This article is written by Shreya Pandey, pursuing LLM from RamSwaroop University, Lucknow. The article specifically deals with Section 9 of the Hindu Marriage Act and analyses its constitutionality.
In India, marriage is considered a sacrament where the man and woman getting married are considered to get bonded within one relationship where they will be considered as one soul. When a man and woman get married they follow certain customs according to their culture and religion which brings them together for their entire life. They are considered to be living together till their last breath and share all their happiness, sadness and be each other’s support.
Imagine a situation where two persons get married to each other and after the marriage husband leaves the wife and settles somewhere else without explaining anything or without giving any valid reason. In this situation, the woman who left her family and got married to the man with so many dreams is left unanswered with broken dreams and hearts. In this case, the woman has all rights to take a legal step to compel her husband to live with her and live a life where she doesn’t feel abandoned by her husband. Such a legal right is not only available to women but a man can also avail themselves of this right if his wife withdraws from the society of the husband without giving any reasonable excuse.
The Hindu Marriage Act, 1955 (HMA) provides the married couple with certain duties and rights against each other in their marriage. In a marriage, it is presumed that the man and the woman should live together after marriage. Both the parties in a marriage have the right to get comfort from their spouse and if unreasonably one of the spouses fails to fulfill their obligations then the other spouse has the right to remedy to compel him or her to do so.
Restitution of conjugal rights
Restitution of conjugal rights means resuming the marital relationship between both spouses. The main objective is to consummate the marriage and get along with each other’s society and comfort. The petition of restitution of conjugal rights is filed to make the court intervene between the parties to decide the case and grant the decree of restitution to preserve the marriage union.
Restitution of conjugal rights is a relief or remedy available to either of the parties to the marriage who got abandoned by the other spouse without explaining or giving any just and reasonable ground of abandonment.
Understanding Section 9 of Hindu Marriage Act, 1955
Marriage in Smt. Saroj Rani v. Sudarshan Kumar Chadha, 1984, is contemplated to be a bond where both husband and wife should share a common life where they will share happiness and will stand by each other even in miseries.
Section 9 of the HMA, 1955 talks about restitution of conjugal rights that states that in a situation where a husband or wife withdraws from the society of the other spouse without giving them any reasonable cause then the other spouse has the remedy to file a petition before a district court for restitution of conjugal rights. If the court is satisfied that the statements presented in the petition are true and there is no legal bar in granting the remedy of restitution then the court may pass the decree of restitution of conjugal rights.
This Section states that the court may grant a decree for restitution of conjugal rights under the following conditions:
- When either of the party without giving any reasonable cause has withdrawn from the society of the other spouse;
- The court is satisfied with the fact that the statements made in the petition are true;
- There is no legal ground on which the petition shall be declined.
Under this Section, the term ‘society’ means cohabitation and companionship that a person expects in a marriage. The term ‘withdrawal from society’ means ‘withdrawal from a conjugal relationship’.
In Mrs. Manjula Zaverilal v. Zaverilal Vithal Das, 1973, the Court stated that when the aggrieved party files a petition for the restitution of conjugal rights and proves that the defending party has withdrawn from the society of the aggrieved party then the defending party shall thrive to prove that there was a reasonable cause to abandon or leave their spouse.
Essential elements of Section 9 of Hindu Marriage Act, 1955
Following are the essential elements of Section 9 of the Hindu Marriage Act, 1955:
- The marriage between the applicant and defendant is legal, valid, and existing.
- The defendant should withdraw from the society of the applicant.
- Such withdrawal from society should be unjust and unreasonable.
- The court should be satisfied that the petition and facts stated by the applicant are true.
- The court should be satisfied that there exists no legal ground to refuse the decree.
Who can file a petition under Section 9 of Hindu Marriage Act, 1955
- Either of the spouses can file the petition under Section 9 of the Hindu Marriage Act, 1955.
- The party that has got abandoned by the other person in the marriage is supposed to file the case under this Section.
- The petition is made by the person who wants to re-establish their marriage to compel the other person to perform their obligations and consummate their marriage.
Prerequisites for filing a case under Section 9 of Hindu Marriage Act, 1955
To file a case under this Section following two prerequisites should be met:
- The husband and wife must be living separately without a reasonable excuse.
- The aggrieved spouse has filed the case under Section 9 of HMA.
How and where to file the petition under this Section
The petition for restitution of conjugal rights is filed before a family court having jurisdiction over the area where:
- The marriage ceremony was performed;
- The spouse used to live together;
- The wife is currently residing.
