N.Yamuna & S.Yuvasri are Law Students at The Tamil Nadu Dr. Ambedhkar Law University, School of Excellence in Law, Chennai.
Marriage is an institution that has been responsible for the evolution of society and its continuance. A typical or traditional marriage consists of a male and female living together for the purpose of emotional support and family rearing. This is the reason why a matrimonial home is an extremely important aspect of society. It becomes a sensitive issue for females when they face certain marital discords as a result of which their stay in their matrimonial home becomes difficult. Yet, many females due to their inability to reside else tend not to leave the same. Moreover, they have a right to live there even under circumstances whereby the marriage is on the rocks. This right has several dimensions under different laws and statutes. Moreover, the changing dynamics of society whereby women are now equally contributing financially has made the issue more complicated. Therefore, the researcher has attempted to analyze the current topic by considering the compatibility of the present laws with the present societal structure.
Keywords: Residence, Matrimonial Home, Supreme Court, High Court, Restitution, Section, marriage.
Matrimonial homes are a very significant part of family law, and they need to be discussed thoroughly because of the wide range of opinions on the matter.1 It is customary for husbands and wives to live together in their marriage house in order to fulfill their responsibilities as husband and wife. Disputes over the restoration of a couple's conjugal rights often emerge when one or both of the spouses is working at separate locations, or when one or both of the spouses want to reside with their spouse at a location other than where he or she is employed. Therefore, it is important to know the legislation on the choice of marital house, a home in which the husband and wife share their obligations, in order to avoid confusion. As a result, we must examine the history of the recovery of conjugal rights in order to understand the origins of the notion of the marital home. A recent judicial tendency in Indian culture is to instill the idea of shared responsibility in a couple's decision to live together in a marital house. We need to explain this subject thoroughly from the beginning in order to grasp it.
The “institution of marriage” has been around for a long time and is widely accepted around the globe. It is widely recognized in society and even in religious institutions. In addition, there are several rites and rituals that help to reinforce the family. A long-term relationship may be maintained until either the husband or the wife decides to end it via an annulment. As a social institution, marriage is one of the most ancient and serves as a foundation for civilizations. Marital union is described as the “legal relationship between a man and a woman” for life, or until divorced, in order to fulfill the legal obligations owed to each other and to the society by people whose affiliation is based on sex. Marriage is regarded as a holy institution in India and is celebrated with several rituals. Additionally, Hindus believe that marriages are arranged in the afterlife. However, in today's society, marriage and relationships have taken on a new meaning.
For Hindus, marriage is a connection between two people, and their primary goal is to reproduce and perpetuate the family for the sake of humanity's survival. A lot of people believe that most adults will end up getting married at some point in their lives. The contemporary marriage is a relationship that shares the tasks of home management, child-rearing, and earning a decent livelihood, with both partners contributing to the family budget. Once a social institution has been established, the law takes over and imposes different responsibilities and liabilities on the persons involved. In Harvinder Kaur v. Harmander Singh2, it was said: “whether it is English Law or the Indian Act, marriage is voluntarily union for life of one man and one woman to the exclusion of all others.” It was also emphasized that marriage is “an institution in the maintenance of which the public is deeply intended for it is the foundation of the family and of society without which there would be neither civilization nor progress.”
Wives may seek maintenance as an ancillary remedy in marital proceedings under all matrimonial legislation. The Protection of Women from Domestic Violence Act of 2005 provides more channels for females to seek maintenance and compensation from abusive marriages and live with partners. These rules allow for the acquisition of maintenance without the requirement for a standard matrimonial relief process. To ensure that a neglected wife and children are not left in poverty, the provision in Vimala v. Veeraswamy3 was deemed a limited relief by the SC. However, this provision aims to ensure that the neglected family is cared for and not left destitute, and this can only be accomplished by providing maintenance for them. Historically, the supply of maintenance has been rooted in the constitutional framework. Over the years, women and children have come to be seen as the most vulnerable members of society. Art 15 clearly mentions measures for women's and children's maintenance, and this has become one of them in recent years. Maintenance is supposed to prevent vagrancy by obliging individuals who can maintain themselves and have a moral right to support to do so, according to the court's reasoning in the case of Chaturbhuj v. Sitabai4. A simple and practical option is to provide food, clothing, and shelter to a lady who has been abandoned by her husband. This legislation recognizes a man's intrinsic commitment to care for his wife, children, and parents when they are unable to care for themselves.
In a number of legal statutes, the idea and legislation of maintenance have been explained. Sec 25 of the Hindu Marriage Act, 1955 defines maintenance. Depending on the circumstances, spouses may be eligible to receive a monthly or annual payment from their spouses to help cover the cost of their spouse's support and maintenance for the rest of their lives, or for as long as their spouse remains single or does not marry again. Women in Hindu families have the right to be supported by their husbands for as long as they live, according to Section 18. While she stays chaste or does not convert to a different religion, she is entitled to a separate residence and financial assistance under Section 18(2). This Act's Sec 19 allows for the support of a grieving wife by her father-in-law.
