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 come 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.
|Case Name:||Smt. Kailash Wati V/S Ayodhia Prakash|
|Case Number:||Civil Appeal Number-418 Of 1975|
|Court:||The High Court Of Punjab And Haryana|
|Bench:||Justice Sidhu, Justice S.P Goyal|
|Decided On:||NOVEMBER 19, 1976|
|Relevant Act/Sections:||Section 9, 3 Of The Hindu Marriage Act, 1976|
BRIEF FACTS AND PROCEDURAL HISTORY:
- The appellant Smt. Kailash Wati was married to the respondent Ajodhia Parkash on the 29th of June, 1954, and at that time both of thorn were employed at village level teacher 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 posting 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 allegation and virtually ever since has been residing there with her parents against his wishes.
- 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 P&H.
- Upheld the findings and the decree of the trial court’ It, however, deserves mention forthwith that the view in Smt. Tirath Kaur’s case above mentioned was substantially modified (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 1975 RLR 512.
ISSUE BEFORE THE COURT:
- 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?
- 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?
- This is where a wife against the wishes of her husband accept employment away from the matrimonial home and unilaterally withdraws?
- 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 an 1 children at a place other than where he may choose to reside?
- 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?
- 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?
RATIO OF THE COURT:
- The court arises three issues and stated on them as Firstly, the husband must actually establish a matrimonial 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.
- The court observed that 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 aces 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.
- The court observed that the observation 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 the 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 home and the wife was equally entitled 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.
- The issue squarely arises and it would be shirking one’s duty if it is not frontally faced if unilateral withdrawal from the matrimonial home is deemed to be unwarranted by law, then it must necessarily he determined as to where the locus of the matrimonial home is to be.
- The court observed from the hindu marriage act that it is thus plain from even a bird’s eye that Hindu Law imposes 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.
- 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 maintenance always inhering a Hindu wife, there is a corresponding obligation to live together with the husband in it home. That rights and duties should be co related and that the benefit and the burden 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 determine by his choice.
- The court observed that Anglo American jurisprudence that the concept of the marital home lies at the very centre of the idea of marriage in all civilized societies. Perhaps from primeval times when human beings lived sheltered in subterranean caves to the modern day when many live perched in flats in high rise apartments within the mega polis, the husband and the wife have always hankered for a place which may be their very own and which they may call a home. The innumerable mutual obligations and rights which stem from the living together of man sod wife are undoubtedly beyond any precise ( sic) and stand optimized by the concept of the matrimonial home. Any unilateral withdrawal there from is hence a plain violation of the mutual obligation to live together and is not to be ordinarily countenanced unless it is for a patently reasonable cause.
- Closely allied to this concept is the determinate of the locus of the matrimonial home By any large, even western jurisprudence plainly recognise the right of the husband to ordinarily determine its local subject to two basis qualifications. Firstly, the husband must be acting bona fide and not merely to spite his wife or push her into a matrimonial wrong. Secondly, where the husband is so deficient in meeting has legal obligations as not to be able to provide a home in which the wife can be sustained in reasonable comfort.
- The aforesaid legal result is well settled even on larger principles. However, whatever may be the position in western jurisprudence, it appears to be clear and categorical under the rules of Hindu Marriage law with considerable respect, the court stated that even where some western jurists have taken a comer view, the same is not be necessarily emulated in the field of Hindu law, but indeed to be avoided. Of late, both sociologist and jurists in the western world have looked with considerable concern at the progressive break down of the family as an institution and the consequent rootless ness of individuals in urbanized western life which has tended to throw up very disturbing features. If the court recall rightly, Professor Toynbee has called this as the redlight signal of the western civilisation.
- . 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 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 as under 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 excise for the withdrawal of the wife from the society of her husband, as visualized under section 9 of the Act.
- The court contended that the touch stone 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 lace 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 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 ‘or the sake of a 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 betwixt the lob 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 am it 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 here has waited patiently in the wings for the test part of his life and it would perhaps be bordering on the cruel to require him to keep on waiting endlessly in suspense.
DECISION HELD BY COURT:
- The appeal is without merit and is hereby dismissed.
- The parties are, however, left to bear their own costs.