This article is written by Diksha Shastri. It attempts to get to the bottom of the facts, issues, judgement, as well as the rationale behind the same, in the case of Kailashwati vs. Ayodhia Prakash (1977). The case contemplates the idea of a marriage involving only occasional meetings, solely at the wife’s discretion, to protect her free right to work, while deciding a request for restitution of conjugal rights under the Hindu Marriage Act, 1955.

This article has been published by Shashwat Kaushik.

Introduction

Marriage is more than just a contract. Since centuries, for Hindus, marriage has remained a sacred institution, a promise to build and grow lives together. To protect this sanctity of marriage as an institution, the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) was passed. It is the prevailing law to decide for all different issues arising with respect to the marriage between two Hindus. The Act covers all different aspects of a Hindu marriage, from defining it, establishing its ceremonial procedure and registration, to judicial separation and divorce. Every year, the courts of India deal with many different matters pertaining to any of these issues. With time, we have  seen a rise in matrimonial disputes. However, a positive aspect is, nowadays, the fundamental rights of women, such as their right to work in accordance with their will, is protected. In the olden days, in matrimonial disputes, the duties of a wife would supersede the right of a woman. Such a disturbingly true issue fell before the Punjab and Haryana High Court  in the case of Kailashwati v Ayodhia Parkash (1977) 

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In this article, we will go back to 1977 when an issue questioning the sanctity of a weekend marriage at the unilateral decision of the wife, was brought before the Court when the wife was desirous of continuing her employment as a teacher away from her matrimonial home. 

Details of the case

Name of the case: Kailashwati v. Ayodhia Parkash 

Parties: Smt. Kailashwati (Appellant), and Ayodhia Parkash (Respondent)

Court: Punjab and Haryana High Court

Bench: Justice Sidhu, Justice S.P Goyal and Justice S.S Sandhawalia

Case type: Letters Patent Appeal (an appeal against the decision of a single judge, to a different bench of the same court.)

Important provisions: Section 9 of Hindu Marriage Act, 1955

Date of the judgement: 19 November, 1976

Citation:  (1977) 79 PLR 216

Background of the case 

A brief background of the case is that the husband and wife were both working professionals. However, when the wife got transferred to another location, the husband wanted her to live with him and not move. So, he filed a suit under Section 9 of the Act, for the restitution of conjugal rights. The trial court agreed with the husband’s request leading to the appeal by the wife before the Punjab and Haryana High Court, which then concluded in a letters patent appeal, specifically for deciding the issue of whether or a wife was entitled to unilaterally decide on only occasionally meeting her husband at their matrimonial home, solely for the purpose of her employment. 

Facts of Kailashwati vs. Ayodhia Prakash (1977) 

A woman named Kailashwati tied the knot with Mr Ayudhia Parkash, under the sanctity of the Hindu Marriage Act, on 29th June 1964. Both the partners were working professionals and were employed as village level teachers. Kailashwati’s place of employment was in the village of Bilga, in tehsil Phillaur (her maternal home). However, her husband’s place of employment was at village Kot Ise Khan. Once married, she got a transfer to her husband’s employment location and they went on  to live happily for 8-9 months, in their matrimonial home. 

Thereafter, as per the allegations of Mr. Ayudhia Prakash, Kailashwati insisted on getting herself transferred again to village Bilga, her maternal home. Ever since the transfer, she was residing with her parents against her husband’s wishes. The only time they lived together was for a really short span of 2 to 3 days, when they  had gone to another location at Moga. 

As a result, the husband filed an application under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights on 4th November, 1971. In response to this application, the wife stated that she had never refused to honour her matrimonial obligation. However, she was firm and unwilling to resign her job and return to the matrimonial home. 

On 5th February, 1973 the Trial Court decided the matter in favour of the husband. Aggrieved by the decision, the wife then moved an appeal before a single judge bench of the Punjab and Haryana High Court. The judge after relying on a precedent set in Smt. Tirath Kaur v. Kirpal Singh (1962), decided to uphold the Trial Court’s decision. 