In Mangat Mal v. Punni Devi5, maintenance was further defined. The following items are included in upkeep:
supplies for “food, clothes, housing, education, and medical attendance and treatment” in all circumstances;
legitimate expenditures of the marriage of an unmarried daughter, as per Sec 3(b) of Hindu Adoption and Maintenance Act, 1956.
In Rosy Jacob v. Jacob A. Chakramakkal6, the facts go as that having her own school and wetland put Rosy Jacob in a stronger financial position than her husband, who was struggling in business and had no property. As a consequence, there was no requirement for the wife to receive spousal assistance. More crucially, the court determined that the wife's earnings should be included when calculating the amount of maintenance she is entitled to. The responsibility of a husband to support his wife in all situations, as well as a woman's right to maintenance, are both unbreakable. Considering the case of Chanmuniya v. Virendra Kumar Singh Kushwaha7 hereby, if a man and a woman have been living together as husband and wife for a reasonable amount of time, the term "wife," according to the court, should be defined widely to embrace such cases. S. 125 CrPC maintenance should not be conditional on a thorough verification of marriage, since this would go against the letter and spirit of the statute's favorable provision for maintenance. As stated in Lalita Toppo v. the State of Jharkhand8, a woman in live-in has the right to seek maintenance under PWDVA, 2005, even if it is determined that she is not entitled to it u/s 125 CrPC.
Marriage, as per Hindu law, is a holy bond. It is a relationship between two people. It is the discharge of marital responsibilities in which the couple has a responsibility to live together and which can’t be ripped apart arbitrarily by the wife's decision to live apart for any reason. In a nutshell, a marital house is the residence where both partners have resided throughout covertures. In today's world, marriage is also a financial relationship between the couple. One of the most essential notions in the institution of marriage is matrimonial property. It covers the couple's marital residence as well as all of the couple's connected properties and assets. However, none of the legislative requirements define the phrase "matrimonial residence." In India, neither the marital law nor civil law defines it. It has a lot of complications. It is past time for Indian legislation to set explicit regulations regarding marital property and its distribution among spouses. In Sec 9 of the Hindu Marriage Act, 1955, the term "matrimonial house" is not used. The term "society" is used instead. To describe the place where a husband and wife come together to share society as life partners, the phrases marital home and conjugal society may be used interchangeably. A woman's right to share a home is an economic right, and hence denying her access would be deemed economic abuse under the Domestic Violence Act's Section 3 (a). Divorce ends the marital partnership and hence the bond that has existed between the two people for so long. Domestic abuse protection, including the right to remain in the joint residence, would exist prior to divorce. When the husband and wife are both working full-time jobs, the issue of a marital house arises.9
The lack of an alternative refuge is a compulsive feature that dissuades people from going to court when their marriage has been destroyed and the parties are emotionally damaged. In most cases, the obstinate spouse persists in staying in the same home as the partner just to torment the other. As a result, the marriage hangs in the balance, and both sides are living in continual pain. Such circumstances have become more common in recent years. If the woman is the one who is clinging to her marriage house without a matrimonial life, she may have many reasons. She may have nowhere else to go or be terrified of societal repercussions. In other circumstances, the home they've been living in may legally belong to her, and she has no intention of leaving it. One of the most prevalent reasons for a spouse to leave is that the home may belong to him or be under his tenancy; thus, why and where should he go? As a result, the issue arises: Can a woman legally cast out her husband, or can a husband legally turn out his wife from the house?
The Supreme Court's decision in B.R. Mehta v. Atrna Devi10 is likely to have far-reaching implications for the problem. The court had to decide whether, under proviso (i) of section 14(1) of Delhi Rent Control Act 1958, allocation of a dwelling to a government employee's wife disentitles her husband, the tenant, to keep tenanted premises in all situations. The additional rent controller, rent control tribunal, and even HC held that the husband, against whom the landlord had filed an eviction suit, was ineligible to keep the disputed premises because he had acquired vacant possession of the residence under the proviso with the wife's receipt of government housing. On appeal, the SC overturned the decision. The case of Revti Devi v. Lishan Lal11 was cited, in which the Delhi High Court found that the proviso did not protect the tenant's simple possession of a new dwelling without a legal right to do so. The verdict is sure to have ramifications for matrimonial partnerships sense that more and more women are holding government employment and entitled to government housing, as well as purchasing private property. If a woman purchases a home and the family moves there, may she get an eviction order against the husband in the event of strained relations? Is it also possible for a woman to be evicted from her husband's home? Where does the party go if they don't have somewhere else to stay? In this respect, it's also worth noting that there are requirements stating that assurance must be provided in applications for land or home acquisition that the spouse does not own any property. As a result, if a woman has a home, the husband is unable to apply, and if the husband owns one, the wife is unable to purchase another. How might such principles be reconciled with the reality of life? The term "matrimonial residence" should be defined. The marital house should be the home where both parties lived throughout coverture, logically speaking. How their shared assets are to be evaluated and split after divorce is a separate issue. The parties, in this case, claimed to have been in a tense relationship for long years, yet the verdict states that the husband has no title to the wife's home. On this issue, the Delhi High Court's decision is considerably more explicit.
