|CITATION||1984 Del 66|
|COURT||High Court of Delhi|
|JUDGES/CORAM||Justice A. Rohtagi|
|DATE OF JUDGEMENT||15.11.1983|
Marriage is a sacred institution of society and should be protected by laws. But this should not be abused to such an extent that injury of any kind: physical, mental and legal are the result of marriage. Thus, after the solemnization of marriage, if one of the spouses out of a reasonable excuse withdraws from the other’s company, then the injured party has the legal right to approach the Honourable Courts for the return of their conjugal rights. If the Court feels that the other spouse has done injustice to the petitioner by withdrawing oneself from the obligations of the marital union the court can order for the restitution of conjugal rights. The present case is important for the very reason that it deals with the remedy of restitution of conjugal rights.
The facts of the case are as follows: The appellant, Harvinder Kaur, was married to the respondent, Harminder Singh Chaudhary. Both the respondent and the appellant were employed. There was a child born out of the wedlock. The wife left the matrimonial home and husband brought a petition under Section 9 of the Hindu Marriage Act. The learned judge in his judgement passed a decree in favour of husband for the restitution of conjugal rights. The aggrieved Wife appealed before the Delhi High court against the constitutional validity of Section 9 of Hindu Marriage Act and claimed that the order violated Article 14 and 21 of the Constitution.
The main issues in the case were:
- Whether or not Section 9 of the Hindu Marriage Act, 1955 was constitutionally valid.
- Whether or not the decree for restitution was against Right to Life, Equality and Privacy?
- What object does restitution actually seek to bring between the aggrieved parties?
Summary of court decision and judgment
The High Court on deciding the appeal found that the withdrawal from the wife was intentional and without just cause, and hence dismissed the appeal. Justice Rohtagi stated that “the legislature has created restitution of conjugal rights as an additional ground for divorce” and held the Section 9 to be constitutionally valid.
It is understood that the restitution of marital rights infringes the freedom of expression, association and other freedoms guaranteed by Article 19 of the Constitution. Article 19 of the Indian Constitution advocates the freedom to form associations and reside in any part of India, the freedom to practice any profession, freedom of expression and freedom of expression. However, this right is not an absolute right. There are restrictions mentioned in Article 19, which are in the form of public order, morality and health. One can believe that, to a certain extent, the restitution of the concept of marital rights under Article 9 of the Hindu Marriage Act of 1955 violates Article 19 (1) (c) of the Indian Constitution. This may be due to the fact that with this decree, a wife is forced to stay with her husband or vice versa against his will. The right to privacy is not explicitly guaranteed in the constitution, it is obliquely provided in Article 21 of the constitution. Justice SubbaRao, J. in Kharak Singh v State of U.P stated that any definition of right to privacy must also incorporate and guard the personal intimacies of the home, procreation, family, marriage, motherhood and child rearing.
In Bai Jiva v Narsing Lalbhai, the Bombay High Court held that the Courts have no right to force the wife to return to her husband against her will. This compulsion of the Court acts as a psychological restraint on an individual.
The constitutional validity of the provision for restitution of conjugal rights has been over time questioned and challenged. The first instances of the challenging validity of Section of Hindu Marriage Act were in 1983 before the High Court of Andhra Pradesh in T.Sareetha v. T. Venkatasubbaiah, where the Hon’ble Court stated that the disputed Section 9 was unconstitutional. A wife who is parrying her husband, because of permanent or temporary arrangement, cannot be forced, to have sexual relation with husband, without affecting her right to privacy.
But in the present case, Delhi High Court had nonconformist opinions. Finally, the Supreme Court in Saroj Rani v. Sudharshan issued a ruling that synchronized with the opinions of the Delhi High Court and confirmed the constitutional validity of Section 9 of the Hindu Marriage Act of 1955 and exceeded the decision given in T. Sareetha v. T. Venkatasubbaiah.
Additionally, the most fundamental problem with the remedy of restitution of conjugal rights is the lack of sincerity of the applicant. The remedy is used improperly for other purposes in addition to reconciliation. The root cause of this problem is found in Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955. This section says that if a restitution decree has not been respected for a period of one year, the parties they can request for divorce. The general pattern of requests for restitution is that the “injured party” submits a petition for restitution, so it does not voluntarily comply with the decree and after the legal period of one year, files for divorce under S. 13 (1-A) (ii) for the violation of the decree. In effect, in the present case, Justice Rohtagi recognized that “the legislator has created the restitution of marital rights as an additional ground for divorce”.
One on hand, we cannot say that this remedy is unconstitutional. Section 9 of Hindu Marriage Act has laid sufficient guarantees to prevent marriage from being tyranny. In truth, it serves a good social purpose, promoting understanding between the parties and maintaining the marriage relationship. It protects society from denigration. Yet, on the other hand it might just be used to break the institution of marriage by a party.
 AIR 1963 SC 1295.
 (1927) 29 BOMLR 332.
 AIR 1983 A.P 356.
 1984 AIR 1562.