V.S Deshpande, J.:— 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? With more and more women taking up jobs and wanting to retain them even after their marriage, the question becomes increasingly important, topical and controversial. It has arisen in this case and requires consideration in some depth.
2. The wife, Swaraj, was working as a teacher at Sunam, District Sangrur, from 1956 and was the Headmistress of Government High School, when she was examined as a witness in 1969. 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 September, 1966 to September, 1967 at Rs 500/-p.m without any allowances and from 14 September, 1967 by Master Sathe and Kothari at Rs. 600/-p.m without any other allowances. The father of the wife, a petition writer, lives at Sunam, while the father of the husband, a farmer, lives at village Lehra. The husband has no house in Delhi of his own. 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 come to Delhi to live with here husband from 12 July, 1964 to 28 August, 1964 and then went back to Sunam. She again came to live with the husband from October, 1964 to 1st February, 1965 and went back to Sunam on 2nd February, 1965, but did not return to Delhi thereafter.
3. The husband filed a petition for the restitution of conjugal rights against the wife on the ground that she had withdrawn herself from the society of the husband without reasonable excuse within the meaning of Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to at ‘the Act’). The husband complained in the petition that the causes of her estrangement from him appear to be as follows:
(a) She felt the separation from her parents keenly and longed to go back to them;
(b) She pressed the husband that the latter's aged father should not live with him;
(c) The parents of the wife wanted to live on her income and urged her to return to their home;
(d) That the wife was abusive, short tempered and quarrelsome; and
(e) That the wife imagined that she was not capable of leading a married life and this made her irritable and frigid.
4. The wife defended the petition and replied to the grounds on which the petition was based as follows:
(a) There was nothing unnatural if she felt lonely for sometime after marriage, but this was not cause for the alleged estrangement. The husband himself had left the wife at her parents' place;
(b) The wife never asked the husband that his father should not live with him;
(c) The parents of the wife never wanted to live on her income;
(d) & (d) These grounds were said to false allegations and were denied.
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 husband has already extracted a huge dowry from the parents of the wife and has deprived her of jewellery, clothes and other valuable presents which had been given to her by her parents. The husband has kept all this money and has deliberately left the wife without good treatment at home or any proper medical treatment when she was ill and when she was in the family way and delivered a daughter. The reason why she could not join the husband was the cruelty meted out to her by the husband.
5. The petition was dismissed by the trial court, but was allowed in appeal by a learned single Judge of this court. Hence this Letters Patent Appeal. Both the trial court and the first appellate court were of the view that the oral evidence adduced by the parties was unhelpful and the contentions of the parties had to be decided on the correspondence which passed between the parties. While the husband has not adduced in evidence the letters received by him from his wife, the wife has produced eleven letters, Ex. R 1 to R 11, written by the husband to her and to her father. On this evidence two opposite conclusions were drawn by the trial court and the first appellate court. The trial court held that the husband only wanted as such money as he could get out of his wife and her father, but had no intention to keep her as his wife. The first appellate court took note of the prevalent custom and observes “as the age of the girl advances the amount (the dowry) also increases”. It observed that “these settlements of money which should be looked down upon in the present day of civilised society unfortunately keep in increasing in some sections of the society. However, from this is cannot be said that the only object was to make money and there was no intention on the part of the appellant to run the matrimonial home”. The learned single Judge further observed that “it does not show that he had the lust for her money. On the contrary it shows that because of the circumstances he is trying to tame the shrew by giving various warnings”.
6. After carefully balancing the pros and cons of the divergent decisions of the trial court and the appellate court in the light of the evidence on record and the arguments of both sides, the following two conclusion seem to emerge, which require to be discussed fully hereafter:
1. In the absence of a pre-marital agreement between the parties it cannot be said that the wife who had a permanent job with good prospects was expected to resign it, leave Sunam and come to live with the husband when the husband did not earn enough to maintain the family at Delhi where life was costlier.
2. The conduct of the husband was such as to frighten the wife from joining him and thus giving her reasonable excuse for not joining him.
Choice of Matrimonial Home
7. The basic principles on which the location of the matrimonial home is to be determined by the husband and the wife are based on common convenience and benefit of the parties. They would be the same in English law as in the Indian Law. The law in England is stated in 13 Halsbury's Laws of England, Fourth Edition (1975-76), paragraph 623, as follows:
“Choice of matrimonial home. It is a husband's duty to provide his wife with a home according to his circumstances. 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.
