Wife residing separate from Husband due to employment does not amount to desertion
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.
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.
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.
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, therefore hold that the husband has failed to prow the grounds for awarding him restitution of conjugal rights.
Delhi High Court
Swaraj Garg vs K.M. Garg on 7 March, 1978
Equivalent citations: AIR 1978 Delhi 296, 14 (1978) DLT 18 b, 1978 RLR 525