Initially, women were considered secondary owners of property by the Mitakhshara and Dayabhaga schools of Hindu law notwithstanding Mitakhshara's acknowledgment of the women's ability to inherit property from her husband's family.12 The Privy Council supported the Dayabhaga norm, which curtailed Hindu women's proprietary independence throughout British Indian legal history. Under Hindu law, the widow's absolute property was only "streedhan" (properties given to her by family, relatives, and friends). In ancient Hindu law, women's property rights were not fully recognized. The Hindu Women's Rights to Property Act of 1937 made even more improvements to empower women. Females have been denied proprietary status under all male-dominated legal systems across the globe, lowering their social standing and reducing them to the other class, unquestionably lesser human beings, according to the research of various ancient and current legal systems around the world. Previously, women were supposed to stay at home and were not permitted to work freely. However, the situation has altered today. Despite the fact that modern rules are more liberal than those in ancient Hindu culture, women's property rights have always been restricted. As per Sec 14 of the Hindu Succession Act, 1956, any property obtained by a Hindu female becomes her absolute possession. However, an examination of the numerous statutory and judicial rules reveals that women's property position is almost identical to what it was before the inception of the statutory period. A family's most precious possession is generally the matrimonial house. It is possible for the couple's house to be owned solely by one of them, shared by both of them, or held by both of them as joint tenants. Separate ownership is the kind of marital property allocation practiced in India, which overlooks the contribution of the non-working spouse, who is nearly typically a woman.13
With the shifting dynamics of a family, we should expect numerous changes in marital interactions as well. Working women nowadays also contribute financially to the household's operation. Women have equal rights to their marriage house as a result of the equal sharing of matrimonial property. Matrimonial property is one of the most fundamental aspects of the institution of marriage. When examined, it is clear that the excessive ownership of assets in such a case is mostly attributable to a number of intrinsic circumstances. Domestic labor is not considered productive employment in India, and as a result, women's contributions to the home aren’t considered. In order to care for their family, women are forced to leave their jobs.
A husband-and-wife relationship should be seen as a partnership in economic terms. To recognize the wife's contribution to asset acquisition, a formal legal framework is required. Several variables have an effect on Hindu women's property rights. For example, if she is married, single or abandoned, a wife or a mother, her marital status and family situation might have an impact. If the property is land, a residence or marital property it also depends on whether it was inherited, inherited, or obtained on one's own. Women are now equally engaging in the development of a married household, unlike in the past when the marital house was primarily the duty of the husband. This should be a valid reason for a married dwelling to be recognized as belonging to both spouses. The issue of whether a joint family house qualifies as a marital home under Hindu law has raised the possibility of a divorced woman living in her husband's joint family home. Under Indian law, who furnishes the matrimonial house at the time of marriage, as well as what goods within its scope, shall be recognized as marital property subject to equitable division upon divorce or death, should be mentioned. Sec 27 of the Act does not achieve the purpose of integrating the marital house into a matrimonial property, and it does not give equitable economic help to the parties upon divorce if both husband and wife share the marital habitation upon dissolution of their marriage. The SC made registration necessary in Seema v. Ashwani Kumar14 because it would serve as documentation of marriage and help women pursue marital remedies u/s 8 of the Hindu Marriage Act.
Marrying is all about bringing two people together and allowing one to enjoy the other's presence and comfort at all times. "Conjugal rights" have been used to denote marital rights, such as a husband and wife's right to companionship, comfort, and affection from one other. Couples who live together in the same home, eat meals together and benefit from shared property rights are all instances of marital or conjugal rights. It's plain and unequivocal that a wife's obligation is to live with her husband in his home, under his roof, and under his protection. To be able to live separate from her spouse and seek maintenance, a woman must prove that her husband has committed a particular and clearly defined marital sin. An explicit statutory acknowledgment of this commitment may be found in Section 9 of the Hindu Marriage Act. If one of the couples fails to fulfill his or her duty to provide the other with company and sustenance, this provides an immediate resolution.
