Author: Kajal Jain K.L.E Society's Law College, Bengaluru
Editor: Meghansh Reddy, Jindal Global Law School
AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
Hon’ble Judge(s)/Coram: AB Rohatgi
Date of Decision: 15.9.1985
In Hindu society, marriage is one of the most sacred institutions and is directly attached to people's morality. But this case questions the marriage institution and highlights the various aspects which makes a bond to be called a marriage. In India marriage among Hindu’s are majorly governed by the provisions of the Hindu Marriage Act 1955. This case majorly deals with section 9 of the act which speaks about conjugal rights. The constitutional validity of section 9 was challenged.
Section 9 of the act goes as follows;
"RESTITUTION of conjugal rights. When either the husband or the wife has, without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by petition to the District Court for restitution of conjugal rights and the court, on being satisfied with 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.
Explanation Where a question arises whether there has been a reasonable excuse for withdrawal from the society, the burden of proving a reasonable excuse "shall be on the person who has withdrawn from society."
The concept of restitution of conjugal rights is majorly implied to make all possible attempts to stabilize a ruptured marriage. As it is believed in India that marriage shall not be broken at once and parties shall always try to reconcile. This section acts as a passage and gives a cool off period of 1 year to the parties to make things work if not that the broken shells in the marriage are removed altogether.
Mrs Harvinder Kaur withdrew from the society of her husband Mr Harmander Singh Choudhry. Consequences of which Mr Harmander filed an application for restitution of conjugal rights which was duly granted and Mrs Harvender Kaur filed an appeal which majorly challenged the constitutional validity of section 9 and the order of the additional district judge court ordering the decree of restitution of conjugal rights.
The counsel of the petitioner cited the case of T. Sareetha v. T. Venkata Subbaiah1 held that section 9 of the Hindu Marriage Act, 1955, (the Act) offends Articles 14 and 21 of the Constitution and therefore declared it null and void.in this court gave a wider perspective of privacy and held that ‘’right to privacy belongs to an individual and is not lost by marital affiliation’’. It made it clear that enforcement of section 9 against and individual forcing her to have unwanted marital intercourse is a direct attack on her privacy and infringement of the fundamental right.
He said restitution of conjugal rights is forced sex coerced sex and forcible marital intercourse. And the court in any way cannot impose sexual intercourse on parties.
This case gives a different view from the T Sareetha case, where justice J Rohatgi held that section 9 of the Act is not unconstitutional he was of the opinion that T Sareetha case is based on a misconception of the true nature of the section. It furthered that the main emphasis which is given in the case is to sex and sex cannot be the only determinant of the marital relationship or cohabitation. And held that when one party to the marriage withdraws from the society of another party without reasonable justification restitutions decree can be passed.
The term cohabitation was widely discussed in the case and emphasis was put on the fact that court cannot enforce sexual intercourse among parties and cohabitation includes sexual intercourse which id discriminatory on the grounds of section 14 and 21 of the Indian constitution as it enforces sexual intercourse and infringes the right to privacy of the party as held in Govind vs state of MP where the Supreme Court held that right to privacy extend to personal communication at home, marriage, family motherhood, childbearing.
Whereas the opposite counsel highlighted the point that sex cannot be the primary thing about marriage and cohabitation does not necessarily mean sex. The marriage has ceased to be a real union in the true sense because the spouses are withdrawn from each other. They are living apart. There is no cohabitation. Living apart and cohabitation are mutually exclusive opposites. He illustrated certain examples saying if parties are staying together but having no sexual intercourse in that case court will not order restitution of conjugal rights.
Citing cases like Jackson v. Jackson2 which was approved by the House of Lords in Weatherley v. Weatherley3, clearly shows that the object of the restitution decree is not to enforce sexual intercourse as the learned judge thought. The court simply cannot enforce it. In the nature of thinking it is an impossible task, he supported his proposition.
Court relied on the narrow definition given in the Govind Singh case and held that enforcement of section 9 is not an infringement of fundamental rights. Rather section 9 is a remedy available to restore the marital relationship and it can be enforced when parties withdraw from other party’s society without justification. It also highlighted the point that nullifying of section 9 will also result in nullifying section 13 of the act which is regarding divorce to the parties. They also observed that bringing in constitutional law perspective in personal laws is not the right recourse taken by the counsel.
There are many aspects of restitution of conjugal rights which need to be read and understood. Many times, it has been found in violation of one’s individual rights and many countries have certainly. It has to be looked on with a much or wider sense. As not having sexual intercourse but staying with someone you don't feel safe with or connected to can lead many various other negative consequences.
1) [AIR 1983 Andhra Pradesh 356] T. Sareetha v. T. Venkata Subbaiah
2) [ 1924 P. 19] Jackson v. Jackson
3) [1947 (1) All E.R. 563 (13)] Weatherley v. Weatherley