In what ways the court has engaged with and enforced this remedy and what is the

meaning of “reasonable excuse” section 9 if the HMA?

The first few cases the court has flagged the importance of gender roles in matrimonial
relationships, is that something which is accommodated within the scheme of the RCR?
What kind of issues they raise, in relation to the lived social reality of working woman
vis-à-vis their marital relationships
She is a married woman and she takes up employment and does it come under the ambit
of section 9
Kailash vati v Ayodhya Prakash case
Whether these arguments make sense now, does this interpretation stay the same that the
courts have engaged and whether the arguments are similar not just in relation to RCR but
also in other matrimonial remedies that are available
Parties were marred in 1964, the woman was transferred to another town, but subsequent
there was tension in relation to the location of the matrimonial home. The husband is
asking her to come back to her hometown. The husband is saying that he wants her to
relocate to the hometown even if it requires her to quit her job. The wife says that she has
not resigned from her marital duties to him and at the time that they were married she was
a workingwoman and he was aware that might be a possibility and she also says that she
hasn’t stopped any access to him, she was posted in a time, which was only 150 km away
from her husband.
Issue framed by the court
Whether the harrowed concept of a marital relationship can be confined to a meeting
between a conjugal couple or an occasional visit, at the unilateral desire of the wife to live
separately
It can be very well implied that there’s some undercurrent of some sort of
unreasonableness on behalf of the wife
It is not even the question of desire it was about constraint of employment.
In framing this issue the court is flagging this important precondition that this would not
become a question for determination of courts where the parties have agreed that the
matrimonial home will be some-place else other than the house of the husband.
When you go back to the language of HMA what underlies the operation of RCR one
spouse has moved away from the society of the other without any reasonable excuse.
In this case whether the situation of the woman will be considered as a reasonable excuse
for the purposes of section 9, in absence of any kind of meeting of minds between the
parties?
Where the location of the matrimonial home should and who determines that, in absence
of any kind of meeting of minds between the parties?
What the sources of court utilises, in defining the concept of matrimonial home itself, the
court is referring to the common law principles of consortium and conjugal rights and
how they can be understood to break the stale mate in similarly placed cases.
Within the concept of a matrimonial home all the rights and obligations that underlie the
conjugal relationship are performed and within it is consortium.
The court defines consortium as this interchange of aid and affection and comfort and
mutual benefit of each other comforts
Conjugal rights include consortium and dwelling, eating at the same table and benefits of
each other’s property and enjoying all kinds of domestic intimacies.
There is either a total or a partial loss of consortium within the marital relationship and
whether that loss can be justified has to be decided by looking at other sources.
In utilising those other sources the court is first of all flagging those other sources the
court is flagging these three situations that are pertinent to the facts of the case that: the
marital woman has moved away from the marital home, against the husband’s wishes
because she is working.
While doing this the court is creating a broader rule of application by answering these
three situations through which a general rule for application of these situation can be
created and there isn’t any confusion
What should happen in situations who is already employed at the time of marriage:
When a man is marrying a woman of such profile does it mean that he is losing that
right to demand her company while quitting her job
If the woman of such a profile, she should know as a part of her marital duty she is
supposed to live with her husband and should give in to the husbands wishes, and she
should enter the marriage knowing this/ that she might not be able to keep her
employment
When husband marries and encourages his wife to take up employment after
marriage
If he has given the consent at some point, he has the right to withdraw that consent,
because it is the marital duty of the wife to provide consortium to the husband whenever
he claims it.
Wife, against he wishes of the husband accepts the employment from matrimonial
home and unilaterally wishes to continue her employment
No justification
In claiming restitution and forcing her to come back to the matrimonial home
Is the husband able to create and maintain matrimonial home for her to come back to
Whether he is in a position to maintain the wife in dignified comfort according to the
standards of living that the family has
It could mean that if he forces her to come back, then it is supposed to commit a
matrimonial offence and he is simply doing that to spite her and that can be justified
through patterns of physical or mental abuse.
