ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE,
KERALA
{2019-20}

{HINDU LAW ( ON SECTION 9 OF

HINDU MARRIAGE ACT , 1955)

TOPIC : “RESTITUTION OF CONJUGAL RIGHTS”

SUBMITTED TO :
DR. NASEEMA PK
(Assistant professor
Department of law AMUMC )
SUBMITTED BY :
Saurabh Sharma
17BALLB29 {III YEAR }
INDEX:

SR. CONTENT
NO.
1. INTRODUCTION

2. ORIGIN

3. CONSTITUTIONAL VALIDITY OF SECTION 9

4. CONCLUSION

5. BIBLIOGRAPHY
 Introduction:
If your spouse has left you without giving any reasonable ground, the Hindu Marriage Act 1955
gives you remedy in the form of Section 9 under the restitution of conjugal rights. The section 9
of the HMA reads that when either the husband or the wife has , without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply for restitution of
conjugal rights.

What the aggrieved party needs to do is file a petition to the district court and 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, the judge may decree restitution of conjugal rights in his
favor.

In India, Marriage is considered as a most sacred ceremony. Parties to marriage carry loads of
hopes and dreams relating to their life after marriage and their happiness. But many times things
don’t work out as thought and thus parties find disagreements and quarrels between them.

The aid of Restitution of Conjugal Rights necessities both marriage parties to live together and
cohabit. But this measure has also been misused many times, disturbing the Right to Life, Right
to Privacy and the Right to Equality and therefore Unconstitutional.

Many people use this measure to threaten their spouse so that their spouse will take their case
back or will agree to accept the unacceptable monetary losses.

 This is a highly debatable subject. Some feel it is to preserve the marriage while some say that
there is no meaning in forcing the other party to stay with the aggrieved party as they are not at
all interested. It is very important to note that this remedy is not being misused. In Sushila Bai v.
Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards
her. This behavior was held sufficient to show that he had withdrawn from the society of his
wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.

 The defence to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has
withdrawn from the society of his spouse for a valid reason, it is a complete defence to a
restitution petition.
 The remedy of restitution of conjugal rights is generally used by husbands to strong-arm their
wives into submitting themselves to their company.

 By forcing women to 'cohabit' with their husbands unwillingly, Section 9 of the Hindu Marriage
Act takes away the right of women to separate from their husband.

 The provision of restitution of conjugal rights under Hindu Marraige Act violates an individual’s
Fundamental Right to Liberty, Privacy and Dignity guaranteed by Article 21.
ORIGIN:

The principle of restitution of conjugal rights has been borrowed into Indian laws from English
law. In English law, wife and husband were treated as a single entity and therefore a wife could
not sue her husband or vice versa. The remedy for restitution for conjugal rights owes its origin
to the Ecclesiastical Courts of the West. Such courts by decree of restitution of conjugal rights
compelled the recalcitrant spouse to discharge the due obligation towards the complaining
spouse. Later in England, the remedy was recognized by the various Matrimonial Causes Acts
passed from time to time.

From England, these rights passed on to her various colonies onto which her Anglo-Saxon
jurisprudence was drafted and India was no exception in this regard.  The provision was never a
part of Hindu, Sikh, Muslim or Parsi Law, but the British imported it into India, through judicial
pronouncements.

Thus in the absence of any statutory law, the Indian courts passed decrees for restitution of
conjugal rights for all religious communities.
CONSTITUTIONAL VALIDITY OF
SECTION 9:

The constitutional validity of the provision for restitution of conjugal rights has time and again
been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High
Court in T. Sareetha  v. T. Venkatasubbaiah1 where the Hon’ble High Court held that the
impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v
Harminder Singh2 though had non-conforming views. Ultimately Supreme Court in Saroj Rani
v. Sudharshan3 gave a judgment which was in line with the Delhi High Court views and upheld
the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and over-ruled the
decision given in T. Sareetha v. T. Venkatasubbaiah.

It may be said that the two cases T. Sareetha v. T. Venkatasubbaiah and Saroj

Rani v. Sudharshan are unambiguously the most important cases in the Indian spectrum of stare
decisis dealing with the remedy of ‘restitution of conjugal rights’. The importance of such cases
must, likewise, not be undermined. Sareetha and Saroj Rani bring out the core arguments offered
on either side to the issue of restitution of conjugal rights. The major grounds for challenge to the
constitutionality of S.9 of the Act are as in violation of Articles 14 and 21 of the Indian
Constitution. Even though Sareetha has been the first case where the Constitutionality of S.9 of
the Act has been challenged, it is pertinent to point out the observations of Lord Herschell
in Russell v Russell where he noted the barbarity of such remedy of forced cohabitation between
couple. Such observation is the touchstone against which all arguments in favor of the
unconstitutionality of S.9 may be placed.
Right to Equality and Restitution of Conjugal
Rights:

Indian society is often regarded as one with widespread discrimination based on gender. More
often than not, there have been instances where women have been subdued to violence and
injustice because of their gender. It is to be noted that there is an inequality in the Indian society
with regard to conjugal rights because “a suit for restitution by the wife is rare in the Indian
Society”. This fact has been affirmed by Gupte who was quoted by the Court in T.
Sareetha v. T. Venkata Subbaiah. It is only the educational, economic and social factors which
have made the life of women deplorable in our Country. In our social reality, this matrimonial
remedy of restitution of conjugal rights if found used almost exclusively by the husband and
rarely resorted to by the wife.

