JUDGMENT Chakravartti, J. - This suit, in the course of its progress, has undergone repeated changes of shape. It is a suit by a young lady, who describes herself as Musst. Rakeya Bibi and when she filed it originally on July 27, 1945, she simply asked for a declaration that her marriage with the Defendant Anil Kumar Mukherji stood dissolved. The ground relied on by her was that, since the marriage, she had embraced the religion of Islam and the Defendant, being called upon to do likewise, had failed and neglected to comply. The only fact pleaded regarding the Plaintiff's married life was that the marriage had not been consummated. Almost a whole year later, on July 22, 1946, an order was obtained for amendment of the plaint and the plaint was actually amended on January 10, 1947. By the amendment, the marriage became an "alleged" marriage and an additional case came to be made that it was "null and void" by reason of a circumstance now introduced. It was alleged that the marriage had not been consummated, because, at its date and all material times thereafter, the Defendant was impotent and consequently "incapable of consummating the marriage by carnal intercourse." As a result of the further and different cause of action added by the amendment, the scope of the declaration asked for was also enlarged and the Court was asked to declare that the marriage stood dissolved "and/or "is a nullity." The form in which this prayer was couched was not very logical, but what the Plaintiff in substance asked for was a declaration that the marriage was void ab initio and if it was not so, a declaration that it stood dissolved by reason of the events which had subsequently happened. But what was more important and altered the whole nature of the suit was that a prayer in the alternative was also added and thereby the Court was asked to dissolve the marriage by a decree. At the time of the hearing, however, the alternative prayer was abandoned and the suit reverted to its original form of a purely declaratory suit. 2. At the time of the hearing, however, the alternative prayer was abandoned and the suit reverted to its original form of a purely declaratory suit. 2. The case came up for hearing in the ordinary course before Ormond J. But on one of the points involved, the learned Judge had taken a view in an earlier decision which was not only not in accordance with the opinion expressed by Edgley J. in a still earlier case, but had since been expressly dissented from by Lodge J. The learned Judge, therefore, thought it right to make a report to the Chief Justice under Ch. V., Rule 2 of the Original Side Rules for the constitution of a Special Bench and thereupon the present Bench was constituted by the then Acting Chief Justice. 3. The Defendant, though duly served with summons, did not enter appearance. But, as the questions arising for decision were of great public importance and one of them had caused difference of judicial opinion, we invited Mr. Atul Chandra Gupta to assist the Court by appearing as amicus curice. He readily agreed to do so and appeared at the hearing with Mr. Hem Chandra Dhar. Mr. Gupta was naturally unable to take part in the proceedings so far as they related to investigation of facts, but he rendered very valuable assistance in our examination of the question of law, for which we are greatly indebted to him. 4. The Plaintiff's case is that she is of British Indian domicile and a resident of Calcutta, as is the Defendant. Born of Hindu Brahmin parents, she was given the name of Indira Devi and as Indira Debi, she went through a form of marriage with the Defendant on April 20, 1944, in accordance with Hindu rites. After the marriage, she went to live with her husband when she shared the fame bed with him, but the Defendant, although he made repeated attempts to effect sexual intercourse, was unable to do so because of his impotence. At her request, he placed himself under medical treatment, but his physical condition did not thereby improve. This caused her great mental distress and gradually her thoughts began to turn towards the doctrines of Islam, of which she had come to learn before her marriage and which seemed to afford greater scope to women for the fulfillment of their lives. At her request, he placed himself under medical treatment, but his physical condition did not thereby improve. This caused her great mental distress and gradually her thoughts began to turn towards the doctrines of Islam, of which she had come to learn before her marriage and which seemed to afford greater scope to women for the fulfillment of their lives. After a number of visits to her husband's house, during none of which could he consummate the marriage, she finally returned to her father, with whom she has since been staying. After some time, she informed her father of her intention to adopt Islam and on April 10, 1945, embraced the faith at the Nakhoda mosque in Calcutta of her own free will. She is twenty-four years of age now and was major at the date of her conversion. 5. The Plaintiff's further case is that, on May 15, 1945, she sent a letter to the Defendant through her solicitors, by which she apprised him of the step she had taken and called upon him to embrace Islam within seven days, if he wished her to remain his wife. He did not reply to the letter and has not embraced Islam. So far as the Plaintiff is aware, the Defendant's physical condition is still the same. 6. On the above allegations, the Plaintiff asks for either a declaration that her so-called marriage with the Defendant was a nullity or a declaration that the marriage stands dissolved by reason of her conversion to Islam and the failure of the Defendant to join her in that faith. 7. The suit was brought and is being tried in the Ordinary Original Civil Jurisdiction of this Court. In its final shape, it is a suit for a mere declaration of the Plaintiff's status as arising out of her purported marriage or its alleged dissolution and it is thus not a "matrimonial suit" at all, in the special sense of that term. The Plaintiff resides at 71, Muktaram Babu's Street, Calcutta and the Defendant at 9, Shib Krishna Dawn Lane, both within the Original Jurisdiction of this Court. On the evidence before the Court, both the parties are persons of British Indian domicile. The Plaintiff resides at 71, Muktaram Babu's Street, Calcutta and the Defendant at 9, Shib Krishna Dawn Lane, both within the Original Jurisdiction of this Court. On the evidence before the Court, both the parties are persons of British Indian domicile. No question, therefore, arises as to the jurisdiction of this Court on its Original Side to try matrimonial suits between non-Christians or as to the jurisdiction of a British Indian Court to try such suits between non-British subjects of a foreign domicile. The Plaintiff's suit is one of a declaratory character, against a person subject, to the jurisdiction of this Court and if she can establish her right to the reliefs asked for, this Court is clearly competent to grant them to her against the Defendant. 8. It will be observed that either of the declarations asked for by the Plaintiff would be sufficient for her and the two are mutually independent in the sense that if the Plaintiff can establish her right to one of them, the question raised by the other does not arise or becomes immaterial. Thus, if the marriage was void ab initio, there was nothing to be dissolved by the conversion and the question whether the latter had the legal effect contended for does not arise. On the other hand, if the conversion operated to dissolve the marriage, if any, the question whether the marriage was void or valid is of no consequence, since, in any event, it stands dissolved. It might, therefore, seem that the logical way of dealing with the suit would be to consider first whether there was a valid marriage and if the conclusion was in the affirmative, to consider then whether it stood dissolved by the conversion. But, having regard to the way in which the Plaintiff herself regarded her position and the manner in which she presented her case, we consider it proper to deal with the question of conversion first. It is quite clear from the letter she addressed to the Defendant that she regarded herself as validly married to him and considered that the marriage was still subsisting. Therein she stated that, in the events which had happened, they could no longer remain man and wife, unless the Defendant also embraced Islam. It is quite clear from the letter she addressed to the Defendant that she regarded herself as validly married to him and considered that the marriage was still subsisting. Therein she stated that, in the events which had happened, they could no longer remain man and wife, unless the Defendant also embraced Islam. Then, in the first version of her plaint, she raised no question as to the validity of the marriage and relied solely on its alleged dissolution by the conversion. Even after the amendment, her main prayer remained a prayer for a declaration that the marriage stood dissolved and a declaration of its nullity was asked for only by way of secondary and subsidiary prayer. We, accordingly, take her plaint as it is and deal first with the case which she herself puts forward as her principal case. 9. In that case are involved two questions, one of fact and another of law. The question of fact, to put it in a neutral form, is whether the Plaintiff was converted to Islam, as alleged. On the evidence before us, there can be no doubt that she went through the rites of conversion and was admitted into the fold of Islam by a minister of that religion. She herself gave evidence to that effect and produced a certificate granted by the imam of the Nakhoda mosque, as also a declaration made by her at the time of the ceremony. Both these documents are printed forms, the first in Urdu and the second in English and it is somewhat curious to note that, although there may be converts to Islam from other religions as well, the printed certificate already contains a statement that the convert "expressed her disgust at the Brahminical "faith and abjured the same." Be that as it may, there is also the evidence of tie Plaintiff's father as to the fact of the conversion and