RESTITUTION OF CONJUGAL

RIGHTS

The Concept of Matrimonial Home

Problem of Matrimonial Home

Traditional View Modern View

Kailash Wati v. Swaraj Garg v. K.M.
Ayodhia Prakash Garg
1971 CLJ 109 (P& H) AIR 1978 Del 296
Kailash Wati v. Ayodhia Prakash

The Basic Question:

Does the Hindu Marriage Law countenance or
sanctify the concept of (what may be
conveniently called) a weekend marriage as of
right at the unilateral desire of the wife?
 The finding of the court
The obligation of the wife to live with her husband
in his home and under his roof is clear and
unequivocal.
It is only in case of some distinct and specified
marital misconduct on the part of the husband and
not otherwise, that Hindu law entitles the wife to live
separately and claim maintenance there for.
Obligation to live with the H is therefore inherent
and cannot be torn unilaterally by the wife.
The idea of MH appears to lie at the very center of
the concept of Marriage.
 The finding of the court
Charting out possible situations

W already in service H encourages/allows W

at the time of marriage

W unilaterally takes up job against the wishes of

the H
Swaraj Garg v. K.M. Garg
The Basic Question:
When the husband and the wife are gainfully
employed at two different places from before
their marriage, where will be the matrimonial
home after the marriage?
 THE BASIC FACTS AT THE
TIME OF MARRIAGE
The wife working as a teacher in District: 1
Her father also stays in District: 1
The husband works in Delhi (District: 2)
The father of the husband lives in a village
(District:3)
THE SILENCE & IMPLICATION

Before or at the time of marriage the parties did

not discuss as to where the matrimonial home
(MH) would be after marriage.

W continued to stay in District:1 and H in

District: 2 after marriage.

The H files for RCR.

Main contentions between the
Parties
HUSBANDS PETITION WIFES RESPONSE

Felt the separation Feeling for parents

from her parents. nothing unnatural
Problem with F-I-L F-I-L lived in District:
staying with him. 3
Parents of the W lived
off her income. His dowry demands
met by my parents
The W was abusive,
short tempered & Denied other
quarrelsome. allegations
 The hierarchy

Letters Before the full bench High Court

Patent
Appeal

High Court The High Court Allowed the

Appeal

Trial Court Dismissed the petition for RCR

 Appreciating the Evidence
I quite agree you went there (D:1)with my
permission, I too requested you in my letters you
leave the bloody service because I am facing
unbearable difficulties. I could have tolerated
these difficulties if the promotion you are
worried for is to be maintained forever. I may
tell you in case you did not know that you will
not be allowed to do service after the first
delivery
- Letter from the H to the W
 The Letter continues
First of all you are not sure whether you
can get promotion before April, secondly I am
not sure whether I would succeed posting in
Punjab in or after April. Then you know you
are going to leave service in a year. If my salary
wouldnt be sufficient we can starve, at least
will be happy together, than miles away at the
cost of our comfort and enjoyments

-Letter dated 24th September, 1965

 Another Letter
If you are under the impression that your
safe deposit of what you have earned and what
your father gave you, on Sandhara, would be
yours, you are highly mistaken. If you come to
stay with me as my wife, your all belongings are
mine.
Letter from H to W
 Letter continues
You will not be able to move even a step
without my permission. If I want I can starve
you for days and keep you thirsty for months. By
the way of your arrival, you have to give me the
account for your earnings, + cash you got from
me, + what your father gave you on Sandhara-
the expenditure.all the money you earn or
given to you from other sources, will be mine
Dated: Sept: 15, 1964
 Quote & Disagree
Para 442, Mullas Hindu Law, 14th Edition:
(1) The wife is bound to live with her H and to

submit herself to his authority.

(2) The H is bound to live with his W and to
maintain her.
Disagreement expressed by the Court:

This statement of law should not mean

whatever the circumstances, it is always the W
who must resign her job.
 Quote & Disagree
The un-codified Hindu Law is based on
Dharmashastras and Customs.
Dharmashastras prescribed righteousness-
reflected the need of law as it ought to be.
The right to set-up matrimonial home to the H
alone is found in the customs.
This reflected the conditions of the age in which
the customs were practiced.
 Quote & Disagree
The process of custom becoming law is well-
known: i.e.: it must be ancient, certain and
enforceable.
The last requirement must be supported by
opinio necessitatis.
The decisions quoted in Mulla are of 1898 and
1901- a quarter century back!!
The societal conditions have greatly altered.
 Custom & the Law
A proposition of law may be rejected because it
is either an incorrect formulation or even though
correct, it is not applicable in the instant case.
The same goes with the custom thereby
rendering it open for rejection.
Therefore, no such custom exists.
Even if it does, it can now be rejected as
opposed to public policy.
The touchstone of Constitutionality

Art. 14 of the Constitution guarantees equality

before law.
Although the H has duty to maintain the W and
not vice-versa.
But these days her financial condition and
income is taken into consideration.
The domicile of the wife is the same as that of
the H. But this has no bearing on MH.
Therefore, decision on MH should be taken on
balance of circumstances.
 The findings of the Court
There is financial difficulty of the H and a
comfortable position of the W.
The H has a discouraging conduct towards the
W, making the scenario frightening for her.
He has also not established a proper MH.
Therefore, the W has a reasonable excuse for
not resigning from the job.
 -Decision-
Considering the overall scenario, she cannot be
compelled to resign her job.
His petition for RCR does not stand.
 The Outcome of the Case
1) Where the W takes up employment with the
consent of the H, whether due to need or
greed, the separate living of the W is not a
withdrawal without a reasonable excuse.
2) If a W takes up employment w/out the consent
of the H or w/out any fear of losing
maintenance from him, but because it is noble
social cause, then also she can claim reasonable
excuse.
 The Outcome of the Case
3) The H not employed but the W is and both live at
separate places- amounts to reasonable excuse for the W.
4) Both H & W are well employed and the H is earnestly
willing to maintain the W at his place and is insisting that
she resign her job- the emotive issue of equality of sexes
come inbut nonetheless, Hs say would have some
weight. Hs casting vote is only a tie-breaker*.
5) The W in none of the cases should prevent the H from
visiting her at reasonable times, if she does that it will
amount to withdrawal without reasonable excuse.
 - An important remark by the
court -
Since the relief could not be granted, the
position of the H would be frustrating.
The feeling of unsuccessful litigants in
matrimonial causes would be similar.
Where there is a breakdown of marriage*, this in
itself should be a cause for which divorce should
be available under law.
It would be immaterial to enquire which of the
two parties is at fault.
 (3) Truthfulness of statements
in petition
The court has to ascertain the truthfulness of
the statement.
Bejoy Daw v. Aloka Daw, AIR 1969 Cal 477
There should be bona fide intention
 (4) Absence of other legal bars

The parties should not take advantage of his

own wrong or disability. Sec. 23(1) (a).
There should not be an ulterior motive like
seeking divorce under Sec. 13 (1-A)(ii).
****
Enforcement/Execution of Sec 9

Connection between
Sec. 9, HMA
Sec. 13 (1-A) (ii), HMA
Sec. 23, HMA
Order 21 Rules 32 and 33 of the CPC
 Burden of Proof
Before 1976:
The BoP was on the petitioner to establish that
the respondent withdrew from the society
without reasonable excuse.
After 1976: (Based on 59th LCI Report)
The BoP is on the withdrawing spouse to
establish the reasonability of the withdrawal.