Swaraj Garg V/S K.M. Garg - Air 1978 Delhi 296
Decided On 7 March 1978
Head Notes
Section 9 - Hindu Marriage Act, 1955 - Restitution of Conjugal Rights - husband
and wife lived separately for living - cruelty by husband against his wife -
better financial position of wife - Held, the decree of restitution of conjugal
rights cannot be granted - Appeal Allowed.
Abstract
In the instant case, the wife was serving as the school principal in Punjab,
India. She was a teacher for some time before to being married. Even though he
possessed extensive credentials, the spouse was unable to get a career that
fulfilled him or even buy a home. The decision of where to establish a marital
house was not discussed by the couples before or after the wedding. Even after
they were married, the wife never settled in Delhi permanently. Instead, she
returned to her position twice for brief visits.
The husband in question urged the wife to quit her position, but she refused.
The husband has petitioned for Restitution of Conjugal Rights against the wife
on the grounds that she has abandoned him without good reason. In this instance,
the question of where the marital house should be located after marriage arose
since the husband and wife both had successful careers before to getting
married.
The court ordered the husband and wife to make their own decisions about where
to set up their marital home for their own mutual convenience and benefit. The
bench referred to the case of
Dunn v. Dunn[1], in which Lord Denning appositely
remarked that "It is not preposition of law. It is simply a proposition of
ordinary good seems arising from the fact that the husband is usually the wage
earner and has to live near his work It is not a proposition which applies to
all cases".
The verdict was pronounced in favor of the Respondent-Wife. The
husband's actions were clearly intended to scare his wife away from coming with
him. The spouse has not provided sufficient evidence to support his claim for
restoration of his marital privileges.
Primary Details
Forum / Court |
Hon'ble High Court of Delhi |
Jurisdiction |
Appellate Jurisdiction |
Equivalent Citations |
AIR 1978 Delhi 296, 14 (1978) DLT 18 b, 1978 RLR 525 |
Presiding Members of the Bench |
V. Deshpande, J. & H Anand, J. |
Bench Type |
Division Bench |
Provisions Concerned |
Sec. 9 of Hindu Marriage Act, 1955 |
Date of Pronouncement of Judgement |
March 7, 1978 |
Counsel on behalf of Petitioner |
Advocate Mr. R. Ir Makhija |
Counsel on behalf of Respondent |
"Intelligible Differentia" which means 'Reasonable
Differentiation" |
Maxims / Foreign Phrases used |
|
Author |
|
Author's Institution |
|
Factual Background Of The Case
Swaraj, the wife, testified that she had been a teacher in Sunam, District
Sangrur, since 1956. The marriage ceremony took place at Sunam on July 12, 1964.
The Husband spent a number of years away from India but was unable to find work
that met his needs, despite his apparent qualifications. From September 1966 to
September 1967, he worked for M/s. Hastinapur Metals, earning Rs. 50/- a month
in base pay, and then on September 14 of that year, he was hired by 'Master Sa
the & Kothari, earning Rs. 600/- month in base pay.
Husband's parents were
farmers in the village of Lehra, while wife's father was petition writer in
Sunam. Unfortunately, the spouse does not own any real estate in Delhi. The
future location of the couple's marital residence was never discussed by the
parties before or after the wedding, and they never settled on a location.
Therefore, the woman stayed in Sunam. while the husband moved to Delhi. As of
the 28th of August, 1964, the wife had been in Delhi with her husband since the
12th of July, 1964. Afterward, she returned to Sunam. She returned to live with
her husband in Delhi in October 1964, stayed until February 1, 1965, and then
returned to Sunam the following day.
In accordance with Section 9 of the Hindu Marriage Act, 1955[2], the husband
petitioned the court for the restoration of his conjugal rights after claiming
that his wife had abandoned him without just cause. The petition was dismissed
by the trial Court but was allowed in appeal by a learned single Judge of the
Hon'ble Court. Hence, this Letters Patent Appeal was heard.
Issues Raised:
- 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?
- Whether "cruelty by husband" falls within the purview of "reasonable
excuse" u/s 9 of the Hindu Marriage Act, 1955?