that of Miyajan, the old sarkar of the mosque, who proved that the conversion was recorded in the mosque's register. From all this evidence, we are satisfied that the Plaintiff offered herself for conversion at the Nakhoda mosque and went through the necessary formalities. We are also satisfied that she did so without any force or compulsion and of her own free will. 10. From all this evidence, we are satisfied that the Plaintiff offered herself for conversion at the Nakhoda mosque and went through the necessary formalities. We are also satisfied that she did so without any force or compulsion and of her own free will. 10. The question, however, still remains whether her conversion was a bona fide one or a mere device adopted for the purpose of avoiding the marriage. Mr. Das, who appeared for her, contended on the authority of certain observations made by Ormond J. in the case of Ayesha Bibi v. Subodh Chandra Chakrabarti ILR (1945) 2 Cal. 405. that the question of bona fides was wholly irrelevant and further, that no Court could determine the bona fides or otherwise of a person's change of faith. We entirely dissent from those propositions. It may be that a Court cannot test or gauge the sincerity of religious belief; or that, where there is no question of the genuineness of a person's belief in a certain religion, a Court cannot measure its depth or determine whether it is an intelligent conviction or an ignorant and superficial fancy. But a Court can and does find the true intention of men lying behind their acts and can certainly find from the circumstances of a case whether a pretended conversion was really a means to some further end. We can see no reason to hold that it is in the nature of things impossible for a Court of law to determine whether a conversion was bona fide. Nor can we agree that the question of bona fides is immaterial. In the case of Skinner v. Skinner (1897) ILR 25 Cal. We can see no reason to hold that it is in the nature of things impossible for a Court of law to determine whether a conversion was bona fide. Nor can we agree that the question of bona fides is immaterial. In the case of Skinner v. Skinner (1897) ILR 25 Cal. 537 : L.R. 25 IndAp 34, the Privy Council, while referring' to the possibility that a change of religion on the part of both the spouses might have the effect of altering rights incidental to the marriage, was careful to add the qualification that such change must be made "honestly" and "without any intent to commit a fraud upon the law." Indeed, it seems to us to be elementary that if a conversion is not inspired by religious feeling and undergone for its own sake, but is resorted to merely with the object of creating a ground for some claim of right, a Court of law cannot recognise it as a good basis for such claim but must hold that no lawful foundation of the claim has been proved. Where conversion gives a legal right, to go through a mock conversion and set it up as a basis of that right is to commit a fraud upon the law. We are clearly of opinion that where as a party puts forward his conversion to a new faith as creating a right in his favour to the prejudice of another, it is proper and necessary for a Court of, law to enquire and find whether the conversion was a bona fide one. 11. We are far from being satisfied in the present case that the conversion of the Plaintiff was bona fide. It is true that there is no evidence on the Defendant's side, but the Plaintiff's own evidence and that of her father are revealing. She stated--and we believe her--that she felt utterly miserable at the lack of masculine powers in her husband. Asked next what had led her to embrace Islam, she replied that she had come to know that under that religion women had "much freedom" and as she found after her marriage that her "whole life was going to be in vain," she had taken to the path that would bring her happiness. Asked next what had led her to embrace Islam, she replied that she had come to know that under that religion women had "much freedom" and as she found after her marriage that her "whole life was going to be in vain," she had taken to the path that would bring her happiness. Referring to her remonstrances with her father to allow her to embrace Islam, she stated that she told him what had happened to her and that she had no happiness and wanted to be happy and asked him what objection he could have if she embraced Islam. It is perfectly clear from this evidence that, in the Plaintiff's mind, the unhappiness caused by her husband's impotence and a conversion to Islam as a means of escape from that unhappiness were interconnected. If, as she insisted, her unhappiness was caused by her husband's inability to performing his martial duties and she looked forward to Islam, under which women had "much freedom," to relieve her of that misery, the happiness she expected from Islam could only be a liberation from the marriage-tie, for, by a mere conversion the cause of her unhappiness would not be removed. It may be recalled that almost immediately after her conversion, she called upon the Defendant to embrace Islam. If he complied with the demand, there could be no question of any dissolution of the marriage and it is difficult to see how, in that event, the particular unhappiness of which the Plaintiff complained would be removed by her embracing Islam, because on the conversion of the Defendant, his impotence would not disappear. It seems to us to be patent that the Plaintiff resolved on the conversion and went through it only with the object of acquiring the right to bring the present suit, knowing or at least fully expecting that the Defendant-would not forsake his religion in order to thwart her. In this she was' aided and abetted by her father, Binay Krishna Banerji. He deposed in the case and asked about the circumstances in which the actual conversion had taken place, made the extraordinary statement that one day he found his daughter going out of the house by herself and on learning from enquiry that she was going to the Nakhoda mosque to embrace Islam, he accompanied her to that place, as he thought she ought not to go alone. It was elicited from him that no previous arrangement had been made or could have been made with the people of the mosque that she would go there for her conversion, not to speak of going on that particular day and that, on reaching the mosque, he found that his daughter was a perfect stranger there as much as he himself was. The witness added that it was he who asked for the imam and introduced his daughter to him. It is only necessary to observe that the story that a young Hindu married lady of the Plaintiff's status suddenly sallied forth from the house one morning to go unescorted through the streets of Calcutta to a strange mosque in order to embrace Islam there, without any previous arrangement having been made, is worse than incredible. The conversion itself was a short ceremony. According to the evidence of the Plaintiff's father, the imam asked the Plaintiff if she was voluntarily embracing Islam and on receiving a reply in the affirmative, gave her the kalma (Muslim confession of faith) to recite and after she had done so, he gave her the name of Rakeya Bibi and asked her to sign a register which she did. This seems to have been in accordance with the practice followed at the mosque. Miyajan, the sarkar, stated before us that, even if a perfect stranger appeared at the mosque and offered to embrace Islam, he was attended to immediately and his conversion took only from ten to fifteen minutes. But although the proceeding appears to have been of a somewhat summary character for so solemn a ceremony, we by no means suggest that the imam, to whom the Plaintiff was introduced by her father, had any reason to think that she was not embracing Islam sincerely and for bona fide reasons. All that we desire to point out, is that, on her side, the adventure in the morning of April 10, 1945, appears to have been a very casual affair. 12. All that we desire to point out, is that, on her side, the adventure in the morning of April 10, 1945, appears to have been a very casual affair. 12. The only other fact, to which it is necessary to refer, is that, according to the Plaintiff's own admission, she does not even say the daily prayers, nor, as she herself puts it, "observe other forms "of puja." To what extent her conversion "was genuine is indicated by her use of the last phrase which is strange language to come from the lips of a newly-converted Muslim. It is also remarkable that a person, who claims to have embraced Islam because she felt irresistibly drawn to it by its superior qualities, should fail to perform the primary duty of saying daily prayers, as enjoined by her chosen religion. To all intents and purposes, she continued to live her old life and her mental outlook remained exactly the same. It was no doubt said by both herself and her father that she was living at her paternal home separately from other members of the family, but we cannot take that evidence too seriously. To assign to her a separate room and a kitchen out of a small house of five rooms seems hardly to be a practicable proposition. In view of the Plaintiff's conduct and mode of life after the conversion, it seems perfectly clear that, even if the standard suggested in the case of Abdul Razah v. Aga Mahomed Jaffer Bindanim (1893) ILR 21 Cal. 666 : L.R. 21 IndAp 56, be applied, viz., conformity of her acts to conduct which might reasonably be expected from a follower of her alleged religion, the Plaintiff must grievously fail on the issue of the bona fides of her conversion. 