Section 1[1] of the Hindu Marriage Act, 1955 embodies the concept
Restitution of Conjugal Rights
under which after solemnization of marriage if one of the spouses
abandons the other, the aggrieved party has a legal right to file
a petition in the matrimonial court for restitution of conjugal
rights. This right can be granted to any of the spouse.
This section
is identical to section 22 of the Special Marriage Act, 1954.[2]
The provision is in slightly different wordings in the Parsi
Marriage and Divorce Act, 1936, but it has been interpreted in
such a manner that it has been given the same meaning as under the
Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
However, the provision is different under the section 32 Indian
Divorce Act, 1869 but efforts are being made to give it such an
interpretation so as to bring it in consonance with the other
laws. The provision under Muslim law is almost the same as under
the modern Hindu law, though under Muslim law and under the Parsi
Marriage and Divorce Act, 1936 a suit in a civil court has to be
filed and not a petition as under other laws.[3]
constitutional validity of the provision has time and again been
questioned and challenged. The earliest being in 1983 before the
Andhra Pradesh High Court[4] where the Hon'ble High Court held
that the impugned section was unconstitutional. The Delhi High
Harvinder Kaur v Harminder Singh,[5] though had
non-conforming views. Ultimately Supreme Court in
Saroj Rani v.
Sudharshan,[6] gave a judgment which was in line with the Delhi
High Court[7] views and upheld the constitutional validity of the
section 9 and over-ruled the decision given in
T. Sareetha v.
T. Venkatasubbaiah.[8]
It is a sad
commentary that despite various courts including the Apex Court of
the Country upholding the validity of section 9. Many jurists
still have doubts with respect to the soundness of this section
and demand its abolishment.
Abolitionist's View
The abolitionists argue that it is a remedy that was unknown to
Hindu law till the British introduced it in the name of social
reforms. Even when the Hindu Marriage Act, 1955 was being passed
in the Parliament, there were voices of scepticism regarding the
efficacy of this remedy.[9] Sir J. Hannen in
Russell v.
Russell[10] also vehemently opposed the remedy. Further, they are
of the view any law that forces any person to live with another
person is contrary to the value of the society. The remedy openly
violates the fundamental right to life, privacy and equality hence
is unconstitutional. Further more, there is frequently insincerity
in the petitioner's intention. The remedy is blatantly misused to
achieve ulterior purposes other than reconciliation, the root
cause being S.13 (1-A)(ii) of the Hindu Marriage Act, 1955 and has
created an additional ground of divorce. Yet another major problem
with restitution petitions is that it is used as a defence for
maintenance suits. This remedy has been repeatedly misused, abused
and exploited.[11]
Adding more,
the procedure prescribed to enforce this decree under Order 21
Rule 32 of Civil Procedure Code, 1908 is also criticized on the
ground that in India, where most of the population and especially
women (wife) do not have actual possession over any property. In
such cases, if a restitution decree is not complied with, then the
court is required to ascertain the share of the wife in the
property of her husband, when it is not divided and arrive at her
share in the property, but this involves cumbersome procedures.
Difficulty also arises if the husband does not have a property in
his name. Further, it is not correct to think that coercing a
person that his property would be attached and sold away can
change the attitude of the adamant spouse and make him obey the
However, in my opinion, section 9 of the Hindu Marriage Act is one
of the most misunderstood sections of the Matrimonial law. Despite
the controversy it has continuously been upheld by the Judiciary.
Even the legislature through various committees and its reports
has supported this section. All the reasons so stated by
abolitionists can be easily encountered if this socially
benefiting section is read in the right light and its essence is
understood. It is imperative that a clear understanding of the
section 9 is required because it is often invoked.
First of all,
it cannot be said that the concept of conjugal rights and that its
embodiment in section 9 is foreign to the Indian culture and
society. It may be borne in mind that conjugal rights. Such a
right is inherent in the very institution of marriage itself.[12]
The only thing is new is the embodiment of this concept which has
been prevailing since antiquity.
objective of section 9 is to preserve the marriage.[13] According
to the Hindu Marriage Act marriage is a civil contract and a
religious ceremony.[14] It is a contract of the greatest
importance in civil institutions, and it is charged with a vast
variety of rights and obligation,[15] cohabitation being one of
them. It is the very soul of marriage and this section enforces
the right of cohabitation. If there is no reasonable ground for
living apart, the court orders for cohabitation and enforces the
Contract there is nothing wrong as the parties had voluntarily
stipulated this at the time of entering into the marriage
Section 9, in
actuality, is a means of saving the marriage, it is in a sense an
extension of sub-sections (2) and (3) of section 23 of the Act
which encourage reconciliation by the court. It is the policy of
the Act that the parties should live together and assist in the
maintenance of marriages.[17] By enforcing cohabitation, the court
is serving this purpose of the Act.
Further, it is
criticized on the ground that it allows the withdrawing spouse to
take an advantage of his own wrong, which is against the scheme of
section 23 and allows him/her to apply for a decree in case of non
consummation of the marriage within one year of passing of decree.