Petitioner's Arguments
The learned counsel for the petitioner-husband and the petitioner-in-person were
heard by the court. The petitioner argued that the root reasons for his wife's
estrangement from him stating that the wife's parents wanted to live off her
income and urged her to move back in with them; the wife was abusive,
short-tempered, and quarrelsome; the wife believed she was incapable of leading
a married life, which made her irritable and frigid; husband wanted to move his
elderly father in with him.
Respondent's Arguments
Per contra, while responding to the petitioner's claim, the counsel for the
respondent argued that the that, initially, it was normal for the
respondent-wife to feel lonely after getting married, but that this was not the
reason for the purported estrangement. Secondly, the wife never requested that
her husband's father not live with them; thirdly, the wife's parents never
sought to rely on her salary; and lastly, the petition's stated reasons were
deemed to be false claims and were dismissed.
The wife while taking the defense of "cruelty by husband" further pleaded that
the husband was the one who had been abusive. Everything along, his goal was to
fleece her and her family for all they had. The husband has already taken a
hefty dowry from the wife's family and has taken away all of the jewelry,
clothing, and other important gifts that the wife's parents had given her. The
husband has kept all the money for himself while the wife has been neglected at
home and denied necessary medical care when she became unwell and gave birth to
a daughter. Her husband's abuse was the main reason she could not move in with
him.
Legal Analysis
Section 9 of the Hindu Marriage Act, 1955
Sec. 9 of the Act enshrines that when either the husband or the wife has,
without "reasonable excuse", withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district court, for restitution of
conjugal rights and the court, on "being satisfied" or the "truth of the
statements" made in such petition and that there is "no legal ground" why the
application should not be granted, may decree restitution of conjugal rights
accordingly.
Doctrine Of Reasonable Excuse
It is well settled that for a decree of restitution of conjugal rights be
granted to the spouse who filed petition under Sec. 9 of HMA, 1955 the Court
must be satisfied that the other spouse has withdrawn from the society without
"reasonable excuse" and that there is no legal ground why the decree should not
be passed.
While dealing with the question as to what kind of conduct of the Respondent
would be "reasonable excuse" for the Petitioner to withdraw from his society,
the Hon'ble Court of Appeal in Timmins v. Timmins[3] held that though the
husband was not guilty of cruelty but his conduct was a "grave and weighty"
matter which gave the wife good cause for leaving him and prevented him from
obtaining a decree for restitution of conjugal rights.[4] Thus, the conduct of
the spouse seeking restitution may fall short of cruelty in the legal sense, but
may be such that it may justify the withdrawal from the society by the
respondent.[5]
Further, in the case of
Promod Naik v. Sukanti Naik[6] the Hon'ble Orissa High
Court held that the Court's refusal to pass a decree of restitution of conjugal
rights is within its discretion if there is evidence of "ill treatment", upto
the time that such apprehension abates.[7]
Since it is apparent that Sec. 9
envisages just cause for the person withdrawing to leave the matrimonial house
for reasons that may be "grave and convincing", it may therefore be stated that
the degree of proof which is required to justify the actions of the person who
has withdrawn from the society in leaving the matrimonial house can be stated to
be on a much lower plinth than conduct which falls within the ambit of Sec. 13
of the aforesaid Act, justifying action under that Section.[8] Thus, any
matrimonial offence committed by the spouse seeking restitution will justify the
withdrawal of the other spouse.[9]
Whereas, the Hon'ble High Court of Andhra Pradesh and Mysore in the case of
Annapurnamma v. Appa Rao[10], Revanna v. Susselamma[11], and K. Ramopi v. K.
Kameshwari[12] have appositely remarked that the "reasonable excuse"
contemplated by sub-sec. (1) of Sec. 9 must be one which would afford a ground
either for judicial separation or for nullity of marriage, or for divorce.[13]
Doctrine Of Legal Grounds For Grant Of Decree
Hon'ble Andhra Pradesh High Court while construing the "legal grounds" for
refusing to grant relief under Sec. 9 of the aforementioned Act in the case of
N. Satyanarayana v. M. Veramuni[14] held that the "legal grounds" may, inter
alia, consist of:
- any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;
- reasonable excuse (or what is spoken of in this context as just cause) for withdrawing from the society of the petitioners;
- any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her on wrong or any disability for the purpose of such reliefs [s. 23(1)(c)];
- collusion with the respondent [s. 23(1)(c)];
- unnecessary or improper delay in instituting the proceeding [s. 23(1)(d)];
- grounds which are available to a wife to claim maintenance under s. 18 of the Hindu Adoptions and Maintenance Act, 1956.
