Kailash Wati v. Ajodhia Parkash
1971 CLJ 109 (P & H)
S. S. SANDHAWALIA, J. – Does the Hindu Marriage Law countenance or sanctify the
concept of (what may be conveniently so called) 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.
2. Originally before the Letters Patent Bench, two questions had arisen upon which there
was apparent conflict of authority, and had thus necessitated this reference. Firstly, 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? Allied thereto was the
ancillary issue of the burden of proof therefore. Secondly, 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? The first question upon which the various High Courts had
differed, as noticed in the referring order, now stands amply resolved by the recent
amendment of section 9 of the Marriage Laws (Amendment Act of 1976). Section 3 of this
Act now provides that sub section (2) of section 9 shall be omitted and further that the
following explanation shall be added to the original sub section (1)-
Where a question arises whether there has been reasonable excuse for withdrawal
from the society, the burden of proving reasonable excuse shall be on the person who
has withdrawn from the Society.
3. 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
appellant at her parental village of Bilga in Tehsil Phillaur and the respondent at village Kot
Ise Khan. After the Marriage, the appellant was transferred to the station of her husband's
posing and in all they stayed together in the matrimonial home for a period of 8 to 9 months.
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. It is the common case that but for
a paltry spell of 3 or 4 days in September, 1971 when the appellant accompanied the
respondent to Moga, the couple has not lived together. Ajodhia Parkash respondent,
therefore, filed an application for the restitution of conjugal rights under section 9 of the
Hindu Marriage Act (hereinafter called as the Act) on the 4th of November, 1971, and 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, whilst placing reliance on a Single Bench
judgment of this court reported in Smt. Tirath Kaur v. Kirpal Singh [AIR 1964 Pun. 28]
upheld the findings and the decree of the trial court. It, however, deserves mention forth with
that the view in Smt Tirath Kaur case above mentioned was substantially modified 56 Kailash Wati v. Ajodhia Parkash
(apparently by way of compromise) by the Letters Patent Bench on the 2nd of December,
1963, but the judgment appears to have been reported rather belatedly in Smt Tirath Kaur v.
Kirpal Singh.
4. Here I come to the legal issues involved, it is apt to notice with some precision the firm
stands taken on behalf of each of the contending spouses which has been accepted by the
court below. The husband's stand is that even at the time of the original presentation of the
petition in 1971, his wife had unilaterally withdrawn from the matrimonial home for a
continuous period of six years He claims to be in a position to maintain his wife in dignified
comfort at his place of posting with his salary, income from agricultural land and from other
sources. It is highlighted on his behalf that for the twelve long and best years of his life the
wife has denied him the society and substance of conjugal life and if she persists in her
adamance, there is little possibility of her returning home till perhaps her superannuation
from Government service.
5. On the other hand the wife's consistent position is that the husband at the time of
marriage with his eyes open had accepted her as a working wife and she was, therefore, under
no obligation to live with her husband because considerations of employment prevented her
to do so. She claims a right to live separately because of the fact of her posting elsewhere.
Her stand is that she has never positively denied access to her husband as and when possible
in the peculiar circumstances and in her own words (in the written statement) she avers-
(T)he respondent never refused to go with the petitioner on holidays. Hence she is
justified in not leaving service and thus accompanying him….
In her statement on oath in court she was even more forthright at the stage of the
examination-in-chief in the following terms:-
(T)he petitioner also insists that I should leave the job. I am not prepared to leave the
service and thus reside with the petitioner on that condition….
It deserves notice that even at the stage of argument before us the stand of the learned
counsel for the appellant still was that the appellant wife was willing to allow access to her
husband as an when it may be possible at her place of posting at Bilga where she was residing
with her parents. In the present case where both the spouses are employed at a place more
than eighty miles apart, the practical position is that the husband might on an alternative week
end or on any holiday make a visit to his wife and perhaps at her option the wife if so inclined
may return a visit in similar circumstances.
6. From the aforesaid stand of the quarrelling spouses, the direct issue that arises herein is
whether the hallowed concept of the matrimonial home can be whittled down to a weekend or
an occasional nocturnal meeting, at the unilateral desire of the wife to live separately?
