Swaraj Garg v. K.M. Garg (1978)

This is the decision that destroys the assumption that a wife must give up her job and go wherever her husband lives. It holds that the husband has no exclusive right to choose the matrimonial home, that any rule giving him one would offend the guarantee of equality, and that an earning wife who is better placed than her husband has a reasonable excuse for staying where she works. For a paper on the legal status of women it is the single clearest statement that a rule of the old personal law can be rejected because it cannot stand with the Constitution.

The wife had been a teacher since 1956 at a town in Sangrur district and was the Headmistress of a government high school by the time she gave evidence in 1969. The parties married on 12 July 1964 at her town. The husband, though apparently well qualified and once abroad, did not obtain a satisfactory job in India; he earned five hundred rupees a month from September 1966 and six hundred a month from September 1967, in both cases without allowances, and he had no house of his own in Delhi. Her father, a petition writer, lived in her town; his father, a farmer, lived in a village.

Neither before nor after the marriage did the parties discuss, much less agree, where the matrimonial home should be. She continued at her town and he in Delhi. She came to Delhi from July to August 1964, went back in February 1965 and did not return.

He petitioned for restitution of conjugal rights, alleging that she had withdrawn from his society without reasonable excuse, and putting the estrangement down to her longing for her parents, her pressing him not to keep his aged father with him, her parents' wish to live on her income, her being abusive, short-tempered and quarrelsome, and her supposed belief that she was incapable of married life. She denied all of it and said that it was he who treated her badly.

On the record were his own letters. In the first he asked her father for more money for a festival, after having already received forty thousand rupees as dowry, justifying the demand by the sum his own father had spent on his education; another letter referred to thirty-five thousand rupees as dowry. In the others he told her she was not the first woman in his life; that if she came, everything she owned and she herself would be his; that she could not move a step without his permission; that he could starve her for days; that she must account to him for her earnings and for whatever her father gave her; that he had arranged tuitions for her and all her earnings must be handed to him, to be returned at his pleasure; that he was taking her on two months' probation; and that this was the best time for a divorce.

The husband failed to prove the grounds for restitution. The wife had a reasonable excuse for not resigning her job and not coming to Delhi. Indeed the question of her withdrawing from his society did not arise at all, because the parties had never been able to decide where the matrimonial home should be, and the fault for the absence of any agreement was not hers. The wife having asked for no relief, none could be given to her.

1. Ask the right question. Where both spouses are gainfully employed at different places from before the marriage, where is the matrimonial home to be? With more and more women taking up jobs and wishing to keep them after marriage, the question is increasingly important.

1. The old texts stated an ideal, not a law. The uncodified part of Hindu law rests partly on the ancient texts and partly on custom. Those texts taught righteousness; if they preached that a wife should always submit to her husband whatever the financial circumstances of each, that was the ideal their authors aimed at.

1. Custom must still satisfy the tests of custom. So far as the husband's exclusive right rests on custom, it reflects the conditions of the age in which it was practised. A custom must be ancient, certain and enforceable. The authorities for the proposition were decisions of 1898 and 1901; more than three quarters of a century later, conditions are greatly altered, and it is difficult to say that any custom now obliges an earning wife to resign her job and join her husband even where she is the better placed of the two to choose the place. A custom may be rejected as inapplicable to the parties, or as a bad usage; and even if it once existed it may now be rejected as mischievous or contrary to the general policy of the law — public policy being the policy of the day, its standards changing with the prevailing notions of the time.

1. The equality guarantee settles it. There is no warrant in Hindu law for regarding the wife as having no say in choosing the matrimonial home. The Constitution guarantees equality before the law and the equal protection of the laws to husband and wife alike. Any law giving the husband the exclusive right to decide the place of the matrimonial home without considering the merits of the wife's claim would be contrary to that guarantee and unconstitutional.

1. Maintenance and residence follow the money, not the sex. It is the husband's duty to maintain the wife and not the reverse, but that is because the husband is normally the wage earner. If the wife has her own income it is taken into account, and if it suffices he pays nothing. The rule that she may not have a separate residence except for justification also assumes financial dependence. Where, as here, the wife earns better than the husband, she does not expect to be maintained and it is not a matter of course for her to resign and come to him: some agreement, some give and take, is necessary.

1. Domicile is beside the point. That the wife's domicile follows the husband's has no bearing on the matrimonial home. Domicile is of a country; the matrimonial home must be at a place where one or both spouses can earn enough to maintain the family. Domicile differs even from residence.

1. There is no casting vote. The suggestion that the husband must have a casting vote was rejected: a casting vote is only a tie-breaker, useful where a matter must be decided one way or the other. The matrimonial home is to be decided on the balance of circumstances; if the circumstances are equally balanced, there is a stalemate and neither spouse can sue the other for restitution.

1. Do not let the courts ratify dowry. The judge below had noted the custom by which boys and their fathers expect to extract dowry. The presence of such unhealthy expectations is no justification for courts upholding them; by law the courts are bound to refuse to recognise them and to hold demands for dowry and money unjustified. That finding also destroyed the husband's own pleaded case that her parents were too poor to live on their own income, since he was the man who had taken a huge dowry from them and was trying to extract more.

1. Test each pleaded ground. Missing her parents during a first visit is natural and almost universal. The allegation about his father was not proved at all. The allegation about her parents living on her income was self-contradictory. And he himself said she had never claimed to be incapable of married life. His letters, far from inviting her, did everything to alienate and frighten her.

It opens the restitution question from the wife's side. The method is: was there any agreement about the matrimonial home; if not, whose claim is stronger on the balance of circumstances; and does the wife have a reasonable excuse. Use the constitutional step — an unequal rule of personal law cannot survive the equality guarantee — wherever a question asks how far the Constitution reaches into family law.

It disposes of the husband's supposed unilateral right to fix the matrimonial home, the casting-vote theory, and the notion that an earning wife's refusal to resign is by itself withdrawal from his society.

It does not decide the constitutional validity of the restitution remedy itself, which was settled the other way in the later decision upholding it; a complete answer must carry both. Nor could the Court grant the wife any relief, since she had asked for none — the judgment closes by observing that where a marriage has broken down that should itself be a ground for divorce, which the statute then recognised only partially.