According to Article 14, “The state shall not deny to any person equality before the law or the
equal protection of laws within the territory of India”

The guiding principle is that all persons and things similarly circumstanced shall be treated alike
both in privileges conferred and liabilities imposed. All equals must be treated equally amongst
themselves and unequals unequally. It must be realized that Gupte’s quote was concerning the
old Hindu law and the provisions of the Hindu Marriage Act, 1955 and other personals do not
have any provision of inequality existent in them. By amending act 44 of 1964, “either party to a
marriage” is allowed to present a petition on the grounds given in Section 9 and Section 13(a).

The concept of gender discrimination has not been incorporated in the Hindu Marriage Act and
all are treated as equals under this section. It is opined by the author that there is no classification
of sexes in Section 9 and all equals have been treated equally in this area. There is complete
equality of sexes hare and equal protection of the laws. Section 9 cannot be struck down as
violative of Article 14 of the Constitution. 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. That is the primary purpose of Section 9 of the H.M.A. Cohabitation has been defined
in these words: Cohabitation does not necessarily depend upon whether there is sexual
intercourse between the husband and the wife. ‘Cohabitation’ means living together as husband
and wife.

The Decision in T. Sareetha v. Venkatasubbaiah Case:

The question of constitutional validity of S.9 for the first time came up in came up in the case
of T Sareeta v Venkatasubbiah where the husband had himself asked the Court to pass a decree
of restitution of conjugal rights and after completion of a year he filed a petition for divorce on
the ground that the decree has not been complied to. The wife challenged the constitutional
validity of S.9 of the Act. Justice Chaudhary of the Andhra Pradesh High Court held S. 9 to be
“savage and barbarous remedy violating the right to privacy and human dignity guaranteed
by Article 21 of the Constitution, hence void”.

Chaudhary J. stated that section 9 imposes “sexual cohabitation between unwilling, opposite

sexual partners.” He called it “forced sex”, “coerced sex” and “forcible marital intercourse”. He
went on to hold that the state interference in personal rights destroyed the “sexual autonomy”
and “reproductive autonomy” of the individual. A wife who is keeping away from her husband,
because of a permanent or temporary arrangement, cannot be forced, without violating her right
to privacy, to bear a child by her husband.

A large number of English and American decisions have been cited in support of this view. This
decision is the first of its kind to take this view. The decree for restitution does nothing of the
kind. Under section 9 of the Hindu Marriage Act, 1955, the Court has the power to make a
decree of restitution of conjugal rights which is the remedy available to enforce the return of a
spouse who has withdrawn from cohabitation. The decree, if granted, orders the respondent to
return within a period of one year to the aggrieved party. This period is specified in section 13(l-
A)(ii) of the Act. This remedy is aimed at preserving the marriage and not at disrupting it as in
the case of divorce or judicial separation.
The Right to Life and Restitution of Conjugal
Rights:

The Right to Life of a person is regarded as the most important aspect of a person’s fundamental
rights. It is stated in the Constitution as follows “No person shall be deprived of his life or
personal liberty except according to the procedure established by law”. Article 21, though
couched in the negative language, confers on every person the fundamental right to life and
personal liberty. These rights have been given a paramount position by the Supreme Court. It is
argued that Section 9 of the Hindu Marriage Act, 1955 that provides for the restitution of
conjugal rights, violates the right to privacy of an individual. Section 9 denied the spouse his/her
free choice whether, when and how her/his body was to become the vehicle for the peroration of
another human being.

A decree for restitution of conjugal rights deprived, according to the learned Judge in Sareetha’s
case 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. Our Constitution embraces the right to privacy and human
dignity and any right to privacy must encompass and protect the personal intimacies of the home,
the family, marriage, motherhood, procreation and childbearing. It is to be noted that the
restitution of conjugal rights, unlike specific performance, is only willful in nature and the courts
must treat it only as an inducement in times to come. The institution of marriage has been
inherent in the Indian Society and all must be done to protect it. Furthermore, if a spouse does
not wish to stay with his/her partner then he may make use of remedies such as judicial
separation and divorce. Leaving a partner without a reasonable excuse cannot be justified[xl].
This is against the concepts of justice, equity and good conscience which are the basis for laws
made in our Country. Thus it must be observed that Section 9 of the Hindu Marriage Act is not
violative of Article 21 of the Indian Constitution.
Right to Freedom and Restitution of
Conjugal Rights:

It is believed that the restitution of Conjugal rights violates the freedom of expression,
association and other freedoms guaranteed under Article 19 of the Constitution. Article 19 (1) of
the Indian Constitution prescribes for the freedom to form associations and reside in any area in
India, the freedom to practice any profession and the freedom of free speech and expression. But
this right is not an absolute right. There are restrictions mentioned in the form of Article
19(6) which are in the form of public order, morality, and health. It may be believed that to a
certain extent, that the restitution of conjugal rights concept under Section 9 of the Hindu
Marriage Act, 1955 is in violation of Article 19(1)(c) of the Indian Constitution. This is maybe
because, by this decree, a wife is compelled to stay with his husband or vice-versa against her
will.

In Huhharam v. Misri Bai, the wife complained to the Court that her father-in-law has an evil
eye on her and her husband ill-treated her in response to the husband’s claim for a restitution
decree the court granted it in the husband’s favor. This is a perfect example of a forced union of
spouses which is contrary to the right guaranteed under Article 19(1) (c). This does not satisfy
any reasonable restriction mentioned in Article 19(6) in the form of public order, morality and
health. Thus it is contended that the restitution of conjugal rights violates this Article.

The issue came up once more before the Delhi High Court in Harvinder Kaur v.
Harmendar Singh where the constitutionality of Section 9 was upheld and the judgment in
Sareetha overruled. The court justified the alleged violations of the ‘Equality Protection’ and the
‘Right to Life and Liberty’ by giving a more wholesome definition to the aspect of ‘Restitution
of Conjugal Rights’. The purpose of restitution of conjugal rights was emphasized as providing
impetus to the undo any damage done to their marriage to couples who’ve withdrawn from the
societies of each other. The concept of marriage was emphasized as to include the ideas of both
‘contract’ and ‘sacrament’ and therefore, it was argued that such special obligations demanded
that the institution of marriage should not be easily amenable to break down. Sexual intercourse
was not the summum bonnum of a marriage and was only one of the elements. The decision of
the Hon’ble High Court was upheld by the Supreme Court in the case of Saroj Rani and this case
effectively overruled the precedent set by J.Chaudhary in Sareetha.

The Decision in Saroj Rani v. Sudarshan Kumar:

In this case, the wife petitioned for restitution of conjugal rights. She was married in 1975 and
had given birth to two daughters during her brief married life. She was turned out of her
matrimonial house in 1977 and subsequently filed a petition to which she was granted interim
maintenance by the Court. The husband later filed a consent memo for the passing of the decree
and the decree of restitution of conjugal rights was accordingly passed in favor of the wife. One
year later, the husband applied for divorce under Section 13 (1-A) of the Hindu Marriage Act,
1955 on the ground that he and his wife had lived separately during the one year period.

The question of cohabitation arose wherein the spouses stayed together for a period of two days
after the decree was passed. It was submitted that the ground for divorce was unjustified and the
husband was getting away with his ‘wrongs’. This argument was based on the principles of
natural law, i.e. justice, equity and good conscience. It was further argued that the concerned
section, that is Section 9 of the Hindu Marriage Act violated Articles 14 and 21 of the Indian
Constitution. The Hon’ble Court under Justice Sabyasachi Mukhatji observed:

“We are unable to accept the position that Section 9 of the Hindu Marriage Act is violative
of Art. 14 and 21 of the Indian Constitution. Hindu Marriage is a sacrament and the object of
section 9 is to offer an inducement for the husband and wife to live together in harmony. If such
differences may arise as in this case, it may be a valid ground for divorce after a period of one
year. Hence Section 9’s validity is upheld.”

Thus the Court granted the divorce but at the same time understanding the situation of the wife
and daughters, ordered the husband to pay prescribed maintenance to the wife until she
remarries. The Hon’ble Court has thus considered the interests of both parties and maintained
harmony in this area.
Conclusion:

The matrimonial remedy of restitution of conjugal rights was

made available to all the communities, including the Muslims, at
an early period of British rule in India. The earliest Privy Council
decision under Muslim law goes back to the 1867.
The remedy is available in modern India by a suit of restitution of conjugal
rights in the lowest civil court. What is most remarkable about this remedy
is that most textbook writers discuss it as if the remedy is available to the
husband alone and not to the wife.
P a g e | 15

BIBLIOGRAPHY:

1. Dr. Diwan Paras ; Hindu Law ; 22nd edition (reprint 2015)

ALLAHABAD LAW AGENCY .
2. Agarwal R.K. ;HINDU LAW ; 25th edition ( reprint 2017) Central
law agency .
3. https://lawlex.org/lex-bulletin/constitutionality-of-restitution-of-conjugal-
rights/1580.