One of the several family law remedies available to spouses is the restitution of conjugal rights. The word "restitution" is used to refer to the restoration of a lost entity when a party loses anything during the execution of a decree or as a direct result of the decree. Conjugal refers to a matrimonial or marital relationship. As a result, the declaration of conjugal rights entails the restoration of a party's lost marital rights. Conjugal is a term that refers to a married condition and frequently implies a focus on sexual connections between spouses. 'Conjugal Rights' refers to the reciprocal rights of companionship, support, and sexual interactions that arise out of the married partnership. Enabling a court to award compensation has the goal of preserving the marital bond as much as possible by allowing the court to interfere and prevent the withdrawing partner from reuniting with the other.
Women were eager to use British law to improve their circumstances and establish their marital rights, as shown by the history of litigation in India for the restoration of conjugal rights. In cases of marital strife, British law only permitted the restoration of conjugal rights to all Indian groups, whether Hindus, Parisians, or members of any other religious community. Suits for the recovery of marital rights were widespread in pre-colonial India. Although less formal techniques of resolving marital issues were incorporated into customary standards, it was not sanctioned by scripture-based Hindu law. The Dharmashastra did not recognize the remedy of marital rights restoration, and neither did Muslim law provide for it. It's worth noting that under the general law, the British rulers of India made this the solitary marital remedy available to all Indian communities. In England, it was developed from Jewish law.15 The courts were in charge of enforcing the ex-communication of the guilty spouse. George III's Statute substituted the same with imprisonment. In India, the English remedy of marital rights restoration was initially utilized on Muslims, and then it was extended to Hindus. The Rajasthan high court examined the remedy of restoration of conjugal rights in India as it related to Hindus and Muslims alike in Chand Narain v. Smt. Saroj16. When the Hindu Marriage Act was written, it's possible that the language of Section 9 was taken from Sections 32 and 33 of the Indian Divorce Act, 1869. "A woman cannot be free of her husband by sale or desertion," Manu said emphatically. To the end of his life, he insisted on reciprocal loyalty. As a consequence, according to Hindu law, the woman was obligated to revere her husband as if he were a god. Marriage responsibilities were not subject to litigation, and they could not be separated from one other until death, regardless of the reason. With the passage of time, the husband's divine position has faded, and equality of status seems to have been confirmed by the Hindu Marriage Act also.
The restoration of conjugal rights, like other archaic remedies, may be traced back to medieval England when marriages were primarily a property transaction and the wife and children were regarded as chattels in the man's possession. At that time, a decree may be executed by arresting the wife. The courts couldn't award specific performance of marriage any other way, so they used an order of restitution of conjugal rights to do so. It is unpleasant to preserve this remedy, which is correctly referred to in the modern world as worse than dictatorship and worse than slavery for this little gain. The wife's position has been bolstered by recent English legislation, which has provided adequate financial arrangements for her and removed the marital cause of conjugal rights recovery.
The Indian matrimonial laws still allow for the restitution of conjugal rights as a remedy. Many members of parliament spoke out against the provision in the Special Marriage Bill and the Hindu Marriage and Divorce Bill when they were considered in parliament. J.B. Kriplani said, “This provision was physically undesirable, morally unwarranted and aesthetically disgusting…” In Slakila v. Gulam17, Vaid.J. observed: “…is a relic of ancient times when slavery and quasi-slavery were regarded as natural. This is particularly so after the constitution of India came into force, which guarantees personal liberty and equality of status and opportunity to men and women alike”.
This remedy is available in modern India under
Sec 9 of Hindu Marriage Act, 1955
Sec 22 of Special Marriage Act, 1954
Sec 36 of Parsi Marriage and Divorce Act, 1954
Tayabji's interpretation of Muslim law's provision for restoration of marital rights is as follows: “Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights”. As a consequence, Muslims equate this concept with ensuring that the other spouse's legal rights are protected. Previously, it was tied to the exact fulfillment of the marriage contract. The Allahabad High Court determined in Abdul Kadir v. Salima18 that the idea of restitution must be resolved on basis of Muslim Law principles rather than justice, fairness, and good conscience.