It is further submitted before the Hon'ble Court that the petitioner was
lawfully justified in her conduct. It is known that the Petitioner is required
to elucidate the "legal grounds" for which the decree must not be granted to the
Respondent for restitution of conjugal rights to the Hon'ble Court.
Doctrine Of Bonafide Matrimonial Cohabitation
It is also a well-settled position that the Hon'ble Gujarat High Court in the
case Dharamshi v. Bai Saker[15] held that a spouse who has filed an application
for Restitution of Conjugal rights must have properly discharged his marital
obligations and had not disabled himself from discharging the same.[16]
Furthermore, Hon'ble High Courts of the State of Punjab & Haryana and the then
Jammu and Kashmir (now High Court of Jammu & Kashmir and Ladakh) in the case of
Sayal v. Sayal[17] and Jogindra Kaur v. Shivcharan Singh[18] affirmed that for
entitlement of a decree of restitution of conjugal rights under Sec. 9 of the
HMA, 1955 the Petitioner (in this case, the Respondent) must show that there is
a bonafide desire to resume matrimonial cohabitation and to render the rights
and duties of matrimonial life. The Petitioner who is sincere in that sense can
seek the relief under aforesaid provision, but not otherwise.
Application of the Aforementioned Doctrines in the Instant Case
The Court concluded that the woman had good cause not to quit her work and go to
Delhi with her husband, given his financial troubles and her advantageous
position, as well as his discouraging behavior towards her.
Since the couple had been unable to agree on a location for their future wedded
home, the issue of the woman quitting from her husband's company never came up.
When it comes to why they can't seem to come to terms on this issue, it's
probably not the wife's fault and more likely of the husband.
Ratio Decedendi & Obitur Dictum
- Choice of Matrimonial Home Vests with the Bread earner No Matter
Husband or Wife:
The court ruled that the basic principles on which the location of the
matrimonial home is to be determined by the husband slid his wife are based on
common convenience and benefit of the parties, which would be the same In
English Law as in Indian Law.
English Law on Choice of matrimonial home: It is a husband's duty to provide his
wife with a home according to Ids circumstances. There is no absolute rule
whereby either party is entitled to dictate to the other where the matrimonial
home shall be l the matter is to be settled by agreement between the parties, by
a process of give and take, and by reasonable aw commendation.[19]
It is not against public policy for the parties to agree before marriage: What
is to be the matrimonial home, and unless the reasons on which the agreement was
based cum to exist, or if some changed circumstances give well for change in the
matrimonial home agreement, the location of a husband's work is to be borne in
mind in scrutinizing the situation of the matrimonial home, although in some
cases the wife's business and livelihood may be a predominant consideration.
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. It
is also true that the wife is not entitled to separate residence and maintenance
except for Justification and otherwise the husband and the wife are expected to
live together in the manorial home.
This is also where the wife depends on the
husband financially. As in this case, the wife earned better than the husband,
firstly she will not expect to be maintained by the husband and secondly, it
will not be, as a matter of course for her to resign from her job and come to
live with her husband. So, indeed land of agreement and give and take is
necessary.
- "Cruelty by Husband" is a "Reasonable Excuse":
Considering the issue that whether cruelty by the husband can be considered a
reasonable excuse the Court was of staunch opinion in favor of the aforesaid
hypothesis as cruelty by the husband was indeed considered as a reasonable
excuse for withdrawing from the husband's society.
Order & Directions:No Monetary Damages allowed for the Grounds were Disproved:
-
Following is a discussion of the husband's plea for monetary damages and the grounds on which he relied:
-
When a woman marries for the first time, she always experiences normal and almost universal sentiments of sadness at being separated from her parents.
-
The husband's father was from the hamlet of Lehra, and it's completely unproven that she didn't want him to move in with them.
-
The husband's argument, that his wife's parents wished to rely on her salary, is circular. This is the same guy who, in addition to taking a large dowry from the woman's parents, is now demanding even more money from the wife and her father. Therefore, he cannot be believed to have claimed that his wife's parents were impoverished to the point that they wanted their daughter to move in with them.
-
Husband maintains that Ms. Wife never said she could not handle married life.