13. On the evidence before us we hold that, although, the Plaintiff undoubtedly went through a form of conversion and did so of her own free will, the conversion was not bona fide, but was designedly undergone with the object of causing a dissolution of the marriage. In our opinion, with regard to this matter, neither father, nor daughter was candid with this Court, although we are prepared to concede that, if they lied, they did so under the tragic necessity of doing whatever they could to avert a total frustration of the daughter's life. 14. In our opinion, with regard to this matter, neither father, nor daughter was candid with this Court, although we are prepared to concede that, if they lied, they did so under the tragic necessity of doing whatever they could to avert a total frustration of the daughter's life. 14. According to the view we have already expressed, this finding is quite sufficient for rejecting the Plaintiff's prayer for the first declaration. A decree for dissolution of marriage or a decree that a marriage stands dissolved cannot, in our opinion, be obtained on the basis of a pretended conversion, just as divorce cannot be obtained on the basis of pretended adultery or on the basis of acts deliberately done with the object of avoiding the marriage. The Plaintiff, however, contended that she was relying on a rule of Mahomedan law and under that law, a formal conversion was sufficient to entitle the convert to the benefit of the rule. This argument presupposes that the Plaintiff is entitled to have the Mahomedan law, as it is, applied to the marriage and until she can establish that proposition, it is unnecessary to consider whether the rule relied on by her covers mala fide conversions as well or whether, if it does, it can, be allowed to override the general principle we have indicated above. We, therefore, proceed to examine the rule invoked by the Plaintiff and the question of its applicability. 15. The rule is stated in two parts, one applying to conversions taking place in Islamic countries and the other to those taking place in countries which are "foreign" or non-Islamic. It is to be found both in Hamilton's translation of the Hedaya and Baillie's translation of Fatawa Alamgiri, called "A Digest of Mahomedan Law." We are concerned only with the second part of the rule, which, in. Baillie's version, reads as follows: When one of the married parties adopts the Musalman faith in a foreign country, the cutting off of their marriage is suspended for the completion of three menstrual periods, whether consummation has taken place or not. And if the other party should also adopt the faith before their completion, the marriage remains subsisting. 16. It is to be noticed that this rule does not require presentation of Islam to the unconverted spouse. And if the other party should also adopt the faith before their completion, the marriage remains subsisting. 16. It is to be noticed that this rule does not require presentation of Islam to the unconverted spouse. The corresponding rule applicable to Islamic countries lays down that Islam is to be presented to such spouse by the kazi time after time, till the completion of three and the parties are to be separated only if he or she still refuses to accept the faith. It was not contended before us that India was an Islamic country. The Plaintiff proceeded on the assumption that India was dur-ul-hurb or a foreign country, as contemplated by the rule and relied on the three facts that she had embraced Islam here, that the Defendant had failed to do so and that the necessary period since her conversion had elapsed. On these facts she contended that, by virtue of the rule quoted above her marriage with the Defendant was at an end and the Court should so declare. 17. In support of this contention, the Plaintiff's Learned Counsel relied almost entirely on the decision of Ormond J. in the case of Ayesha Bibi v. Subodh Chandra Chakrabarti (supra). That decision has since been dissented from in this Court by Lodge J. in the case of Sayeda Khatoon v. M. Ohadiah (1945) 49 C.W.N. 745. In Bombay, it has been dissented from by Blagden J. in a lively judgment, which was upheld in its entirety by the Court of appeal: see Robasa Khanum Vs. Khodadad Bomanji Irani, AIR 1947 Bom 272 . It is interesting to note that the appellate Bench included a learned Muslim Judge, who delivered the closely reasoned judgment of the Court. Before the decision of Ormond J., Edgley J. had to consider the identical point in the case of noor Jehan Beyum v. Eugene Tisccnko ILR (1942) 2 Cal. 167, when he also took the contrary view. It is true that his observations on this question were held to be obiter dicta by the Court of appeal, inasmuch as the suit failed for want of the Court's jurisdiction to entertain it. But the reasoning, on which the observations were founded, remains. 167, when he also took the contrary view. It is true that his observations on this question were held to be obiter dicta by the Court of appeal, inasmuch as the suit failed for want of the Court's jurisdiction to entertain it. But the reasoning, on which the observations were founded, remains. It is also true that the learned Judge pronounced chiefly on that part of the rule which applies to Islamic countries, but that again makes no difference, since the principle which would attract or exclude either part is the same. 18. Before dealing with the Plaintiffs contention as it was presented to us, we should like to refer to one matter which we have not seen considered so far. In all the cases to be found in the reports, as also in the case before us, it was assumed that the rule relied on by the Plaintiff covered a case of the present character and the only question was whether it could be applied. For ourselves, we entertain some doubt on the matter. A learned Mahomedan author has expressed the view that the rule contemplates Islam as the State religion and does not, therefore, apply in India (see Tyabji, Muhammadan Law, 3rd Ed., p. 244). Mr. Das contended that, as regards at least the second part of the rule, this view could not be correct, since that part referred expressly to conversion in a non-Islamic country. But it seems to us that the true meaning of the rule would appear from the reason given for an automatic dissolution of the marriage in such a case. It has been explained that the marriage is automatically dissolved on the completion of three of the wife's "periods," because "the requiring of the other party to embrace the faith "is impracticable, as the authority of the Magistrate does not "extend to a foreign land, nor is it acknowledged there." The Magistrate referred to here must be the kazi in the Islamic country. Can the rule be then said to contemplate a case where both the spouses are in a foreign land? Can the rule be then said to contemplate a case where both the spouses are in a foreign land? In our opinion, it cannot, for, if the law of Islam would not prescribe a procedure for dissolving the marriage of a resident of a foreign country, because it could not be enforced by the kazi against him, could it at the same time declare the effect of a conversion in a foreign land when both the spouses are there and are foreign nationals? The reason that the authority of Islamic law is not acknowledged there would equally be a valid reason for not making a provision of that kind. The rule cannot apply to a case where one of the parties to a marriage embraces Islam in a foreign land, but the unconverted party is in an Islamic country, for the latter is subject to the jurisdiction of the kazi who could tender Islam to him. Nor could it have been intended to apply to a case where both the spouses are nationals of a foreign country and the conversion of one of them takes place there, for over the country concerned Islamic law has no sway. In our opinion, the rule is intended to apply only to a case where both the parties to a marriage are subjects of an Islamic country, both go abroad, one of them embraces Islam in the foreign country and returns to his or her native land, but the other remains in the foreign country. In such a case, the Islamic law relieves one of its followers, i.e., the convert, of his or her marriage with an unbeliever by providing for its automatic dissolution, because the Islamic State, under the protection of which the convert lives and which has a responsibility towards him or her as one of its Muslim subjects, cannot act in personam against the other spouse and tender Islam to that person. This appears to us to be the true scope and meaning of the rule and so understood, it will be found to have a special reason behind it and to be a rule of possible practical effect. This appears to us to be the true scope and meaning of the rule and so understood, it will be found to have a special reason behind it and to be a rule of possible practical effect. The Muslim law-givers could not have assumed that a rule laid down by them as regards a matter between a Muslim and non-Muslim would "be accepted and applied in a foreign country to which the authority of no Islamic State extended and as is shown by the reason given for the rule, they did not in fact so assume. They were legislating for persons subject to the Islamic law under the authority of an Islamic State. In the view we take of the rule, it does not cover and has no application to the present case. 19. We would not, however, like to rest our decision on the view we ourselves take of the rule, which has not been interpreted in that sense in any decided case. We shall assume that the rule covers a case of the present kind and proceed to consider whether it must or ought to be applied. 20. The marriage was one between Hindus celebrated under the sanction of Hindu law, and so far as that law is concerned, the conversion of the Plaintiff did not cause its dissolution: In the matter of Ram Kumari (1891) ILR 18 Cal. 264; Sundari Letani v. Pitambari Letani (1905) ILR 32 Cal. 871. But the Plaintiff contends that she, being a Muslim now, is no longer subject to the rules of Hindu law and according to her own personal law at the present time, the marriage stands dissolved. There can be no doubt that, if the Mahomedan law is to be applied, the Plaintiff is entitled to the declaration she has asked for, on the assumption that the rule relied on by her covers the present case. But the question, which arises, is, if one of the parties to a marriage brings about a conflict of personal law by forsaking their common religion and adopting another, can the new personal law of the converted spouse prevail over the old personal law retained by the unconverted partner, under which the marriage was celebrated? 21. But the question, which arises, is, if one of the parties to a marriage brings about a conflict of personal law by forsaking their common religion and adopting another, can the new personal law of the converted spouse prevail over the old personal law retained by the unconverted partner, under which the marriage was celebrated? 