Mutual convenience and advantage are the most important factors for the husband and wife when choosing the site of their marital home. Disputes that result in petitions for the restoration of conjugal rights often arise when the women work in separate places, when the wives wish to live with the husband at a different place of employment, or when the wives want the husbands to live with their in-laws. As a result, it is essential to fully comprehend the legislation governing marital house selection. In many civilized countries, the marital house seems to be at the heart of the notion of marriage. In most cases, the marital relationship centers around it. The house encapsulates the finer points of marital status. The bundle of indefinable rights and duties that the husband and wife have is perhaps best understood in the context of their living together in the marital home. There are several points of view on the choice of marriage residence, which are mentioned below:
Husband's Right to Choose a Matrimonial Home: The right of consortium by the husband has been a major occurrence of marriage from the beginning of time, according to the first perspective on the choice of the marital residence. In England, the law is as follows: “It is the husband's responsibility to give his wife a residence that is appropriate for his circumstances.” Judges have had to evaluate this question in a number of instances that have come before the courts. A quick review of such instances reveals judicial opinions and patterns. The Punjab High Court found in Tirath Kaur v. Kirpal Singh19 that “if a job compels a woman to live away from her husband and she refuses to quit, she has not left him or withdrawn from his society without sufficient cause.” The court noted, "In Mulla's Hindu Law, it is stated in paragraph 555 that a wife's primary responsibility is to submit dutifully to his authority, and to live under his roof and protection." Unless she can establish that she is compelled to live apart from him because of his crime, his refusal to maintain her in his own house, or any other valid reason, she is not entitled to separate housing or assistance. It was held that the husband must actually build and maintain a matrimonial home where he can provide his wife with dignified comfort in accordance with the parties' means and standards of living, and it must be crystal clear that the husband is acting in good faith when he claims his wife as a companion in the marital home. It's also been claimed that two broad criteria must be kept in mind at all times. To begin with, almost all civilized marriage law imposes a burden on the husband to support not only the wife but also the children born out of wedlock, whereas the wife has no such obligation to support either the husband or the family, despite the fact that she may be financially secure on her own. The fact that the husband is typical, if not always, the family's income earner and is therefore required to reside near his place of work is closely related to this legal duty. As a result, it comes to reason that he should have the freedom to choose a residence from which he can efficiently execute his legal role as the family's breadwinner."
Both husband and wife have a voice in choosing a matrimonial home: The key considerations for the husband and wife when deciding on the location of their marital abode are mutual convenience and benefit. In Swaraj Garg v. K.M.Garg20, the Delhi HC examined the issue of marital housing preference. It has been noted that the uncodified component of Hindu law is based partially on the Dharma Shastras and partly on tradition. "The Dharma Shastra authorities did not set down the law; they taught morality to a populace eager to learn it, and it was this that they taught whether or not any ruler functioned as their spokesman or coadjutor," writes Prof. J. Duncan M. Derrett. As a consequence, the Dharma Shastras accurately portrayed the law. While this closely matched the laws in effect at the time, the coincidence was not complete. If the Dharma Shastras taught that a woman should always submit to her husband regardless of her financial circumstances, the authors were merely striving for perfection. Insofar as the tradition of granting the right to create the marital home to the husband alone at all times in preference to the woman is based on custom, it reflected the conditions of the time when the custom was practiced. The process of converting a custom into law is well-known. The custom must be ancient, dependable, and adhered to. Last but not least, it must be supported by the opinio necessitatis. Have things altered substantially more than three-quarters of a century later, whatever the conditions were in the distant past? Even if she is in a better position to choose the location of the marital dwelling than the husband on merits, it would be difficult to claim that there is any custom that demands a working woman to leave her job and join her husband. What happens when a custom becomes law? C. K. Allen responds to this question in two ways. To begin with, a custom may be rejected because it is irrelevant to the parties or because it is seen to be malus usus, much as a legal proposition may be rejected because it is an incorrect formulation or because, although correct, it is not applicable to the particular situation. Both of these factors show that there is no enforceable tradition as law compelling the woman to yield all of her rights in this respect to the husband. Second, for these reasons, a custom may be considered law, just as a legal proposal may be authorized as both a suitable formulation and suited to the circumstances at hand. It is impossible to say that such a tradition, much alone a law, exists. Even if it existed, it may now be regarded as sinister or contrary to the law's broader policy. It is generally commonly accepted, especially since the judgment in T. Nordenfelt v. Maxim-Nordenfelt G. & A. Co.21, that public policy is "the policy of the day"—that is, that its standards vary from generation to generation in accordance with current notions and social structures. Currently, many women are working to support their families and contribute to society. It's possible that the woman is in a better financial and other position to pick the location of the marital house than the husband. In the event that such conditions apply in a specific instance, the legislation would be rendered ineffective. As a result, it seems that the aforementioned declaration of law has to be reassessed. It might be updated to reflect current situations, as in the case of Halsbury and Rayden mentioned above. Alternatively, an exemption to paragraph 442 should be introduced to apply to working ladies who are in a better position to determine the location of their marital residence than their husbands. According to Hindu law, there is no reason to believe that the Hindu woman has no influence on the location of their marital residence.
