Family Law

Kailash Wati v. Ayodhia Parkash

(1977) 79 PLR 216

Facts

Kailash Wati and Ayodhia Parkash married on 29 June 1964.
Both were employed as village-level teachers:
the wife worked at Bilga, her parental village;
the husband worked at Kot Ise Khan.
After marriage, the wife obtained a transfer to the husband’s place of posting.
They established their matrimonial home there and lived together for approximately eight or nine months.
The wife later secured another transfer back to Bilga and began residing with her parents.
Except for a few days in 1971, the spouses did not subsequently live together.
The husband maintained that:
he was financially capable of supporting her;
she had withdrawn from the matrimonial home against his wishes;
occasional meetings could not replace married life under one roof.
The wife stated that:
the husband knew she was employed when he married her;
she was unwilling to resign from government service;
she remained prepared to meet or live with him during holidays.
The husband sought restitution of conjugal rights under Section 9 HMA.
The Trial Court granted restitution, and a Single Judge upheld it. The wife then pursued a Letters Patent Appeal before the Full Bench.

Whether the wife’s employment at another location constituted a reasonable excuse for living separately.
Whether she could unilaterally substitute occasional or weekend meetings for a common matrimonial home.
Whether the husband was entitled to determine the location of that home.

Section 9 HMA applies when one spouse withdraws from the other’s society without reasonable excuse.
Conjugal society includes more than sexual relations. It covers:
companionship;
affection;
assistance;
emotional support;
shared residence;
the ordinary incidents of domestic life.
The burden of proving a reasonable excuse lies upon the spouse who has withdrawn.
The Full Bench stated that the husband could ordinarily determine the location of the matrimonial home, subject to two qualifications:
his decision must be bona fide and not intended to harass or spite the wife;
he must be capable of maintaining her in reasonable comfort.
Employment away from the matrimonial home was not, by itself, regarded as a sufficient legal excuse in this judgment.

The Court distinguished a mutually agreed arrangement from a unilateral one.
The spouses were free to agree that they would:
work in different locations;
maintain separate residences;
meet during holidays.
However, one spouse could not impose that arrangement upon the other while claiming to have fully performed marital obligations.
The wife had initially transferred to the husband’s station and established a common home with him.
She subsequently arranged her transfer back to her parental village and consistently refused to return permanently.
Her proposal that the husband should visit her occasionally did not provide him:
regular companionship;
common domestic life;
everyday mutual support;
the complete consortium contemplated by marriage.
The Court found no evidence that the husband:
acted maliciously;
deliberately selected an unreasonable place;
lacked the means to support her;
had committed matrimonial misconduct justifying separate residence.
It therefore concluded that continued employment at Bilga was a personal preference, rather than a legal compulsion making cohabitation impossible.
The Court also differentiated restitution from desertion:
desertion requires permanent intention to abandon;
restitution requires only withdrawal from society without reasonable excuse.
Therefore, it was unnecessary to prove that the wife intended permanently to end the marriage.
Her continued refusal to return was sufficient for Section 9.

The Full Bench dismissed the wife’s appeal.
The decree for restitution of conjugal rights was upheld.
Her decision to live separately for employment was not accepted as a reasonable excuse on the particular facts.
The Court held that occasional meetings could not be imposed as a substitute for the matrimonial home.
Present-use caution: the broad statement that the husband alone chooses the matrimonial home was later distinguished in Swaraj Garg v. K.M. Garg, which considered equality, the wife’s secure employment and the spouses’ actual financial circumstances. Kailash Wati should therefore be used primarily for its particular facts, not as an absolute modern rule that every employed wife must follow her husband.
Use this case for: employment elsewhere was rejected as a reasonable excuse where the wife had previously established the matrimonial home with the husband and the husband’s demand was found bona fide.