Family Law Project Work

JUDICIAL OPINION REGARDING CONSTITUTIONALITY

OF THE REMEDY OF
RESTITUTION OF CONJUGAL RIGHTS
 INTRODUCTION

Our marriage laws recognize a concept called the restitution of conjugal rights. Restitution of
conjugal rights is a remedy by which a person can obtain a direction from the court against his
spouse who is living separately, to the effect that she must live with him and carry out her
obligations as his wife. Section 9 of the Hindu Marriage Act, 1955 embodies the concept of
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. 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

The provisions for restitution of conjugal rights are similar in the personal laws. They provide
that where a person without reasonable excuse or lawful ground "withdraws from the society" or
"deserts or stops cohabiting with" her spouse or "neglects to perform the obligations imposed by
marriage," the court can direct that such obligations be resumed. The personal laws also provide
that where the person has a reasonable excuse for not living with her spouse, the court will not
issue directions for resumption of the marital relationship.1

While "reasonable excuse" need not be the same grounds on which a divorce would be granted,
provisions such as these are founded upon and are enforced upon norms of behaviour and
dynamics in a marital relationship and upon what is normally expected of the husband and wife.
In most instances, these cases are initiated by the husband against the wife. Many cases under
these provisions are filed on the husband's insistence that the wife must live with the husband on
terms and conduct determined by him, such as giving up her employment which is in a different
city, compliance with lifestyle choices made by him, etc.

While restitution of conjugal rights is a remedy, which cannot be physically enforced by the law,
there is provision for attachment of the property of the erring spouse or for payment of money to
compel enforcement under Order 21 Rule 32 of the Civil Procedure Code. This is a form of
judicial coercion intended to safeguard the institution of marriage especially in cases where a
marriage is on the verge of collapsing. This remedy, which is recognized in all personal laws and
in the Special Marriage Act, 1954, is based on a fallacy that the law can compel and force a
relationship. This remedy also raises a basic issue of whether law should force an unwilling
partner to live with her spouse. Ought law to force a person to live with his/her spouse, and be
subject to a marital relationship when he/she does not want to? A marriage, as we understand, is
a relationship of sharing and trust, and a compulsion that the parties live together, against their
will, as spouses negates this. This law of physical restitution of a marital relationship enforces
bondage, especially for a woman. The legality of this provision was considered by the Andhra
Pradesh High Court in the case of T. Sareetha v. T. Venkata Subbaiah in 1983, where the
restitution provisions were challenged by a woman as violating her fundamental rights. The High
Court agreed and said, "A decree of restitution of conjugal rights constitutes the grossest form of
violation of an individual's rights to privacy. A State coercion of this nature can neither prolong
nor preserve the voluntary union of husband and wife. Neither the State coercion can clear the
misunderstanding between the parties."

1
www.hindu.com/mp/2007/01/06/stories/2007010600810200.htm
Despite this clear and unequivocal reasoning, the law of restitution of conjugal rights remains on
the statute books in India. In England, where this provision originated, the law has been
repealed.2 At this juncture this project intends to look at the various judicial opinions on this
topic in recent times and to understand the present opinion on the constitutionality of the remedy
of restitution of Conjugal Rights.

DIFFERENT JUDICIAL OPINIONS PREVAILING

Like any controversial topic, there are two views regarding the constitutionality of the remedy of
restitution of conjugal rights. One school of thought advocates that the remedy of restitution is
unconstitutional as it renders the woman a captive in the hands of her husband who is unwilling
to part company with her. This school of thought believes that the remedy of restitution of
conjugal rights is violative of Articles 14 and 21 and hence violative of Part III of the
Constitution. As per Article 13 of the Constitution of India, any law violative of Part III of the
Constitution is null and void and hence the remedy of restitution of conjugal rights is null and
void. This school may be referred to as the abolitionist view. This view was first propounded by
Justice P.A. Choudary3 of the Andhra Pradesh High Court in the year 1983 while hearing the
matter of T. Sareetha v. T. Venkata Subbaiah.4 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. Sir J. Hannen in Russell v. Russell 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

2
www.lawreform.ie/publications/data/volume3/lrc_22.html

3
http://hc.ap.nic.in/aphc/pacj.html

4
AIR 1983 AP 356
with restitution petitions is that it is used as a defence for maintenance suits. This remedy has
been repeatedly misused, abused and exploited.

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 decree.5The abolitionists are criticized for basing their argument majorly on the premise
that a man could force himself upon his unwilling wife, who is on the verge of seeking divorce or
is unwilling to have sexual intercourse with him. As a result they claim that the remedy of
restitution of conjugal rights is an instrument of law which is enabling marital rape to occur.

The other view on this subject is shared by those who feel that the remedy of restitution of
conjugal rights is a constitutional remedy and is a means to safeguard the institution of marriage
in these days when divorces are prevalent all around. Today's wife is not ready to merely live at
the mercy of her husband and the members of his family. A sense of confidence and self-respect
has come to be instilled in the wife in view of advanced socio-economic conditions. The wives
are ready to face challenges in life. They are keen to become self-dependent. 6 The spirit of forced
tolerance of yesteryears is waning away. They are prepared to live separately rather than to stay
united while unhappy. The leading idea of Section 9 is to preserve the marriage. What the court
seeks to is to enquire into the causes which have led to the rupture of the marital relations and a
refusal to share the matrimonial life. If there is no reasonable excuse for living apart, the court
orders the withdrawing party to return to the conjugal fold so that the consortium is not broken.
The object of the restitution decree is to bring about cohabitation between the estranged parties
so that they can live together in the matrimonial home in amity. From the definitions of
cohabitation and consortium it appears that sexual intercourse is one of the elements that goes to
5
http://www.legalserviceindia.com/articles/abol.htm

6
www.ourkarnataka.com/Articles/law/ conjugalrights.htm
make up the marriage. But it is not a summum bonum. 7The Supreme Court also agreed with the
logic in Saroj Rani v. Surinder Kumar Chadha 8 and upheld the validity of Section 9 of the
Hindu Marriage Act and the same is applicable till date.

ABOLITIONIST VIEW

To understand the underlying concepts of abolitionist view, one must go through the T. Sareetha
v. T. Venkata Subbaiah9case in which a landmark judgment was rendered by Justice PA
Choudary. This was one of the first cases in which the constitutionality of the remedy of
restitution of conjugal rights was discussed. Justice Choudary declared Section 9 of the Hindu
Marriage Act as ultravires the constitution. This view is also known as the Feminist View in
judicial circles. It is therefore necessary to understand the T. Sareetha case and the same is
analyzed hereunder:

FACTS OF THE CASE:

The Appellant was a famous film actress of South India and was married to the respondent while
she was in high school. They were separated almost immediately and have been living apart for
over five years. The respondent filed a petition for restitution of conjugal rights under section 9
of Hindu Marriage Act before the sub court of Cuddapah. The appellant filed an objection, on
grounds of jurisdiction, to entertaining the above mentioned petition under section 9 of Hindu
Marriage Act, before the same court. This objection was duly over ruled and thus the appellant
preferred to file a civil revision petition before the Honourable High Court of Andhra Pradesh.
The appellant in her revision petition also questioned the constitutional validity of section 9 of
Hindu Marriage Act. Thus this matter came before the Honourable High Court of Andhra
Pradesh.

