SWARAJ GARG V. K. M. GARG[ AIR 1978 DEL. 296]
Issue: 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?
Lord Denning L. J. said in Dunn v. Dunn (1949) ―it is not a proposition of law.It is simply a proposition of ordinary good sense 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. Held:
(1) 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 considered 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 matrimonial home. This is also where the wife depends on the husband financially. If, 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 a matter of course for her to resign her job and come to live with her husband. Some kind of agreement and give and take is necessary.
(3) 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.
(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.
T. Sareetha v. T. Venkata Subbaiah [AIR 1983 AP 356]
It was observed that the remedy of restitution of conjugal rights as provided under Section 9 of the Hindu Marriage Act was deemed to be an oppressive and inhumane remedy, infringing upon the right to privacy and human dignity guaranteed under Article 21 of the Constitution. The court found that a decree for restitution of conjugal rights constituted a severe violation of an individual's right to privacy, denying the woman the autonomy to decide when and how her body should be involved in procreation. Additionally, it was noted that such a decree deprived a woman of control over her intimate decisions, including the choice of when and with whom she should engage in sexual activity.
Consequently, the court held that the enforcement of Section 9 of the Hindu Marriage Act against an estranged wife could have irreversible consequences, potentially leading to forcible conception and permanently damaging her mental, physical, and overall well-being. Therefore, the court concluded that Section 9 of the Hindu Marriage Act was unconstitutional as it violated Article 21 of the Constitution.