The appropriate family court after hearing both sides and after getting satisfied that the spouse left without giving any reasonable cause then court will order that spouse to live with the aggrieved party and if necessary give a decree of attaching the defendant’s property. If the defendant does not fulfil the direction given in the decree by the family court within one year, then the petitioner can file a case of divorce.
How to file an application for execution of a decree
For the execution of a decree of restitution of conjugal rights, the petitioner can file a case of execution petition before a trial court. This is the second step that the spouse should take after he/she obtains a decree under the restitution of conjugal rights. For the execution of a decree passed under Section 9 of HMA, either spouse holding the decree can file a case under Order 21 Rule 32 of CPC. It deals with the execution of the decree passed for the restitution of the conjugal rights.
Order 21 Rule 32 states the party against whom the decree has been passed for specific performance does not obey or voluntarily fails to obey, the other party can file a case of execution that can be enforced in the following two ways:
- Detention in civil prison; or
- Attachment of property.
Grounds for rejection of the petition
In Sushila Bai v. Prem Narayan, 1986 the Court held that the following can be the defences to the suit of restitution:
- The respondent can claim matrimonial relief against the suit.
- Any evidence that proves that the petitioner is guilty of any misconduct.
- In a situation where it is impossible for both the spouses to live together.
The grounds for rejection of the petition for restitution of conjugal rights can be:
- Cruelty by the petitioner
- Matrimonial misconduct
- Remarriage of either of the spouse
- Delay in the initiation of the proceedings.
Burden of proof
The burden of proof is on both the parties in the following ways:
- Petitioner – The petitioner filing the petition has the initial burden of proof to prove that the respondent has without giving any reasonable cause abandoned or withdrawn from the petitioner’s society.
In Mrs. Aruna Gordon vs Mr. G.V. Gordon, 1999 the revision petition was filed for shifting the burden of proving whether the respondent has withdrawn from the society without giving reasonable cause to the respondent itself. The Court held that burden of proof will remain to be on the petitioner initially to prove that the respondent has withdrawn from the petitioner’s society without giving any reasonable cause and then the burden of proof will shift to the respondent to discharge himself from the statements made against him and prove that the withdrawal was made after giving reasonable cause.
- Respondent – When the petitioner proves that the respondent has withdrawn from the petitioner’s society, then the burden of proof shifts to the respondent to prove that there was a reasonable excuse for withdrawing from the petitioner’s society.
In P. Rajesh Kumar Bagmar v. Swathi Rajesh Kumar Bagmar, 2008 the Court held that the burden of proof initially is upon the petitioner claiming for the decree of restitution to prove that the respondent has withdrawn from the society of the petitioner without any reasonable cause and the court when is satisfied with the statements made by the petitioner to be true, the burden shifts to the respondent to prove that there exists a reasonable excuse for such withdrawal.
Meaning of reasonable excuse
The term ‘reasonable excuse’ used under Section 9 of HMA might mean the following:
- A reasonable excuse can be anything that could grant the respondent matrimonial relief.
- If the petitioner is guilty of matrimonial misconduct which is not a ground for divorce or separation under the Act but it is grave enough to form a reasonable excuse.
- If the petitioner is guilty of conjugal misconduct or any such act or omission that makes it hard or almost impossible for the respondent to live with the petitioner then that would also be considered as a reasonable excuse.
The following could be a reasonable excuse:
- Dowry demand
- False accusations of adultery
- Refusal to cohabit
- Any such act makes it impossible for the other person to continue to live with the petitioner.
Provisions for restitution of conjugal rights in other statutes
In India, the remedy of restitution of conjugal rights is available not only under Section 9 of the Hindu Marriage Act, 1955 but also in the following provisions as well:
- Section 32 and Section 33 of the Indian Divorce Act, 1869
- Section 36 of the Parsi Marriage and Divorce Act, 1936
- Section 22 of the Special Marriage Act, 1954
Need for restitution of conjugal rights
Marriage in India is considered to be a bond that is to be continued even after death. Withdrawal or abandonment is considered not to be good or normal, so it thrives hard that both the parties of marriage to sort out their problems and get along with each other and stay together. When a man and woman marry each other, they are considered to become one soul who cannot live without each other and therefore it becomes very essential that in a case where one person abandons the other, certain steps are taken to bring the couple together where they understand the seriousness of the relationship they are into. Restitution of conjugal rights is that step that compels both parties to live with each other.
