 23, there would be absolutely no use of the two articles to which we have just referred. The present suit is essentially a suit for restitution of conjugal rights and, according to the view as expressed by the legislature, there is a cause of action afforded when the restitution is demanded and is refused. The question as to the applicability of sec. 23 or Art. 35 in a case like this was fully considered by a Full Bench of the Bombay High Court in the case of Dhanjibhoy v. Hitabai I. L. R. 25 Bom. 644 (1901) and although the parties to that suit were Parsees, yet the principles underlying the decision in it are applicable to this case as well, and we may say that we concur in the views that were expressed in that case by the majority of the Judges composing the Full Bench, and who held that Art. 35 of the Limitation Act, notwithstanding the provisions of sec. 23 of the Act, is applicable to a case like the present. The Subordinate Judge, however, has not considered the question which is involved in Art. 35, namely, whether the wife was, at the time of the demand and refusal, of full age and sound mind; for, if she was not of full age and sound mind at the time, then the said article would not apply, and necessarily Art. 120 would apply. We, therefore, think it necessary to send back the case to the lower Appellate Court with a view that this question may be determined and, if the Subordinate Judge be of opinion that at the time of the demand and refusal, the wife was of full age and sound mind, he should hold that the claim is barred by limitation; otherwise, not. Costs will abide the result. We assess the hearing fee in this Court at 3 gold mohurs.