It is not against public policy for the parties to agree before marriage on what is to be the matrimonial home, and, unless the reasons on which the agreement was based cease to exist, or if some changed circumstances give good reason for change in the matrimonial home, the agreement stands. The location of the husband's work is a most important consideration to be borne in mind in selecting the situation of the matrimonial home, although in some cases the wife's business and livelihood may be a predominant consideration.
Neither party, it has been said, has a casting vote; it has further been suggested, that if the parties are both unreasonable each might be entitled to a decree on the ground of the other's desertion, but this proposition has been doubted and disapproved. The parties should so arrange their affairs that they spend their time together and not apart, and where there is a difference of view, reason must prevail.
A wife does not succeed in establishing that a husband has not provided her with a reasonable home by showing that, having left him unreasonably, she has, by her independent action, found accommodation somewhere else which he is unwilling to accept.”
8. The same statement of law is repeated in paragraph 93 of Rayden on Divorce, 12 Edition, probably because both of them are written by Joseph Jackson, a leading authority on Marriage Law in England.
9. The reason underlying the statement of law is obvious. The spouses cannot live on love alone. They have to eat, be clothed, have a shelter and have such other amenities of life as may be obtained from the income of that spouse who is earning more. Normally, the husband would be earning more than the wife and, therefore, as a rule the wife may have to resign her lesser job and join the husband, who would be expected to set up the matrimonial home. But, as Lord Denning L.J said in Dunn v. Dunn, (1949) Probete Division 98 at 103(1). “It is not a proposition of law ……. 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”. If as in this case, it is the wife who alone has the job which is also a good job, and the husband does not have sufficient income, can it be said that even then the husband has a right to decide that the matrimonial home must be at the place where he happens to reside and the wife must resign her job and come to live with him there? There is absolutely no principle or authority in law which compels the wife to do so. A full bench of the Punjab and Haryana High Court in Smt. Kailash Wati v. Ayodhia Parkash, 1977 Hindu Law Reporter, 175(2), seem to have, however, come to such a conclusion which was strongly relied upon by Mr. R.K Makhija, learned counsel for the respondent husband. A careful consideration of the reasoning of the Full Bench brings out the following results:
Though the husband and the wife before marriage served at two different places, after marriage the wife was transferred to the station of her husband's posting and the two stayed together in the matrimonial home. Later the wife manoeuvred to get herself transferred back to the place where she had served before marriage. This constituted her withdrawal from the society of her husband and no reasonable excuse was forthcoming from her for doing so. These facts are contrasted with the facts of the present case.
The parties in the case before us lived at two different places before marriage. At the time of the marriage there was neither an express nor an implied understanding between them that the wife was to leave Sunam and come to Delhi to live with her husband. For, at the marriage the wife was 32 years old, had already put in eight years' service as a teacher and was looking forward to a promotion in her job. The husband does not appear to have any worthwhile job when he married. It could not have occurred to the parties that the wife would have no resign her job after marriage. This is why is Ex. R 1, dated 2 September, 1964 the husband admitted that it was due to the service and financial conditions that the parties had parted from each other implying thereby that their living away from each other was inevitable. In Ex. R 2, dated 15 September, 1964 written to the wife's father, he says that he wanted the wife to resign and to come to live with him in Delhi but she wanted to go on serving till April, probably because, as is mentioned in Ex. R 5, she was expecting promotion in April. In Ex. R 5, dated 24 September, 1965, he says that quite agree you went there (Sunam) with my permission. I too requested you in my letters to leave the bloody service because I am facing unbearable difficulties. I could have tolerated these difficulties if the promotion you are worried for is to be maintained for ever. I may tell you in case you did not know that you will not be allowed to do service after the first delivery.” A daughter was born to the wife in August, 1966 and till then the husband had apparently prepared himself to bear the separation from her. But in the same letter he again says “First of all you are not sure whether you can get promotion before April, secondly I am not sure whether would I succeed posting in Punjab in or after April. Then you know in any circumstances, you are going to leave service in a year. If my salary will not be sufficient, we can starve, at least will be happy together, than miles away working for money at the cost of our comfort and enjoyments”. It seems from this letter the husband had some kind of a job, but the salary was not sufficient for their comfort and enjoyment. If the wife in these circumstances hesitated to leave her job, particularly because the husband also was thinking of leaving Delhi and going to Punjab to live near his wife she cannot be blamed. In Ex. R 6, dated 14 February, 1965, the husband is seen trying to get a job in the Punjab with a salary of Rs 400 per month. This would mean that he did not want her to resign, but was trying to get a job near her place. The circumstances of this case do not, therefore, show that there was any duty on the wife to resign her job and come to live with her husband.