7. In examining this question it may first be forthrightly stated that such an arrangement
poses not the least difficulty where the two spouses willingly agree to the same. Indeed in the
peculiar circumstances of modern times such a situation arises quite often and perhaps is
likely to arise with greater frequency in the future. So long as it is consensual such an
arrangement may indeed be to the mutual benefit of both the spouses. In this country with its
paucity of employment, instances are not lacking where as the wage earner husband is Kailash Wati v. Ajodhia Parkash 57
compelled to live far apart from the matrimonial home and returns to live with his wife and
family for perhaps a fragmentary portion in a whole year. Similarly the wife may be so
gainfully employed and the husband so willing in such an arrangement that she may
conveniently live elsewhere and either return to conjugal home occasionally or meet the
husband elsewhere as and when possible. To emphasise the point as long as the matter is
consensual the spouses may not only live separately but may even live separate in countries
without in any way either jeopardising their marriage or infringing their legal duties to each
other. The difficulty or the legal conundrum arises only when the wife unilaterally breaks
away from the matrimonial home and claims a legal right to live apart on the ground of
having been already employed prior to the Marriage or having procured employment
thereafter.
8. I do not propose in the first instance to examine this issue from the standpoint of the
dicta of Hindu Sages which might look somewhat archaic in modern times. The Hindu
Marriage Act has made significant and radical changes in the earlier concept of Hindu
Marriage, as a sacrament. However on matters which are not directly covered by the
provisions of this Act, the Hindu Law is binding and consequently reference thereto would be
inevitable. However at this stage it is both instructive and refreshing to examine the matter on
general principles.
9. To my mind, the idea of the matrimonial home appears to lie at the very centre of the
concept of marriage in all civilised societies. It is [sic] indeed around it that generally the
marriage tie revolves. The home epitomizes the finer nuances of the marital status. The
bundle of indefinable right and duties which bind the husband and the wife can perhaps be
best understood only in the context of their living together in the marital home. The
significance of the conjugal home in the marriage tie is indeed so patent that it would perhaps
be wasteful to elaborate the same at any great length. Indeed, the marital status and the
conjugal home have been almost used as interchangeable terms.
While the meaning of the term 'conjugal rights' is vague and indefinite, it has been
defined as matrimonial rights; the right which husband and wife have to each other's society,
comfort and affection. Marital or conjugal rights include the enjoyment of association,
sympathy, confidence, domestic enjoyment of association, sympathy, confidence, domestic
happiness, the comforts of dwelling together in the same habitation, eating meals at the same
table and profiting by the joint property rights as well as the intimacies of domestic relations."
It is evident from the above that withdrawal from the matrimonial home by either spouse
would inevitable involve a total or partial loss of consortium to either spouse and, as noticed
earlier, consortium lies at the very root of the marital relationship. The issue, therefore, is
whether a wife (on one ground or another) and in particular for reasons of employment can
unilaterally withdraw from the marital home and substitute therefore a mere right of access to
the husband as and when it may be possible for him to do so.
10. To particularise, three situations obviously come to the mind in such a withdrawal by
the wife from the matrimonial home. The first one is, as in the present case, where the
husband marries a woman already in public or private service. Does he by doing so impliedly
give up his right to claim a common matrimonial home with his wife? I feel, the answer to 58 Kailash Wati v. Ajodhia Parkash
this must necessarily be returned in the negative for reasons which appear in detail
hereinafter. Indeed, to my mind, the true position in law appears to be that any working
woman entering into matrimony, by necessary implication consents to the obvious and known
marital duty of living with a husband as a necessary incident of Marriage. As already noticed
earlier, if by common consent the parties agree to live apart, there can obviously be not the
least objection. However, the mere fact of a marriage of two working spouses does not, in my
view, without more, entitle either one of them to claim that (because of that fact) each one of
them is entitled to live apart. Such a claim would be robbing the marriage of one of its
essential ingredients. Therefore, far from there being any implicit waiver of the husband's
right to claim the society of his wife in the home set up by him, there is on the other hand a
clear acceptance of the marital obligation to live with the husband by a working wife when
she knowingly enters the bonds of matrimony.
11. To obviate any hardship, I may perhaps mention that though by implication such
right to live separately arises to the wife in the situation envisaged above, it may perhaps be
possible for the parties to expressly bind themselves to this effect by a clear agreement. It has
been held in English Law that a mutual agreement by husband and wife not to insist on the
right and obligation of each to live together is not against public policy. However, the matter
has not been at all debated before us in this light and I would, therefore, refrain from
expressing any final opinion one way or the other. This is particularly so because here we are
concerned with the concept of marriage according to Hindu Law which certainly has very
distinctive features of its own.