21. The Learned Counsel for the Plaintiff answered this question in the affirmative by reference, not so much to general principles, as to the special consequences to an orthodox Hindu of a conversion of his wife to Islam. In doing so, he followed the method of Ormond J. in the case Ayesha Bibi v. Subodh Chandra Chakrabarti (supra). We shall have to consider that case in detail, but, before doing so, we must dispose of a special argument advanced by Mr. Das. He cited the case of Mitar Sen Singh v. Maqbul Hasan Khan (1930) L.R. 57 IndAp 313 and contended that, if, as laid down in that case, the new personal law of a convert would prevail over the old as regards the rights of succession of his children, there could be no valid reason for making a distinction in the case of marriage. The fallacy involved in this argument is obvious. There can be no analogy between succession and marriage Succession opens at the death of a person and his heirs, who acquire only then their right to get the property left by him, naturally get it in accordance with the law to which he was subject at the date of his death. By the change of religion and change of personal law, only the expectancy of the presumptive heirs may be affected, but no rights. Far different is the position as regards marriage. The parties acquire a status and certain rights by the marriage itself in accordance with the law under which it is celebrated; and if one of them is to be allowed to dissolve the marriage by adopting and enforcing a new personal law, he or she is to be allowed to destroy the existing rights of the other. The case cited by Mr. Das, is, in my opinion, of no assistance to him and can be no authority for applying to a marriage the law of the converted spouse. 22. The case cited by Mr. Das, is, in my opinion, of no assistance to him and can be no authority for applying to a marriage the law of the converted spouse. 22. The only other ground on which the application of Mahomedan law was sought to be supported was that, though not applicable of its own force in India as between a Muslim and a non-Muslim, it ought still to be applied in cases of the present kind as a rule of justice and right. This was the view taken by Ormond J. and Mr. Das adopted and advanced before us the learned Judge's reasons. 23. This was the view taken by Ormond J. and Mr. Das adopted and advanced before us the learned Judge's reasons. 23. The steps of reasoning by which Ormond J. reached his conclusion are, as far we understand them, as follows: (i) In matters relating to dissolution of marriage, the law to be applied is the personal law of the parties, not as it was at the time of the marriage, but as it was at the date of the institution of the suit; (ii) just as, where personal law depends upon residence, a person can change it by adopting a new domicile at his will, so can a person, where his personal law depends upon his religion, change it by adopting a new religion; (iii) when he has so changed his religion, he becomes entitled to all the rights accruing from the personal law of the religious system he has adopted and he can claim that law to be applied to him to the exclusion of, or in addition to, the general law of the country, just as it may be provided; (iv) the Plaintiff had changed her personal law by adopting Islam and so far she herself was concerned, was entitled to have the Muslim personal law applied to her at the date of the institution of the suit; she was no longer subject to Hindu law and there was no common law in the country, statutory or otherwise, which could be applied to her; (v) but the Defendant had remained a Hindu and thus neither Hindu nor Mahomedan law was the common personal law of the parties at the date of the institution of the suit; (vi) Mahomedan law is not the public law of India and therefore, in a case of such conflict of personal law between a Muslim and a non-Muslim, the Mahomedan law cannot apply of its of force, nor is there any statutory direction as to what law is to be applied; (vii) in such circumstances, the Court has to make its own choice of law and so far as this Court on its Original Side is concerned, must be guided by the direction to "give judgment ... according to justice and "right," contained in Clause 19 if the Letters Patent, read with Clause 14 of the Charter establishing the Supreme Court; (viii) it would be just and right to apply the Mahomedan law, because-- (a) religious freedom is the State policy of India and rights accruing from the adoption of a new religion ought to be recognised and enforced; (b) Hindu law does not forbid a declaration of dissolution in such a case; (c) there being no rule of English law which applies to the facts, that law cannot be applied as a rule of justice, equity and good conscience; (d) in the case of mofussil Courts, which were formerly forbidden to import English law, but were free to apply what they considered to be rules of justice, equity and good conscience they could and did apply the personal laws of all communities as such rules when no specific law was applicable; (f) Mahomedan law can therefore, be applied even; by this Court as a rule of justice and right; (g) having regard to the consequences, under the Hindu law of apostacy of a wife, which leave the husband with no marital rights at all and reduce the wife to the position of an untouchable menial servant, it is just and right to separate the parties by which no rights of the husband would really be affected and the wife would be liberated from an intolerable position; (h) that can only be done by applying the Mahomedan law, as the Court has in fact done in the past. 24. The decision of Ormond J. is ultimately based on what we have set as his sixth and seventh reasons. Those have been fully dealt with by Lodge J. in the case of Sayeda Khatun v. M. Obadiah and three Judges of the Bombay High Court in the case of Robasa Khanum v. Khodabad Bomanji Irani to which reference has already been made. Since we agree with those decisions, we shall deal with the last two reasons of Ormond J., only in brief. But, before doing so, we desire to make some observations on some of the other reasons of the learned Judge. 25. Since we agree with those decisions, we shall deal with the last two reasons of Ormond J., only in brief. But, before doing so, we desire to make some observations on some of the other reasons of the learned Judge. 25. In holding that the law applicable to a case of the present type was the personal law of the parties, not at the date of the marriage but at the institution of the suit, the learned Judge relied on the principle laid down in English cases that the rights and obligations relating to dissolution form no part of the marriage contract. "The contract of marriage does not include "the conditions of defeasance." But we are by no means sure that this principle can apply to a Hindu marriage, which is indissoluble except by custom in some very rare cases. As explained by Lord Romer in the case of Nachimson v. Nachimson (1930) P. 217, this principle is necessary to reconcile the existence of divorce laws in England with the definition of a Christian marriage, as given by Lord Penzance in Hyde v. Hyde (1866) L.R. 1 Pand D. 130, that it is a union "for life." We such necessity exists in the case of a Hindu marriage, which is not subject to any law of divorce. It is an indissoluble union, entered into as such as a Christian marriage is, but in its case there is no necessity to ignore the actual marriage vow and separate the incident of dissolubility or indissolubility by means of a fiction in order to explain the existence of a statutory law of divorce. There is, thus, no reason why in the case of a Hindu marriage, the principle one would regard as prima facie applicable, viz., a marriage will be governed by the law under which it was celebrated, should not apply. 26. The principle referred to above is also an offshoot of another rule, which is that a matrimonial suit is governed by the law of the domicile of the parties and must be brought in the Court of their domicile. The law contemplated here is the territorial law. Such law may be different from the law under which the marriage was celebrated, as when a man takes up residence in another country, and therefore, it is necessary to provide that the law at the institution of the suit will prevail. The law contemplated here is the territorial law. Such law may be different from the law under which the marriage was celebrated, as when a man takes up residence in another country, and therefore, it is necessary to provide that the law at the institution of the suit will prevail. But in the case of a suit between natives of India, brought in India, with regard to a marriage celebrated in this country, there is no chance of any conflict between the law of domicile at the date of the suit and that at the date of the marriage. As pointed out by Lord Greene M.R. in Baindail v. Baindail (1946) P. 122, the personal law of a party on which the status depends is the law of his domicile and in India that law is that, in matters relating to marriage, the religious personal law will apply, unless altered or modified by statute. When the parties remain in India, this law of domicile, viz., the rule that the personal religious law will apply does not change, although one of the spouses may change his or her religion, because there is no law that, on such change, the law of the new religion shall apply to the marriage. The conflict which really arises in such a case is a conflict between the common personal law of the parties at the date of the marriage and their different personal laws at the date of the suit, but that is not a conflict of the law of domicile. There is thus no reason for importing into such a case a rule based on totally different considerations and saying that the law at the date of the suit will prevail. 