As she did not find peace, the appellant then made a letters patent appeal. However, due to some conflict of authority the case was then brought before the full bench of the Punjab and Haryana High Court. 

Issues raised 

Three main issues were discussed and resolved in the case of Kailashwati v Ayodhia Parkash (1977). 

  • Whether a husband can be denied relief of conjugal rights on any other grounds except under the Section 9 of the Act, as applicable then? 
  • Whether a wife, who was employed away from her matrimonial home would be allowed by the law, to refuse leaving her employment so she could live with her husband in their matrimonial home? 
  • Does the Hindu Marriage Law sanctify the concept of a matrimonial home reduced to occasional nocturnal meeting, at the unilateral wish of the wife?

Arguments of the parties

Appellant

The appellant wife, Kailashwati and the counsels appearing on her behalf were very firm on their stand since the first petition for restitution of the conjugal rights was filed by her husband. 

Firstly, she claimed that she was not bound or obligated to reside with her husband in their matrimonial home, because the decision to marry her was taken by the husband after knowing and accepting her status as a working woman. Remember, in the 70s, it wasn’t a common phenomena or a day to day scenario. The wife had been quite vocal about her choice to continue working, which was accepted honourably by her husband.

Moreover, the wife also iterated that she had always been faithful and fulfilled her duties as a wife by allowing access to her, joining  him for holidays, trips and more. She was aggrieved by the fact that the husband insisted on her leaving her employment, despite these facts. Resultantly, she disagreed to move back to the matrimonial home. 

Respondent  

The respondent, Mr. Ayudhia Prakash’s contention from the beginning remained that his wife was deliberately staying away from the matrimonial home. To prove this, he even mentioned that she had been away for a continuous period of 6 years. Besides, he even claimed to be capable enough to provide his wife a life filled with dignity in their matrimonial home through his various sources of income. He was aggrieved by the fact that for the best years of his life, he was denied the society and sustenance of a conjugal life. According to him, there was a high possibility of her staying away until she reached the age of superannuation from the government. 

Legal provisions involved in Kailashwati vs. Ayodhia Prakash (1977)

Provisions of the Hindu Marriage Act have played a key role in the delivery of  this judgement. Here’s how: 

Restitution of conjugal rights

Section 9 of the Act allows either party of a marriage to seek restoration of their marital rights from the court. Moreover, according to this Section, if there are no reasonable conditions behind not being allowed to enjoy these rights, the court can easily order the other party to restore the conjugal or marital rights. At the time when this case was filed by the husband, Ayudhia Parkash, this Section was not amended and did not speak of the burden of proof. However, when the court was deciding upon this matter, post enactment of the The Marriage Laws (Amendment) Act, 1976, the entire section was taken into consideration. Here, an explanation was added due to which, the burden of proving a reasonable reason for such a break from the marital duty, lay on the person who abandoned the duty, that is, the wife in this case.

Purpose of Section 9

As per the Hindu principles, marriage is a sacred union of two individuals, over the ages of 18 (female) and 21 (male). Since the longest of times, a marriage between two consenting adults, is seen as a tie that lasts forever. Even though times are changing and divorce rates are increasing, the principle has not faltered. The purpose of Section 9 of this Act is to protect this sanctimonious tie. 

Once the parties get married with consent, it is their responsibility to respect the institution of their marriage. By passing an order for restoration of the marital rights, the court aims to protect this religious and sacred institution, especially when there is no reasonable reason for abandonment of one party by the other. 

Essentials for invoking restitution of conjugal rights

Section 9 of the Act provides for certain essential requirements. A husband or a wife in a Hindu marriage can only apply for the restoration of their conjugal rights if the following requirements are fulfilled: 

  • The parties must be married as per the Hindu rituals and laws
  • Either the wife or the husband must be excluded from the presence of the other
  • This exclusion happens without any specific valid reason; and
  • Lastly, even the court does not have any valid reason to deny the restitution after hearing both the parties. 