Proceedings before High Court:

7
Justice AB Rohtagi of the Delhi HC in Harvinder Kaur v. Harmander Singh Choudary, MANU/DE/0234/1983

8
AIR 1984 SC 1562

9
AIR 1983 AP 356
At the outset, the court settled an important question of jurisdiction and found that the sub court
of Cuddapah had the required jurisdiction to try the petition. The question of jurisdiction shall
not be examined in this paper.In her civil revision petition the appellant questioned the
constitutional validity of section 9 of Hindu Marriage Act which was duly decided by this
Honourable court.

Appellant’s Contentions:

The appellant contended that section 9 of Hindu Marriage Act must be struck down as it violates
Art. 14, 19 and 21 of the Constitution of India and offends the guarantee to life, personal liberty
and human dignity and decency.

The State’s contentions are however not mentioned in the judgement. Justice P.A. Choudary
while delivering the judgement declared S.9 of HMA to be void as it violated the Constitution of
India. After analyzing various American and UK cases, Justice Choudary declared S.9 to be
unconstitutional as it forced an individual to have sexual intercourse against her will.

RATIONALE:

The major reasons underlying the verdict of the Andhra Pradesh High Court are as follows:

1. Justice Choudary felt that one of the most important differentiating aspects between man
and other animals was the Sexual autonomy. He opined that an individual’s right to
choose his or her partner to a sexual Act, is of primary importance. Sexual expression is
so integral to one's personality that it is impossible to conceive of sexuality on any basis
except on the basis of consensual participation of the opposite sexes. No relationship
 between man and woman is more rested on mutual consent and freewill and is more
intimately and personally forged than sexual relationship. According to him, the remedy
of restitution of conjugal rights was a coercive act of the state compelling sexual
cohabitation between two people whereby one of them was unwilling to do so. Therefore,
must be regarded as a great constraint and torture imposed on the mind of the unwilling
party. The life of a man or woman which the sovereign can commandeer through the
coercive power of the state for performing an unwilling Act of sexual cohabitation cannot
but be regarded as that of a human beast drained of all spirituality. He relies on the
judgment of Russel v. Russel 10 rendered by Lord herschell whereby he stated that the law
of restitution of conjugal rights as administered in the courts did sometimes lead to
barbaric results.

2. Further it was violative of the Right to Freedom enshrined under Article 19 because it led
to forceful sex and unwanted pregnancy. Justice Choudary felt that the woman ought to
have a choice when it came to matters so intimately concerning her body as begetting,
bearing, delivering and rearing a child and Section 9 completely violated this freedom
according to him.

3. Further citing the case of Govind v. State of MP11 and Kharak Singh v. State of UP12,
Section 9 violated the Right to Privacy guaranteed under Article 21 of the Constitution of
India as any right to privacy must encompass and protect the personal intimacies of the
home, the family, marriage motherhood, procreation and child rearing.13Hence any state
intervention into the matters of motherhood, procreation and child rearing would be
violative of Article 21 and unconstitutional. The right of marital privacy falls within the
category of right to privacy, Griswold's case14 is in authority for the proposition that the
reproductive choice to beget and bear a child does not belong to the state and that belongs

10
(1897) AC 395

11
MANU/SC/0119/1975

12
MANU/SC/0085/1962

13
As per Justice Mathew in the Gopal v. State of MP case

14
Griswold v. Connecticut, (1965) 14 L Ed 2d 510
 to an individual. Further in the case of Missouri v. Danforth, 15the court held that one did
not loose his/her right to privacy belonged to each of the married couple separately and
was not lost by virtue of marriage. The Judge opined that the decree of restitution makes
the unwilling victim's body a soulless and a joyless vehicle for bringing into existence
another human being. In other words, pregnancy would be foisted on her by the state and
against her will. There can therefore be little doubt that such a law violates the right to
privacy and human dignity guaranteed by and contained in Article 21 of our Constitution.

4. State coercion of this nature can neither prolong nor preserve the voluntary union of
husband and wife in matrimony. State coercion cannot soften the ruffled feelings nor
clear the misunderstandings between the parties. Force can only bebet force as action can
only produce counter-actions the only usefulness in obtaining a decree for restitution of
conjugal rights consists in providing evidence for subsequent action for divorce. But this
usefulness of the remedy which can be obtained only at enormous expense to human
dignity cannot be counted as outweighing the interests in upholding the right to privacy.

5. Moreover Section 9 fails to comply with the requirements of Article 14 of the

Constitution which guarantees the right to equality to all the citizens. Firstly, section 9 of
the Act does not satisfy the traditional classification test. Secondly it fails to pass the test
of minimum rationality required of any state Law.

6. It makes no discrimination between a husband and wife. On the other hand, by making
the remedy of restitution of conjugal rights equally available both to wife and husband, it
apparently satisfies the equality test. But according to Justice Chaudary, it is important to
understand how the remedy works in life terms In our social reality, this matrimonial
remedy is found used almost exclusively by the husband and is rarely resorted to by the
wife. There are certain inherent differences between a man and a woman. By enforcing a
decree for restitution of conjugal rights the life pattern of the wife is likely to be altered
irretrievably whereas the husband's can remain almost as it was before this is so because
it is the wife who has to beget and bear a child. This practical but the inevitable
consequence of the enforcement of this remedy cripples the wife's future plans of life and
prevents her from using that self-destructive remedy. Thus the use of remedy of
15
(1976)-49 L ed 2d 788
restitution of conjugal rights in reality becomes partial and one-sided and available only
to the husband. The pledge of equal protection of laws is thus inherently incapable of
being fulfilled by this matrimonial remedy in our Hindu society. By treating the wife and
the husband who are inherently unequal as equals, section 9 of the Act offends the rule of
equal protection of laws. Hence Article 14 of the Constitution is violated by Section 9 of
the Hindu Marriage Act.
 COUNTER VIEW

Immediately after Mr. Justice Choudary declared Section 9 of the Hindu Marriage Act as
unconstitutional, many other High Courts heard petitions wherein the respondents of the
restitution proceeds challenging the validity of the said section. The Delhi High Court was the
first to reject the challenge to the constitutionality of the section in the matter of Harvinder Kaur
v. Harmander Singh Choudhry16and held the section to be valid. The Supreme Court agreed
with the Delhi High Court in the Saroj Rani v. Sudershan Kumar Chadha17 case. Justice
Sabyasachi Mukherjee refused to accept the argument that the remedy of restitution of conjugal
rights resulted in violation of Articles 14, 19 and 21 of the Constitution of India. Justice
Sabyasachi Mukherjee and Justice AB Rohtagi felt that the abolitionist view arose due to
misunderstanding of the underlying idea of marital co-habitation enforced by the court under
Section 9 of the Hindu Marriage Act, which according to them was simple cohabitation and
sexual intercourse between partners was not mandatory and would not be enforced by the courts
of law. One might feelt that the counter view is anti-feminist at first look, but a thorough reading
of the counter view judgements shows that the proponents of this view intend to safeguard the
institution of marriage and at the same time try to safeguard the dignity of women by laying
down safeguarding measures.