27. We would point out further that an application of the rule in such a case as the present is, in any event, useless. It is a rule to the effect that the law "of the parties" at the date of the suit will apply. At that date, there would be no one law of the parties, but two laws for two. Where the law of domicile is some public or territorial law, this position does not arise, because the wife's domicile is always that of her husband, so that the law applicable to him at a time by reason of his domicile applies to her as well. They have a common law. Where the law of domicile is some public or territorial law, this position does not arise, because the wife's domicile is always that of her husband, so that the law applicable to him at a time by reason of his domicile applies to her as well. They have a common law. But when the law applicable is a religious personal law, this identity of husband and wife when they happen to be of different persuasions is lacking. A wife "acquires by the status of marriage the domicile of "her husband and is subject to the law of that domicile, but she "does not acquire his religion or become subject to the laws of "his religion, except so far as they are the law of his domicile:" Rex v. Hammersmity Superintendent, Registrar of Marriages: Mir Anwaruddin Ex parte (1917) 1 K.B. 634. Nor does her religion change if the husband changes his religion. Consequently, in the facts of the present case, at the date of the suit, the law of the Plaintiff was Mahomedan law, while that of the Defendant was Hindu law, so that there was no law "of the parties." 28. A last consideration is that this is not a matrimonial, but a declaratory, suit. It asks for a declaration that the marriage stands dissolved, in other words, that a certain status has already resulted. This must have taken place before the institution of the suit by and under the force of some law then applying to the marriage and the suit merely asks for a judicial declaration of the fact. There is thus no meaning in saying that the law as at the institution of the suit will apply. 29. Reference was made before us to the case of Muncherji Cursetji Khambatta v. Jessie Grant Khambatta (1934) ILR 59 Bom. 278 decided by the Bombay High Court in aid of the contention that a marriage celebrated under one law could be dissolved by the application of another. We do not see how that decision can help the Plaintiff. There, a Scotch woman, professing the Christian religion, married a Mahomedan native of India in Scotland in accordance with rites there requisite for a valid marriage and after coming with her husband to India, herself embraced Islam. We do not see how that decision can help the Plaintiff. There, a Scotch woman, professing the Christian religion, married a Mahomedan native of India in Scotland in accordance with rites there requisite for a valid marriage and after coming with her husband to India, herself embraced Islam. Thereafter, the husband purported to divorce her by pronouncing talak and it was held that, since both the parties were Muslims at the relevant time, the talak was effective to dissolve the marriage. A case like the present one was expressly distinguished. Beaumont C.J., in the Court of first instance, reserved the question as to what the position would be if the wife remained a Christian, while in the appellate Court, Bloomfield J. stated that, if it were necessary to decide the matter, he would certainly not be prepared to hold that she could, in that case, be divorced by talak. 30. Reverting to the reasons of Ormond J. we have no observations to make except on the last two dealing with justice and right. We agree that Section 112 of the Government of India Act of 1915, which has been preserved by Section 223 of the present Act and which directs suits relating to certain matters to be decided according to the law of the Defendant, does not cover a suit relating to marriage. We also agree that there is authority under Clause 19 of the Letters Patent, read with Clause 14 of the Charter, to decide causes according to justice and right, when no specific law is applicable. But it appears to us, as pointed out by Lodge J. in his judgment, that to speak of the Court applying any particular law as a rule of justice and right in a case of the present kind is to betray a confusion of ideas. The Plaintiff is asking for a declaration of an accomplished fact, viz., her marriage stands dissolved. It must, therefore, have already been dissolved before the suit, by the operation of some law, independently of the application of any law by the Court in the suit itself. In order to succeed, the Plaintiff must prove that there was some law in force in India which brought the rule of Mahomedan law to bear upon the marriage and brought about its dissolution, which she asks the Court to recognise and declare. In order to succeed, the Plaintiff must prove that there was some law in force in India which brought the rule of Mahomedan law to bear upon the marriage and brought about its dissolution, which she asks the Court to recognise and declare. There is no question of the Court applying any law of its choice. If she requires that the Court should apply some law and thus admits that, until the Court applies it, it does not apply and the marriage is not dissolved, her suit is really one for dissolution of the marriage and being, brought in the Ordinary Original Civil Jurisdiction, must be dismissed at once. Further, there is no prayer for dissolution. 31. We shall, however, ignore this objection and consider whether it can be just and right to apply the rule of Mahomedan law. We are clearly of opinion that it cannot be. With great respect to Ormond J., he seems to have overlooked that there are two parties to a marriage. He speaks of freedom of religion and the right of a wife, on her conversion, to the privilege of the religion chosen by her. But the husband also has a right to the same freedom and to tell him that he cannot retain his wife unless he-forsakes his religion is to subject him to outrageous treatment. Another argument of the learned Judge is that, on conversion, the converted spouse becomes instantly entitled to the benefits of the Islamic law. But the unconverted spouse also remains entitled to the benefits of the old law under which the marriage may not be dissoluble at all or not dissoluble on conversion of one of the partners. The learned Judge next refers to the supposed position of a Hindu husband on the apostacy of his wife and disposes of him by saying that he is practically left with no marital rights. He overlooks the fact that he is considering a rule of general application and the parties may not have bean Hindus. The rule speaks of any person embracing Islam and if the parties be followers of some other faith which would not subject the husband to the prohibitions enjoined by orthdox Hinduism, the consequences pointed out by the learned Judge would not result and yet the marriage would stand dissolved. The rule speaks of any person embracing Islam and if the parties be followers of some other faith which would not subject the husband to the prohibitions enjoined by orthdox Hinduism, the consequences pointed out by the learned Judge would not result and yet the marriage would stand dissolved. Surely, it was not the learned Judge's intention to hold that the rule applies and should be applied only when a Hindu wife embraces Islam. Even in the case of Hindu, it cannot be assumed that invariably, or even ordinarily, the husband would not and would not be able to, have any dealings with the converted wire except as with a menial servant. It is neither impossible in fact, nor unknown to experience, that a Hindu husband should respect ,the religious convictions of his wife and in spite of her conversion to another faith, love and cherish her as before. Yet, according to the learned Judge it would be just and right to apply the rule to Mahomedan law and hold that the marriage stood dissolved and the parties could not remain man and wife, even if they wished to. It should be remembered that, according to the rule, no act by the wife or decree of the Court is necessary to compass the dissolution. The law laid down by the learned Judge, therefore, involves that, in all cases of conversion to Islam of one of the spouses, even if they originally be followers of a religion under which the conversion causes no embarrassment to the unconverted spouse or even if the parties themselves may continue to regard each other with the same love and respect as before and may be desirous of remaining man and wife, the marriage would automatically be dissolved. Again, even if the parties continue to live happily together, without the converted spouse asking for a declaration from a Court as the Plaintiff before us and without even thinking that the marriage has been dissolved, subsequent issues of the couple will be born out of wedlock and thus be illegitimate. A husband's conversion will have the same effect and make the wife instantly a divorcee. A husband's conversion will have the same effect and make the wife instantly a divorcee. Since the learned Judge also holds that no enquiry into the bona fides of the conversion is relevant or proper, the rule means that any non-Muslim wife or husband, wishing to get rid of the other partner, has only to go through a form of conversion to Islam and if the other partner does not also forsake the old faith for Islam, which almost certainly he or she will not do, the object is accomplished and the marriage will stand dissolved after three months at the highest. To apply a rule which involves such possibilities or leads to such results as a rule of justice and right seems to us to be utterly impossible. 