Scope of restitution of conjugal rights

There have been numerous decisions of the courts in this aspect. Those, along with Section 9 of the Act indicate the following scope of restitution of conjugal rights in Hindu marriages:

  • It protects the right of cohabitation when one party abandons the other without a just cause.
  • Application for such restitution can be filed at the place where the marriage was solemnised, or where either of the parties reside.
  • The decree by a court, passed under this Section, can also be enforced upon the non complying spouse of a marriage.
  • It grants the right to cohabit, but a decree cannot bring the parties to an emotional reconciliation in most cases. 

So, the scope of applications filed for the restitution of conjugal rights is limited to physical cohabitation. The courts cannot bring the parties to create or restore an emotional connection. 

Judgement of the case

After taking all arguments into consideration, the bench delivered their judgement, dismissing the present appeal by the respondent’’s wife, Kailashwati. However, the Court also emphasised that since situations like these would emerge more often in the future, It was important for the lawmakers to consider these changing times and amend the laws accordingly. The idea of a hindu marriage as presented by the sages, and the actual practicalities of living a married life in the present age, has a lot of gaps. 

Rationale behind this judgement

Before reaching this judgement, the Court primarily pondered upon the existence of a weekend or an occasional marital home. It was of the view that even though this is not really a new concept, the consent of both, husband and wife is required. Here, the main issue was the unilateral desire of the wife to live separately. 

Can the idea of an occasional meeting at the matrimonial home be considered at the unilateral decision of the wife? 

The court pointed out that such a living arrangement was not uncommon, taking modern employment commitments into consideration. However, solely relying on the unilateral decision of the wife to stay away, even though the husband was insisting on the contrary, would lead to issues. Remember, marriage is a divine institution under the Hindu Laws, where both the parties have their set of duties. While deciding on important life matters, mutual consent and understanding between the husband and wife is really important. 

While deciding and rationalising on this issue, the court did not rely on the point of view of the Hindu sages, but on the Hindu Marriage Act, whose provisions had significantly changed the idea of a marriage as an institution. According to the general principles, the idea of a matrimonial home is central to the entire marriage. Moreover, it is the only way through  which the husband and wife can truly build and grow their institution. The Court relied on Lane v. Lane (1953), wherein the idea of marital status and a matrimonial home are used interchangeably and given utmost importance. Moreover, this case went on to cite Pulford v. Pulford (1923), wherein the issue of desertion in a marriage was discussed. Desertion does not just refer to physical abandonment, but also the abandonment of state of things, which includes the marital relationship and responsibilities. 

On the basis of these precedents, the Court was of the view that matrimonial home, which includes the rights and companionship between the partners, is integral to the concept of marriage. In the English Common Law and Roman Law, since earlier times, importance was given to a husband’s right to consortium or matrimonial home. So, during those times, the general perspective and consensus was that the husband had the right to access the companionship and society of his wife. However, the Court also stated that with passing time, it was seen as a mutual right, which means that the wife too had the right to access the companionship and society of her husband. However, in the present case, the issue revolved around the question of whether the wife had the right to reject the husband of his right to marital bliss, particularly for the reason of her employment. 

To examine this in depth, three different situations were examined:

  • Firstly, when the husband is already aware of such employment of the wife and agrees to marriage, does it imply his agreement to let go of his rights to claim a matrimonial home with his wife? 

The Court opined negatively to this question, for the sole reason that even a working woman who agrees to marriage knows that she would have to leave her maternal residence and go to the matrimonial home. It was then emphasised that if common consent of the parties was involved, there would be no question of this sort. However, a wife or a husband cannot unilaterally claim that since they are working at different places, they can live apart. This renders the applicant’s argument invalid, as she claimed that her husband  was aware of her working nature and hence, he must accept living apart from his wife, to enable her to keep working. Moreover, the Court also agreed that if the parties mutually reached an agreement that worked out for both of  them, it would be completely valid and legally binding on them. However, since neither party wanted to do so, the Court did not give its final opinion on this. 