When it comes to selecting a matrimonial home, the woman should be given first priority: In today's world, many women have taken up careers to aid their families and contribute to society. It's possible that the woman is in a better financial and other position to pick the location of the marital house than the husband. In India, women professionals face a variety of issues. Women have a heavy workload since they are responsible for both their job and their home, and they must balance domestic obligations with those of their profession. Women are not seen as fundamental to the economic development process in the country's development strategies and initiatives. This is evident in increased spending on reproductive rather than productive roles for women, primarily in population initiatives. "A woman, because of the limits placed on her by her sex, requires the protection of a father, husband, or son in life," the Allahabad High Court remarked in Shanti Nigam v. R.C. Nigam22, in a comprehensive decision issued by S.N. Katju J. However, the ideals of a husband's protection and uninterrupted stay in his home cannot be understood in light of current societal realities and requirements." Various crimes are performed against women nowadays when they are on their way to or coming from work. To ensure their safety, the marital residence must be convenient for the woman, where she can readily approach since men might take up work in other regions and commute daily or on weekdays. The Punjab and Haryana High Court held in Gurinder Singh v. Bhupinder Kaur23 that if a woman works at a location that is far away from her husband's place of residence and is unable to see her husband on a regular basis, she cannot be deemed to have abandoned him. This demonstrates that the current tendency is for the woman to choose the location of the matrimonial residence. Today's lady faces several societal problems. In the multiple roles she performs, a woman is dynamic. On the route to success, a woman must manage her family, relationships, job, and hobbies, among other things. Children need particular attention. Despite the fact that the father is the natural guardian of a boy or an unmarried girl, the mother has been granted exceptional custody rights until the kid reaches the age of five. When providing this preferred entitlement to mothers, the well-being of the child must take precedence.
Women's violence is on the increase these days. Effective legislative measures offering training and job possibilities would prevent violence against women by improving the overall standing of women via education. To address the current situation, it is critical to provide the woman the opportunity to choose the marital residence. In order for a partnership to flourish, both people must give up many of their particular desires. Selflessness must take the place of selfishness.
Because of the Andhra Pradesh HC judgment in T. Seertha v. T. Venkatta Subbaiah24 in 1983-84, the constitutional validity of Sec 9 of the Hindu Marriage Act, 1955 became a topic of debate. Choudary J. condemned the restitution clause as "uncivilized," "barbarous," and "an engine of dictatorship," and charged Section 9 of breaching Art 14, 19, and 21. The court said, "Sexual cohabitation is an integral part of an order of restoration of marital rights." 288 As a consequence, the decision to have or not have such relationships would be transferred to the state rather than the person involved. It also required losing the right 'to accept or not to allow one's body to be utilized as a vehicle for another human being's development,' according to the court289. The restoration remedy fails, according to the court, since it violates Article 14, which guarantees equal protection under the law. The only advantage of a restitution judgment is that it provides a foundation for a future divorce, but the cost, according to the court, is very high, namely, human dignity. Section 9 was declared 'savage, barbarous, and uncivilized,' and null and void for the reasons stated above.
Avadesh Behari J. in Harvinder Kaur v. Harmander Singh25 not only upheld the validity of Section 9 but also emphasized its advantages. He likened enacting constitutional changes at home to "pushing a bull into a china shop." The court discussed the definition and notion of cohabitation and consortium, as well as the objective of the restitution order, and arrived at the conclusion that restitution is intended for cohabitation and consortium, not merely sexual intercourse, and that it is neither barbaric nor immoral. “A disproportionate emphasis on sex, almost bordering on obsession, has colored the views of the learned judge [referring to T. Sareetha]” the court observed.
The SC’s decision in Saroj Rani v. Sudershan Kumar26 ended the controversy over Section 9's constitutionality. As per Sabyaschi Mukherji, J., “the object of the restitution of conjugal rights is to bring about cohabitation between the estranged parties, i.e., so that they can live together in the matrimonial home in amity”. He adds, “The remedy of restitution aims at cohabitation and consortium and not merely sexual intercourse”. Agreeing with Delhi HC judgment, SC said, “the right of the husband or the wife to the society of the other spouse is not merely a creature of the statute. Such a right is inherent in the very institution of marriage itself…there are sufficient safeguards in Section 9 to prevent it from being a tyranny.”
All women in domestic relationships who live alone, together, or have shared a domicile with the respondents at any point in time are covered by the Protection of Women from Domestic Violence Act of 2005. A domestic link is characterized as a blood relationship, adoption, marriage, or a marriage-like partnership. The term a domestic relationship under the Act also includes members of a joint family. While all other types of partnerships are straightforward, a connection "in the nature of marriage" requires a little more explanation. The Supreme Court said in Indra Sarma v V.K.V. Sarma27 that all interpersonal components of a relationship must be examined when determining whether a pair is joined in the "nature of marriage." The case provided a non-exhaustive list of factors that lead to such a relationship, including duration of stay, financial support, work delegation, sexual and emotional intimacy, and, most importantly, public socializing as husband and wife. As a result, it would encompass certain (but not all) "live-in relationships" situations (Velusamy v. D. Patchaiammal)28. Based on these factors, a woman and a man living together would or would not qualify as being in a "kind of marriage" relationship.
According to section 17 of the Act, “every woman has the right to live in a shared home.” As defined by the Act, a shared home comprises a household that is-
The aggrieved lady and respondent jointly own and rent the property; or
Ownership, title, right, or equity in the property is held by either the aggrieved lady or the respondent, but the properties are not jointly owned and leased;
A shared family home where the respondent is a member, even when the aggrieved party or responder has no interest, right, or title in that home.