32. In the case of Noor Jehan v. Eugene Tiscenko (supra), Edgley J. held that the rule was opposed to public policy. In the appellate Court see Noor Jehan Begum v. Eugene Tiscenko ILR (1942) 2 Cal. 163 this expression of opinion evoked some criticism from Ameer Ali A. C.J., who observed that what might be good conscience to one, might be bad conscience to another and there being no one personal or territorial law in India, there could be no one public policy. In so observing, the learned Judge, in our opinion, was making a confusion between policy of the law and public policy. He observed further that problems of the present kind could only be solved by applying principles of mutual consideration. As regards such consideration, Mr. Gupta drew our attention to Section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) which reflects the attitude of Muslims towards the same problem as affecting their community and provides that renunciation of Islam by a married Muslim woman or her conversion to another faith shall not by itself operate to dissolve her marriage. In fairness, it should be added that another Act, the Muslim Personal Law (Shariat) Application Act (XXVI of 1937), provides by Section 8 that in all questions relating to marriage and dissolution of marriage, the rule of decision shall be the Muslim Personal Law when the parties are Muslims. It does not say that the Muslim Personal Law shall also apply when one of the parties is a Muslim, as in the present case. 33. It does not say that the Muslim Personal Law shall also apply when one of the parties is a Muslim, as in the present case. 33. It remains only to refer to three other cases decided by this Court. The decision in In the matter of Ram Kumari (supra) undoubtedly proceeds on the assumption that the Hindu marriage of Ram Kumari might be dissolved by the rule of Mahomedan law on her conversion to Islam, but it is only an assumption. The question of the applicability of the rule was neither raised nor discussed and it was unnecessary to do so, since as there was no evidence of material facts, the Petitioner would fail even if the rule applied. Two other cases Chelimutnessa v. Surendra Nath Sen (unreported) decided by Buckland J. and Musst. Ayesha Bibi v. Bireswar Ghosh Mazumdar (1929) 33 C.W.N. Clause xxxix decided by Panekridge J. give no reasons and we do not feel pressed by their authority. 34. In our opinion, the Plaintiff has failed to prove any law by virtue of which the rule of Mahomedan law relied on by her came to apply to her marriage on her conversion and operated to dissolve it. As regards the Court applying the rule in this suit as a rule of justice and right, we think that so to do would be to convert the suit into one for dissolution of the marriage and that, in any event, it will be not only not just and right, but unjust and wrong to apply the rule even if her conversion be bona fide The Plaintiff's prayer for the first declaration must, accordingly, be rejected. 35. The alternative declaration asked for by the Plaintiff is that her so-called marriage with the Defendant is null and void. She contends that although she went through a form of marriage with Defendant, there was no legal marriage at all, inasmuch as at the time of the marriage and all material times thereafter, he was impotent. The first question, therefore, is whether she has proved that fact. 36. In our opinion, on the question of fact, the Plaintiff has established her case. She deposed that the Defendant tried several times and "tried hard" to effect sexual intercourse, but always failed. If she spoke the truth, here was no case of merely a man's frigidity with regard to a particular woman. 36. In our opinion, on the question of fact, the Plaintiff has established her case. She deposed that the Defendant tried several times and "tried hard" to effect sexual intercourse, but always failed. If she spoke the truth, here was no case of merely a man's frigidity with regard to a particular woman. The Plaintiff stated further that, on her part, she never tried to repel the Defendant and indeed her case is that the Defendant's incapacity caused her great mental distress. There was thus no frigidity on her side either. The Plaintiff added that the Defendant's failure to achieve sexual commerce was not due to any malformation of her own body and she offered to submit to a medical examination. She stated further that, although the Defendant placed himself under medical treatment at her request, his condition did not in the least improve and as far as she knew, he was still in that condition. The Defendant has not appeared in the suit, but in view of the importance of the issue, we directed the Plaintiff to have the Defendant examined by a competent medical man, if he agreed to submit to an examination. A specialist was named before us and according to the evidence of Siddheshwar Mandal, the managing clerk of the Plaintiff's solicitors, he and the Plaintiff's father went to the Defendant's house, met him and requested him to call at the doctor's chamber for an examination. The Defendant's reply was that he did not recognise them and would not tell them what he would do or not do. He never appeared before the doctor. We have thus the Plaintiff's evidence before us which the Defendant made no attempt to controvert and further, the fact that he refused to avail himself of the opportunity given to him to prove his physical fitness. In the circumstances, we accept the Plaintiff's evidence as true and hold that at the time of the marriage and all material times thereafter, the Defendant was impotent. 37. The next question is whether the Defendant's impotence rendered the marriage a nullity. The Plaintiff's counsel contended that it did have that effect and in support of his contention, relied almost entirely on the decision of Edgley J. in the case of Satan Moni Debt v. Nagendra Naram Singh ILR (1945) 1 Cal. 497. 37. The next question is whether the Defendant's impotence rendered the marriage a nullity. The Plaintiff's counsel contended that it did have that effect and in support of his contention, relied almost entirely on the decision of Edgley J. in the case of Satan Moni Debt v. Nagendra Naram Singh ILR (1945) 1 Cal. 497. That, it may be observed, is the only decision in which this question has so far been considered. 38. Although the Plaintiff claims to be a Muslim at the present time, there can be no doubt that this question falls to be decided by Hindu law. On the provisions of that law, we had the advantage of listening to an illuminating discourse from Mr. Gupta. His opinion was that under the Hindu law of the books, as it now stood, the marriage was not a nullity, although, a marriage in such circumstances deserved eminently to be declared nullity by legislation. 39. The parties in the present case were governed by the Dayabhaga school of Hindu law. In the case before Edgley J. the parties were Sikhs, professing the Hindu religion and the Dayabhaga does not appear to have been cited. The decision follows the method of enquiring what rule or principle was fairly deducible from the earliest authorities--the smriti texts themselves--and certain text-book writers of the British period. Mr. Gupta pointed that, for all practical purposes, the smritis had been superseded by the nibandhas, that is to say, the texts by the commentaries and it was to the latter that one most primarily look for an authoritative exposition of the law. If a certain text in one of the received treatises had been construed in a certain way in the commentary having dominant authority in the area concerned, that construction must be accepted as final. If a certain rule had been laid down, that rule must be accepted as the law. It was not open to any one to go behind the commentaries and examine for himself whether the construction adopted or the rule laid down was really supported by the texts of the institutional writers. For persons governed by the Dayabhaga school, the supreme authority was Jimutavahana and if his work contained a rule regarding the matter concerned, there could be no further question as to whether the rule was right or wrong and the only question was what it meant. For persons governed by the Dayabhaga school, the supreme authority was Jimutavahana and if his work contained a rule regarding the matter concerned, there could be no further question as to whether the rule was right or wrong and the only question was what it meant. In support of this proposition, now well-established, Mr. Gupta referred us to certain observations of Mookerjee A.C.J. in the Full Bench case of Rajani Nath Das v. Nitai Chandra Dey (1920) ILR 48 Cal. 643, 684 which, we may add, are in their turn based on two decisions of the Privy Council, viz., Collector of Madura v. Mutu Ramalinga Sathupathy (1868) 1 B.L.R. (P.C.) 1 : 12 M.I.A. 397 and Moniram Kolita v. Keri Kolitani (1880) ILR 5 Cal. 776 : L.R. 7 IndAp 115. 40. With regard to the decision of Edgley J., another observation is necessary. The learned Judge has relied largely and strongly on passages quoted from the tenth edition of Mayne's "Hindu "Law and Usage.". Mr. Gupta pointed out that those passages were not to be found either in the seventh and the last edition of the work which Mayne himself prepared or in the eighth and the ninth editions, prepared respectively by Sir Sankaran Nair and Sir Murrary Coutts Trotter. They were introduced for the first time by the editor of the tenth edition, Mr. S. Srinivasa Iyengar and represent only his views. Those views are entitled to respect, but they must not be mistaken to| be Mayne's, nor regarded as carrying his authority. So far as Mayne himself is concerned, his statement of the law, adopted with slight verbal changes by the first two of his editors, was as follows: Section 90. As the great and primary object of marriage is the procuring of male issue, physical capacity is an essential requisite, so long as mere selection of a bridegroom is concerned; but a marriage with a eunuch is not an absolute nullity as it is with us. (See Mayne's Hindu Law and Usage, 7th Ed., p. 108). 41. The verbal changes made by the first editors were that for the words "a eunuch," the words "an impotent male" and for the words "with us," the words "by the English law" were Substituted. 42. No text can be found, dealing directly with the marriage of an impotent male and its validity or otherwise. 41. The verbal changes made by the first editors were that for the words "a eunuch," the words "an impotent male" and for the words "with us," the words "by the English law" were Substituted. 