  • Secondly, the husband may encourage his wife to work in public service or the private sector, after marriage. By doing this, does he again abandon his right to the society of his wife?

Even in this situation the Court opined negatively. There is no doubt that a financial situation or need may require both the spouses to work. Purely because of this need, the wife leaving the solace of a matrimonial home permanently, does not seem right or supportable, either in  principle or in authority. In this situation too, the express agreement of both parties can work. However, despite that, the view of the Court was that just by wilfully agreeing to gainful employment of the wife after marriage, the husband does not inherently give up his right to matrimonial companionship. 

  • The third and final situation refers to when the wife goes against the husband’s wishes, and takes  up employment away from the matrimonial home. 

Obviously, this situation is held as unreasonable and unilateral. Moreover, the Court also stated that a situation such as this constitutes a direct violation of the mutual duty of husband and wife to live together and build a life together. 

As evident from these three different situations, the Court was of the view that just by agreeing to gainful employment of the wife, the husband does not give up his right to the companionship and society of his wife. However, this is applicable, subject to two conditions:

  • The husband must be established enough to have a matrimonial  home, where he can easily maintain his wife and provide a  life with dignity; and 
  • The husband, while doing so, must act in good faith and not just to spite the wife of his authority or power. 

So, when a husband demands his wife to return to the matrimonial home with malafide intentions, like committing a matrimonial offence, the wife has reasonable cause to refuse returning to the matrimonial home with her husband. 

Based on these conditions and the general principles, the Court opined that the wife does not hold the right to unilaterally withdraw from the companionship of her husband. The arguments given by the wife, such as the husband being aware, and of her not denying access to her husband as and when possible, were construed as unreasonable. 

Locus of the matrimonial house

The issue of the locus, that is, location of the matrimonial home was also in question. The appellant was of the view that in the present times, the husband did not have the sole right to decide on the final matrimonial home. With her qualifications and employment, she had an equal right to make this decision. Moreover, in the present case, the wife was also open to her husband coming and living with her at her place of employment. If she was more financially capable than the husband, it would be more reasonable for him to come and live with her at the place of her choice. 

Now that it had been decided that moving away unilaterally without the consent of the partner was wrong, it was important to discuss the location of the matrimonial home. 

To handle this issue properly, the rules of Hindu Law and other general principles need to be examined. However, two factors were integral to the decision:

  • In majority of the civilisations, under marriage laws, a duty is imposed on the husband to maintain the wife and children from the wedlock. Whereas, there is no such duty on a wife, financially; and
  • Being the “wage earner” of a family, the husband usually lives near his place of work.

Based on these two factors, the husband usually had a greater financial responsibility towards the family. Hence, to discharge his legal duties as a breadwinner, he should get the right to choose the home from which he can effectively discharge these legal duties. 

The Court examined the American legal principles first. In American laws, it was well settled that the husband had the right to choose and establish the matrimonial home at the place of his choice. Whereas, the wife has the duty to accept this decision, and to follow him. Hence, the husband must take such a decision in good faith, without any malafide intentions. This is both a privilege and responsibility.

However, the English legal principles and authorities are not consistent with this view. Differing views have been provided in different situations. For example, in the case of Mansey v Mansey (1940), it was held that if the wife reaches a position superior to that of the husband, wherein she can maintain him, she can choose the place of matrimonial home. However, in cases wherein she has not reached such a stage, she would have to agree with the husband’s decision on the matrimonial home. It was also held that if she does not agree to the location of the matrimonial home, it is regarded as a breach of the matrimonial obligation and she will be deemed to have deserted him. 

To reach a conclusion in such sensitive issues, it is difficult to find a unanimous standing of courts. This Court then relied on the case of Dunn v. Dunn (1949). It was pointed out that if the issue of deciding the locus of matrimonial home fell upon the husband, it was not a question of law, that the wife had no legal burden to justify her refusal. Rather, it was a question of principles, which in those times stated that the husband as the bread winner had the right to live near his workplace. Moreover, it was pointed out that in the modern days, it is not a common practice. Hence, the parties, that is, husband and wife should take a mutual decision for their, as well their children’s wellbeing. 