This flagging of the qualification by the courts that the husband should be able to
maintain her and the matrimonial home is like reinforcing the gender stereotype that the
husband is the bread winner of the family, the husband should be able to maintain a
matrimonial home, the man should not have failed in his role of provider of the family
and only then can this remedy be enforced.
In the way that these issues were answered by the court made it clear that the casting vote
is of the husband when it comes to deciding where is the matrimonial home. This veto or
authority of the husband comes from the laws of maintenance of the husband which again
are one of the qualification parameters as we have seen before. Where does the obligation
to maintain who in Hindu statutory law lie:
The court courts section 18 of the hindu adoptions and maintenance act, stating that it is
the sole responsibility of the Hindu male to maintain member of his family including
wife, aged parents and children.
There is an overwhelming responsibility on the husband, with no corresponding
obligation of the wife and this overwhelming obligation gives therefore the right of
claiming the company of the wife is allied to the responsibility of the husband to maintain
her.
The court is working with here a proposition of fact, the husband is the bread winner
therefore he has a duty to maintain therefore the wife should come back.
The court is just doing a plain facile reading of the statute neglecting the fact that the wife
can maintain herself because it is simple looking at the responsibility of the husband. So,
the obligation does not lie on the husband and therefore no authority.
Invoking mulla’s treatise they refer to passages of the treatise, they treat it as statutory
law itself. By doing this the court is trying to flag the marital duties of the wife. The wife
is bound to live with her husband and to submit herself to his authority and to remain
under his roof and protection an agreement that enables the wife to live separate from her
husband is void and against public policy, unless she is able to prove that he himself is
engaging in some kind of misconduct, it won’t be justified for the wife to ask for
maintenance and have a separate living space.
Mulla according to the courts is codifying hindu law principles and not speaking just out
of his whim. The focus in these passages is on the marital duties that the wife is supposed
to fulfil towards her husband according to which she has to defer to the husband’s
authority, succumbing to the idea that husband decides what is matrimonial home to the
both of them. The combined utilisation of statutory and non-statutory is being used by the
courts in order to underline that he locus of the matrimonial home is decided by the
husband. This is not only the position of law that is present in Hindu law themselves but
is also referring western case laws. The case of mansey v mansey and dunn v dunn
In mansey v mansey again the question of RCR was before the English courts, although
we have come so far in the development of the English society but we have not come to
this stage that where a woman can dictate to a husband where they are supposed to live, it
is her marital duty to live with her husband and perform her marital duties.
Dunn v dunn is taking a slightly different position, lord denning says that the position that
is taken by mansey v mansey is taken by a proposition of fact and not on a proposition of
law, which is to say that the woman can be making equal to or more money in the hands
of the husband and without looking at the merits of the argument that the wife has to
make you cannot be blindfolded as to who will have to this veto and this case should be
decided on a fact by fact basis. The decision that where a matrimonial home should be
effects everyone in the marriage and it should not involve the imposition of one’s will
over the other. It is a duty of the conjugal couple to decide where the matrimonial home
should be and nobody should have a casting vote. Nobody should have a right to claim
restitution and it should be decided by mutual agreement. the question be decided by
applying the test of reasonableness.
According to judge filcher, the guy with the dissenting opinion, said that it is going to
leave the door open for endless litigation and non-uniform jurisprudence so there has to
be some concrete test when it comes to cases like such because if a mutual agreement is
not reached having casting vote actually has a very practical application, it is important
that someone should have the casting vote to break the stale mate and the person with
whom such casting vote will lie will be the person who has the legal
obligation/responsibility of maintaining the family, implying that it should be the
husband. Because the husband has to maintain the family and it would be unfair towards
the person who has to maintain the wife and then he also cannot choose to the place from
where he can provide for them.
The court here says that we are inclined to side with the dissenting opinion, casting rule
needs to be utilised as a test or rule of application and stale mate needs to be broken, this
in done keeping in mind the matrimonial duties of the wife towards her husband, which is
to stay in a matrimonial home and the authority of the husband is conjoined with that.