42. No text can be found, dealing directly with the marriage of an impotent male and its validity or otherwise. All that can be found on the negative side are certain passages which deal with the qualifications of a bridegroom and mention lack of manly virility as a disqualification. Besides these, there is a permissive rule, stated more or less in the same terms by certain smriti writers, that in certain contingencies, including the husband's impotence, a wife may take into herself another husband. In the passages on the positive side, the subject comes to be introduced only indirectly. In dealing with ' inheritance, the Manu Samhita first excludes certain classes of persons, including impotents, from any share; then it directs maintenance to be provided for some of them; and lastly it says that if impotent persons "and the rest" should by chance desire to marry, their offspring, if any be born to them, shall be entitled to inherit. This reference to marriage by an impotent person and children born to him has caused commentators to make observations as to what it means and the answer to the present question depends upon whether those observations establish the validity of such marriage or negative it. 43. Edgley J. answered the question in the negative by holding that the tendency of the Hindu jurists was to place impotent persons in the same category as persons who were incapable of performing religious sacraments, such as marriage and that it would not be inconsistent with the general principles of Hindu law to grant a decree of nullity. He followed the line of reasoning adopted in the tenth edition of Mayne and seems to have drawn most of his material from that source. 44. The argument of Mr. Gupta was that the author of the Dayabhaga had expressly stated that an impotent person could validly marry. There was nothing in the other texts mentioned in the tenth edition of Mayne which supported the contrary view and in any event, the authority of the Dayabhaga was binding in Bengal. 45. It will be convenient to deal first with the authorities relied on by Edgley J. and Mr. There was nothing in the other texts mentioned in the tenth edition of Mayne which supported the contrary view and in any event, the authority of the Dayabhaga was binding in Bengal. 45. It will be convenient to deal first with the authorities relied on by Edgley J. and Mr. Das, or mentioned in the tenth edition of Mayne, which have no reference to the verses of Manu referred to above. They fall into two classes, those which deal with, qualifications for marriage and those which deal with the rights of an impotent man's wife. As we do not think that they have much bearing on the question in issue, we shall refrain from quoting the original texts. 46. Of the first class, two authorities were relied on the Narada Smriti, the last of the complete metrical dharmashastra available and Yajnavalkya as interpreted in the Mitakshara. The Narada Smriti, dealing with the qualifications of a man for marriage in Ch. XII, states that he must undergo an examination as to his virility and shall have the maiden only if his virility is proved beyond doubt (verse 8). It goes on to state, using the common, though somewhat indelicate, metaphor to be found in ancient books, that "he who has no seed is unworthy to possess the field" (verse 19); and lastly, that impotency is one of the "faults" of a suitor (verse 37). The Mitakshara, in the course of its comment on verse 52 of Yajnavalkya Smriti, states that the femininity of a bride should be examined, lest a sexless one be chosen, and in commenting on verse 55, states that the masculinity of the bridegroom should be examined with care. These passages clearly have reference to a stage before the marriage and merely state who is a proper bride or bridegroom. (See Jolly, Hindu Law, p. 280). They do not lay down that the marriage of an impotent person, if it in fact takes place, will be void. 47. Of the second class, again, two authorities were cited. Mr. Das referred to a verse of Devala, quoted in Ch. IV, Section II of Colebrooke's Digest of Hindu Law (p. 585), which is a variant of the famous verse of the Parasara Smriti. It states that if (among other things) the husband be impotent, he may be forsaken by his wife. Mr. Das referred to a verse of Devala, quoted in Ch. IV, Section II of Colebrooke's Digest of Hindu Law (p. 585), which is a variant of the famous verse of the Parasara Smriti. It states that if (among other things) the husband be impotent, he may be forsaken by his wife. The point of citing this passage perhaps was that since it was included by Jagannath Tarkapanchanana in his Vivadabhangarnava (of which Colebrooke's Digest is a translation), it must be taken to have been accepted as good law in Bengal in very recent times. But, as pointed out by Mr. Gupta, the scheme of Jagannath's Digest is that it is a repertory of ancient texts on various subjects with regard to which men might litigate and the inclusion of any particular text in the book does not mean that its authority was accepted. With regard to the, particular passage cited, the Digest itself contains the comment that tie texts of Devala "may be argued to concern other ages" (See Colebrooke's Translation, p. 590). Two other texts were referred to, one from Narada Smriti (Ch. XII, verse 97) and the other, the famous verse of Parasara, which are to the same effect as Devala's verse, except that instead of saying that the wife may forsake her husband, It is said that she may take another husband or that another husband is ordained. With regard to these verses, it is enough to say that, even if they authorise remarriage, they do not lay down that the first marriage was ab initio void. 48. We may now take up the verses of Manu, wherein only is to be found some reference to the present subject, although in an incidental way. They are verses 201, 202 and 203, occurring in Ch. IX and read as follows: 49. Below are set out translations of the first and the third verses, given by Colebrooke and that of the second, as given by Max Muller. Impotent persons and outcastes are excluded from a share of the heritage; and so are persons born blind and deaf; as well as mad men, idiots, the dumb and those who have lost a sense (or a limb)(201). (See J.C. Ghose's Principles of Hindu Law, First Ed., Vol. Impotent persons and outcastes are excluded from a share of the heritage; and so are persons born blind and deaf; as well as mad men, idiots, the dumb and those who have lost a sense (or a limb)(201). (See J.C. Ghose's Principles of Hindu Law, First Ed., Vol. II, p. 832.) But it is just that a man who knows (the law) should give even to all of them food and raiment without stint, according to his ability; he who gives it not will become an outcaste. (202). (See Sacred Books of the East Series, Vol. XXV, p. 373.) If the eunuch and the rest should at any time desire to marry, the offspring of such as have issue, shall be capable of inheriting. (203) (See Ghose's Principles of Hindu Law, Vol. II, p. 835.) 50. The really important verse is the third and the first and the second are relevant only as showing the context in which Manu came to refer to marriages of impotent persons. It will be noticed that he was not dealing with marriage at all, but with inheritance and the third verse is important only as containing an assumption that an impotent person could marry. The real subject-matter of the verse is a provision for inheritance by the children of persons such as eunuchs who are themselves excluded from inheritance. 51. This verse has naturally raised a question as to its true meaning. Assuming an impotent person could marry, how could he have children? 52. It is stated in the tenth edition of Mayne and the statement was accepted by Edgley J., that in explaining this verse, certain commentators had laid it down that an impotent person could not-marry. Edgley J. did not mention all the commentators referred to by Mayne's editor, but they are Kulluka, Medhatithi and Sarvajna Narayana. 53. As far as we can see, neither of these commentators says that an impotent person cannot contract a valid marriage. All that Kulluka, in his characteristically terse way, says is that marriages on the part of impotent persons "and the rest" are improper Sarvajna Narayana's comment is hardly of any use, because he takes Manu's verse as referring to marriage before impotency This view creates an obvious difficulty, because the original verse speaks for a eunuch's longing for a wife, which presupposes that the disability in anti-nuptial. The difficulty is met by Medhatithi by saying that "longing for a wife'' in the original text means only "desire for sexual intercourse" which may occur also in a married man. Medhatithi's own comment speaks in several voices. It first says that a married eunuch may have a "soil-born" son, thus supporting marriage. Then it says that the verse may be taken as referring only to marriage prompted by lust, for impotent persons and others classed with them, being disqualified for performing religious rites, cannot contract a religious marriage. Again he says that the older writers have taken the verse as limited only to purely religious marriages (See Manu Smriti, Ganga Nath Jha's Translation, Vol. V., p. 167.) No particular view is clearly expressed. In our opinion, the view expressed in the tenth edition of Mayne, on the supposed authority of these commentators, is in no way justified. 54. We may now pass on to Jimutavahana whose word is law in Bengal. His comment on Manu's verse is the following: 55. Colebrooke's translation of the passage is as follows: A possibility exists of an impotent man and the rest as above enumerated espousing wives. It must not be objected, how can they contract marriages, since the eunuch, not being male, is incapable of procreation and the dumb man and the rest (or those born deaf and blind) are degraded for want of initiation and investiture, because they are unfit for (the preparatory) study? The eunuch may obtain issue from his wife by means of another man and a person unfit for investiture with the sacerdotal string is not degraded from his tribe for want of that initiation, any more than a sudra. Therefore, the sons of such persons, being either their natural offspring or issue raised up by the wife, as the case may be, are entitled, provided they are free from similar defects, to take their allotments according to the pretentions of their fathers. (Dayabhaga, Ch. V., paras. 17-18 : (See Ghose's Hindu Law, First Ed., pp. 835-36). 