Case – Kailash Wati v Ajodhia Parkash, 1977
Fact – Does the Hindu Marriage Law countenance or sanctify the concept of a weekend marriage as of right at the unilateral desire of the wife, is the rather interesting and significant question which falls for determination by this Full Bench.
The appellant Smt. Kailash Wati was married to the respondent Ajodhia Parkash on the 29th June, 1964, and at that time both of them were employed at village level teachers.
The allegation of the respondent-husband which is well borne out from the record is that the appellant maneuvered to get herself transferred again to village Bilga and virtually ever since has been residing there with her parents against his wishes.
Ajodhia Parkash respondent, therefore, filed an application for the restitution of conjugal rights under section 9 of the Hindu Marriage Act (the Act) on the 4th of November 1971.
In her written statement the appellant took up the plea that she had never refused to honour her matrimonial obligations but was firm in her stand that in the existing situation she would not revert to the matrimonial home. It was categorically stated that she was not prepared to resign her job and to return to the conjugal home despite the insistence of the respondent.
The Trial Court decreed the suit of the husband respondent on the 5th of February, 1973.
On an appeal preferred by the wife the learned Single Judge upheld the findings and the decree of the trial court.
Issue – Whether the relief of conjugal rights could be declined to a husband on any other ground except those envisaged in the then unamended section 9 of the Hindu Marriage Act?
Whether a wife, who was gainfully employed at a place away from her matrimonial home, would be justified in law to refuse to leave her job and join her husband to live in the matrimonial home despite the insistent demand of the husband to do so?
Contentions and Judgement:
- Under Hindu law, the obligation of the wife to live with her husband in his home and under his roof and protection is clear and unequivocal. It is only in the 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 therefore. This marital obligation has been further buttressed by clear statutory recognition by section 9 of the Hindu Marriage Act.
- Again, under Hindu Law, it is more than amply clear that the husband is entitled to determine the locus of the matrimonial home. Indeed, the obligation here is on the part of the wife to remain with him and under his roof. It deserves repetition that this legal obligation on the part of the wife is not without its co-related right.
- Where both of them cannot even mutually agree upon sometime so basic as either living apart (may be for reasons of the wife’s employment) or even upon a common place to live together, then it is plain that the marriage has reached dangerously near that precipice which, in legal terminology, has been summarized as that it has irretrievably and irrevocably broken down. In such a situation it is obviously in the interest of the both that they should clearly and determinedly make their choice and decide to part and go their individual ways rather than be condemned by the law to live together unhappily ever afterwards.
- A unilateral withdrawal from the society of her husband in the present situation cannot possibly be deemed a reasonable excuse so as to come within the ambit of the definition provided under section 9 of the Hindu Marriage Act.
- As was said earlier an act contrary to a legal obligation obviously cannot be deemed reasonable for the purpose of this provision. The respondent husband her has waited patiently in the wings for the best part of his life and it would perhapsbe bordering on the cruel to require him to keep on waiting endlessly in suspense. The appeal is without merit and is hereby dismissed.
- It is held that where a wife, against the wishes of her husband, accepts employment away from the matrimonial home and unilaterally withdraws therefrom, she would be violating the mutual obligation of husband and wife to live together.
- Consortium implies sharing the common matrimonial home and common domestic life, and at one time it was insisted upon that the matrimonial home is-the one which is established by the husband, and the wife must live in it.