However in
Dharmendra Kumar v. Usha Kumari,[18] the Hon'ble
Court clearly stated that The expression &in order to be a
within the meaning of section 23(1) (a) the conduct alleged has to
be something more than mere disinclination to agree to an offer of
reunion, it must be misconduct serious enough to justify denial of
the relief to which the husband or the wife is otherwise entitled
It is also
often claimed to be gender discriminatory and violative of Article
T. Sareetha case[20] confirmed this view. It is obvious that
the judge considered the entire question of restitution from the
point of view of the woman. It seems that it has been overlooked
that restitution of conjugal rights can also be claimed by the
wife. It is relevant to state that the section is gender neutral
as by the Amending Act 44 of 1964 either party to a marriage has
been allowed to present a petition for divorce on the ground given
in section 13(1-A). Even the party found guilty in restitution
proceedings is entitled to petition for divorce under section 13
(1-A)(ii). There is complete equality of sexes here and equal
protection of the laws.[21] Therefore this claim of abolitionist
is incorrect.
Section 9 is
also criticized for being an instrument of forced sexual relation
and hence being violative of right to privacy guaranteed under
Article 21. But much contrary is its purpose. The remedy of
restitution aims at cohabitation and consortium and not merely at
sexual intercourse.[22] In
Halsbury's Laws of England[23]
observed: (cohabitation) aces not necessarily mean serial
intercourse, which the court cannot enforce, so that refusal of
sexual intercourse by itself does not constitute refusal to
cohabit.&[24] In support of this proposition the high authority of
Lord Stowell in
Forster v. Forster,[25]
Orme v. Orme, [26] and
Rowe v. Rowe[27] may be cited. One thing is clear from Lord Stowell's decision in
Forster v. Forster[28] and Halsbury's
statement of law that the Court does not and cannot enforce sexual
intercourse. In cases like T Sareetha, [29] the concept of
marriage is pictured as if consists as if it consists of nothing
else except sex. Chaudhary, J.'s over-emphasis on sex is the
fundamental fallacy in his reasoning. He seems to suggest that
restitution decree has only one purpose, that is, to compel the
unwilling wife to &have
sex with the husband&.
This view was discarded long ago in as early as 1924 Sir Henry
Duke President in
Jackson v. Jackson[30]To
say that restitution decree &subject
a person by the long arm of the to a positive sex act&
is to take the grossest view of the marriage
institution.[31]Therefore, it is fallacy to hold that the
restitution of conjugal rights constituted &the
starkest form of governmental invasion&
of &marital
privacy&.[32]
Further, applying the standard that law has to be just, fair and
reasonable as enunciated in
,[33] section 9 said tries to bring the parties together.
Whether to grant restitution decree would be just, fair and
reasonable in the facts and circumstances of a given case is left
to the court to be decided in its judicial discretion. What better
guarantee can the law afford for the &inviolability of the body
and mind& of the wife and her &marital privacy&[34] And therefore
it can be safely stated that section 9 is not violative of Article
It also stated
by critique that restitution decree serve as a stepping stone to
divorce and is condemned to be a passage or passport to divorce.
The reason behind the scheme of putting non consummation of
marriage after one year of passing the decree of restitution of
conjugal rights under section 13 of the Act is that the Indian
Legislature believes that there should not be a sudden break of
the marriage tie. It believes in reconciliation and that that
cooling-off period is not only desirable but essential. If the
marriage cannot be saved even after passing the decree of
restitution it must be dissolved. A factual separation gives an
easily justifiable indication of breakdown.[35] That is, under the
Act it serves a double purpose. It first finds the fault and where
it lies. Secondly it leads to the dissolution of the marriage, if
there is no resumption of cohabitation.
recognizing non-consumption of marriage after 1 year of passing of
Restitution Decree as a ground of divorce enables the aggrieved
spouse to apply to the court for maintenance under section 25; and
maintenance pendente lite may also be claimed by making out a case
for the same as provided in section 24. This enables a wife, who
does not desire disruption of the marriage or even judicial
separation from the husband, to secure provision for her support
by an order of the court under the matrimonial jurisdiction
conferred on it, instead of filing a suit for maintenance under
the law relating to maintenance now embodied in the Hindu
Adoptions and Maintenance Act 1956.[36]
People who are
against the concept of restitution of conjugal rights argue that
England which is the nation of origin of the concept has deleted
this remedy from its legislation and India is still continuing it.
The Law Commission, in their Fifty-ninth Report have- not
recommended its abolition nor in their Seventy-First Report of
1978. The Commission was aware that it had been abolished in
England under section 20 of the Matrimonial Proceedings Act 1970.
However, it is germane to state that retaining this section all
these years is not without reason. The truth is that the
legislature has not accepted the breakdown theory in toto, as has
been accepted in England.[37] Adding on, a recent writer[38] has
suggested that &the opinion of Derrett is more realistic and that
the Hindu society is not mature enough to do away with the remedy.