An in-depth analysis of the important judgements of Saroj Rani and Harvinder Kaur are given
hereunder along with the analysis of Chetan Dass v. Kamala Devi:

1. HARVINDER KAUR v. HARMANDER SINGH CHOUDHRY

Facts of the case:

The respondent husband filed a petition for restitution of conjugal rights before the additional
district judge. Despite an opposition from the wife, the court granted the decree to the

16
MANU/DE/0234/1983
17
AIR 1984 SC 1562
respondent. Thus the appellant has come in appeal before the Honourable High Court of Delhi.
On appeal, it may be noted that the appellant challenged the constitutional validity of Section 9
of Hindu Marriage Act.

Proceedings before High Court:

Appellants Contention: The counsel for the appellant heavily depended on the case of T.
Sareetha v. T. Subbaiah18 and relied upon the judgment given therein, which declared Section 9
of Hindu Marriage Act to be constitutionally void as it violated Art.14, 19 and 21 of the
Constitution of India.

Justice A.B. Rohatgi opined that the judgment in Sareetha’s case was erroneous in law as the
view stated therein was based on a misconception of the true nature of Section 9 of Hindu
Marriage Act. At para 7 Justice Rohatgi dissents from the ratio of Sareetha’s case.

Honourable Justice Rohatgi, held Section 9 of Hindu Marriage Act, to be constitutionally valid.

Reasoning:

1. Quoting Tolstoy, the court said that ‘the court cannot enforce sexual intercourse, but only
cohabitation, and restitution of conjugal rights can not be ordered where the respondent
refuses sexual intercourse but continues to cohabit with the petitioner’. It further stated that
‘this remedy is aimed at preserving the marriage and not at disrupting it as in the case of
divorce or judicial separation.’19

18
Supra note 12

19
Supra note 12 at para 7
2. ‘A husband and a wife are living under the same roof. But the wife does not allow the
husband sexual intercourse with her because she thinks that it is a horrid and beastly thing.
Will the court pass a restitution decree? The answer is 'No'. Since they are living together as
one household, as one unit and not as two, the law cannot go further and compel them to
have sexual intercourse. The court has neither the means nor the capacity to enforce its
decree in the marriage bed’20. Thus the court categorically laid down that the courts cannot
order a decree to force sexual intercourse and that sexual intercourse is not an integral part of
a restitution decree.

3. ‘The decree of restitution of conjugal rights acts as an index of connubial felicity. It is a sort
of litmus paper. It shows a change of heart if the restitution decree is obeyed. If the decree is
disobeyed it is indicia that the parties have reached a stage of no return’21

4. Regarding the question of constitutional validity the court said at para 34 that ‘...Introduction
of constitutional law in the home is most inappropriate. It is like introducing a bull in a china
shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands
for. In the privacy of the home and the married life neither Article 21 nor Article 14 has
anyplace…’

5. Believing in the socially good intention of this provision, and its requirement in Indian
society, the court upheld its validity.

6. After upholding the constitutionality of  Section 9 of Hindu Marriage Act, the court dismissed the
appeal on its merits.

Ratio:

20
Id at para 12

21
Id at para 17
Section   9   of   Hindu   Marriage   Act   is   constitutionally   valid   and   the   constitutional   mandate   cannot   be

applied to personal laws.

2. SAROJ RANI v. SURINDER KUMAR CHADHA

Facts of the case:

Parties married on 24th January 1975. They had two daughters and May 16th 1977 was the last
day of cohabitation. The respondent allegedly threw the appellant out of his house and withdrew
himself from her society. The second daughter meanwhile unfortunately expired and the wife
filed a petition under Section 9 of Hindu Marriage Act on 17 th October 1977 before learned Sub
Judge First Class.

The wife had alleged maltreatment by the husband as well as his parents towards her. On March
21, 1978, the learned Sub-Judge First class passed an order granting Rs.185 per month as
maintenance pendente lite and Rs.300 as the litigation expenses. on the petition of the wife for
restitution of conjugal rights, the husband-respondent appeared and filed his written statement
admitting therein the factum of marriage between the parties but denied the fact that the
respondent had ever made any demand from the petitioner as alleged or had ever disliked her or
had withdrawn from her society or turned her out from his house as alleged by the wife-
petitioner in her petition for restitution of conjugal rights. The respondent there after made a
statement in the court that the application of the petitioner under Section 9 of the said Act be
granted and decree thereof be passed. Accordingly the learned Sub-Judge First Class on March
28, 1978 passed the decree for the restitution of conjugal rights between the parties. This decree
was not complied with though.

On April 19, 1979, the respondent/husband filed a petition under Section 13 of the said Act
against the appellant for divorce on the ground that one year had passed from the date of the
decree for restitution of conjugal rights, but no actual cohabitation had taken place between the
parties. Wife contended that she had cohabited with the husband for two days before she was
turned out again and she had thereafter filed a petition under section 28A of Hindu Marriage Act
to direct the husband to obey the decree and this petition was pending.

Along with the above, the District Judge observed that the decree of restitution was given by
mutual consent of both parties and therefore divorce cannot be obtained due to non compliance
to such a decree and thereafter dismissed the husband’s petition.

Proceedings Before High Court:

On appeal to the High Court of Punjab & Haryana, the court held that it could not be said that the
husband was ‘taking advantage of his wrongs’. Thereafter the learned Judge expressed the view
that the decree for restitution of conjugal rights could not be passed with the consent of the
parties and therefore being a collusive one disentitled the husband to a decree for divorce (based
on an earlier case). He felt this principle required reconsideration and referred the same to the
Chief Justice to be referred to a larger bench. A division bench of the High Court on
consideration of different authorities came to the conclusion that a consent decree could not be
termed to be a collusive decree so as to disentitle the petitioner to decree for restitution of
conjugal rights. Consent decrees per se in matrimonial matters are not collusive. Thus the matter
was decreed in favour of the husband.

Proceedings Before Supreme Court:

In the civil appeal before the Supreme Court the appellant had two contentions:
 1. The respondent should be stopped from taking advantage of his own wrong doing in
not full filling the restitution decree and thereafter claiming divorce.
2. Section 9 of Hindu Marriage Act is constitutionally invalid.

The Supreme Court negated the first contention. For the second contention the Court discussed
the case of T. Sareetha22 and Harvinder Kaur23. The Court, upheld the ratio in Harvinder Kaur’s
case and held that S.9 in constitutionally valid and implied that the constitution had no place in
personal laws of the country.

Ratio:

Section 9 of Hindu Marriage Act is constitutionally valid and the constitutional mandate cannot
be applied to personal laws.

22
Supra note 5

23
Supra note 6
 3. CHETAN DASS v. KAMALA DEVI24

Facts of the case:

The appellant, Chethan Dass, and the respondent, Smt. Kamla Devi, were married on November
30, 1976 at Vijaynagar, District Ganganagar according to the Hindu rites and rituals. The
respondent Smt. Kamla Devi stated in her statement that the allegations made against her that she
was unwilling to live with the petitioner and his parents at Kirawad was incorrect.

