Sushila Dei vs Madhusudan Kisan

R.N. Misra, J.—The Defendant-wife is in appeal against the affirming decree of the learned District Judge of Sambalpur in a suit for restitution of conjugal rights. The husband who came to Court claimed that Defendant No. 1 was his wife, marriage having taken place some time in 1962. They had a'' daughter out of their wedlock aged about three years at the time of suit. Defendant''s father represented to the Plaintiff that if he came and live in the family he would be given proper education.. He was, however, ill-treated and made to work as a wage-earner. Plaintiff, therefore, went out of his father-in-law''s family and stayed at Bargarh. The Defendant refused to come and live with him. She instituted a proceeding for maintenance under the Code of Criminal Procedure whereafter the husband came with this suit on 22-2-1968.

Marriage was not disputed in the Written statement. It was admitted that they had a daughter born out of the wedlock. The representation of the father as alleged by the Plaintiff was denied and it was pleaded that the Plaintiff volunteered to come and stay in the house and had entered into an agreement on 19-2-1964 (Ext. A) with the Defendant''s hther in terms whereof he had undertaken to stay with the father in his house. The Plaintiff started ill-treating the Defendant. He persuaded the Defendant''s father to sell away the properties in the village and stay elsewhere along with the Plaintiff. Ultimately he deserted her and went away.

The learned Trial Judge found that the agreement did not bind the Plaintiff. He also recorded a finding that cruelty on the part of the Plaintiff had not been established. He was of the view that the Defendant had refused to come and live with the husband and accordingly granted a decree for restitution of conjugal rights.

Before the lower appellate Court, reliance was placed on Ext. A for the contention that there had been an agreement fixing the marital home and the Plaintiff was not entitled to withdraw from the undertaking given therein so as to require the Defendant to follow him elsewhere. The allegation of cruelty and ill-treatment was also reiterated. Both the grounds were negatived by the learned Appellate Judge and be came to hold that there was no force in the plea of desertion set up by the Defendant and, therefore, the decree granted by the trial Court was appropriate. This affirming decree of the learned Appellate Judge is assailed in second appeal.

Before me, Mr. Das for the Appellant does not raise any other contention except that in view of the agreement under Ext. A fixing the marital home, the Defendant was entitled to resist the attempt of the Plaintiff in changing the place and the Plaintiff was not entitled to force the Defendant to come and live elsewhere. In support of his submission, he placed reliance on the decision of the'' Court of Appeal in the case of Dunn v. Dunn (1948) 1 All ELR 811. Denning, L. J, observed that there was no proposition of law that a husband has the right to say where the matrimonial home should be. The decision where the home is to be is one affecting both parties and their children, and it is the duty of the parties to decide it by agreement, each having an equal voice. If such an arrangement by the unreasonableness of one or the other and this leads to a separation, then the party who has produced the separation by reason of his or her unreasonable behaviour is guilty of desertion.

He also placed reliance on a commentary entitled" Indian Law of Marriage and Divorce" by Sri Kumud Desai where the following has been stated:

The place where the husband and wife reside or have intention of residing permanently is the matrimonial home. Where the matrimonial home shall be is a matter to be'' settled by agreement between the parties. Ordinarily it is the husband''s duty to provide his wife with a home according to his circumstances. It is not against public policy for the parties to agree before marriage on want is to be the matrimonial home and unless the reasons on which the agreement was based ceased to exist, or if some changed circumstances give good reason for change in the matrimonial home, the agreement stands.

The authority for the proposition is an English decision in the case of King v. King (1941) 1 All ELR 103.

The agreement (Ext. A), as already stated, is dated 19-2-1964. It is an agreement purporting to be between the Plaintiff and Defendant''s father. The relevant portions of the agreement when translated into English would read thus:

You are my father-in-law. While you do not have a son born to you, you have a daughter by name Sushila whom I have married according to caste custom. As you do not have a son and with a view to keeping me as a domesticated son-in-law you have offered your daughter to me, I execute this agreement in the presence of caste men and well-wishers undertaking to stay with you for ever and to render all services to my father-in-law and mother-in-law....

At the foot of the agreement, the Defendant has given a declaration that she has married the Plaintiff and would obey him. This agreement is not antenuptial. The relevant portion of the agreement is between the Plaintiff and his father-in-law.

