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:

1. 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?
2. 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:

1. any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;
2. reasonable excuse (or what is spoken of in this context as just cause) for withdrawing from the society of the petitioners;
3. 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)];
4. collusion with the respondent [s. 23(1)(c)];
5. unnecessary or improper delay in instituting the proceeding [s. 23(1)(d)];
6. 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

1. 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.
    
2. "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:
  1. When a woman marries for the first time, she always experiences normal and almost universal sentiments of sadness at being separated from her parents.
  2. 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.
  3. 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.
  4. 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

1. Anna Saheb v. Tarabai, AIR 1970 MP 36.................................................... 9
2. Annapurnamma v. Appa Rao, AIR 1963 AP 312......................................... 9
3. Bejoy v. Aloka, AIR 1969 Cal. 477............................................................. 9
4. Deacock v. Deacock, (1958) 2 All ER 633................................................ 10
5. Dharamshi v. Bai Saker, AIR 1968 Guj 150, � 153................................. 10
6. Dunn v. Dunn, 217 S.W.2d 124.................................................................... 5
7. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj. 162................................. 9
8. Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95....................... 10
9. K. Ramopi v. K. Kameshwari, AIR 1975 AP 3........................................ 9
10. Kanna v. Krishnaswami, AIR 1972 Mah 247........................................... 9
11. Mango v. Prem Chand, AIR 1962 All 447................................................ 9
12. N. Stayanarayana v. M. Veramuni, AIR 1918 AP 123......................... 10
13. P. Radhakrishna Muthy v. Vijaylakshmi, AIR 1983 AP 380............ 9
14. Promod Naik v. Sukanti Naik, AIR 2004 Ori 72................................... 9
15. Rabindranath v. Pramila Bala, AIR 1979 Ori 85................................... 9
16. Revanna v. Susselamma, AIR 1967 Mys 165.......................................... 9
17. S. Jayakumari v. S. Krishna Nair, AIR 1995 Ker. 139.......................... 9
18. Sadhu Singh v. Jagdish Kaur, AIR 1969 P&H 139................................ 9
19. Sayal v. Sayal, AIR 1968 P&H.................................................................. 10
20. Shanti Devi v. Balbir Singh, AIR 1971 Del 294..................................... 9
21. Timmins v. Timmins, (1953) 2 All ER 187............................................ 8
22. Tulsa v. Pannalal, AIR 1963 MP 5........................................................ 9

End-Notes:

1. Dunn v. Dunn, 217 S.W.2d 124.
2. Hereinafter referred to as 'the Act'.
3. Timmins v. Timmins, (1953) 2 All ER 187.
4. DR. PARAS DIWAN & DR. PEEYUSHI DIWAN, MODERN HINDU LAW (CODIFIED AND UNCODIFIED) 875 (Allahbad Law Agency Faridabad, 2019).
5. S. Jayakumari v. S. Krishna Nair, AIR 1995 Ker. 139.
6. Promod Naik v. Sukanti Naik, AIR 2004 Ori 72.
7. DR. supra note 4 at 875.
8. Id at 875.
9. 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.
10. Annapurnamma v. Appa Rao, AIR 1963 AP 312.
11. Revanna v. Susselamma, AIR 1967 Mys 165.
12. K. Ramopi v. K. Kameshwari, AIR 1975 AP 3.
13. DR. supra note 4 at 876.
14. N. Stayanarayana v. M. Veramuni, AIR 1918 AP 123.
15. Dharamshi v. Bai Saker, AIR 1968 Guj 150, � 153.
16. Deacock v. Deacock, (1958) 2 All ER 633.
17. Sayal v. Sayal, AIR 1968 P&H.
18. Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95.
19. 13 Halsbury's Laws of Rn9lM4 Fourth Edition (1975-76), p. 62S.