Ramesh, a very rich Industrialist, married Rohini, multinational executive drawing a salary of Rs. 45000 per month. After marriage Ramesh requested Rohini to resign her job at Delhi and stay with him at Meerut and help him in his business. Rohini refused to resign and continued to stay in Delhi, and also insisted that Ramesh should be shift to Delhi. Ramesh filed a suit for restitution of conjugal rights against Rohini. Decide.

The main issue which is involved in the present case is whether Ramesh is entitled to get the decree of Restitution of Conjugal rights against his wife Rohini.

The Constitution of India provides a very basic fundamental right i.e. Right to earn the livelihood. According to this right, a person is free to choose occupation, profession or job to earn the livelihood and no one can stop him. This right is available to both men and women. According to this right both men or women can reside any where to earn their livelihood.

But, on the other hand, marriage arises some matrimonial rights and obligations and it is duty of both the spouses to fulfil their matrimonial obligations and enjoy the companionship of each other. According to Hindu Shastras, it is an obligation of both spouses to live with each other in their matrimonial home and under a same roof.


According to section 9 of Hindu Marriage Act, 1955, if any spouse whether husband or wife fails to perform his/her matrimonial obligations and has withdrawn from the society of the other spouse without any reasonable excuse, then the aggrieved party can file a petition in a District court for Restitution of Conjugal Rights.

Now the question arises, if a wife is a working lady and just to do her job she resides apart from her husband, then whether she will be considered guilty for deserting her husband and whether her husband has right to get decree of Restitution of Conjugal Rights against the wife.

This issue was raised in case of Tirath Kaur vs. Kirpal Singh (1975 PLR 572) and in this case Punjab High Court held that, “a wife who takes up a job without her husband’s consent at a place different from his home withdraws from the society of husband.”


In a leading case of Kailashwati vs. Ayodhya Prakash (1977 (79) PLR 216) The Hon’ble Punjab High Court held that the concept of marriage cannot be reduced to a ‘weekend marriage’. The right to set up the matrimonial home is that of the husband, and the wife cannot stay apart against his wishes.

According to these judgements, wife cannot stay apart from her husband and if for job she resides in another place then she has to leave her job and live with her husband in the matrimonial home. According to this judgment matrimonial rights prevail over fundamental rights.

But in a leading case of Swaraj Garg vs. K.M. Garg (AIR 1978 Del. 296), The Hon’ble clearly took a progressive view. The court held that the basic principles on which the location of the matrimonial home is to be determined by husband and wife are based on common convenience and benefit of the parties. Between the husband and wife, the decision as to the matrimonial home has to be taken on the balance of circumstances. If the circumstances are equally balanced in favour of husband and wife then there would be stalemate and neither of them would be able to sue the other for restitution of conjugal rights.

According to this judgement, husband and wife has fundamental right to earn their livelihood. No one can compel the another spouse to leave the job and reside with him/her. Fundamental rights are absolute rights and marriage does not take away the fundamental right of any spouse. It is duty of both the spouses to give respect to the fundamental rights of each other because fundamental rights always prevail over matrimonial rights. This judgment is much sound judgment as compare to judgment given by Punjab High Court because this judgment is based upon Article 14 and 19 of Indian Constitution.

In this case, Rohini is a working lady and because of her job she resides apart from her husband. She has no intention to withdraw from the society of her husband and to fulfil her matrimonial obligations. But she does not want to leave her job. So, she will not be considered guilty of deserting her husband. In this case, Ramesh and Rohini are equally balanced in their circumstances. So, right to set up matrimonial home belongs to neither. Therefore, Ramesh’s petition cannot be granted.

It is a clear cut case of ‘Breakdown of Marriage’. So, if they don’t want to live together because of their professional life, they can dissolve the marriage by taking Divorce with mutual consent because marriage is such a union which should be broken with maximum fairness and minimum bitterness, distress and humiliation.


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