Swaraj Garg V. K. M. Garg summary

SWARAJ GARG  Vs. K.M. GARG

DELHI HIGH COURT

MARCH 7, 1978 .

CASE UNDER SECTION 9 OF HINDU MARRIAGE ACT

Question before the court :

Where will be the matrimonial home located after the marriage when both the parties are gainfully employed and there does not exist any agreement either implied or written before the marriage. 

Facts of the case :

The wife Swaraj - petitioner lived in her village, Sunam, from 1956 and techer at the the school. She was the head mistress at government high school in 1969. She got married to the respondent in 1964. The husband was not having a satisfactory job and earn only 500 p/m in Delhi where he resides. She came to live with her husband for some time and then grt back to her village and continue living there. The Husband therefore filed the petition under section 9 of Hindu Marriage Act for restitution of conjugal rights. 

Contention of the parties : 

Petitioner : The petitioner argued that respondent's condition is not satisfactory that he can maintain his wife properly. Moreover the petitioner mentions about the cruelty she faced in respondent's house. 

Respondent : Husband contended that the wife unreasonably drawn herself from his society and thus he wanted the decree of restitution of conjugal rights under section 9 of Hindu Marriage Act. 

JUDGEMENT

The trial court refused to issue the decree to the husband but the same was issued by the single judge bench of the Delhi High Court. Now the matter has come before this bench of Delhi High Court as a letter patent appeal. Regarding choice of matrimonial home, the court observed that it should be ideally decided by the consensus of both the parties which benefits both of them. As in this case or in the case of conflicts between them, it could be usually established that the choice is made by the husband as he is consider as the bread earner of the family. But, as stated by Lord Denning L. J. in Dunn vs. Dunn that it is not the proposition of the law, rather it is simply a proposition of ordinary good sense that usually husband is a wage earner and he need to reside near the place of his work. Moreover it is also agreed that only husband has the responsibility to maintain his wife, whereas wife does not have any such corresponding responsibility to maintain her husband, but it is also established that if wife is in better position to maintain herself, she would not be entitled to get maintenance from her husband. Thus the choice if matrimonial home by the husband cannot be taken as the hard and fast rule in the absence of any codified law in this regard. Apart from this court also observed the husband was involved in matrimonial cruelty with her wife and has already extracted lot of money from her parents in the name of dowry and keep her deprived of the jewelry, proper cloth etc given by her parents. The honourable court also taken into account customs, which constitutes the uncodified part of the hindu law. Regarding to custom, the court observed that customs need to be ancient, certain and enforceable but it is not the case here. Lot of changes have been taken place in past three centuries. Moreover customs should be backed by opinio necessitates[1]. In recent case any such custom is not applicable and and if applicable, it should ve held malus usus[2]. 

Therefore the honourable court concluded that in absence of any custom or any codified provision in hindu law and considering husband's matrimonial cruelty and better financial position of wife the decree for restitution of conjugal rights cannot be granted.

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[1] opinio juris sive necissitates : an opinion of law or necessity.

[2] malus usus est abolendus : an evil practice must be abolished. 

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