RABUTTY 26th of October, 1854, but no further proceedings had 1856. been taken since that time by the Appellant. A cer- SREEMUTTY tificate of the Registrar of the Supreme Court certifying that no steps had been taken since the date of the order granting the appeal was filed. Mr. R. Palmer, Q. C. (with whom was Mr. Leith), in support of the motion, Insisted, that as a year and a day had elapsed, the appeal must be taken to have abated.-[Mr. Pemberton Leigh: Have we jurisdiction? There has been no petition of appeal presented, and no reference of the appeal to us.]-The Supreme Court considers itself functus officio, after leave to appeal to England has been granted. The Right Hon. Dr. LUSHINGTON : Their Lordships would have felt very great difficulty in this application if this petition had not been referred to us, but as it has been referred, we are of opinion that we can dismiss the appeal for want of prosecu-. tion, which we hereby order. U. RADANAUTH ARDASEER CURSETJEE PEROZEBOYE Appellant, AND Respondent.* 12th & 14th On appeal from the Supreme Court at Bombay. IN this case the appeal was brought from a judgment April, 1856. of the Supreme Court at Bombay, which overruled a protest entered by the Appellant against the compe The Bombay Courtfull power and Charter of tency of that Court to entertain a suit instituted Justice (Dec. 1823) gives against him by the Respondent, his wife, for restitution. the Supreme of conjugal rights. The Appellant and Respondent were Parsees, and natives of the Island of Bombay. On the 7th November, 1853, the Respondent filed a libel against the Appellant on the Ecclesiastical throughout Side of the Supreme Court of Bombay, pleading, first, that in the month of May, 1830, a marriage according to the laws and uses among Parsees, and agreeably authority to administer and execute, within and the town and Island of Bombay, and the limits thereof, and the factories subordinate thereto, &c., upon all persons so described and distinguished * Present Members of the Judicial Committee,-The Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, and the Right Hon. Sir Edward Ryan. Assessor, Sir Lawrence Peel. by the appellation of British subjects, as aforesaid, there residing, the Ecclesiastical law, as the same is now used and exercised in the Diocese of London, in Great Britain, so far as the circumstances and occasion of the said town, island, territories, and people shall admit and require." Suit on the Ecclesiastical side of the Supreme Court at Bombay by wife against husband for restitution of conjugal rights and for maintenance. Protest by the husband, that the parties were Parsees professing the religion of that sect, and that the Court had no jurisdiction to administer towards them the Ecclesiastical law as at the date of the Charter was used and exercised in the Diocese of London. Upon appeal, Held (reversing the judgment of the Court below, and maintaining 1856. 1. to the rites and ceremonies of the Parsecs' religion, was duly had and solemnised between the Respondent ARDASEER and the Appellant, the Respondent being a daughter CURSETJEE of the late Framjee Cowasjee Banajee of Bombay, PEROZEBOYE Parsee merchant and inhabitant, deceased, and the Appellant being a son of Cursetjee Ardaseer, late of Bombay, Parsee merchant and inhabitant, deceased. Secondly, that after the celebration of the marriage, the Respondent, by reason of her tender years, continued to live and reside with and under the protection. of her father, and separate and apart from her husband, until the month of February, 1833, when the Respondent, having attained her age of puberty, quitted her father's roof, and she and her husband then came together, and the marriage was then consummated between them. Thirdly, that some time in the course of the year 1835, the Respondent paid a visit to her father, with the consent and approbation of her husband, and while on such visit was taken seriously ill, when she was visited by her husband, and was treated by him with conjugal kindness, and that, on her recovery from her illness, she returned to the house of her husband, and was received and treated by him then as his lawful wife; but that after a short residence and cohabitation with him, the Respondent, with the consent of her husband, paid another visit to her father, with the intention of returning to her husband when requested by him so to do, the protest) that the Supreme Court of Bombay, on its Ecclesiastical side, had no jurisdiction to entertain such a suit, as there existed such a difference between the duties and obligations of a matrimonial union among Parsees from that of Christians, that the Court, if it made a decree, had no means of enforcing it, except according to the principles governing the matrimonial law in Doctors' Commons, which were in such a case incompatible with the laws and customs of Parsees. Quare: Whether, in such circumstances, the Supreme Court can, on its civil side, give relief to the wife? 1856. and that the Appellant, while his wife was on such lastARDASEER mentioned visit to her father, having neglected to inCURSETJEE vite her back to his house for a considerable period of PEROZEBOYE time, and the Respondent being desirous of returning υ. to her husband, her father requested him to send for his wife, which he refused or neglected to do; that subsequently, the Respondent, through her relations and friends, applied to her husband to the like effect, and that especially her father, on the 3rd of July, 1843, wrote to the Appellant's father a letter in which he desired and requested him to endeavour to induce the Appellant to receive back his wife, but that he refused to comply with his request, and the Respondent, on the 3rd of July, 1843, proceeded to the house of her husband, but after a short stay there was obliged to quit it from his violent conduct and demeanour towards her, he refusing to permit her to remain in his house and forcibly expelling her from the same. Fourth, that the Respondent, during the lifetime and up to the time of the death of her father, continued to live in his house in consequence of the continued refusal of her husband to take her back and maintain her, and was maintained and supported by and at the expense of her father. Fifth, that since the death of her father, which took place on the 12th of February, 1851, the Appellant had refused to receive the Respondent, or to allow her any maintenance, and that she had been obliged to support and supply herself with the necessaries of life, by the sale from time to time of her jewels and furniture, and by the occasional assistance of her friends, and had frequently been in great distress for want of money to pay her monthly bills for rent and the other necessaries of life, and had been obliged 1856. CURSETJEE υ. to contract debts on such account to a large amount, and was, and had been for some time past, in very ARDASEER needy and destitute circumstances, and without the means of providing herself with the necessaries of life. PEROZEBOYE Sixth, that since the death of her father, the Appellant, though he had never been divorced from the Respondent, went through the form and ceremony of a second marriage with one Bhiccoyjee, a daughter of one Dorabjee Dadabhoy, of Bombay, Parsee inhabitant, and had for some years past been and was then living with her as man and wife, and had had several children by her, and had repudiated the Respondent, his lawful wife, without any just cause; and the libel prayed that the Respondent's husband might be ordered to take back his wife, and treat her with conjugal kindness, or, if the Appellant should not consent, to pay her Rs. 1,000 per month for the period of her natural life, or a suitable maintenance for her, together with the arrears of such maintenance from the 3rd of July, 1843; then that an account might be taken, under the directions of the Court, of the Appellant's property, movable and immovable, as well as that embarked in his trade or business, together with the profits thereof, and that such suitable maintenance might be made to the Respondent thereout, as the Court should, under all the circumstances of the case, declare the Respondent, as the lawful wife of the Appellant, to be entitled to. The Appellant filed a protest against the competency of the Court to entertain the suit, alleging that the Respondent and the Appellant were respectively born in the Island of Bombay, and were Parsees, professing the religion of Zoroaster, commonly called the Parsee religion, and were respectively descended from |