V.S. Deshpande, J.
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? 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 Sept., 1966 to Sept., 1967 at Rs. 50/_ p.m. without any allowances and from 14th Sept., 1967 by' Master Sa the 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. thereforee, even after the marriage the wife continued to live at Sunam. and the husband at Delhi. The wife came to Delhi to live with her husband from 12th July, !1964 to 28th Aug., 19,64 and then went back to Sunam. She again came to live with the husband from Oct., 1964 to 1st Feb., 1965 and went back to Sunam on 2nd Feb., 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 The husband filed a petition for the restitution of conjugal rights against the wife on the ground that she had withdrawn herself from the society of the husband without reasonable excuse within the meaning of S. 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the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 M 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 no cause for the alleged estrangement. The husband himself had left the wife at her parent's 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) & (e) These grounds were said to be 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 jewelers, 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. Ri to R11, 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 much 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' 0 It observed that 'these settlements of money which should be looked down upon in the present day of civilized society unfortunately keep on increasing in some sections of the society. However, from this it 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 an record and the arguments of both sides fooling two conclusion seem to emerge which requires to be discussed fully here after.
In the absence of a pro marital agreement bemoan the parties, it not bed said that the wife who, had a permanent Job with good prospects was expected to resign 1% Mavre 813114W 4UW come to live with the husband when the husband did not earn enough to mahatma the family at Delhi where life costlier.
2. The conduct of the husband was such as to frighten the wife from Joining him and thus giving her re4sombis 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 slid !has wife are based on common convenience and benefit of the parties, That would be the same In English Law as in the Indian Law. The law in England Is stated in 13 Halsbury's Laws of Rn9lM4 Fourth Edition (1975-76), para. 62S, as follows:
'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 t' and by reasonable aw commendation.
It is not against public policy for the parties to agree before marriage- an what is to be the matrimonial home, and unless the e reasons an which the agreement was based cum to exist, or if sum changed circumstances give good for change in the matrimonial bon% the agreement stands, The location of a husband's work is a most importer copy side ration to be borne in mind in seW-6ing 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, casting valet, it has further -been slugging msted, that if the parties are both we reasonable each might be entitled to a decree on the ground of the others de. section, but this proposition has been doubted and disapprove(i L The parties should so arrange their affairs the they spend their tine 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 Para. 93 of Ray den on Dkvorce, 12th Edition, probably because both of them are written by Joseph Jackson, a leading authority an 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 earniore. Normally, the husband would be earning more than the wife and, thereforee, 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 I.. J. said in Dunn v. Dunn, (1949) Pd 98, 'it is not a proposition 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'. If, as in this case, it is the wife who alone has the joy 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 1ati v. Ayodhia Parkash 1977 HLJ 115, seems to have, however, come to such a conclusion which was strongly relied upon by Mr. R. Ir 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 situation of the husband' posting am t1se two stayed together in- the matrimonial home. Later the wife maneuvered to, get herself transferred back to the place where she had-served before marriage. The constituted her withdrawal firm 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 married. At the time of the marriage there or as neither an express nor an implied understanding between them that the wife was to leave Sunam and come to Delhi t9 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 to resign her job after marriage. This is why in Ex R1, dated 2nd 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. R2, dated 15th September, 1964, written to the , w1ife'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. R5, she was expecting promotion in April. In Ex. R5, dated 24tb September, .1965, he says 'I quite agree you went there (Sunam)i 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 It the promotion you are worried for is to be maintained forever. 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, 1965 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, second1Y I am not sure whether I would such. creed Posting in Punjab in or after April Then you know in any circumstances, You are going to leave service in a year, It 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 1was not sufficient for their comfort and enjoyment. If the wife in these circumstances hesitated to leave her job, particularly because the thus band also way's thinking of leaving Delhi and going to Punjab to live near his wife she cannot be, blamed. In Ex. R6, dated 14th February, 1965, the husband is seem 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, thereforee, show that there was any duty on the wife to resign her job and come to live with her husband.
10-11. 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's case 1977 HLr 175, We would, thereforee, 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, 14th Edition, is as follows:
'(1) The wife is bound to live wither husband and to submit herself 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 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.'
Somewhat similar statements of law are found in decisions of State Courts in United States of America cited by the Full Bench.
12. 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 howsoever better it may be than the . b 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 Prot J. Duncan 1VL Derrett, 'the Dharnia Shastra 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, thereforee, retested 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 Shasta as 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 Shasta's. 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 practiced. 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 opinion, necessitates. The Indian decisions cited at the foot of paragraph 442 of Mulla's Hindu Law are of the 1898 and 1901. Whatever may be the conditions in that distant past more than three quarters of a century later the conditions are greatly altered. It would be difficult to say now that there is any custom which obliges an e arming 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 is held to be mauls uses. Both these reasons are applicable to show that no enforceable custom exists as law to require the wife to abandon all her right', in favor 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, much 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 recognized, especially since the decision in T. Nordenfelt v. Maxim-Nordenfelt G. & A. Co. (1894) Ac 535, 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 Ac 1. (K. C. Allen, Law in the Making, 7th Edn., pp. 152 to 1,56). page 481).