The trial court thus considering all the evidence and the facts and circumstances of the case,
came to the conclusion that there existed illegitimate relationship between Chetan Dass and one
Sosamma Thomas. In the appeal preferred by the appellant in the High Court, the findings
recorded by the trail court have been upheld.

An appeal was filed by the husband challenging the judgment and order passed by the Rajasthan
High Court, upholding the judgment passed by the District Judge, Sriganganager, dismissing the
petition of the appellant under Section 13 of the Hindu Marriage Act, 1955 praying for
dissolution of marriage by granting a decree of divorce.

Rationale :

24
AIR 2001 SC 1709
 1) The Supreme court didn’t apply Chanderkala Trivedi (Smt). v. Dr. S.P. Trivedi 25, Romesh
Chander v. Savitri (Smt.)26, Smt. Saroj Rani v. Sudarshan Kumar Chadha 27, and said that
in the present case, the allegations of misconduct of adulterous behaviour have definitely
been made by the wife which have been found to be correct.
2) The averments made in the petition for obtaining a decree for divorce, namely, desertion
on the part of the wife without any reasonable cause have not been found to be correct.
3) Brijesh Kumar, JJ. also stressed on the fact that “Matrimonial matters are matters of
delicate human and emotional relationship. It demands mutual trust, regard, respect, love
and affection with sufficient play for reasonable adjustment with the spouse.”
4) He further said that the relationship has to conform to the social norms as well.
5) The matrimonial conduct has now come to be governed by Statue framed, keeping in
view such norms and changed social order. It is sought to be controlled in the interest of
the individuals as well as in broader perspective, for regulating matrimonial norms for
making of a well knit, healthy and not a disturbed and porous society.
6) Institution of marriage occupies an important place and role to play in the society, in
general. Therefore, it would not be appropriate to apply any submission of "irretrievably
broken marriage" as a straight jacket formula for grant of relief of divorce. This aspect
has to be considered in the background of the other facts and circumstances of the case.

Ratio:

The court laid that when there is a misconduct on part of a husband he cannot claim the
advantage of his own wrong and be granted a decree of divorce on the ground of desertion on the
part of his wife who is still prepared to live with him provided he snaps his relationship with the
other woman.

25
(1993) 4 SCC 232

26
(1995) 2 SCC 7

27
(1984) 4 SCC 90
 CONCLUSION

As part of this project, I have analyzed the landmark judgments of the Supreme Court with
regard to the constitutionality of the remedy of Restitution of Conjugal Rights and studied the
abolitionist view and the counter view. After a thorough understanding of the concepts, it is safe
to conclude that S. 9 HMA is unconstitutional. I wish to emphasis, that constitutional law must
ratify personal law.

Today, judges are skeptical about applying Constitutional guidelines to personal laws as they are
well aware about the political ramifications that it will carry. Art. 44 of the Constitution which
pertains to a Uniform Civil Code, sadly remains a dead letter. Enforcement of Art.44 would
indirectly mean enforcement of Art.14 and Art. 21 and due to various political interests, the
governments of this nation are not pursuing it.

What this nation needs today is a champion of the Constitution, a judiciary which will break the
stronghold over religious politics and establish a truly secular India. We pride ourselves in being
a diverse yet unified country however the unity we speak of is hollow. Politics, dirty politics, will
always crop its face up. Enforcing the Uniform Civil Code, is a way to enforce the Constitution,
a way to break the dirty religious politics in the country, a way to make India truly secular.

We must attempt to pursue equality in its true sense, in all fields, in all aspects. We must move
into the light in the words of Martin Luther Kind “Injustice anywhere is a threat to justice
everywhere”
(This post was written by Madhav Chandan from Gujarat
National Law University, Gandhinagar)
Smt. Saroj Rani v/s Sudarshan Kumar Chadha was decided on
8th August 1984. It is considered landmark because it challenged the
constitutional validity of Section 9 of the Hindu Marriage Act, 1955
wherein the two-judge bench of the Honourable Supreme Court of
India upheld the validity of Restitution of Conjugal Rights enshrined
under the Act.
This judgment thus concerns itself with the following Act/Sections:
(1) Hindu Marriage Act, 1955- Section 9
(2) Constitution of India- Article 13, Article 14 and Article 21
Brief Facts: Petition was filed by the wife for a restitution of conjugal
rights under Section 9 of the Hindu Marriage Act,1955. Her husband
consenting to the passing of a decree for the same was passed. After a
period of 1-year husband filed a petition under Section 13 of the Hindu
Marriage Act,1955 against the appellant for divorce on the ground that
though one year had elapsed from the date of passing the decree for
restitution of conjugal rights as no actual cohabitation had taken place
between the parties.
While the period of cohabitation wife was taken to the house of the
husband by her parents one month after the decree and that the
husband kept her in the house for two days and then she was again
turned out. Considering this District Court as the decree for restitution
of conjugal rights was passed by the consent of the parties, the
husband was not entitled to a decree for divorce. The appeal was filed
by Respondent to High Court for decree of divorce. On appeal, case
came before Division Bench of High Court that a that a consent decree
could not be termed to be a collusive, decree so as to disentitle the
petitioner to a decree for restitution of conjugal rights, and that in
view of the language of Section 23 if the Court had tried to make
conciliation between the parties and conciliation had been ordered,
the husband was not disentitled to get a decree. The appeal was
allowed, and the husband was granted a decree of divorce. The appeal
for the same is here.

Issues before the Hon’ble court:

1.Husband whether entitled to a decree of divorce or not?

2.Constitutionality of Section 9 of Hindu Marriage Act, 1955.