12. The second possibility that arises is where a husband either encourages or at least
allows his wife to take up employment after marriage. Does he by doing so again abandon his
legal right of having his wife live within the matrimonial home? Herein again, to my mind,
the answer would be in the negative. A particular situation or financial circumstances at one
or the other stage of marriage, require that both the spouses may have to seek work. In such a
situation, either by mutuality or even at the instance of the husband, a wife might obtain
gainful employment away from the matrimonial home. Merely from this to infer that
thereafter the said condition must necessarily continue or a permanent right accrues to the
wife to live away from the matrimonial home on the ground of employment elsewhere, does
not appear to me as supportable either on principle or authority. As noticed earlier, in such a
position also the rights of the parties may perhaps be capable of change by express
agreement. I would however, firmly opine that no necessary inference arises from the mere
fact of a husband at one or the other stage having consented to his wife's taking employment
that thereafter he would not be entitled to claim her society and companionship within the
matrimonial home.
13. The third and the last situation does not present any serious difficulty. This is where a
wife against the wishes of her husband accept employment away from the matrimonial home
and unilaterally withdraws therefrom. This, to my mind, would be an obvious case of a
unilateral and unreasonable withdrawal from the society of the husband and thus a patent
violation of the mutual obligation of husband and wife to live together.
14. The view expressed in the context of the aforesaid three situations, however, is
subject to two plain qualifications. Firstly, the husband must actually establish a matrimonial Kailash Wati v. Ajodhia Parkash 59
home wherein he can maintain his wife in dignified comfort in accordance with the means
and standards of living of the parties. Secondly, it must be crystal clear that the husband
whilst claiming the society of his wife in the marital home should be acting in good faith and
not merely to spite his wife.
Where the demand to return to the matrimonial home is made mala fide and with an
intention to spite the wife or with an intent to thrust her into committing a matrimonial
offence then obviously the wife in those special circumstances may have a reasonable cause
in refusing to return to the husband.
15. With the aforesaid two qualifications, it appears to me that on general principles alone
a wife is not entitled to unilaterally withdraw from the matrimonial home and live elsewhere
merely by taking shelter behind the plea that she would not deny access to the husband as and
when possible. Considerations only of employment elsewhere also would not furnish her
reasonable ground for withdrawal from the society and companionship of the husband which
in practical terms is synonymous with withdrawal from the matrimonial home.
16. The aforesaid conclusion, however, does not adequately resolve the legal tangle. It
was forcefully pressed before us on behalf of the appellant that even though the wife may not
be entitled to withdraw from the conjugal home at her own wish, yet the crucial issue still is
as to locus of the matrimonial home. It was in terms contended that in the present times the
husband had no superior right to determine the location of the matrimonial and the wife was
equally entitle to do so. In the particular context of this case, it was suggested that the
husband was welcome to set up house with the wife at her place of posting and thus live with
her. Indeed in all seriousness, it was urged that in case of the working spouses the wife is
equally in a position to claim and perhaps command if she is in a superior financial status that
the husband should come and live with her at a place of her choice.
17. The issue squarely arises and it would be shirking one's duty if it is not frontally
faced. If a unilateral withdrawal from the matrimonial home is deemed to be unwarranted by
law, then it must necessarily be determined as to where the locus of the matrimonial home is
to be.
18. As would be apparent from the discussion hereafter, the issue is not free from
difficulty but nevertheless commands a clear and categorical answer unless the law is to be
left in a vacillating state. As in the context of the earlier question, it is first useful to examine
this matter also dehors the strict rules of Hindu Law and upon larger principles. However,
two broad factors must always be kept in the background. Firstly, that almost as a matter of
unanimity all civilised marriage law impose upon the husband a burden to maintain not only
the wife but also the children from the wedlock, whilst there is no such corresponding
obligation on the wife to maintain either the husband or the family despite the fact that she
may independently be in comfortable financial circumstances. Closely connected to this legal
liability is the factor that the husband usually, if not invariable, is the wage earner of the
family and is thus compelled to live near his place of work. It stands to reason, therefore, that
the right of choosing a home wherefrom he can effectively discharge his legal duty of being
the bread winner of the family should fall upon him: 60 Kailash Wati v. Ajodhia Parkash
I want to say a word also on the proposition that a husband has the right to say where
the home should be, for indeed, it is the same fallacy in anthor form. If the
proposition were a proposition of law it would put a legal burden on the wife to
justify her refusal; but it is not a proposition of law and I am sure Henn C lins J. in
Mansey v. Mansey, did not intend it as such. It is simply a proposition of ordinary
good sense 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 decision
where the home should be is a decision which affects both the parties and their
children. It is their duty to decide it by agreement, by give and take, and not by the
imposition of the will of one over that of the other. Each is entitled to an equal voice
in the ordering of the affairs which are their concern. Neither has a casting vote,
though to be sure they should try so to arrange their affairs that they spend their time
together as a family and not apart.
