Case – Swaraj Garg v. K.M. Garg, 1978
Fact – The wife, Swaraj, was working as a teacher at Sunam, District Sangrur, from 1956 and was the Headmistress of Government High School. The parties were married on 12th July, 1964 at Sunam. The husband was abroad for some years and though he seems to be well qualified he did not get a satisfactory job in India. He was employed in M/s. Hastinapur Metals from Sept.,
1966 to Sept., 1967 at Rs 500/- p.m. without any allowances and from 14th Sept., 1967 by Master Sathe and Kothari at Rs 600/- p.m. without any other allowances.
Before the marriage or at any time after the marriage the parties did not discuss, much less come to any agreement, as to where their matrimonial home should be after the marriage. Therefore, even after the marriage the wife continued to live at Sunam and the husband at Delhi. The wife came to Delhi to live with her husband from 12th July 1964 to 28th August 1964 and then went back to Sunam on 2nd Feb. 1965 but did not return to Delhi thereafter.
The husband filed a petition for the restitution of conjugal rights against the wife on the ground that she had withdrawn herself from the society of the husband without reasonable excuse within the meaning of S. 9 of the Hindu Marriage Act, 1955 (‘the Act’).
The wife further pleaded that it was the husband who treated her badly. All through he was bent upon taking out the maximum amount of money from her and her parents. The reason why she could not join the husband was the cruelty meted out to her by the husband.
Issue – When the husband and the wife are both gainfully employed at two different places from before their marriage, where will be the matrimonial home after the marriage?
Contentions and Judgement :
- It would appear that there is no warrant in Hindu law to regard the Hindu wife as having no say in choosing the place of matrimonial home. Art. 14 of the Constitution guarantees equality before law and equal protection of the law to the husband and the wife. Any law which would give the exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife would be contrary to Art 14 and unconstitutional for that reason.
- It is true that under the Hindu law, it is the duty of the husband to maintain his wife, but the wife is not under a corresponding duty to maintain her husband. This also is due to the fact that normally the husband is the wage earner. If, however, the wife also has her own income it will be taken into account and if her income is sufficient to maintain herself the husband will not be required to pay her any maintenance at all.
- If, as in this case, the wife earns better than the husband, firstly she will not expect to be maintained by the husband and secondly, it will not be a matter of course for her to resign her job and come to live with her husband. Some kind of agreement and give and take is necessary.
- There is no absolute rule whereby either party is entitled to dictate to the other where the matrimonial home shall be, the matter is to be settled by agreement between the parties, by a process of give and take, and by reasonable accommodation.
- Due to the financial difficulties of the husband and comfortable position of the wife and also due to the discouraging conduct of the husband towards the wife, we are of the view that the wife had a reasonable excuse for not resigning her job and for not coming to live with the husband at Delhi.
- The question of the wife withdrawing herself from the society of the husband did not arise at all because the husband and the wife had not been able to decide where the matrimonial home should be set up. The fault, if any, for the lack of any agreement between them on this point was not of the wife and may be said to be of the husband.
- We, therefore, hold that the husband has failed to prove the grounds for awarding him restitution of conjugal rights.
