Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian
Authors: Narendra Subramanian
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to the constitutional rights to equality and equal treatment, drawing different responses from the courts, for instance in
Mrs. Swaraj Garg v. K.M. Garg
(1978) and
Pritam Kaur v. Surjit Singh
(1984), which are discussed below.
A. Annamalai Mudaliar
(1965), the earlier-mentioned case of a Hindu bigamist who unsuccessfully resisted his first wife’s maintenance petition, showed how far courts believed that women needed to accept the way their husbands arranged their matrimonial lives. While recognizing a woman’s right to live apart from her husband and get maintenance payments from him so long as he lived with his other wife, the court held that if he abandoned his second wife, he would be entitled to require his first wife to live with him as “he can at his option live with any wife.” 98 Indeed, while bigamy was accepted among Hindus, many courts held that polygamous husbands could claim the company of their first wives while living with their second wives as well, in cases such as
Jeebo Dhon Banyah v. Mt. Sundhoo
(1872) and
Mt. Kishan Devi v. Mangal Sen
(1935).
Other courts responded differently starting in the 1960s to men’s petitions for their wife’s company, which they rejected in
Smt. Alopbai v. Ramphal Kunjilal
(1962) and the earlier mentioned
Baburao
(1964) with a view to the woman’s happiness, even if the man’s behavior did not amount to cruelty. 99 In
Sadhu Singh v. Jagdish Kaur
(1969), the court similarly refused to order the woman back to her husband because it found that her in-laws had ejected her from their home, her husband had made no effort to build a relationship with her initially or resume their relationship after she was sent away, he had madeunfounded adultery allegations, and he was clearly seeking a restitution decree as a means to a divorce. Moreover, it found the woman’s refusal to comply with her husband’s demand that she live with his parents, rather than with him, entirely reasonable.
Agnes highlighted the greater responsiveness of courts since the 1970s to the need of women in well-paying jobs to live close to their place of work. 100
Mrs. Swaraj Garg v. K.M. Garg
(1978) provided strong support for the right of women to live apart from their husbands if their husbands did not accept their choice of location for the matrimonial home, based on the constitutional right to equality, differing in this regard from
Kailash Wati
. Justice V. S. Deshpande held that the woman should not be expected to give up her steadier and higher-paying job, especially as the couple had not agreed on the location of their matrimonial home before they got married. He argued that the earlier understanding in Hindu law that the husband has a monopoly over this decision had to be revised in light of the growth in women’s workforce participation. Other features of the case reinforced his decision: the man had taken a big dowry, kept his wife’s marriage gifts, did not arrange medical treatment for his wife when she was sick, and threatened to control her income and her movements. Aside from refusing conjugal restitution, the judge said the marriage had broken down in a way that warranted divorce.
A few courts reasoned as did
Swaraj Garg
, recognizing that women might need to live near their places of work in restitution and divorce cases. Even before
Swaraj Garg
, the Madras High Court had refused to order women to give up their jobs to join their husbands in
Sulochana v. Selva Madhavan
(1974) and
N.R. Radhakrishnan v. N. Dhanalakshmi
(1975). Justice Maharajan noted the need to amend Hindu law in light of changes in matrimonial relations in these cases, which drew less attention than
Swaraj Garg
because they did not rely on constitutional law.
Dhanalakshmi
was influenced by the court’s finding that it was the man who had denied the woman his conjugal company: he had got himself transferred to another town when the couple had marital problems and did not try to get transferred back to the location
Mrs. Swaraj Garg v. K.M. Garg
(1978) and
Pritam Kaur v. Surjit Singh
(1984), which are discussed below.
A. Annamalai Mudaliar
(1965), the earlier-mentioned case of a Hindu bigamist who unsuccessfully resisted his first wife’s maintenance petition, showed how far courts believed that women needed to accept the way their husbands arranged their matrimonial lives. While recognizing a woman’s right to live apart from her husband and get maintenance payments from him so long as he lived with his other wife, the court held that if he abandoned his second wife, he would be entitled to require his first wife to live with him as “he can at his option live with any wife.” 98 Indeed, while bigamy was accepted among Hindus, many courts held that polygamous husbands could claim the company of their first wives while living with their second wives as well, in cases such as
Jeebo Dhon Banyah v. Mt. Sundhoo
(1872) and
Mt. Kishan Devi v. Mangal Sen
(1935).
Other courts responded differently starting in the 1960s to men’s petitions for their wife’s company, which they rejected in
Smt. Alopbai v. Ramphal Kunjilal
(1962) and the earlier mentioned
Baburao
(1964) with a view to the woman’s happiness, even if the man’s behavior did not amount to cruelty. 99 In
Sadhu Singh v. Jagdish Kaur
(1969), the court similarly refused to order the woman back to her husband because it found that her in-laws had ejected her from their home, her husband had made no effort to build a relationship with her initially or resume their relationship after she was sent away, he had madeunfounded adultery allegations, and he was clearly seeking a restitution decree as a means to a divorce. Moreover, it found the woman’s refusal to comply with her husband’s demand that she live with his parents, rather than with him, entirely reasonable.
Agnes highlighted the greater responsiveness of courts since the 1970s to the need of women in well-paying jobs to live close to their place of work. 100
Mrs. Swaraj Garg v. K.M. Garg
(1978) provided strong support for the right of women to live apart from their husbands if their husbands did not accept their choice of location for the matrimonial home, based on the constitutional right to equality, differing in this regard from
Kailash Wati
. Justice V. S. Deshpande held that the woman should not be expected to give up her steadier and higher-paying job, especially as the couple had not agreed on the location of their matrimonial home before they got married. He argued that the earlier understanding in Hindu law that the husband has a monopoly over this decision had to be revised in light of the growth in women’s workforce participation. Other features of the case reinforced his decision: the man had taken a big dowry, kept his wife’s marriage gifts, did not arrange medical treatment for his wife when she was sick, and threatened to control her income and her movements. Aside from refusing conjugal restitution, the judge said the marriage had broken down in a way that warranted divorce.
A few courts reasoned as did
Swaraj Garg
, recognizing that women might need to live near their places of work in restitution and divorce cases. Even before
Swaraj Garg
, the Madras High Court had refused to order women to give up their jobs to join their husbands in
Sulochana v. Selva Madhavan
(1974) and
N.R. Radhakrishnan v. N. Dhanalakshmi
(1975). Justice Maharajan noted the need to amend Hindu law in light of changes in matrimonial relations in these cases, which drew less attention than
Swaraj Garg
because they did not rely on constitutional law.
Dhanalakshmi
was influenced by the court’s finding that it was the man who had denied the woman his conjugal company: he had got himself transferred to another town when the couple had marital problems and did not try to get transferred back to the location
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