Appellant’s Contentions:
1. Other Party could not take advantage of his ‘wrong’ because of
having refused cohabitation in the execution of the decree. (Main
contention)
2. It was submitted that the respondent/husband had with the
intention of ultimately having divorce allowed the wife a decree for
the restitution of conjugal rights knowing fully well that this decree
he would not honour and thereby he misled the wife and the Court
and thereafter refused to cohabitate with the wife and now, it
was submitted, cannot be allowed to take advantage of his ‘wrong’.
3. Assail the factual finding of the Trial Court that there was no
cohabitation after the decree for restitution of conjugal rights
4. The decree for restitution of conjugal rights was in a sense
collusive decree
5. Challenged the constitutionality of Section 9 0f Hindu Marriage
Act, 1955 relying on the case of Sareetha v. Venkata Subbaiah,
A.I.R.1983 Andhra Pradesh, which was Overruled by this court.
Respondent’s Contentions:
1. Restitution of Conjugal rights is constitutional under Smt.
Harvinder Kaur v. Harmander Singh Choudhry, A.I.R.1984 Delhi,
Approved by the court.
Findings of Court:
 From the facts on record, it appeared to the court that there was
no collusion between The wife petitioned against the husband on
certain allegations, the husband denied these allegations. He stated
that he was willing to take the wife back. A decree on that basis was
passed.
 Before the Division Bench of behalf of the appellant-wife, counsel
did not assail the factual finding of the Trial Court that there was no
cohabitation after the decree for restitution of conjugal rights nor
did counsel press the ground of defence namely that the appellant
could not take advantage of his ‘wrong’ because of having refused
cohabitation in execution of the decree.
 There is, however, no whisper of these allegations as provided
under Appellant’s Contention no.2 in the pleading. As usual, on this
being pointed out, the counsel prayed that he should be given an
opportunity of amending his pleadings and, the parties, with the
usual plea, should not suffer for the mistake of the lawyers.
 On Respondent’s contention no.2 : Firstly there was no pleading,
secondly this ground was not urged before any of the courts below
which is a question of fact, thirdly the facts pleaded and the
allegations made by the wife in the trial court and before the
 Division Bench were contrary to the facts now sought to be urged in
support of her appeal.
 There are sufficient safeguards in Section 9 to prevent it from
being a tyranny. The importance of the concept of conjugal rights
can be viewed in the light of Law Commission-71st Report on the
Hindu Marriage Act, 1955- “Irretrievable Breakdown of Marriage as a
Ground of Divorce”.
Held:
 Therefore quite apart from the fact that there was no pleading
which is a serious and fatal mistake, there is no scope of giving any
opportunity of amending the pleadings. Therefore NO AMENDMENTS
TO PLEADINGS.
 Further, Court said – We reach this conclusion without any mental
compunction because it is evident that for whatever be the reasons
this marriage has broken down and the parties can no longer live
together as husband and wife if such is the situation it is better to
close the chapter.
 This is so as an inducement by the court in appropriate case
when the court has decreed restitution for conjugal rights and that
the court can only decree if there is no just reason for not passing
decree for restitution of conjugal rights to offer inducement for the
husband or wife to live together in order to give them an
opportunity to settle up the matter amicably. It serves a social
purpose as an aid to the prevention of break-up of the marriage. It
cannot be viewed in the manner the learned single judge of Andhra
Pradesh High Court has viewed it and we are therefore unable to
accept the position that Section 9 of the said Act is violative of
Article 14 or Article 21 of the Constitution if the purpose of the
decree for restitution of conjugal rights in the said Act is understood
in its proper perspective and if the method of its execution in cases
of disobedience is kept in view.
 The Section 9 of the Hindu Marriage Act, 1955 is constitutional.
 Even after the final decree of divorce, the husband would
continue to pay maintenance to the wife until she remarries and
would maintain the one living daughter of the marriage. Wife would
be entitled to such maintenance only until she remarries and the
daughter Menka to her maintenance until she is married.
Respondent would pay costs of this appeal to appellant assessed at
Rs. 1500.
 Appeal dismissed.
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https://lawbriefs.in/case-brief-smt-saroj-rani-v-s-sudarshan-kumar-chadha-1984/

Supreme Court of India

Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 1984

Equivalent citations: 1984 AIR 1562, 1985 SCR (1) 303

Author: S Mukharji

Bench: Mukharji, Sabyasachi (J)

PETITIONER:
SMT. SAROJ RANI

Vs.

RESPONDENT:
SUDARSHAN KUMAR CHADHA

DATE OF JUDGMENT08/08/1984

BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
FAZALALI, SYED MURTAZA

CITATION:
1984 AIR 1562 1985 SCR (1) 303
 1984 SCC (4) 90 1984 SCALE (2)118

ACT:
Constitution of India 1950, Articles 13,14 and 21.
Remedy of resitution of conjugal rights-Section
9,
Hindu Marriage Act 1955-Whether violates human dignity,
right to privacy and personal liberty- And whether valid and
constitutional.
Hindu Marriage Act 1955, Sections 9, 13 and 23(1) (a).
Petition by wife for restitution of conjugal rights-
Husband consenting to the passing of a decree-Decree passed-
Husband after one year filing petition under section 13 for
divorce-Husband whether entitled to a decree of divorce.
Code of Civil Procedure 1908, Order 21, Rule 32-Decree
for restitution of conjugal rights-Execution of.

HEADNOTE:
The wife-appellant filed a suit against the husband-
respondent under Section 9 of the Hindu Marriage Act 1955,
for restitution of conjugal rights. Though the respondent
contested the petition contending that he had neither turned
the appellant out from his house nor withdrawn from her
society later as he made a statement in the Court that the
application under Section 9 be granted; a consent decree was
passed by the Sub-Judge for the restitution of conjugal
rights between the parties.
After a lapse of a year, the respondent-husband filed a
petition under Section 13 of the Act against the appellant
for divorce on the ground that though one year had lapsed
from the date of passing the decree for restitution of
conjugal rights no actual co-habitation had taken place
between the parties. The appellant filed her
reply
contending that she was taken to the house of the husband by
her parents one month after the decree and that the husband
kept her in the house for two days and then she was again
turned out. It was further alleged that an application under
Section 28A filed in the Subordinate Court was pending.
304
The District Judge after considering the evidence of
the civil and criminal proceedings pending between
the
parties, came to the conclusion that there had been no
resumption of cohabitation between the parties and that in
view of the provisions of Section 23 and in view of the fact
that the previous decree was a consent decree and that at
the time of the passing of the said decree, as there was no
provision like Section 13B i.e. divorce by mutual consent';
held that as the decree for restitution of conjugal rights
was passed by the consent of the parties, the husband was
not entitled to a decree for divorce.
The respondent filed an appeal. A Single Judge of the
High Court following the decision of this Court in
Dharmendra Kumar v. Usha Kumari [1978] 1 SCR 315, held that
it could not be said that the husband was taking advantage
of his 'wrongs', but however expressed the view that the
decree for restitution of conjugal rights could not be
passed with the consent of the parties, and therefore being
a collusive one disentitled the husband to a decree
for
divorce, and referred the matter to the Chief Justice for
constitution of a Division Bench for consideration of the
question.
The Division Bench held following Joginder Singh v.
Smt. Pushpa, AIR 1969 Punjab and Haryana page 397 that a
consent decree could not be termed to be a collusive, decree
so as to disentitle the petitioner to a decree
for
restitution of conjugal rights, and that in view of
the
language of Section 23 if the Court had tried to
make
conciliation between the parties and conciliation had been
ordered, the husband was not disentitled to get a decree.
The appeal was allowed, and the husband granted a decree of
divorce.
In the appeal to this Court it was contended on behalf
of the wife appellant that : (a) in view of the expression
'wrong' in section 23(1) (a) of the Act, the husband was
disentitled to get a decree for divorce, and (b) Section 9
of the Act was arbitrary and void as offending Article 14 of
the Constitution.
Dismissing the Appeal,
^
HELD: (1) In India conjugal rights i.e. right of the
husband or the wife to the society of the other spouse is
not merely creature of the statute. Such a right is inherent
in the very institution of marriage itself. There are
sufficient safeguards in Section 9 of the Hindu Marriage Act
to prevent it from being a tyranny. [314 D-E]
305
2. Section 9 is only a codification of pre-existing
law. Rule 32 of Order 21 of the Code of Civil Procedure
deals with decree for specific performance for restitution
of conjugal rights or for an injunction. [314 H]
3. Section 9 of the Act is not violative of Article 14
or Article 21 of the Constitution if the purpose of the
decree for restitution of conjugal rights in the said Act is
understood in its proper perspective and if the method of
execution in cases of disobedience is kept in view. [315 G]
T. Sareetha v. Venkata Subbaiah, A.I.R. 1983 Andhra
Pradesh page 356, over-ruled.
 Smt. Harvinder kaur v. Harmander Singh Choudhry, A.I.R.
1984 Delhi, page 66, approved.
4. It is significant that unlike a decree of specific
performance of contract; a decree for restitution of
conjugal rights, where the disobedience to such a decree is
willful i.e. is deliberate, might be enforced by attachment
of property. Where the disobedience follows as a result of a
willful conduct i.e. where conditions are there for a wife
or a husband to obey the decree for restitution of conjugal
rights but disobeys the same in spite of such conditions,
then only the properties have to be attached, is provided
for. This is so to enable the Court in appropriate cases
when the Court has decreed restitution for conjugal rights
to offer inducement for the husband or wife to live together
and to settle up the matter amicably. It serves a social
purpose, as an aid to the prevention of break-up of
marriage.[315 C-F]
5. (i) Even after the final decree of divorce
the
husband would continue to pay maintenance to the wife until
she remarries and would maintain the one living daughter of
the marriage. Separate maintenance should be paid for the
wife and the living daughter. Wife would be entitled to such
maintenance only until she remarries and the daughter to her
maintenance until she is married. [316 C; E]
(ii) Until altered by appropriate order on application
or proper materials, such maintenance should be Rs. 200 per
month for the wife, and Rs. 300 per month for the daughter.
[316 D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 187 of 1983.