After careful consideration of the views in these cases, the Court in the present case of Kailashwati vs. Ayudhia Parkash, firstly agreed that the decision of choosing the location of a matrimonial home would ideally fall upon the three parties- husband, wife and children. The decisions must be a give and take, and reasonable. However, the Court also realised that this would not be possible in a majority of the cases. It even stated that if something like this was possible, there would be no need for a rule of law in these matters. However, the present situation was different. Hence, the law has to be invoked, and must decide on behalf of the parties, by laying down a rule of conduct that is reasonable and works best for a peaceful marriage. 

Moreover, emphasising the need for a basic rule of law in this matter, the Court even pointed out that everytime, if the trial courts decided only on the basis of what the parties have to say, iit would merely increase the number of litigations. Hence, it is very important to determine a fixed answer on this legal issue. When the spouses of a marriage are not considerate and reasonable towards each other, every time, the trial court would have to provide someone the balance of power, either the wife or husband. After examining several judgments and differing point of views, the Court held that it was vain to follow up with the contradictory views in the English judgments. 

As a result, the Court concluded that on the basis of general principles, as long as the husband is acting with bona fide intentions, he is entitled by the law to decide on the final location of the matrimonial home. While this is a general perspective, for specific cases under the Hindu Law, the decision also revolves around the primary duty of the husband to maintain his wife and children. 

In India, under Section 125 of the Criminal Procedure Code, 1973, in case a husband possessing sufficient means, fails to comply with his obligation to maintain his family, the court may order him to provide a certain sum of regular maintenance and go on to punish him with imprisonment if he refuses to do so. Coming to specific Hindu Laws, the Court relied on Section 18 of the Hindu Adoption and Maintenance Act, 1956. According to this Section, a Hindu wife is entitled to the protection of maintenance by her husband, during the course of her lifetime. Moreover, it also provided that the wife could live separately and still claim maintenance if the husband is guilty of abandoning her or deserting her, or wilfully neglecting her without any reasonable cause. 

From these provisions, it is evident that under the Hindu laws, the wife has a general right to be maintained by her husband, throughout her life. Moreover, in certain cases, she also has the right to live separately and still claim maintenance. This, however, is subjected to the condition that she is chaste and follows the Hindu religion.

Additionally, Section 20 of the Hindu Adoption and Maintenance Act was also referred to, wherein all Hindus have the responsibility to maintain their minor legitimate or illegitimate children and their aged and infirm parents. Here the duty is imposed on a Hindu, not on just a husband. Hence, even a woman has the responsibility to maintain her parents and children. There are other provisions under Hindu Adoption and Maintenance Act, such as Section 22, wherein the heir of a Hindu deceased must take responsibility for maintaining the deceased person’s dependents, and Section 19, wherein provision is made for the maintenance of a widowed Hindu daughter-in-law. Maintenance is defined under Section 3(b), as providing food, clothing, shelter, education and medical attendance. 

Thus, as per the various provisions under the Hindu Law, the major duty of maintaining their spouse is directly imposed on the husband. These are his legal and general duties, that arise from the mere existence of the relationship. On the contrary, even if the wife is financially sufficient and prosperous, she has no obligation to maintain her husband or the family. 

Taking these responsibilities of a husband into consideration, the question that arises is whether he gets to have a say in choosing the place of their home, where he would fulfil these obligations and duties? Even if this issue is set aside for a moment, what would happen to the kids born in such a marriage? How would a child grow in an environment where the wife is unilaterally allowed and entitled to live separately, away from the matrimonial home? In such a case, wherein the wife and children are living separately, against the husband’s wishes, would he still be obliged to maintain them? The court came up with a plain and simple answer to these questions and provisions. The duty of maintaining the wife and children, comes with the ancillary right to choose the location of the matrimonial home. In a general perspective, this right is provided to ensure that the benefit and burden concurs. 