As a result, the individual who has been violated does not have to own or co-own a shared residence. Despite the fact that the concept of a "shared home" is vague, the SC concluded in S.R. Batra v Smt. Taruna Batra29 that it must be interpreted in a way that avoids absurdity. The Court decided that a “shared home did not include the house where the aggrieved lived, which was owned by the husband's parents.”
Indian law does not explicitly mention marital homes. A marital house does not exist, and there is no right to one. However, the Act's fundamental right to a shared household grants a woman the right to live with her spouse in a shared home. There is an implied right to remain in one's own or one's spouse's property, including the joint family home, for the wife and husband, whether they do it jointly or separately. Since he has no ongoing stake in the home, the right to dwell does not apply to a home owned or acquired by the husband's parents or other relatives. If the mother-in-law or sister-in-law owns a house, it is not a shared residence since it was not passed down to them. Owners of such a place are free to decide whether or not to allow their spouses to live there. Mothers and fathers of the bride are not obligated by law to let their daughter-in-law reside with them. A claim that the husband's family owns the house where he lives is certain to fail.
The opportunity to live in a shared house is one of the women's economic rights. Denying access to such a shared residence by any action, omission/commission or behavior of the husband/male partner or any of his family is termed economic abuse, according to the Domestic Violence Act. As long as there is a domestic partnership, the right to dwell in a joint home exists. The dissolution of a marriage is referred to as a divorce. As a result, from the moment of divorce, the right to dwell in a joint home would logically expire. Domestic violence protection, including the right to remain in the joint home, would exist at any time prior to such a divorce.
Authorities to approach in case of eviction from the matrimonial home
Every district in India has at least one person designated as a Protection Officer who is entirely responsible for handling and investigating domestic abuse incidents. The Magistrate is in charge of and supervises the Protection Officer. To ensure easier communication, the position is generally assigned to women. Any anyone who feels domestic violence is occurring, has occurred, or is likely to occur should contact the Protection Officer. No legal action or procedures may be brought against someone who reports domestic abuse to the Protection Officer in good faith.30
Many registered organizations or businesses aim to safeguard women's rights and interests by providing legal support, medical or financial assistance, and so on. Domestic events may be recorded and sent to the Magistrate or Protection Office, and the aggrieved individual can be medically checked and placed in a shelter home provided the society is registered with the state government as a service provider.
The aggrieved party may seek a residency order if they are compelled to leave their shared home or if they are refused admission. This may be accomplished with the assistance of the aforementioned agencies. The magistrate may issue any of the following orders in response to such an application.31
• prohibiting the other party from evicting or denying the aggrieved individual access to the shared dwelling;
• Having the other person quit the shared house (this is only applicable to male responses);
• prohibiting the aggrieved person or any member of his or her family from entering a portion of the joint house where the aggrieved person resides;
• prohibiting the other party from selling or disposing of the shared residence, or restricting unfettered access to it;
• Preventing other party from giving up his right to the shared dwelling without the Magistrate's permission;
• Instructing the other party to locate alternative dwelling on the same level as the shared residence, or pay the rent; or
• Any additional conditions or directions deemed suitable by Magistrate.
In addition, the magistrate may order the officer-in-charge of the local police station to give protection to the aggrieved lady or help her or the person who petitioned on her behalf with the execution of the order.
A Hindu woman may demand support from her husband, which includes, among other things, dwelling, under the Hindu Adoption and Maintenance Act. Even if she lives apart from her husband, she has the right to demand support if he-
• Is guilty of leaving her without justification and without her agreement or desire;
• Is culpable of malicious disregard of her;
• Has treated her cruelly, causing her to flee because of a reasonable fear of damage or injury;
• Is afflicted with a severe type of leprosy;
• Keeps a concubine or lives with one on a regular basis;
If the wife is unchaste or has changed to a different faith, she will not be entitled to a separate domicile and support from her husband.