From the Judgment and Order dated the 17th August, 1982 of the Punjab and Haryana High
Court in First Appeal From Order No. 199-M of 1979.

R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the appellant.

E.C. Agarwala, Mrs. H. Wahi and Rajiv Sharma for the respondent.

The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. The parties
herein were married at Jullundur City according to Hindu Vedic rites on or about 24th
January, 1975. The first daughter of the marriage Menka was born on 4th January, 1976. On
28th February, 1977 second daughter Guddi was born. It is alleged that 16th May, 1977 was
the last day of cohabitation by the parties. It is further alleged that on 16th May, 1977, the
respondent- husband turned the appellant out of his house and withdrew himself from her
society. The second daughter unfortunately expired in the house of the respondent/father on
6th August, 1977. On 17th October, 1977, the wife-appellant filed a suit against the
husband/respondent herein under Section 9 of the Hindu Marriage Act, 1955 hereinafter
referred to as the said Act for restitution of conjugal rights.

In view of the argument now sought to be advanced, it is necessary to refer to the said
petition. In the said petition, the wife had set out the history of the marriage as hereinbefore
briefly mentioned and alleged several maltreatments both by the husband as well as by her
in-laws and thereafter claimed decree for restitution of conjugal rights. On 21st March, 1978,
the learned Sub-Judge Ist Class passed an order granting Rs. 185 per month as maintenance
pendente lite and Rs. 300 as the litigation expenses. On 28th March, 1978, a consent decree
was passed by the learned Sub-Judge Ist Class for restitution of conjugal rights. It may be
mentioned that on the petition of the wife for restitution of conjugal rights, the husband-
respondent appeared and filed his written statement admitting therein the factum of marriage
between the parties but denied the fact that the respondent had ever made any demand from
the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned
her out from his house as alleged by the wife petitioner in her petition for restitution of
conjugal rights. The respondent thereafter made a statement in the court that the application
of the petitioner under Section 9 of the said Act be granted and decree thereof be passed.
Accordingly the learned Sub-Judge Ist Class on 28th March 1978 passed the decree for the
restitution of conjugal rights between the parties. It was alleged by the petitioner-wife that
the appellant had gone to the house of the respondent and lived with him for two days as
husband and wife. This fact has been disbelieved by all the courts. The courts have come to
the conclusion and that conclusion is not challenged before us that there has been no
cohabitation after the passing of the decree for restitution of conjugal rights.

On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act
against the appellant for divorce on the ground that one year had passed from the date of the
decree for restitution of confugal rights, but no actual cohabitation had taken place between
the parties. The appellant filed her reply to the said petition. The categorical case in reply of
the appellant was that it was incorrect that after passing of the decree, there had been no
restitution of conjugal rights between the parties, positive case of the appellant was that after
passing of the decree, the wife was taken to the house of the husband by the parents of the
wife after one month of the decree and that the husband kept the wife in his house for two
days and she was again turned out. It was further alleged that the wife had filed an
application under Section 28A of the said Act in the court of Sub-Judge, 1st Class, Jullundur
on 22nd January, 1979 with the request that the husband should be directed to comply with
the decree passed against him under Section 9 of the said Act and the application was
pending at the time when the reply was filed by the wife to the petition for divorce.

The learned District Judge on 15th October, 1979 dismissed the petition of the husband for
divorce. The learned Judge framed two issues, one was whether there has been no restitution
of conjugal rights after the passing of the decree for the restitution of conjugal rights, and
secondly to what relief was the husband entitled to ? After considering the evidence of civil
and criminal proceedings pending between the parties, the learned Judge came to the
conclusion that there has been no resumption of cohabitation between the parties after 28th
March, 1978 and decided the issue in favour of the husband but on the question of relief the
learned Judge was of the view that in view of the provisions of Section 23 of the said Act and
in view of the fact that the previous decree was a consent decree and at that time there was
no provision like provision of Section 13B of the said Act i.e. 'divorce by mutual consent',
the learned Judge was of the view that as the decree for restitution of conjugal rights was
passed by the consent of the parties, the husband was not entitled to a decree for divorce.

Being aggrieved by the said decision, there was an appeal before the High Court of Punjab
and Haryana. So far as last mentioned ground was concerned, the High Court held that in
view of the decision of this Court in the case of Dharmendra Kumar v. Usha Kumari, this
contention was not open to the wife. The court was of the opinion that in view of the said
decision of this Court, it could not be said that the husband was taking advantage of his
'wrongs'. In the said decision this Court noted that it would not be reasonable to hold that the
relief which was available to the spouse against whom a decree for restitution of conjugal
rights had been passed should be denied to the one who does not comply with the decree
passed against him or her. The expression "in order to be a 'wrong' 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 to. So, therefore, Section 23 (1)
(a) provides as follows:-

"23. (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied
that-

(a) any of the grounds for granting relief exists and the petitioner except in cases where the
relief is sought by him on the ground specified in sub-clause

(a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is not in any way taking
advantage of his or her own wrong or disability for the purpose of such relief and").
In that view of the matter, the High Court rejected the contention. So far as the other aspect
was concerned, the learned Judge expressed the view that the decree for restitution of
conjugal rights could not be passed with the consent of the parties and therefore being a
collusive one disentitled the husband to a decree for divorce. This view was taken by the
learned trial judge relying on a previous decision of the High Court. Mr. Justice Goyal of the
High Court felt that this view required reconsideration and he therefore referred the matter to
the Chief Justice for constitution of a Division Bench of the High Court for the consideration
of this question.