10. Our view as to the choice of the location of the matrimonial home thus respectfully differs from the view of the Punjab & Haryana High Court Full Bench in Kailash Wati case. We would, therefore, take up each of the legal propositions advanced by the learned Full Bench and after stating it give reasons for our inability to agree with it.
(1) Paragraph 442 of Mulla's Hindu Law, 14 Edition, is as follows:
“(1) The wife is bound to live with her husband and to submit to his authority. An 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 the marriage 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 maintam her”
Somewhat similar statements of law are found in decisions of State Courts in United States of America cited by the Full Bench.
11. With respect, this statement of law should not be taken superficially to mean that whatever the circumstances, it is always the wife who must resign her job however better it may be than the job of her husband, and must come to live with her husband even though the husband may not be able to maintain himself and his wife at the appropriate standard of living. The uncodified part of the Hindu law is based partly on the Dharma Shastras and partly on custom. According to Prof. J., Duncan M. Derett, “the Dharma Shasthra authorities did not lay down law, they taught righteousness to a population eager to acquire it, and it was this that they taught whether or not any ruler acted as their mouthpiece or coadjutor” [“The Death of a Marriage Law”, (1978) pages 49-50]. The Dharma Shastras, therefore, reflected the law as it ought to be. While this may have largely coincided with the law as it was, the coincidence was not complete. If the Dharma Shastras preached that the wife should always submit to the husband whatever the financial circumstances of each of them, this was only the ideal aimed at by the authors of the Dharma Shastras. In so far as the right to set up the matrimonial home as being given to the husband alone at all times in preference to the wife is based on custom, this reflected the conditions of the age in which the custom was practised. The process by which a custom becomes law is well known. The custom must be ancient, certain and enforceable. The last requirement is expressed by saying that it must be supported by the opinio necessitatis. The Indian decision cited at the foot of paragraph 442 of Mulla's Hindu Law are the 1898 and 1901. Whatever may be the conditions in that distant past more than three quarter of a century later the conditions are greatly altered. It would be difficult to say now that there is any custom which obliges an earning wife to resign her job and join her husband even though on merits it is she who is better placed to choose the place of the matrimonial home rather than the husband. What happens to the custom when it becomes law? C.K Allen gives a two-fold answer to this question. Firstly, just as a proposition of law may be rejected either because it is an incorrect formulation, or because, though correct, it is not applicable to the instant case, a custom may be rejected because either it is not applicable to the parties or it held to be malus usus. Both these reasons are applicable to show that no enforceable custom exists as law to require the wife to abandon all her rights in favour of the husband in this respect. Secondly, just as a proposition of law may be adopted as being both a correct formulation and applicable to the case in hand, a custom may be held to be law for these reasons. No such custom, such less law, can be said to exist. Further, even if it ever existed, it may now be rejected as being mischievous or contrary to the general policy of the law. it is now generally recognised, especially since the decision in Nordenfelt v. Maxim-Nordenfelt Co. (1894) A.C 535(3), that “public policy is the policy of the day”—i.e that its standards change from age to age in accordance with the prevailing notions and social institutions of the time [see also Fender v. Mildmay, 1938) A.C 1] (4). (K.C Allen, Law in the Making, 7 Edition, pages 152 to 156).
At the present day numerous women have taken up jobs to help their families and also to be useful members of the society. It may be that the wife is financially and in other respects better situated to choose the place of the matrimonial home than the husband. The existence of such circumstances in a particular case would make the law stated in paragraph 442 of Mulla's Hindu Law inapplicable to such a case. It would appear, therefore, that the said statement of law deserves to be reconsidered. It may be brought in line with the modern conditions as has been done in Halsbury and Rayden referred to above. Alternatively, an exception to paragraph 442 deserves to be added to apply to working wives who are better situated than their husband to choose the place of the matrimonial home.