There are no regulations that specifically deal with marital homes and provide them with an equal portion when a marriage is dissolved among Hindus. The current separation of assets concept in the married house must be replaced by co-ownership of the property since women who are not financially independent would be severely harmed if the marriage ends. It will bring financial stability to women. Equal marital property distribution provides a feeling of equality in the partnership and reduces a spouse's predisposition to see the property through the lens of ownership. Even though they are subjected to violence, some women may not file for divorce because they are financially dependent on the other spouse. They would be homeless and without a source of income if they did. As a result, India should replace the existing system of separate property ownership with communal property ownership for marital property. A properly designed prenuptial agreement that is legally enforceable and has a binding effect on both couples is required. Regardless of whether one of the two spouses has joint title and co-ownership, Section 27 of the Hindu Marriage Act must be revised to include property acquired, purchased, inherited, or gained in any other manner during the marriage. This would assist women in overcoming oppression and empowering them. This is the most pressing necessity for Indian society, which must break free from the shackles of a patriarchal culture. Some good moves include Maharashtra's Matrimonial Property (Rights of Women upon Marriage) Bill, 2012, and the Marriage Laws (Amendment) Bill, 2012. At the grassroots level, awareness should be raised. It's also possible that the Uniform Civil Code will be implemented. However, in a nation like India, where people of all faiths coexist, this is not a viable answer. Because each religion has its own set of rules and regulations, the application of a single, universal norm would be a matter of controversy as to what common law should be applied. Policymakers must play a role. In today's culture, a clear compromise between men's demands for dominance and women's aspirations for freedom and equality is required. On a larger scale, adopting appropriate legislation and policy on marriage property in India that recognizes the role of women in establishing, nurturing, and caring for family members, as well as the socio-economic and legal security afforded to women in the married household, should be enacted.
Following the assurance of equal rights and advantages for women, the situation of women in India has changed dramatically. Women's rights must be protected and promoted as a tool for societal advancement. Previously, women did not have the right to possess property, but as time passes and the feminist and women's rights movements evolve, we can notice changes in the structure of prior societies. Women have established themselves in society today to make a decent life. They are financially self-sufficient enough to live a normal life without the help of their spouse. However, this is not the case in every part of the country. Women have long been subjected to oppression and torture. Women are oppressed as a result of this patriarchal system, which allows males to labor as the main breadwinner. In such cases, whether divorce, marital disputes, domestic violence, or other events occur as a result of which the woman begins to live apart from her husband, she retains her claim to their married house. In India, marriage property should be distributed equally between couples to promote equality and empower women. Equal participation in the married house gives financial stability to women who dedicate their lives to caring for their families and contribute directly to the family's growth and success. The work of housewives is just as important as that of wage earners. Women's standing in society has deteriorated as a consequence of gender inequality in the culture. Women's inequality in society is exacerbated by their callous attitude toward their employment. The courts have had a difficult time justifying their position in the transition from traditionalism to the contemporary domain of the married home. As can be seen, Indian laws have several loopholes. It is necessary to create explicit laws regarding marital property and its distribution among spouses. It is more vital to properly execute current laws and actions than it is to introduce new ones.
The Constitution of India, 1950.
The Protection of Women from Domestic Violence Act, 2005.
The Hindu Marriage Act, 1955.
The Hindu Adoption and Maintenance Act, 1956.
Books, Articles and Journals
Agarwal, K. B., Family Law in India, Kluwer Law International, Netherlands, 2010.
Das P.K, Protection of Women from Domestic Violence, Universal Law Publishing Co., New Delhi, 2011.
Mathew, P.D. and P.M. Bakshi, Women and the Constitution, Indian Social Institute, New Delhi, 1990.
Westernmarch, Edward, The History of Human Marriage, Mac Millan and Co. Ltd London, 1993.
Namita Singh Jamwal, “Have Family Court lived up to Expeitations”? Mainstream, vol XL VII, no. 12, march 7, 2009.
P. Ray, Leaving Home, Leaving Rights, vol. 4, JOURNAL OF INDIAN LAW AND SOCIETY (2012-13).
B. Ghosh & T. Choudhuri, Legal Protection against Domestic Violence in India: Scope and Limitations, JOURNAL OF FAMILY VIOLENCE (2011).
P. Badarinath, The Challenge Of Subjectivity Within Courts- Interpreting The Domestic Violence Act, vol. 46 (12), ECONOMIC AND POLITICAL WEEKLY, 16 (2011).
I. Jaising, Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence, vol. 44 (44), ECONOMIC AND POLITICAL WEEKLY (2009).
A.S. Rajesh, Women in India: Abysmal Protection, Peripheral Rights and Subservient Citizenship, vol. 16, NEW ENGLAND JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 122 (2010).
RIGHT TO SHARED HOUSEHOLD- THE DEBACLE OF TARUNA BATRA AND AFTERMATH, available at http://lawandliving.blogspot.in/2009/10/right-toshared-household-debacle-of.html
“Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws”, Indian National Bar Association (April 2, 2022) https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/
Debarati Halder and K. Jaishankar, “PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT, MEDIEVAL, AND MODERN INDIA”, 24 JLR (2009).
“UNDERSTANDING THE CHANGING CONCEPT OF HINDU MATRIMONIAL HOME IN 21st CENTURY INDIA”, S. Bhambri & Associates (April 5, 2022) https://www.sbhambriadvocates.com/post/understanding-the-changing-concept-of-hindu-matrimonial-home-in-21st-century-india-1
“Marriage, Family and Property Rights”, OHCHR (April 6, 2022) https://www.ohchr.org/sites/default/files/Documents/Publications/PractitionerToolkit/WA2J_Module2.pdf