56. It is to be noticed that Jimutavahana explains the possibility of an impotent person marrying and having children by saying that he may obtain issue from his wife by another man. (Dayabhaga, Ch. V., paras. 17-18 : (See Ghose's Hindu Law, First Ed., pp. 835-36). 56. It is to be noticed that Jimutavahana explains the possibility of an impotent person marrying and having children by saying that he may obtain issue from his wife by another man. The reference is to the system of niyoga or the appointment, to the wife, of another man for the purpose of raising progeny by him, which was undoubtedly in vogue at one time, but came to be condemned even at the time of Manu, at least for twice-born classes. At the time of Jimutavahana it was surely obsolete. But the fact remains that Jimutavahana still refers to the practice as explaining and justifying the marriage of an impotent person. 57. It is interesting to notice that the Mitakshard, though not very clear on the matter, appears to explain the birth of children to impotent persons in the same way. It takes the verse of Manu as contemplating two classes of offspring, viz., "legitimate" and "issue of the wife," and proceeds to observe as follows: Of these (two descriptions of offspring), the impotent man may hare that termed issue of the wife; the rest may have legitimate progeny likewise. (Mitakshara: Ch. II, Section X, 11, Coolebrooke's translation. See Ghose's Hindu Law, First Ed., p. 180.) 58. It would, therefore, seem that the existence of the niyoga system and the possibility of impotent men contracting marriages are inter-dependent. This view was expressed by Sir Gooroodaa Banerjee in his well-known work, "The Hindu Law of Marriage "and Stridhan," where the following passage occurs: Impotency, which is generally considered a disqualification for marriage, is not viewed in that light in the Hindu law, as will appear from the passages of Manu and the Dayabhaga already quoted. This is because impotency did not formerly render marriage absolutely fruitless, as the impotent could appoint kinsmen to beget issue on their wives. This vicarious mode of fulfilling one of the primary objects of matrimony, being, however, interdicted in the Kali or present age, it is doubtful whether impotency ought not now to be regarded as a disqualifying cause. (See p. 40.) 59. Mr. Gupta contended that Sir Gooroodas Banerjee had overlooked the first sentence in the commentary of Jimutavahana where it was stated in unqualified terms that an impotent person could validly marry. (See p. 40.) 59. Mr. Gupta contended that Sir Gooroodas Banerjee had overlooked the first sentence in the commentary of Jimutavahana where it was stated in unqualified terms that an impotent person could validly marry. The subsequent reference to the niyoga system was only an illustration of the habit of commentators to give some reason for every proposition they stated and did not in any way detract from the absolute character of the rule laid down. Mr. Gupta referred to another commentator, Mitra Misra, the author of Viramitrodaya and generally a defender of the Mitdk-shard against Dayabhaga. In commenting on the same verse of Manu, he does not refer at all to the difficulty about an impotent person having children, but merely deals with the objection that an impotent person, being "degraded for want of investiture with "the sacred thread" is disqualified for marriage. He, it seems, does not regard the raising of issue by niyoga as having any bearing on an impotent person's fitness for marriage. (See Sarkar's translation of the Viramitrodaya, p. 255.) Mr. Gupta, accordingly, contended that, under the verse of Manu, as interpreted by Jimutavahana the right of an impotent person to contract a valid marriage could and did stand by itself and did not require the support of the reason. 60. The position, as we see it, is this. There is no institutional text or commentary which says that a marriage by an impotent person, if contracted, would be void, though impotence is declared by some to be a disqualification. On the other hand, the verse of Manu pre-supposes marriage, but at the same time links marriage with the birth of issue, to provide inheritance for whom is the ultimate objective of the verse. Commenting on this verse, Jimutavahana, who is the supreme authority for Bengal, first states in general terms that impotent persons can marry, but immediately raises the objection that they cannot beget children and then meets it by saying that they can obtain children out of the wife by means of another man. What is the net result of this statement of the law? 61. As Mr. What is the net result of this statement of the law? 61. As Mr. Gupta himself pointed out, the question is, was Jimutavahana, in the first sentence of his comment, stating a crystallized rule of law which had grown to be independent of any reason or was he stating a rule which required support from the reason given and could exist only so long as the reason existed? The principles which apply to a consideration of a question of this kind have been dealt with elaborately by the House of Lords in the case of Rodriguez v. Speyer Brothers (1919) A.C. 59. For himself, Mr. Gupta was inclined to think that the correct answer to the question in the present case was that the rule was a crystallized rule. 62. We have given our long and anxious consideration to this matter and have reached the conclusion that, having regard to the primary subject-matter of Harm's Verse and the structure of Jimutavahana's comment, it must be held that the first sentence in the comment does not stand by itself, but must be read along with the reason given in its support It is impossible to disregard the fact that the whole object of Manu's verse is to provide for inheritance by the children of impotents and other persons under a disability and the marriage referred to in the verse cannot be dissociated from propagation of children. It is to explain the coming into existence of children, for whom an inheritance is being provided, that marriage is introduced as its means and basis. Jimutavahana himself does not dissociate one from the other, but mentions the two together and logically enough, while laying down the rule of marriage in the case of impotents, adds a reference to the niyoga system as the justifying reason. If we may say so without presumptuousness, commentators who took the marriage referred to by Manu as a mere religious marriage and thus in no way dependent on the possibility of progeny, forgot that Manu was dealing with the subject of inheritance by children of such marriages and in doing so, could have no reason to think or speak of fruitless unions. In our opinion, the key to the meaning of both the verse of Manu and the commentary of Jimutavahana is to be found in the fact that the topic in connection with which the subject of marriage is introduced by both is inheritance by the issue of the marriage. A marriage without the possibility of issue is not in the contemplation of either the author or the commentator. It follows that what Jimutavahana intended to say and what his commentary means is that there can be a marriage of impotent persons, because they can beget issue by another person and accordingly, it must be held that when issue can no longer be begotten by that method, there can no longer be a marriage of an impotent person under the authority of Jimutavahana. We may add that this view of Jimutavahana's text is not only in accordance with the implications of the subject he was dealing with, but also with an old rule of interpretation, known to Students of the mimansa rules, that a text supported by an assignment of reason is not to be read as embodying an absolute injunction. 63. It may, however, be contended that Jimutavahana could not have referred to the niyoga system as a reason justifying his rule, because in his time the system was already obsolete. That argument would cut both ways. There can be no doubt that as a matter of language, he was mentioning the possibility of begetting issue by means of another person as an answer to the objection that an impotent person could not beget issues. If the possibility was not real, why was he mentioning it at all? The answer then must be that he was only explaining Manu's verse by reference to conditions obtaining in Manu's time and his propositions have no contemporary application at all This argument would not, therefore, assist the contrary view. 64. Though it is not very relevant, we may point out that the principle that mere going through the rites of marriage does not necessarily bring about a valid union under the Hindu law and that the capacity of the parties may be a relevant factor was recognised by the Privy Council in the case of Mouji Lal v. Chandrabati Kumari (1911) ILR 38 Cal. 700 : ILR 38 IndAp 122. 700 : ILR 38 IndAp 122. In the verses of Manu as also in the Dayabhaga, insane persons are placed in the same class with impotents. Their Lordships held, or at least assumed, that the qxiestion of the invalidity of a Hindu marriage on the ground of insanity was a question of degree. 65. In our opinion, the Hindu law-givers, who regarded impotence as a disqualification for marriage, permitted marriage by impotent persons only because the defect caused by their physical disability could be made good by recourse to the niyoga system and thereby borrowing the potency of another for the procreation of children. Jimutavahana's statement of the law follows the same lines and naturally, since he himself was referring to the marriage of impotent persons in connection with providing a share for their sons. Under the law so stated, there can be no valid marriage when the niyoga system has disappeared and means for fulfillment of the marriage in one vital respect can no longer be supplied. 66. For the reasons given above, we are of opinion that the Plaintiff's marriage with the Defendant was void by reason of the Defendant's impotence. We may add that we are glad to be able to reach this conclusion, because it is obviously consonant with natural justice. This suit is, accordingly, decreed in part and it is declared that the Plaintiff's marriage with the Defendant was and is null and void. 67. As there has been no appearance on behalf of the Defendant, there will be no order for costs. Ellis, J. 68. I agree.