The Court further relied on the general rules of the Hindu Law, wherein the wife has a primary obligation towards her husband, to remain under his roof and protection, while the husband has the duty of maintaining and protecting his wife. The Court then cited the judgement of Shrimati Tirath Kaur vs. Kirpal Singh (1962), wherein the facts were identical to the present case of Kailashwati vs. Ayudhia Parkash (1977). In that case, the wife’s arguments were repealed and it was observed that there was no legal principle or rule that would justify the wife to be allowed to withdraw herself from the presence and society of her husband. However, lateron, this order was modified substantially, by a letter patent bench, and it was decided that the parties must mutually decide to change the place of work and reside in a common matrimonial home. Nevertheless, the Court was still of the view that this judgement did not lay down a proposition of the law, that the wife could, at her own will, separate herself from the matrimonial home of her husband. Besides, the proposition that a wife is entitled to live separately, simply because her workplace is at a different location, is equivalent to cutting off the roots of marriage as an institution. Hence, this Bench overruled the letters patent judgement of the cited case. 

The Court then cited the case of Surrinder Kaur v. Gurdeep Singh (1972), wherein again, identical facts were presented before the court. It was held that the wife has a duty of attendance, obedience, and veneration towards the husband. Moreover, she is obligated to live where he chooses to. Similarly, in the case of Gaya Prasad v. Mst. Bhagwati (1965), it was held that merely because the husband has a low income, and if the wife is allowed to live and work at a different place, it can augment the family income as a whole, does not become a sufficient reason to deny the wife’s access to her husband. It was even pointed out that nothing in the entire Hindu Law accepts any such situation or warrants for its adoption. 

Additionally, the Court also relied on the judgement of Vuyyuru Pothuraju v. Vuyyuru Radha (1964), wherein it was held that all rights in a Hindu marriage need to be determined on the basis of Hindu Law. It was also apprehended that the home of a wife is the husband’s house. 

However, there also exist contradictory views of a single bench judge of the Gujarat High Court, in the case of Pravinaben v. Sureshbhai Tribhovan Arva (1973). A school teacher was held to be entitled to the right of living separately for the sake of her employment and the petition for restitution of conjugal rights by the husband was dismissed. A closer look at the facts of that case presented the ill intention of the husband to get a divorce from his wife, due to which the matter was decided against him. 

To conclude, this Bench observed that even under Anglo American jurisprudence, the idea of a matrimonial home lies at the centre of a marriage. From the stone age to the modern day, husband and wife look for a home to build their life together. They have their own share of responsibilities and obligations towards each other. One party unilaterally deciding to let go of their obligations or marital duties does not prove to be fair to the institution of marriage. An exception is obviously created for enhanced circumstances.

Irrespective of what the western principles allude, all aspects of the Hindu rules and principles which are primarily applicable in the case of Kailashwati v. Ayudhia Parkash (1977), state that the husband has the right to choose the matrimonial home. Under the Hindu laws, the wife also has an unequivocal duty to live with her husband, under his roof and protection. It is only in case of a misconduct that a wife can be entitled to live separately. Ordinary employment is not a sufficient ground to live in different places. The idea behind Section 9 of the Hindu Marriage Act, is to provide an immediate remedy to the party of a matrimonial relationship, that has been wronged by the other. Moreover, the Court also pointed out that despite these provisions, if two parties of a marriage cannot reach an amicable decision even with respect to a simple question of the location of their home, the marriage has seemingly reached a point of no resolve. Hence, in such a case, it would be more in the interest of the parties, to end the marriage, than to approach the courts and then be obligated to live together unhappily thereafter. 

Thus, based on the pertinent facts that the wife intentionally seeked transfer away from the matrimonial home, continued living there for a period of 12 years, and refused to live with her husband for more than 2 or 3 days at a stretch, even though he is willing to and capable of taking care of her, it was held that the decision of the lower courts were valid and the present appeal was dismissed.