Restitution of conjugal rights is a remedy that one person can avail if he or she desires to give one chance for their relationship to work out. Therefore it is very important that there is a legal remedy in the law that could help a person in a marital relationship to make them live together where they can sort out their differences and give a chance to their bond, or come to a mutual understanding that, whether they can live together in future or not. Without giving that one chance one person is left abandoned unanswered and without reasonable excuse.
Judicial decisions regarding Section 9 of Hindu Marriage Act, 1955
The Supreme Court validated the constitutionality of Section 9 of the HMA in Saroj Rani v. Sudarshan Kumar Chadha, 1984. The Court held that the respondent shall follow the matrimonial obligations and cohabit with the petitioner. The Court also stated that if in case the respondent fails or wilfully fails to comply with the decree within one year then the petitioner has the right to file a case for divorce under Section 13 of the HMA.
The Supreme Court in Seema v. Rakesh Kumar, 2000 held that the petitioner is entitled to receive maintenance from her husband if she is not able to live a decent life on her own even if they are living together.
In a case of Jagdish Lal v. Smt. Shyama Madan and Ors, 1966 the case for restitution of conjugal rights was filed by the husband. The wife, in this case, proved that her husband was impotent. The Court held it as a ground for rejection of the petition and therefore rejected the suit.
In Harvinder Kaur v. Harvinder Singh, 1984 the Court held that the decree of restitution of conjugal rights acts as an inducement for the couples to live together. The Court further held that it does not create any force on either of the spouses to come into a physical relationship.
Constitutionality of Section 9 of Hindu Marriage Act, 1955
The question upon the constitutionality of Section 9 of the Hindu Marriage Act, 1955 was raised in the case of T. Sareetha v. T. VenkataSubbaiah, 1983, where it was argued that this Section is constitutionally invalid as it violates the fundamental right to liberty guaranteed under Article 21 of the Indian Constitution. The High Court of Andhra Pradesh held that Section 9 of HMA is unconstitutional and void as it is violative of personal liberty which is a fundamental right guaranteed under Article 21 of the Indian Constitution. It was stated by the Court that “If the wife is compelled to live with her husband, this will also violate her right to privacy.” and the Court further stated that “the remedy of restitution offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such person.”
Later, the Supreme Court in the case of Saroj Rani v. Sudarshan Kumar Chandra, 1984 resolved the conflict between Section 9 of the HMA and Article 21 of the Indian Constitution by upholding the decision made by the Delhi High Court in the case of Harvinder Kaur v. Harvinder Singh, 1984 and held that “the object of the degree was only to offer an inducement for the spouse to live together, and it does not force an unwilling wife to engage in sexual relationships with the husband.”
Restitution of conjugal rights is a remedy that tries to protect the marital relationship of a couple and it doesn’t violate any fundamental rights guaranteed by the Indian Constitution. The Court further clarified that the decree of restitution of the conjugal rights does not force the couple to get into a sexual relationship with each other but it only tries to bring in a consortium between them.
In Ojaswa Pathak v. Union of India, 2019 the constitutionality of restitution of conjugal rights was challenged on the following grounds:
- The decree given under this Section is against a woman’s autonomy as it forces a woman to return back to her husband’s home without her will where she might get subjected to brutality or misconduct.
- This Section indirectly goes against the private interest of sexual autonomy and makes them come into a sexual relationship with each other which is violative of Article 21 of the Indian Constitution.
- This Section imposes an unequal and unjust burden on women which is contrary to Article 14 and Article 15(1) of the Indian Constitution.
The Court has yet not decided the case and the case is still pending.
The medieval Ecclesiastical law of England did not consider desertion as a matrimonial relief. It provided for the remedy of restitution of conjugal rights. This remedy was not available in British common law and the British Law Commission presided by Mr. Justice Scarman on 9th July 1969 suggested the abolition of the uncivilized remedy of restitution. The British parliament accepted the suggestion given by the commission and enacted Section 20 of the Matrimonial Proceedings and Property Act, 1970 through which it abolished the restitution of conjugal rights
Analyzing both the chances of this remedy is important to understand whether it is beneficial for the public or not. According to Indian culture, a couple should try hard to get along with each other and make their relationship work. This Section provides these cultures with a legal back but on the other side it forces two individuals to live together who do not want to live with each other and a relationship that is made with force has no future.
The Court has yet to decide the constitutionality of Section 9 under the Ojaswa case. It is expected that the Hon’ble Court would come to a decision that would be in the interest of the public and will also have an essence of Indian culture.
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