Apart from the features indicated above, I do not think, according to Hindu Law, an agreement of this type is enforceable. In Mulla''s Hindu. Law (14th Edition) in paragraph 442 at page 520, the following passage occurs:

The wife is bound to live with her husband and to submit herself to his authority. An agreement enabling the wife to avoid a marriage or to live separate from her husband if he leaves the village in which his wife, and her parents reside,... is void. Such an agreement is against public policy and contrary to the spirit of the Hindu Law. An agreement of this kind is no answer to a suit for restitution of conjugal rights by a husband against his wife.

It is appropriate to refer to an early decision of the Calcutta High Court in the case of Tekait Monmohini Jemadei v. Basanta Kumar Singh ILR 28 Cal. 751. Taxtual Hindu Law on the topic was referred to in the said decision some of which may be quoted:

Manu has observed.

Let a man and woman united by marriage constantly beware, lest at any time disunited they violate their mutual fidelity.

Devala has been translated by Colebrooke to have said:

Dependence, attendance on her husband and in his religious ceremonies, respectful behaviour to these who are entitled to veneration from him, hatred to those who bear enmity to him, no ill-will towards him, constant complacency, attention to his business, are the duties of woman.

Vishnu prescribed the conduct thus:

Accompanying of her husband, reverence to his father of spiritual parents, of duties and guests, great dinginess in regard to the domestic furniture and care of the household vessels, avoiding the use of philters and charms attention to auspicious customs austerities after the death of her husband, no frequenting to strange houses, no standing at the door or window, dependence in all affairs, subjection to her father, husband and son in childhood, youth and age: such are the duties of a woman.

Vasistha in his commentary stated:

The abode of faithful wives, who are fond of me and truly rigid and who have subdued their passions shall be the same with that of their lords; but the mansions of shakals are assigned to disloyal wives.

Mr. Justice Banerjee in his Book on the Hindu Law of Marriage, and Stridhana has given a brief but appropriate digest of the textual law thus:

It follows from the very nature of the matrimonial relation that the husband and wife must each be entitled to the society of the other. It is one of the express conditions in the nuptial vow of the Hindus, that each party is to become the associate of the other. Accordingly Manu declares:

Let mutual fidelity continue till death. Let a man and woman united by marriage constantly beware

lest at any time disunited they violate their mutual fidelity.

And the sages denounce the desertion or neglect of either party by the other without just cause as an act punishable in this world and in the next....

The duty of attendance on her husband, which is so strongly inculcated obliges her to follow him wherever he chooses to reside. And it is a general principle of law that the domicile of the wife follows that of her husband. She is also bound to refrain from going to any place where her husband forbids her to go.

Mr. Mayne in his well-recognised Treatise on Hindu Law has indicated:

As soon as the wife is mature, her home is necessarily in her husband''s house. He is bound to maintain her in it while she is willing to reside with him and to perform her duties. If she quits him of her own accord, either without cause or on account of such ordinary quarrels as are incidental to married life in general, she can set up no claim to a separate maintenance. Nothing will justify her in leaving her home except such violence as renders it unsafe for her to continue there, or such continued ill-usage as would be termed cruelty in an English Matrimonial Court.

In Sarkar''s Hindu, Law, it has been stated:

(Although the conjugal relation is based upon a contract of either of the parties to the marriage or their guardians, the rights and the duties of the married couple do not arise from any implied contract, but are annexed by law to the connubial relation as its incidents. The wife is bound to reside with the husband wherever he may choose to live....

We have by now noticed textual Hindu Law as also the legal position as indicated by commentators. Now the precedents may be referred to. In the case of Kateeram Dokanee, v. Gendhenee (1875) 13 WR 178 Markby, J. made by the following observations:

The marriage of an infant being under the Hindu Law a legal and complete marriage, the husband, in my opinion, has the same right as in other cases to demand that his wife shall reside in the same house as himself. I do not think that any Court can deprive the husband of this right, except upon some tangible and definite grounds, which show that under the special circumstances of the case the wife is absolved from this duty, and her parents or guardians from the duty of surrendering her to her husband and, we cannot, in my opinion, say, without contravening the Hindu Law, that the infancy of the wife constitutes such a ground though it might, I think, be right in the case of a very young girl to require the husband to show that she would be placed by him under the immediate care of some female member of his family.

