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Swaraj Garg Vs K.M. Garg

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Citation: AIR 1978 Delhi 296,

Case Type: Civil Appeal

Appellants: Swarj Garg

Respondents: K.M. Garg

Decided On: 07-03-1978

Statues Referred: Constitution of India, Hindu Marriage Act, 1955

Case Referred:

  • Dunn v. Dunn
  • Kailash Wati v. Ayodhia Parkash
  • Durgaprasada v. Sudarsanaswami

Bench: V Deshpande, H Anand


The wife Swaraj was a teacher at Sunam District Sangrur from 1956 and in 1969 became the Headmistress of Government High School.

And the husband was employed in Hastinapur Metals from Sept. 1966 to Sept. 1967 @ 50/- pm without any other allowances. And from 14th Sept. 1967 by’ Master Sa the and Kothari at Rs- 600/- P.M. without any other allowances.

The husband has no house of his own in Delhi. Neither did the couple discussed or came to any agreement as to what should be the matrimonial house and therefore the wife continued to live at Sunam and the husband at Delhi. Although the wife paid occasional visits to Delhi for few months yet after 2nd Feb, 1965 she never came to Delhi ever.

Afterwhich the husband filed a petition for the restitution of conjugal rights against the wife U/S 9 of the Hindu Marriage Act, 1955, for withdrawing herself from the society of the husband without reasonable excuses.

Whereas the wife defended the petition by contending that it wasn’t unnatural if she felt lonely for some time after marriage and that it was no ground for the alleged estrangement. In fact the husband maltreated the wife. And apart from the dowry, the husband used to extract maximum amount of money from her and her parents.

The wife further contended that she was deprived of her jewel, clothes and other valuable presents that were given to her by her parents and that such cruel treatment by her husband was the reason why she preferred not to live with her husband.

The Trail Court held that the husband only desired for money which he used to extract from the wife and her parents and had no intention to keep her as his wife. Whereas the first Appellate Court held that as the age of the wife advanced the amount also increased.

But the Court however held that such facts does not conclusively prove that the only objective was to make money and that the appellant herein had no intention to run the matrimonial home. On the contrary it reflects that the husband upon the prevalent circumstances was trying to tame the shrew by issuing indirect warnings.

Hence the appeal was made to the High Court Delhi.


What shall be the matrimonial home for the couple after marriage where both the husband and the wife are gainfully employed.

Obiter Dicta:

When deciding upon the matrimonial home neither party has a casting vote, the husband’s vocation should be primordial consideration while in some cases the wife’s business or livelihood may be predominant factor.

The proposition is based upon the ordinary common sense that if the husband the prime wage earner of the family then naturally the matrimonial home shall be somewhere near his workplace, but such parameter is not uniform in nature, if the case is otherwise, the matrimonial home shall be near to the place of work where the wife works.

Ratio Decedendi:

The High Court held that after meticulous scrutiny of the divergent decision of the Trail Court and the Appellate Court, two conclusion emerges which are:

  • There was no pre-marital agreement between the parties and therefore it cannot be contented that the wide be expected to resign her permanent job, leave Sunam and come to live with the Husband, keeping in consideration that the husband did not earn well to maintain his family at Delhi.
  • The husband expounded such conducts that it gave the wife reasonable excuses to not to leave with him.

The rudimentary principle upon which the matrimonial home is decided by the common convenience and benefit of both the parties. There is no absolute rule whereby either party is bound to accord the other party any accommodation, it shall be based upon the agreement between the parties or that can be decided before marriage as well.

The contention of the wife will not succeed by only stating that since the husband had not accorded her with a reasonable accommodation to live by and therefore she unilaterally decided to live somewhere else.

In Ex R1 dated 2nd Sept, 1964, the husband affirmed that due to lack of financial support the parties had to part with each other. And Ex R2 dated 15th Sept, 1964 which was addressed to the wife’s father showed that the husband insisted the wife to resign and to come to Delhi and live with him.

The letter routes between the husband and the wife shows that the husband had some sort of vocation but it was his salary which was not sufficient to maintain. The husband was trying to get some job in the workplace near that of wife.

It is not incumbent upon the wife always to leave her home and resign from the job for the sake of moving to husband’s place no matter how good or better the job is or was than that of the husband. The uncodified part of Hindu law is partly based upon custom and partly upon Dharm Shastra.

Whatever element upon which the customs stands it is difficult to accept those strand in today’s world where if the wife is in better position to maintain the family then there seems to be no reason that why she should not have the rights to decide the place of matrimonial home.

If a custom is incorrect or become incorrect in the course of time or becomes mischievous or against public policy, it become ineffective upon parties and ceases to exists.

Article 14 which expounds equality before law and equal protection of law is applicable to husband and wife as well. Therefore any law or custom which trim dawn the wife’s right to decide the place of matrimonial shall be contrary to Article 14.

Under Hindu law it is duty of the husband to maintain his wife but it is not reciprocally applicable upon wife, this is because of the fact that usually it is the husband who is the prime wage earner. But if the income of the wife is well off then it is not incumbent upon the husband to maintain his wife or pay maintenance.


The Delhi High Court’s bench comprising of V Deshpande, H Anand held the following:

The catena of grounds upon which the husband claimed the restitution of conjugal rights U/S 9 of the Hindu Marriage Act, 1955 were dealt as follows:

  • The feeling of the wife for separation from her parents during her first visit to husband place was held natural and universal.
  • The wife wanted her husband father who lived in lehra to not to live with him, held not proved.
  • The contention by the husband that the parents of the wife wanted to live upon the income of the wife was held self-contradictory as the letters showed that the husband demanded huge dowry from the parents of the wife. Therefore it cannot be contented that the parents of the wife were too poor to live upon the income of the wife.
  • The husband contention that the wife was cruel and quarrelsome stood opposed by the fact that the husband himself was inconsiderate and quarrelsome and that he had even slapped her.

Due to financial crisis and discouraging behaviour of the husband the Court held that the wife had reasonable alibi for refusing to resign her job and for not living at Delhi.

The inability of the parties to decide upon the place of matrimonial falls largely upon the husband. Therefore upon such consideration the husband’s claim for restitution of conjugal rights failed.

The decree of the High Court in Husband’s favour was set aside and the decree of the trail Court was restored. No cost was allowed.


Truth can be supressed but cannot be withered away. In the instant case the husband’s financial incapacity, his cruel inconsiderate attitude towards his wife, cheap approach of extracting dowry came to light before the Court evenly.

The husband failed to prove any grounds upon which the restitution U/S 9 of Hindu Marriage Act, 1955 was claimed. And hence the judgement went in favour of the defendant.

Kaushal Agarwal.