The court held that:

The wife is categorical in her stand that she would not conform to the legal obligation of
living with her husband, meanwhile the husband is willing and is in a position to support
her in reasonable comfort. The time has come for the wife to choose between her husband
and her job. Therefore, a unilateral withdrawal from the society of her husband in the
present situation cannot be deemed as a reasonable excuse.
The husband is not obligated to maintain the manner in an absolutist manner in the way
that it has framed it, framing of the corresponding duty of the wife to submit to the
husband is a faulty assumption that the court is making. Invocation of marital duties
through Mulla as if it is the final authority on Hindu law, and the development of Hindu
law as portrayed in Mulla is another problematic thing, which is incomplete
understanding of Hindu law in the first place.

Swaraj Garg v KM garg case

Case of RCR filed by husband against the wife. She was headmistress of high school and
up for promotion. Husband did not have any allowances, did not have proper living
conditions, living in a small rented apartment. Husband was working abroad when they
got married and then he got fired. For all these that they were married he was ok with the
situation that she was working because her job was giving a certain amount of financial
stability to the relationship. He was now making arguments that she subjected him to
cruelty, had bad temper, was doing the job because she was living with her parents, this
way her parents can also benefit out of her job because they were benefiting out of them.
She and her family was being subject to harassment, demands for dowry they were able
to fulfil, some of them they could not, this stale mate position was not because of her, but
her husband ask her to stay put because of his financial position. There has been a change
of mood in the letters which they were exchanging. The court is also utilising this
communication. He was also underlining his own financial inability to provide her with a
dignified standard of living.
On behalf of the husband, the pleader on behalf of the husband has used Kailashvati, the
court refers back to section 18 and Mulla’s treatise the portion on marital duties. The
court said what we already said in our critique. It is not going to operate in the same way
in every case. This statement of fact cannot be applied to each and every case, for
example where the wife is earning more she can provide better for her family and the
husband and she wouldn’t need any maintenance by the husband here as under section 18,
she can even provide for the husband. And the husband is not in a position to maintain
her in dignified comfort and standard. The right to maintenance can be denied to a wife
by the court if she is earning sufficient amount of money. This statement of fact which the
court is taking into consideration clearly implies that it is not always the wife who must
resign her job even though she is in a better position than her husband.
Section 18 and the uncodified part for Hindu law Is based on custom and its always in a
state of flux, custom therefore has to modernise. And it was this custom which led Mulla
to take the position he is taking on Hindu Law and his treatise can’t be taken as the
absolute authority of the Hindu Law because it was based on customs and whatever be
the conditions then can’t be the conditions now. The current understanding of custom
allied to the understanding of matrimonial home, you can not say that wife because of
that changed custom is obliged to resign her job and submit to her husband’s authority,
even if the merits of the case suggest that she is in a better position to maintain a
matrimonial home. The courts suggest that we have to give some application to the merits
of the wife because the entire focus was on the husband’s authority in kailashvati.
Article 14 is also invoked here, it is supposed to provide equality before law and equal
protection before the law. And it requires that merits of the claim of the wife should also
be taken into account. And there is no law which would exclusive rights to wife’s
consortium to the husband. Therefore this exclusion of the wife’s merits will be violation
of article 14.
Then the court also says that the liability to maintain is a statement of fact and will vary
case to case basis. The granting of exclusive right to the husband and giving him the final
casting vote is a faulty proposition allied to the wrong interpretation of law. Casting vote
is not the operative principle when it comes to breaking stale mates.
The court says that matter should be decided in accordance with balance of
circumstances. The court is comparing the merits of the wife and the husband. In that case
the swaraj garg ratio is moving away from the Kailashvati position where the authority
always lay in the hands of the husband.
In an ideal situation it should happen by agreement and nobody should have a casting
vote, if there is no meeting of minds, it signifies breakdown of marriage itself. We know
that irreconcilable differences is not a ground for divorce in India, hence in such a case,
the court is forced to look into the power hierarchy of the relationship. If the balance of
circumstances parameter is used it will not benefit women because they fall a very small
part of the workforce and a very woman earn more than their husbands.

T sareetha v t Venkata subbiaha case, Andhra hc

Facts
the parties in this case were married when woman was 11 years of age. They moved to
the hometown of the man. They went to visit the parents of the wife after which the
husband returned to his hometown but the wife never came and five years had already
transpired. In kadappa In Andhra filed of RCR she challenged the maintainability of the
petiton. The court in kadappa where they cannot maintain this provision because the last
place which they resided was madras.
Section 19(3) of HMA
 19 Court to which petition shall be presented. —Every petition under this Act shall be
presented to the district court within the local limits of whose ordinary original civil
jurisdiction—
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
41
 [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation
of the petition, or]
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where
the respondent is, at that time, residing outside the territories to which this Act extends, or
has not been heard of as being alive for a period of seven years or more by those persons
who would naturally have heard of him if he were alive.]

Hence it should be the madras district court where the petition should be filed
The court defined the meaning of the word last resided together. It is a place where the
conjugal couple has stayed together jointly for a significant amount of time, for the
purposes of the couple it would be their matrimonial home. It was kadappa and not
madras. (Jointly resided for matrimonial purposes).

Section 9 itself is against article 21 and 14

What kind of real life consequences the RCR decree. In case a person is not conforming
to an RCR decree, it can be attachment of property, detention or both. 6 months
attachment, property can be sold. Order 21 rule 32 and 33 can be enforced. So the
consequences of the RCR decree should also be looked through the
She might be forced through the intervention of the state can be enforced whom she
might be unwilling to return to. American courts- Out of all the a person makes about his
or her body, he most profound relates when and how one’s body is to become a vehicle
for another humans creation. In the face of financial consequences a woman is forced by
the state to lose her bodily autonomy, it says that sexual cohabitation is a necessary
corollary to marital cohabitation. It is inevitable that sexual cohabitation will happen in
light of that marital relate isn’t a crime in India. A decree had to be passed before she is
willing to come back to her husband’s home. It is loss of reproductive choice, she might
be contemplating divorce, she ends up going might become pregnant. Pregnancy will be
foisted on her against her will, because of the social consequences of pregnancy her life
choices and her choices towards the marriage will be irretrievably changed. (bodily
autonomy)
Therefore the RCR decree can be referred to as the starkest form of government invasion
of personal identity and individual zone of intimate decisions.
Nothing in ancient Hindu society that a woman who doesn’t want to go back to her
husband is made to go back to her husband. Therefore, it is a remedy which is completely
foreign to her personal law.
No justification on the part of the state to pass an RCR decree as why can it interfere into
the personal privacy of a woman, in order to tinker with the reproductive choice of a
woman.
Article 14 basis of the argument
Husband it is not violative of article 14 because the remedy is available to husband and
wives equally
This argument is saying this remedy is available equally, because it doesn’t look at the
utilisation of this decree, the effects of the enforcement of this decree is not the same as it
is the woman. Because if a woman gets pregnant it irretrievably changes her life choices
and nothing of this sort applies to the man. Equal protection of laws does not become a
reality of the woman. The conception of equality that section 9 works with is formal
equality, so in that sense it is equally giving rights to men and women and doesn’t take
into account real life situations. It does not provide for substantive equality as envisioned
in Article 14. Effect of the right needs to be evaluated to work out whether privacy was
being achieved or not.