19. Coming now to the rationale of the view expressed by Denning L. J. in Dunu case, it
is, of course, a commonplace that the decision of the locus of the matrimonial home affects
all the three parties, namely the husband, the wife and the children. Equally plain it is that
where possible they should decide the location of the home with reasonableness and
mutuality and in a spirit of give and take. This is indeed a case of perfection and if it were
always so possible, there need necessarily be no reason for a rule of law on the point.
However, cases are galore where it is not so possible. The difficulty and the necessity for a
rule of law obviously arises where the parties are not in agreement and neither side is either
considerate enough or willing to attribute reasonableness to the other. In such a situation it
appears to me that it is the duty of the law to decide between them and lay down a clear rule
of conduct. Not doing so would perhaps be evading the issue and would leave the law in a
state of flux where neither of the parties would know as to where they stand. To leave each
individual case to the trial Judge for deciding as to the reasonableness or unreasonableness of
the view of the either spouse regarding the choice of a home would make the parties mere
grist to the mill of litigation. As noticed above, it appears to be well settled that the husband
in the choice of the home must be acting bona fide and not merely to spite the wife. However,
once this pre-requisite is there, then the issue of the reasonableness or unreasonableness of
the choice of a matrimonial home becomes ethereal and so and so thin a line would their
bounds divide that it would perhaps be placing an equally unreasonable burden in every case
on the trial Judge to adjudicate between the contending choice of a place to live can
sometimes be so entirely subjective and conditioned by so many variables that to call either
view reasonable or otherwise would become extremely difficult.
20. I would, therefore, conclude that even on general principles, subject to the
qualification of the husband acting bona fide, he is entitled in law to determine the locus of
the matrimonial home.
21. I have so far considered the matter in the larger perspective and on general principles
and it remains to examine the same in the special context of our own statutes and the dictates
of Hindu Law. Herein, what deserves particular notice is the legal obligation which both the
general and the Hindu Law attach to the status of the husband. What may first be borne in
mind is the fact that even under the general law a husband is bound to support his wife and Kailash Wati v. Ajodhia Parkash 61
children, both legitimate and illegitimate. Reference in this connection may be made to the
relevant portions of section 125(1) of the Criminal Procedure Code, 1973:-
125(1). If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reasons of any physical or mental
abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the
first class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father or mother, at
such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate
thinks fit, and to pay the same to such person as the Magistrate may from time to
time direct.
Further by virtue of sub-section (3) of section 125 of the Criminal Procedure Code, 1973,
the allowance in favour of the wife or the children is recoverable by issuing of a warrant for
levying the amount due in the manner provided for levying fines and the husband or the
father is further liable to imprisonment for a term which may extend to one month for each
month's allowance or part thereof which remains unpaid until he complies with the order. It is
plain from the provisions of section 125 of the said Code that apart from the rules of Hindu
Law, a husband is obliged to maintain his wife and family on pain of stringent processes on
par with these applicable in the field of criminal law itself. Reference to the earlier section
488 of the Criminal Procedure Code, 1898, would show that this obligation has indeed been
heightened by the new Code.
22. Coming now to the rules of Hindu Law itself, it is instructive to first refer to section
18 of the Hindu Adoption and Maintenance Act, 1956. The relevant part thereof is in the
following terms:-
18(1). Subject to the provisions of the section, a Hindu wife, whether married
before or after the commencement of this Act, shall be entitled to be maintained by
her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance,-
(a) if he guilty of desertion, that is to say, of abandoning her without reasonable
cause and without her consent or against her wish, or willfully neglecting her;
(3) A Hindu wife shall not be entitled to separate residence and maintenance
from her husband if she is unchaste or ceases to be a Hindu by conversion to other
religions.