Sir Richard Garth, delivering the judgment of Division Bench in the case of Sitanath Mookerjee, v. Haimabutty Dabee (1875) 24 WR 177 in a suit brought by the wife against the husband for maintenance observed:

Now what is the Hindu Law upon the subject?

It is clear that according to that law, a wife''s

first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection and although It might be very difficult to deduce from the authorities at the present day any definite rule as to the causes which would justify a wife in leaving her husband''s house, it may safely be affirmed that mere unkindness or neglect short of cruelty would not be a sufficient justification.

After the textual law, writings of the commentators and the precedents were discussed at length the following conclusion was reached:

The duty imposed upon a Hindu wife to reside with her husband wherever he may choose to reside, is a rule of Hindu Law and not merely a moral duty.

An ante-nuptial agreement on the part of the husband that he will never be at liberty to remove his wife from her parental abode would defeat that rule of Hindu Law and is invalid on that ground, as well as on the ground that it is opposed to public policy,

(quoted from Headnote)

I

Alagiriswami, J. (as the learned Judge then was) examined the position in a recent case A.E. Thirumal Naidu Vs. Rajammal, , Before the learned Single Judge reliance was placed on the following paragraph extracted from Reyden on Divorce, 8th Edn. at page 215:

An agreement to live separate and apart, if alleged and proved, empowers the Court to refuse a decree for restitution of conjugal rights, where to pronounce a decree would be to treat one of the spouses as deserting the other without reasonable cause, contrary to the truth of the case. And a deed of separation containing a covenant by the wife not to sue for restitution, is a bar to her suit if the deed is pleaded and set up by the husband....

The learned Judge observed:

These may not provide a proper precedent in the conditions of this country, particularly in the background of the Hindu society.

The only two cases in which this matter has been dealt with refer to pre-nuptial agreements and they held that such agreements are not valid. They are the decisions in Takit Monmohini Jamadai v. Basanta Kumar Singh ILR 28 Cal. 751, and Krishna Aiyar v. Balammal (1901) ILR 54 Mad. 598. But they contain valuable discussions on the principles that apply to such matters. The case III Takit Monmohini Jamadei v. Basanta Kumar Singh ILR 28 Cal. 751, deals exhaustively with the Hindu Law on the subject, and though the case relates to a pre-nuptial agreement, the discussions therein on the principles of Hindu law and the law of contracts make it clear that an agreement like the present one would not be upheld by the Courts....

The following observation of Mr. Justice Banerjee in his Book Hindu Law of Marriages at page 107 was extracted by Alagiriswami, J. with approval;

The Hindu Law upon this subject still retains its archaic character, Marriage in that law is not merely a contract but also a sacrament, and the rights and duties of the married parties are determined solely by the law, and are incapable of being varied by their agreement.

The learned Judge further observed:

It will be noticed that this statement of law is categorical and does not make a distinction between a pre-nuptial agreement and post-nuptial agreement or between an agreement for the present separation and the one for future separation....

The decision of Alagiriswami, J. makes it clear that though social conditions in the country have very much changed, the position of women in society has been substantially raised; under the Constitution equality between man and woman has been guaranteed, yet the Hindu Law on the point has not undergone any change.

Mr. Das for the Appellant has not been able to show any statutory provision recognising the binding character of an agreement relating to matrimonial home. The mandate that the wife must live with the husband and the husband and the wife must be entitled to each other''s company is a rule which remains as much a rule as it ever was. To require a wife to live with her husband and to leave the decision for fixing the family home with the husband in no manner affect the freedom of the wife. After all, by marriage, the man and the woman unite to make a home and if that is by choice, it cannot follow that the husband fixing up the marital home takes away or affects the liberty of the wife. The law as indicated in the English decisions, therefore, does not represent the law in India on the point. The agreement (Ext. A), therefore, provides no defence for the relief of restitution of conjugal rights claimed by the husband. The suit has been rightly decreed in the Courts below and the second appeal must stand dismissed.

I accordingly dismiss the appeal. The recalcitrant wife should normally have been saddled with costs as a losing litigant, but in view of the nature of the decree passed which when enforced would bring the parties together to live in one home, I do not think it appropriate to saddle her with any costs. That must have been the consideration prevailing with the two Courts below when they directed parties to bear their own costs.