The matter thereafter came up before a Division Bench of Punjab and Haryana High Court
and Chief Justice Sandhawalia for the said court on consideration of different authorities
came to the conclusion that a consent decree could not be termed to be a collusive decree so
as to disentitle the petitioner to decree for restitution of conjugal rights. It may be mentioned
that before the Division Bench of behalf of the appellant-wife, counsel did not assail the
factual finding of the Trial Court that there was no co-habitation after the decree for
restitution of conjugal rights nor did he press the first ground of defence namely that the
appellant could not take advantage of his 'wrong' because of having refused cohabitation in
execution of the decree. However, the ground that the decree for restitution of conjugal rights
was in a sense collusive decree was pressed before the Division Bench. In view of the Full
Bench decision of the Punjab and Haryana High Court in the case of Joginder Singh v. Smt.
Pushpa wherein the majority of the Judges of the Full Bench held that a consent decree in all
cases could not be said to be a collusive decree and where the parties had agreed to passing
of a decree after attempts had been made to settle the matter, in view of the language
of Section 23 of the court had tried to make conciliation between the parties and conciliation
had been ordered, the husband was not disentitled to get a decree.

Section 23 sub-section (2) provides as follows:- "(2)-Before proceeding to grant any relief
under this Act, it shall be the duty of the court in the first instance, in every case where it is
possible so to do consistently with the nature and circumstances of the case, to make every
endeavor to bring about a reconciliation between the parties:

Provided that nothing contained in this sub- section shall apply to any proceeding wherein
relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause
(v), clause (vi) or clause (vii) of sub-section (1) of section 13." In this case from the facts on
record it appears that there was no collusion between the parties. The wife petitioned against
the husband on certain allegations, the husband denied these allegations. He stated that he
was willing to take the wife back. A decree on that basis was passed. It is difficult to find any
collusion as such in the instant case. Apart from that we are in agreement with the majority
of the learned judges of the Division Bench of Punjab and Haryana High Court in the case of
Joginder Singh v. Smt. Pushpa (supra) that all cases of consent decrees cannot be said to be
collusive. Consent decrees per se in matrimonial matters are not collusive. As would be
evident from legislative intent of Section 13B that divorce by mutual consent is no longer
foreign to Indian law of divorce but of course this is a subsequent amendment and was not
applicable at the time when the decree in question was passed. In the premises we accept the
majority view of the Division Bench of Punjab and Haryana High Court on this point.
In this appeal before this Court, counsel for the wife did not challenge the finding of the
Division Bench that the consent decree as such was not bad or collusive. What he tried to
urge before us was that in view of the expression 'wrong' in Section 23(1) (a) of the Act, the
husband was disentitled in this case to get a decree for divorce. It was sought to be urged that
from the very beginning the husband wanted that decree for divorce should be passed. He
therefore did not deliberately oppose the decree for restitution of conjugal rights. It was
submitted on the other hand that the respondent/husband had with the intention of ultimately
having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully
well that this decree he would not honour and thereby he misled the wife and the Court and
thereafter refused to cohabitate with the wife and now, it was submitted, cannot be allowed to
take advantage of his 'wrong'. There is, however, no whisper of these allegations in the
pleading. As usual, on this being pointed out, the counsel prayed that he should be given an
opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for
the mistake of the lawyers. In this case, however, there are insurmountable difficulties.
Firstly there was no pleading, secondly this ground was not urged before any of the courts
below which is a question of fact, thirdly the facts pleaded and the allegations made by the
wife in the trial court and before the Division Bench were contrary to the facts now sought to
be urged in support to her appeal. The definite case of the wife was that after the decree for
restitution of conjugal rights, the husband and wife cohabitated for two days. The ground
now sought to be urged is that the husband wanted the wife to have a decree for judicial
separation by some kind of a trap and then not to cohabitate with her and thereafter obtain
this decree for divorce. This would be opposed to the facts alleged in the defence by the wife.
Therefore quite apart from the fact that there was no pleading which is a serious and fatal
mistake, there is no scope of giving any opportunity of amending the pleadings at this stage
permitting the wife to make an inconsistent case. Counsel for the appellant sought to urge
that the expression 'taking advantage of his or her own wrongs' in clause (a) of sub- section
23 must be construed in such a manner as would not make the Indian wives suffer at the
hands of cunning and dishonest husbands. Firstly even if there is any scope for accepting this
broad argument, it has no factual application to this case and secondly if that is so then it
requires a legislation to that effect. We are therefore unable to accept the contention of
counsel for the appellant that the conduct of the husband sought to be urged against him
could possibly come within the expression 'his own wrongs' in section 23(1) (a) of the Act so
as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the
courts below. Further more we reach this conclusion without any mental compunction
because it is evident that for whatever be the reasons this marriage has broken down and the
parties can no longer live together as husband and wife, if such is the situation it is better to
close the chapter.

Our attention, however, was drawn to a decision of a learned single judge of the Andhra
Pradesh High Court in the case of T. Sareetha v. Venkata Subbaiah. In the said decision the
learned judge had observed that the remedy of restitution of conjugal rights provided for
by Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy
and human dignity guaranteed by Article 21 of the Constitution. Hence, according to the
learned judge, Section 9 was constitutionally void. Any statutory provision that abridged the
rights guaranteed by Part III of the Constitution would have to be declared void in terms
of Article 13 of the Constitution. According to the said learned judge, Article 21guaranteed
right to life and personal liberty against the State action. Formulated in simple negative
terms, its range of operation positively forbidding the State from depriving any person of his
life or personal liberty except according to the procedure established by law was of far-
reaching dimensions and of overwhelming constitutional significance. Learned judge
observed that a decree for restitution of conjugal rights constituted the grossest form of
violation of any individual right to privacy. According to the learned judge, it denied the
woman her free choice whether, when and how her body was to become the vehicle for the
procreation of another human being. A decree for restitution of conjugal rights deprived,
according to the learned judge, a woman of control over her choice as and when and by
whom the various parts of her body should be allowed to be sensed. The woman loses her
control over her most intimate decisions. The learned judge therefore was of the view that the
right to privacy guaranteed by Article 21 was flagrantly violated by a decree for restitution of
conjugal rights. The learned judge was of the view that a wife who was keeping away from
her husband because of permanent or even temporary estrangement cannot be forced,
without violating her right to privacy to bear a child by her husband. During a time when she
was probably contemplating an action for divorce, the use and enforcement of Section 9 of
the said Act against the estranged wife could irretrievably alter her position by bringing
about forcible conception permanently ruining her mind, body and life and everything
connected with it. The learned judge was therefore clearly of the view that Section 9 of the
said Act violated Article 21 of the Constitution. He referred to the Scarman Commission's
report in England recommending its abolition. The learned judge was also of the view
that Section 9 of the said Act, promoted no legitimate public purpose based on any
conception of the general good. It did not therefore subserve any social good. Section 9 of
the said Act was, therefore, held to be arbitrary and void as offending Article 14 of the
Constitution. Learned judge further observed that though Section 9 of the said Act did not in
form offend the classification test, inasmuch as it made no discrimination between a husband
and wife, on the other hand, by making the remedy of restitution of conjugal rights equally
available both to wife and husband, it apparently satisfied the equality test. But bare equality
of treatment regardless of the inequality of realities was neither justice nor homage to the
constitutional principles. He relied on the decision of this Court in the case of Murthy Match
Works, Etc. Etc. v. The Assistant Collector of Central Excise Etc. The learned judge,
however, was of the opinion based on how this remedy was found used almost exclusively
by the husband and was rarely resorted to by the wife.