It is obvious from the above quoted provisions that a general right inheres in Hindu wife
to be maintained by her husband during her lifetime and in the special circumstances of
prescribed matrimonial misconduct by the husband, she is even entitled to live separately and 62 Kailash Wati v. Ajodhia Parkash
nevertheless claim maintenance from him. This ancillary right, however, is forfeited if she is
unchaste or converts herself to another religion.
23. Section 22 of the said Act further lays down an obligation on the heir of a deceased
Hindu (subject to the qualification laid down) to maintain the dependents of the deceased out
of the estate inherited by him. Section 19 of the said Act further provides for the obligation of
a Hindu to maintain his widowed daughter-in-law in the circumstances spelled out in that
section. In this context it has to be kept in mind that by virtue of section 3(b) of this Act,
maintenance herein includes the provision for food, clothing, residence, education and
medical assistant and treatment in all cases and in the particular case of an unmarried
daughter also the reasonable expenses of and incident to her marriage. Reference in passing
must also be made to section 6 of the Hindu Minority and Guardianship Act, 1956. From the
provisions thereof, it is evident that though a Hindu father is the natural guardian of his minor
children, yet the custody of infants up to the age of 5 years is ordinarily to be with the mother.
Therefore, in a particular situation a Hindu father is obliged to maintain a child below the age
of 5 years even though such a child may be in the custody of his wife living separately due to
estrangement.
24. It is thus plain from even a bird's eye view of the aforementioned statutory provisions
that Hindu Law impose clear and sometimes burden some obligations on a Hindu male. He is
bound to maintain his wife during her lifetime Equally, he must maintain his minor children
and this obligation is irrespective of the fact whether he possesses any property or not. The
obligation to maintain these relations is personal and legal and it arises from mere fact of the
existence of the relationship between the parties. Further, the sacred concept of the Hindu
family, which has apparently received statutory recognition, obliges the Hindu male to
maintain his unmarried daughter and his aged or infirm parents in the eventuality of their
being unable to maintain themselves. With certain qualifications, the obligation to maintain a
widowed daughter-in-law and the dependents of a deceased from whom any property may be
inherited would also fall upon the Hindu male. As against this, the thing is that the Hindu
wife even though in independently prosperous financial circumstances is under no similar
obligation to maintain her husband and perhaps in his presence is not obliged to support even
the children of the family.
25. The issue arises whether the Hindu male is entitled to discharge the aforementioned
onerous obligation in a home of his own choice or is he even further obliged to sustain his
wife and children at a place other than where he may choose to reside. Other things apart,
particular attention deserves to be focused in this context on the children born out of the
wedlock. If the wife were to be unilaterally entitled to live apart from a husband, then where
indeed is the place of the children in a house so divided? Should a husband be obliged to
discharge his legal duty of the custody and maintenance of his infant and minor children
whilst the wife chooses to live away from him? Then, should the wife be entitled to claim the
custody and control of the infant children at a place away from the matrimonial home and yet
claim maintenance from the father in view of his legal obligation to maintain them? To my
mind, the answer to these questions is a plain and categorical one. The onerous obligation,
which the law imposes on the Hindu husband, is at least co-related to the right to determine
the location of the matrimonial home. To put it in other words, as against the right of Kailash Wati v. Ajodhia Parkash 63
maintenance always inhering a Hindu wife, there is a corresponding obligation to live
together with the husband in his home. That rights and duties must concur, is a principle
which is too elementary to deserve elaboration. In my view, therefore, the logical
concomitant to the obligation to maintain the wife and the family by the Hindu husband is
that he at least has the right to claim that the wife shall live with him in a matrimonial home
determined by his choice.
26. Coming now to the specific rules of Hindu Law, these appears to be unmistakable
unequivocal. It, therefore, suffices to refer to the statement of the law in the authoritative
treatise Mulla's Principles of Hindu Law contained in paras 442 and 555 thereof:-
442 Marital duties- (1) The wife is bound to live with the husband and to submit herself to
his authority. And agreement enabling the wife to avoid a Marriage or to live separate
from her husband if he leaves the village in which his wife, and her parents reside, or if
he marries another wife, is void. Such an agreement is against public policy and contrary
to the spirit of the Hindu law. An agreement of this kind is no answer to a suit for
restitution of conjugal rights by a husband against his wife.
(2) The husband is bound to live with his wife and to maintain her.