12. It has been recognised that social change among the Hindus has been generally accompanied by appropriate changes in the Hindu law, particularly that part which relates to the unequal conditions in which Hindu women had been placed. This movement for the uplift of the status of the Hindu women is now nearly a century old. A noted scholar in Hindu Law, K.T Bhashyam Liyanger stated long ago as follows:
“We must give back their rights and privileges in law of which we have robbed them. The injustices perpetrated on them in the name of law should be remedied and even as we honour them in life so must we make them equal to us in law. Then shall law be really a reflection of life.”
[Women in Hindu Law (Madras, 1928) page 481]. Similarly, Mr. Justice Krishnaswami Iyengar saw the change which conditions of modern life were making in the field of the Hindu law and observed as follows:
“At no time did those standards (the ancient standards fixed by the Rishis) and the rules in which they found expression attain to universal acceptance in the country, even among communities professing the Hindu faith……. We cannot shut our eyes to changes almost revolutionary in character and extent which have been for a considerable time past taking place in the structure of the Hindu social order and in the ideas and the sentiments which govern it. The old sanctions seem to have all but disappeared, sweeping away before them the old faith and the old institutions which did constitute in the past an integral condition of the indigenous fabric.”
(Durgaprasada v. Sudarsanaswami, ILR 1940 Madras 653 at 666( (5).
13. In the light of the above observations, 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. Article 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 Article 14 and unconstitutional for that reason.
(2) 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. 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 matrimonial home. This is also where the wife depends on the husband financially. If, as in this case, the wife earns batter 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.
(3) The domicile of the wife is the same as that of the husband. This has no bearing on the choice of the matrimonial home at all. The domicile is of a country, while the matrimonial home has to be at a place where one of the spouses or both of them would be earning enough to maintain the family. Domicile is even different from residence not to speak of the place of matrimonial home (see Joseph Jackson's “The Formation and Annulment of Marriage”, second edition, pages 379 to 384, 384 to 388).
(4) When the husband and the wife did not agree where they should stay, the husband must have a casting vote. With respect, a casting vote is only a tie-breaker. It is useful when a stalemate is to be broken because the matter has to be decided one way or the other. Between the husband and the wife, the decision as to the matrimonial home has to be taken on the balance of circumstances. It the circumstances are equally balanced in favour of the wife and the husband, then there would be a stalemate and neither of them would be able to sue the other for restitution of conjugal rights. Such a breakdown of marriage for which either of them or none of them can be blamed has now been made a ground for obtaining divorce in the United Kingdom by Section 1 of the Matrimonial Causes Act, 1973. A similar consideration might have led to the abolition of right to claim restitution of conjugal rights by Section 20 of the Matrimonial proceedings and Property Act, 1970 in the United Kingdom.