Decree Granted in Favor of the Respondent Wife:
The Court dismissed the appeal without granting a decree of restitution of conjugal rights to the petitioner-husband and upheld the doctrine of choice of the matrimonial home in favor of the wife.
Table Of Abbreviations:
A.I.R. |
All India Reporter |
Art. |
Article |
CGHS |
Central Government Health Scheme |
ed. |
Edition |
HMA |
Hindu Marriage Act |
Hon'ble |
Honorable |
S.C. |
Supreme Court |
S.C.C. |
Supreme Court Cases |
Index Of Authorities
- Anna Saheb v. Tarabai, AIR 1970 MP 36.................................................... 9
- Annapurnamma v. Appa Rao, AIR 1963 AP 312......................................... 9
- Bejoy v. Aloka, AIR 1969 Cal. 477............................................................. 9
- Deacock v. Deacock, (1958) 2 All ER 633................................................ 10
- Dharamshi v. Bai Saker, AIR 1968 Guj 150, ¶ 153................................. 10
- Dunn v. Dunn, 217 S.W.2d 124.................................................................... 5
- Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj. 162................................. 9
- Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95....................... 10
- K. Ramopi v. K. Kameshwari, AIR 1975 AP 3........................................ 9
- Kanna v. Krishnaswami, AIR 1972 Mah 247........................................... 9
- Mango v. Prem Chand, AIR 1962 All 447................................................ 9
- N. Stayanarayana v. M. Veramuni, AIR 1918 AP 123......................... 10
- P. Radhakrishna Muthy v. Vijaylakshmi, AIR 1983 AP 380............ 9
- Promod Naik v. Sukanti Naik, AIR 2004 Ori 72................................... 9
- Rabindranath v. Pramila Bala, AIR 1979 Ori 85................................... 9
- Revanna v. Susselamma, AIR 1967 Mys 165.......................................... 9
- S. Jayakumari v. S. Krishna Nair, AIR 1995 Ker. 139.......................... 9
- Sadhu Singh v. Jagdish Kaur, AIR 1969 P&H 139................................ 9
- Sayal v. Sayal, AIR 1968 P&H.................................................................. 10
- Shanti Devi v. Balbir Singh, AIR 1971 Del 294..................................... 9
- Timmins v. Timmins, (1953) 2 All ER 187............................................ 8
- Tulsa v. Pannalal, AIR 1963 MP 5........................................................ 9
End-Notes:
- Dunn v. Dunn, 217 S.W.2d 124.
- Hereinafter referred to as 'the Act'.
- Timmins v. Timmins, (1953) 2 All ER 187.
- DR. PARAS DIWAN & DR. PEEYUSHI DIWAN, MODERN HINDU LAW (CODIFIED AND UNCODIFIED) 875 (Allahbad Law Agency Faridabad, 2019).
- S. Jayakumari v. S. Krishna Nair, AIR 1995 Ker. 139.
- Promod Naik v. Sukanti Naik, AIR 2004 Ori 72.
- DR. supra note 4 at 875.
- Id at 875.
- Tulsa v. Pannalal, AIR 1963 MP 5; Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj. 162; Mango v. Prem Chand, AIR 1962 All 447; Rabindranath v. Pramila Bala, AIR 1979 Ori 85, Bejoy v. Aloka, AIR 1969 Cal. 477; Sadhu Singh v. Jagdish Kaur, AIR 1969 P&H 139; P. Radhakrishna Muthy v. Vijaylakshmi, AIR 1983 AP 380; Anna Saheb v. Tarabai, AIR 1970 MP 36; Kanna v. Krishnaswami, AIR 1972 Mah 247; Shanti Devi v. Balbir Singh, AIR 1971 Del 294.
- Annapurnamma v. Appa Rao, AIR 1963 AP 312.
- Revanna v. Susselamma, AIR 1967 Mys 165.
- K. Ramopi v. K. Kameshwari, AIR 1975 AP 3.
- DR. supra note 4 at 876.
- N. Stayanarayana v. M. Veramuni, AIR 1918 AP 123.
- Dharamshi v. Bai Saker, AIR 1968 Guj 150, ¶ 153.
- Deacock v. Deacock, (1958) 2 All ER 633.
- Sayal v. Sayal, AIR 1968 P&H.
- Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95.
- 13 Halsbury's Laws of Rn9lM4 Fourth Edition (1975-76), p. 62S.
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