555. Separate residence and maintenance.- (1) A wife's first duty to her husband is to
submit herself obediently to his authority, and to remain to under his roof and
protection.- She is not, therefore, entitled to separate residence or maintenance, unless
she proves that, by reason of his misconduct or by his refusal to maintain her in his own
place or residence or for other justifying cause, she is compelled to live apart from him.
The above quoted statement of the law is so plain as to require no further elaboration.
Indeed the learned counsel for the appellant did not attempt to place any contrary
construction on the same but merely argued that these rules were no longer applicable in view
of section 4 of the Hindu Marriage Act. This contention is without substances. That section
merely provides for exclusion of those rules of Hindu Law with respect to specific matter for
which provision has been made in the Hindu Marriage Act. Plainly enough this Act does not
even remotely attempt to define the general marital duties and obligations of the husband and
the wife to each other. Therefore, the applicable rules of Hindu Law cannot possibly be
excluded from their valid field of operation. Similarly sub-clause (b) of section 4 only
provides that a ny other law which is inconsistent with any of the provisions of Hindu
Marriage Act shall cease to have effect in so far as it inconsistent with any of the provisions
contained in the said Act. Learned counsel for the appellant has been wholly unable to point
out any provision in the Hindu Marriage Act which is inconsistent or in conflict with the rules
of Hindu Law quoted above.
27. 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. This provides for an immediate remedy where either of the spouses falters in 64 Kailash Wati v. Ajodhia Parkash
his or her obligation to provide the society and sustenance to the other. Indeed, the obligation
to live together under a common roof is inherent in the concept of a Hindu Marriage and, to
my mind, it cannot be torn unilaterally by the desire of the wife to live separately and away
from the matrimonial home merely for the reason of either securing or holding a job
elsewhere. Such an act would be clearly in violation of a legal duty and it is plain, therefore
that this cannot be deemed either reasonable or a sufficient excuse for the withdrawal of the
wife from the society of her husband, as visualised under section 9 of the Act.
28. 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. The husband in Hindu Law is obliged to
maintain his wife during her lifetime and equally is under heavy obligations to sustain the
minor children from the wedlock, the unmarried daughters till their marriage, his aged and
infirmed parents unable to maintain themselves, and a host of other duties to which detailed
reference has been made in the earlier part of the judgment.
29. It was said that the view I am inclined to take is titled a little in favour of the husband.
A closer and incisive analysis would, however, show that this is not necessarily so. Indeed, a
contrary view or even vacillating statement of the law would be more burdensome not only to
one but to both of the spouses. The concept of the Hindu Marriage of earlier time has slid
down from its high alter of being sacramental to the more mundane concept where the rights
and the duties of the wife are governed by status, though as yet it has not reached the stage of
being a mere civil contract as in some western countries. The Hindu Marriage Act now
provides for the restitution of conjugal rights, judicial separation, divorce annulment of
marriage, and a number of other conjugal reliefs. As is evident from the recent and substantial
changes brought about in the Hindu Marriage Act (which have substantially relaxed the
conditions and the grounds of divorce etc.), Hindu Marriage Law now no longer conceives
marriage either as a sacrament or viewed from a rather cynical angle as a chain which
shackles unwilling spouses together irrevocably. It is best perhaps that in present time it
should be a silken bond between affectionate spouses or at least cooperative partners 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 summarised as-that it has irretrievably and irrevocably broken down.
In such a situation (as modern trends and the recent change in law shows) 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.
30. Testing the present case on the touchstone of the abovementioned legal conclusions,
it is plain that this appeal cannot succeed. Even on facts it is evident, and therefore, the courts
below are right in holding, that the appellant wife here deliberately and ingeniously secured
her transfer away from the matrimonial home and the place of posting of the respondent
husband at Kot Ise Khan in order to go back to her parental village at Bilga. For the last
nearly one decade the wife has virtually refused to live with her husband except for a paltry Kailash Wati v. Ajodhia Parkash 65
spell of the two or three days and that also under some pressure. She is categorical in her
stand that she would not confirm to her legal obligation to live with her husband for the sake
of job even though he is willing and is in a position to support her in reasonable comfort in
accordance with the style of life to which the parties are used to. The time perhaps has come
when the appellant must make her choice between the job and the husband. 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 perhaps
be bordering on the cruel to require him to keep on waiting endlessly in suspense. The appeal
is without merit and is hereby dismissed. The parties are, however, left to bear their own
costs.
No comments:
Post a Comment