The learned judge noticed and that is a very significant point that decree for restitution of
conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil Procedure. He
also referred to certain trend in the American law and came to the conclusion that Section
9 of the said Act was null and void. The above view of the learned single judge of Andhra
Pradesh was dissented from in a decision of the learned single judge of the Delhi High Court
in the case of Smt. Harvinder Kaur v. Harmander Singh Choudhry. In the said decision, the
learned judge of the Delhi High Court expressed the view that Section 9 of the said Act was
not violative of Articles 14 and 21 of the Constitution. The learned judge noted that the
object of restitution decree was to bring about cohabitation between the estranged parties so
that they could live together in the matrimonial home in amity. The leading idea of Section
9 was to preserve the marriage. From the definition of cohabitation and consortium, it
appeared to the learned judge that sexual intercourse was one of the elements that went to
make up the marriage, but that was not the summum bonum. The courts do not and can not
enforce sexual intercourse. Sexual relations constituted an important element in the
conception of marriage, but it was also true that these did not constitute its whole content nor
could the remaining aspects of matrimonial consortium be said to be wholly unsubstantial or
of trivial character. The remedy of restitution aimed at cohabitation and consortium and not
merely at sexual intercourse. The learned judge expressed the view that the restitution decree
did not enforce sexual intercourse. It was a fallacy to hold that the restitution of conjugal
rights constituted "the starkest form of governmental invasion" of "marital privacy".

This point namely validity of Section 9 of the said Act was not canvassed in the instant case
in the courts below counsel for the appellant, however, sought to urge this point before us as
a legal proposition. We have allowed him to do so.

Having considered the views of the learned single judge of the Andhra Pradesh High Court
and that of learned single judge of Delhi High Court, we prefer to accept on this aspect
namely on the validity of Section 9 of the said Act the views of the learned single judge of
the Delhi High Court. It may be mentioned that conjugal rights may be viewed in its proper
perspective by keeping in mind the dictionary meaning of the expression "Conjugal". Shorter
Oxford English Dictionary, 3rd Edn. Vol. I page 371 notes the meaning of 'conjugal' as "of or
pertaining to marriage or to husband and wife in their relations to each other". In the
Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt defines 'conjugal rights' thus:

"The right which husband and wife have to each other's society and marital intercourse. The
suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court,
which is brought whenever either the husband or the wife lives separate from the other
without any sufficient reason, in which case the court will decree restitution of conjugal
rights (Matrimonial Causes Act, 1950, s. 15), but will not enforce it by attachment,
substituting however for attachment, if the wife be the petitioner, an order for periodical
payments by the husband to the wife (s.22). Conjugal rights cannot be enforced by the act
of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson [1891]
1 Q.B. 671)".

In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to
the society of the other spouse is not merely creature of the statute. Such a right is inherent in
the very institution of marriage itself. See in this connection Mulla's Hindu Law-15th Edn. p.
567-Para 443. There are sufficient safeguards in Section 9 to prevent it from being a tyranny.
The importance of the concept of conjugal rights can be viewed in the light of Law
Commission-71st Report on the Hindu Marriage Act, 1955- "Irretrievable Breakdown of
Marriage as a Ground of Divorce, Para 6.5 where it is stated thus:-
"Moreover, the essence of marriage is a sharing of common life, a sharing of all the
happiness that life has to offer and all the misery that has to be faced in life, an experience
of the joy that comes from enjoying, in common, things of the matter and of the spirit and
from showering love and affection on one's offspring. Living together is a symbol of such
sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is
indicative of a disruption of the essence of marriage-"breakdown" and if it continues for a
fairly long period, it would indicate destruction of the essence of marriage- "irretrievable
breakdown".

Section 9 only is a codification of pre-existing law.

Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific
performance for restitution of conjugal rights or for an injuction. Sub-rule (1) of Rule 32 is in
these terms:

"Where the party against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights or for an injunction, has been passed, has had an opportunity
of obeying the decree and has willfully failed to obey it, the decree may be enforced in the
case of a decree for restitution of conjugal rights by the attachment of his property or, in the
case of a decree for the specific performance of a contract, or for an injuction by his
detention in the civil prison, or by the attachment of his property, or by both."

It is significant to note that unlike a decree of specific performance of contract, for restitution
of conjugal rights the sanction 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,
might be enforced by attachment of property. So the only sanction is by attachment of
property against disobedience of a decree for restitution of conjugal rights where the
disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife
or a husband to obey the decree for restitution of conjugal rights but disobeys the same in
spite of such conditions, then only financial sanction, provided he or she has properties to be
attached, is provided for. This is so as an inducement by the court in appropriate case when
the court has decreed restitution for conjugal rights and that the court can only decree if there
is no just reason for not passing decree for restitution of conjugal rights to offer inducement
for the husband or wife to live together in order to give them an opportunity to settle up the
matter amicably. It serves a social purpose as an aid to the prevention of break-up of
marriage. It cannot be viewed in the manner the learned single judge of Andhra Pradesh High
Court has viewed it and we are therefore unable to accept the position that Section 9 of the
said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the
decree for restitution of conjugal rights in the said Act is understood in its proper perspective
and if the method of its execution in cases of disobedience is kept in view.
Another decision to which our attention was drawn is also a Bench decision of the Andhra
Pradesh High Court in the case of Geeta Laxmi v. G.V.R.K. Sarveswara Rao. There on the
admitted misconduct of the husband is not only in not complying with the decree for
restitution of conjugal rights but ill- treating the wife and finally driving her away from the
house, it was held that the husband was not entitled to a decree under Section 13(1A) of the
said Act in view of the wrong as contemplated underSection 23(1) (a) of the Act. The facts of
that case were entirely different from the facts of the instant case before us. There is no such
allegation or proof of any ill-treatment by the husband or any evidence of the husband
driving the wife out of the house. In that view of the matter, this decision cannot be of any
assistance to the appellant in the instant case.

Counsel for the appellant, however, contended before us that in the social reality of the
Indian society, a divorced wife would be materially at a great disadvantage. He is right in this
submission. In view, however, of the position in law, we would direct that even after the final
decree of divorce, the husband would continue to pay maintenance to the wife until she
remarries and would maintain the one living daughter of the marriage. Separate maintenance
should be paid for the wife and the living daughter. Until altered by appropriate order on
application on proper materials such maintenance should be Rs. 200 per month for the wife
appellant and Rs. 300 per month for the daughter Menka. Wife would be entitled to such
maintenance only until she re- marries and the daughter Menka to her maintenance until she
is married. Parties will be at liberty to ask for variation of the amounts by proper application
on proper materials made before Sub-judge Ist Class Jullunder. The respondent would pay
costs of this appeal to appellant assessed at Rs. 1500.

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