Its abolition would be like throwing away the baby with the
bath-water.&[39]
It is also
argued that the methodology adopted in execution of the decree as
mentioned in the Code- of Civil Procedure (0-21 Rules 32 and 33)
is erroneous as it provides for financial sanction in case of non
fulfillment of this decree. It is to be remembered that marriage
is also contractual in nature. Providing for a financial sanction
in case of non fulfillment of contractual obligation is a common
practice. Also that enforcement by attachment of property is
provided by court where the disobedience to such a decree is
willful i.e. is deliberate, in spite of the opportunities and
there are no other impediments. 0 21, Rules 31 and 32 C.P.C.
provide only a financial sanction to serve as an inducement by the
court to effectuate restitution and serve a social purpose i.e.
prevention of the break-up of the marriage.[40]
Often the case
of Russel v. Russel[41] is quoted by abolitionist, however the
bigger picture as to why Lord Herschell called this remedy as
barbarous is not brought in light. What he said and meant was that
reasonable excuse, an essential for the decree of Restitution of
Conjugal Right, was not confined only to the grounds of divorce.
It can as well be &something short of legal cruelty& which might
constitute a reasonable excuse for refusing restitution. What was
stated by him was that if the meaning of reasonable excuse was
restricted to the grounds, then this remedy shall be barbarous.
This is precisely what has been taken care of in India as the
history of the Act would show. Section 9(2) as originally enacted
provided that &Nothing shall be pleaded in answer to a petition
for restitution of conjugal rights which shall not be a ground for
judicial separation or for nullity of marriage or for divorce.&
This created considerable difficulty. The Law Commission in its
Fifty-Ninth Report recommended its deletion. It is now possible
for the party to plead a reasonable excuse which may not
necessarily be a ground either for judicial separation or nullity
or divorce. So the Act was amended and by Act No. 68 of 1976
section 9 (2) was deleted. This brought the law in conformity with
the opinion of Lord Herschell. It will, therefore, appear that
Lord Herschell's expression &barbarous&
was used in a different context.[42]
Conclusion
In summation, it may be stated that the grounds and arguments are
baseless and they do not sufficiently prove that the Remedy of
Restitution of Conjugal Rights is archaic, barbarous and violative
of the basic Human Rights. It cannot be said that this remedy is
unconstitutional. Section 9 has sufficient safeguards to prevent
the marriage from being a tyranny.[43]In truth, it serves the
social good purpose, by promoting reconciliation between the
parties and maintenance of matrimonial. It protects the society
from denigrating. And all the years that it has been enforce it
has efficiently played it's a role.
References
[1] Section 9 of the Hindu Marriage Act, 1955 reads as
follows:- &When either the husband or the wife has
without reasonable excuse withdrawn from the society of
the other, the aggrieved party may apply, by a petition
to the district court, for restitution of conjugal
rights and the court, on being satisfied of the truth of
the statements made in such petition and that there is
no legal ground why the application should not be
granted, may decree restitution of conjugal rights
accordingly&.
*****************
[2] After the Marriage Laws (Amendment) Act, 1976.
[3] Paras Diwan, Law of Marriage & Divorce, 4th Ed., p. 328.
[4] T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356.
[5] A.I.R. 1984 Del. 66.
[6] A.I.R. 1984 S.C. 1562.
[7] Harvinder Kaur v Harminder Singh, A.I.R. 1984 Del. 66.
[8] A.I.R. 1983 A.P. 356.
[9] Jaspal Singh, Law of Marriage and Divorce in India , (1983),
[10] (1897) AC 395.
[11] A reference has been made to Mr. Prashanth S.J, Hindu Women
And Restitution Of Conjugal Rights: Do We Need The Remedy
[12] Kondal v. Ranganavaki, A.I.R. 1924 Mad. 49.
[13] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del.
[14] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del.
[15] Linda v. Belisario (1795) 1 Hag. Con. 216(21) per Sir William
Scott at pp. 30, 232.
[16] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del.
[17] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[18] A.I.R. 1977 S.C. 2218.
[19] Dharmendra Kumar v. Usha Kumari, A.I.R. 1977 S.C. 2218.
[20] T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356.
[21] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[22] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[23] 12th Vol., 3rd Ed., p. 284.
[24] A reference may be made to Harvinder Kaur v. Harmander Singh
Choudhry, A.I.R. 1984 Del. 66.
[25] (1790) I Hag. Con. 144.
[26] (1924) 2 Addf 382-162 E.R. 335
[27] (1865) 34 L.J.P. M&A 111
[28] (1790) I Hag. Con. 144.
[29] A.I.R. 1983 A.P. 356.
[30] (1924) Probate 19 (2).
[31] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[32] A reference may be made to Harvinder Kaur v. Harmander Singh
Choudhry, A.I.R.1984 Del. 66.
[33] Mrs. Maneka Gandhi v. Union of India (UOI) and Anr, A.I.R.
1978 S.C. 597.
[34] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[35] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Delhi
[36] S.A. Desai, Mulla Hindu Law, Vol. 2, 19th Ed., p. 60.
[37] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[38] R. C. Nagpal, Modern Hindu Law, (1983), p. 110.
[39] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[40] Saroj Rani v. Sudharshan Kumar Chadha, A.I.R.1984 S.C. 1562.
[41] (1897) A.C. 395 (16).
[42] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del.
[43] , A.I.R.1984 S.C. 1562.The author can be reached at:&
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