Conduct of The Husband:
14. In Ex. R 2 dated 15 September, 1964, written by the husband to the father of the wife, the husband asked for more money for Sandhara from him after having received Rs 40,000 as dowry. But the wife maintained that the husband had actually received Rs 42,000 and the husband showed his willingness to return Rs 2,000 (i.e Rs 42,000 minus Rs 2,000). The husband justifies the taking of this huge dowry by saying that his father had spent Rs 60,000 on his education. The learned single Judge has expressed his awareness of the custom by which the boys and their fathers expect such extraction of dowry and money from the wives and their fathers. With respect, the presence of such unhealthy expectations and customs among certain sections of the society are no justification for the courts upholding them. On the other hand, by law we are bound to refuse to recognise them and to decide that demands for dowry and money are unjustified. In Ex. R3 the husband again refers to Rs. 35,000 having been paid as dowry. In Ex. R4 he does everything to alienate her and frighten her from coming to him. He tells that she was not the first girl in his life. If not more than at least 100 girls had come into his life and they had always loved him and did everything for him. In Ex. R5 the husband further spoils the chances of his wife coming to him by writing as follows:
“If you are under the impression that your safe deposit what you earned and what your father gave you on Sandhana, would be yours, you are badly mistaken. If you come to stay with me as my wife, your all belongs are mine. You too would be mine. You will not be able to move even a step without my permission. If I want I can starve you for days and keep you thirsty for months. By the way on your arrival, you have to give me the account for your earning + cash you got from me, etc. + what your father gave you on Sandhara—the expenditure. Here also I have arranged two tuitions for you Rs 100 each. All the money you earn or given to you from other sources, will be mine. Immediately you have to give that to me. Then if I like I can give you for your personal use. If I do not want to give you, you have to go without it. It all depends on my sweet will. But you will have nothing to say regarding this. Regarding the clothes I bought for you if you do not wish to use them I will definitely return them. Do not you worry, it is my business not yours………..What comes from there (that is from wife's parents) I must be brought in the picture, not in the dark as the last time. Because so many people do ask me what came from Sunam on such a festival……… By the way I feel my duty to warn you that I have agreed to take you on two months probationary period. If you still keep on progressing with your habits, you will be the loser not me…………But if you become pregnant in next two months and would not leave your habits, obviously I get fed up with you and leave you for ever then you will be in the worse condition …. So I advise you that this is the best time for divorce …….. Please come to Lehra on 2 otherwise for your own sake do not come.”
15. The grounds on which the claim for restitution was based by the husband in the petition may now be dealt with as follows:
(a) The wife's feelings for separation from her parents during her first visit to her husband is natural and almost universal.
(b) The husband's father lived at village Lehra and the allegation that the wife wanted her husband's father not to live with the husband is not proved at all.
(c) The husband's stand that the parents of the wife wanted to live on her income is self contradictory. It is the same husband who has taken a huge dowry from the wife's parents and who is trying to extract more money from her and her father. He cannot, therefore, be heard to say that the parents of the wife were too poor to live on their own income and wanted her to live with them.
(d) The husband says that his wife was abusive, short-tempered and quarrelsome. But, in his own letters he admitted that he was also cruel, inconsiderate and quarrelsome and he even slapped her.
(e) There is no proof that the wife ever said that she was not capable of leading a married life.
16. 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.
17. We, therefore, hold that the husband has failed to prove the grounds for awarding him restitution of conjugal rights.
18. What is the position? The wife has not asked for any relief and we cannot give it to her under Section 23-A of the Act. The relief asked for by the husband cannot be granted to him. This must be very frustrating to the husband. His position is like the factory worker (Stephen Blackpool) in the novel ‘Hard Times’ by Charlese Dickens. Blackpool seeks advice on how he can end his unhappy marriage and it told that there is no legal way in which the law can assist him.
“If I do her any hurt, sir there's a law to punish me?”
“Of course there is.”
“If I flee from her, there's law to punish me”
“Of course there is.'
“If I marry T'oother dear lass, there's a law to punish me?”
Of course there is…………….”
“Now, a ‘God's name” said Stephen Blackpool, show me the law to help me;”
[Quoted from Bernard Schwartz's ‘The Law in America’ the American Heritage History (1975) page 147]
As Schwartz says “Blackpool's plaint echoed the popular attitude towards the law”. The feeling of the unsuccessful litigants in matrimonial causes would be similar. Where there is a break-down of the marriage, this is itself should be a cause for which divorce should be available under law. It would then be immaterial to enquire as to which of the two parties is at fault. The principle of breakdown of marriage as enabling the parties to obtain a divorce recognised in the U.K since 1973 is a present only partially recognised by the Hindu Marriage Act by the insertion of sub-section (1-A) in Section 13 of the Act by the amendment Act 44 of the 1964 [see article “Divorce under the Hindu Marriage Act—A conflict of Principles in AIR 1971, Journal Section 113(6)]. It is understood that the question whether divorce should be directly obtainable after such breakdown of marriage is under consideration. Instances, such as the present one, would help the authorities to amend the law to enable the parties to obtain a divorce when the marriage is apparently broken down, as seems to be the case between the parties before us. With such an amendment, the law would come in line with the English law.
19. The decree granted in favour of the husband by the learned single Judge, which is appealed against, is, therefore, set aside and the decree of the trial court dismissing the petition of the husband is restored. The parties are left to bear their respective costs.
I.N.A Appeal accepted