Analysis of Kailashwati vs. Ayodhia Prakash (1977) 

At a glance, a decision like this looks ancient and against the empowerment of women. However, when we delve deep into the facts and issues of the case, it becomes evident why the Court came up with this decision. 

In India, and in most civilised societies, marriage is seen as a sacred institution, it imposes a particular set of rights and responsibilities on both, the husband and the wife. In the 70s, when this case took place, women empowerment was nowhere near where it is today. With that said, there were still plenty of women that were breaking the barriers and opting to work, grow and study. One such woman was Kailashwati, and from her point of view it is not wrong to have the desire to not move and leave her job. However, as per the Hindu law principles and rules that were applicable in those days, it was her duty to stay under the protection of her husband, unless there was a reasonable cause behind why she couldn’t. In this case, her right to work and her financial freedom were not considered as a reasonable enough cause to allow her to live away at her sole discretion. 

Besides, when you look at it, in a marriage, both the parties must have an understanding. They must think of each other’s situation and make decisions accordingly. However, in this case, neither party was ready to do so. It is vital to not overlook the fact that the husband had remained away from his wife for a period of 12 years, which were also the best years of his life. So, even when the statute allows them to seek the restitution of conjugal rights, at that time, it would have been unfair to the husband in deciding anything against it. 

Moreover, in the ancient Hindu laws, the duty to maintain the family and wife is solely on the husband. In this case, the husband was even readily agreeing to do so. Even with these facts, the desire of the wife to carry on employment cannot be just overlooked. Hence, it would have been much better to seek a judicial separation or divorce for a marriage of such sorts. However, the parties instead decided to go the other way. This left no choice but for the court to allow the restitution of conjugal rights appeal from the aggrieved husband. 

Conclusion 

In conclusion, the application for restitution of conjugal rights can be made by either party to a marriage in case they are not granted rights of marriage from the other. Moreover, as applicable then, it was also the duty of the court to grant the application, unless there was a reasonable cause. In the case of Kailashwati v. Ayudhia Parkash (1977), there was no such reasonable cause except her desire to work. However, the nature of employment was ordinary, and her actions were held as not living up to the matrimonial duties towards her husband, Hence, her appeal was dismissed. 


Since then, with the developing times, the constitutional validity of Section 9 of the Hindu Marriage Act, has been challenged several times, and the court has upheld its validity. It is a statutory remedy that works in favour of either party of a marriage that faces an unjust separation from the society of their partners.

Frequently Asked Questions (FAQs)

Is it solely the husband’s duty to maintain his wife?

Under the Hindu principles and laws, the husband has the duty to protect and maintain his wife and minor children, while the wife does not.

Can a wife unilaterally move away from the matrimonial home?

In case of a material breach of matrimony, when the wife has a reasonable cause to move and live separately, she can be entitled to move away. However, without a reasonable cause, it is her duty to live with her husband, under his roof and protection. 

Who has the power or right to decide the locus of matrimonial home in a marriage? 

In an ideal world, it is a mutual decision of the husband, wife and the children. However, in the practical world, where the husband is imposed with the legal duties of maintaining the family, he is also given the right to do so from the place of his choice and comfort. 

In the case of Kailashwati v. Ayudhia Parkash, did the husband give up his right to the companionship of his wife by agreeing to marry a working woman in those times? 

No, it was held that merely knowing she was working was not sufficient cause to allow her entitlement to live separately without a just cause. 

Is Section 9 of the Hindu Marriage Act valid? 

Yes, the section provides for the restitution of conjugal rights and provides an immediate remedy when a party to the marriage has been unjustly deserted, without any reasonable cause. 

What happens when a wife leaves her husband?

When a wife leaves her husband without any reasonable cause in a Hindu Marriage, the husband can file a petition for restitution of conjugal rights against the wife. 

What happens when a husband leaves his wife?

If a husband leaves his wife without any sufficient cause in a Hindu Marriage, the wife can file a petition for restitution of conjugal rights against the husband. 

References

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