13. 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, thereforee, 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 husbands to choose the place of the matrimonial home.
14. It has been recognized 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 not nearly a century old. A noted Scholar in Hindu Law, K. T. Bhashyam Aiyangar 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 honor 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 (Madra,% 1929 page 481). Similarly, Mr. Justice Krishnas warred Yeager saw the change which conditions of modem 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 Rashes) 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
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 , constitute in the past an integral condition of the indigenous fabric.'
(Durgaprasada Rao v. Sudarsanaswami (1940) Mad 653;AIR 1940 Mad 513 .
15. 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. Art. 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 Art. 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 manorial home. This is also where the wife depends on the husband financially. K as in this case, the wife earns better than the husband, firstly she will not expect to be maintained by the husband and secondly, it will not be,4 matter of Course for her to resign her job and come to live with her husband. So' land of agreement and give and take is necessary.
(8) 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. council is even different from residence not to speak of the place of matrimonial home 4see Joseph Jackson's ''who Formation and Annulment of Marriage', second Edition, pages 3T9 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 tiebreaker. 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. If the circumstances are equally balanced in favor 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 S. I of the Matrimonial Causes Act, 1973. A similar consideration might have led to the abolition of right to claim restitution of conjugal rights by S. 20 of the Matrimonial Proceedings and Property Act, 1970 in the United Kingdom. Conduct of the husband
16. In Ex. R2, dated 15th Sept. 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 has and showed his willingness to return Rs. 2,000 (1. e. Rs. 42,000 minus Ru2,000) (sic). 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 bas expressed his awareness of the custom by which the boys and their fathers, expect such extraction of dowry and* money form the wives and their father& With respect, the presence of such unhealthy expectations and customs among certain sections of the society is no justification for the courts upholding them. On the other hand, by law we are bound to refuse to recognize 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 10D 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 Sandhara, would be yours, you are badly mistaken. If you come to stay with me as my wife, your all belongings 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 of your arrival, you have to give me the account for your earnings cash you got from me, etc. what your father gave you on Sandhara - the expenditure. Here also I have arranged two tuitions for you of 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 month
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 2nd otherwise for your own sake do not come.'
17. 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 visa to her' husband is natural and almost universal.
(b) The husband father lived at village Lehra and- the allegation that the wife wanted her homes father not to live with the husband is not proved at all
(c) The husband's stand that the parents of ft- 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, thereforee% 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 Ms wife never said that she was not capable of leading a married life.
18. 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.
19. We, thereforee hold that the husband has failed to prow the grounds for awarding him restitution of conjugal rights.
20. What to the position? The wife has not asked for my rife and we cannot give it to her under a. 2-A of the Act. The relief asked for by the hues. band Cannot b* View to hb& 27 must be very frusta to the husband' His position is like the factory worker (Stephen Blackpool) in the novel 'Hard Times' by Charles Dickens. Blackpoll seeks advice on how he can end his unhappy marriage and is told that there is no legal way in which the low can assist him.
'If I do her any hurt, sir there's a law to punish me?'
'' course there W'
'If I flee from her, there's a Up to punish me?'
'Of course there is.'
'If I marry Toothier dear lass, ther0s
a law to punish me?'
'Of course there is 00
'Now, a 'God's name', said Stephen Blackpoll, 'show me the law to help me7P
(Quoted from Bernard 8chwaftes 'I've Law in America' the American Heritage History (1073) page 147).
As Such*arts says 'Wackpool's plaint echoed the popular attitude tow at& the law'., The feeling of the unsuccessful litigants in matrin2onial causes would be similar. Where there is a breakdown of the marriage, this in fated should be a cause for which divorce should be available under low. It would then be immaterial to enquire as to witch of the two parties is at fault, The principle to breakdown of marriage as enabling the parties to obtain a divorce recognized in the U. K. since .1973 is at present only partially recognized by the Hindu Marriage Act by the insertion of sub-section (I-A) In Section 13 of the Act by the Amendment Act 44 of 1964 (see article 'More under the Hindu rarer!._ age Act - A Conflict of Principles In Air 1971 .7durnal Section p. 113). It 0 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 tb6 law to enable the parties to obtain a divorce when the marriage is apparently. broken down, as seems to be the case I?etween the parties before us With such an amendment, the law would came m line with the English law.
21. The decree granted in favor of the bombard by the learned single Judge, which is appealed against is, thereforee, get aside and the decide of the trial court dishing the 'Mft old ft bus band is restored. The parties are left to bear their respective costs.
22. Appeal allowed.