In this article, Manan Katyal discusses the constitutionality of the provisions relating to restitution of conjugal rights under the Hindu Marriage Act.
Restitution of Conjugal Rights
Since the inception of Hindu Law, marriage has been considered as a sacrament. Probably, no other people have endeavored to idealize the institution of marriage as the Hindus have done. But since the codification of Hindu Laws in relation to marriage, under the Hindu Marriage Act, 1955, it is at the same time a contract and a sacrament.
Restitution of Conjugal Rights finds its origin from Jewish law. This remedy was adopted into Indian legislature neither from the Dharmashtra nor any personal law in the Indian subcontinent, but through the English Common Law of the British Raj. It was applied in India by the Privy Council for the first time in 1866[1] and through the means of judicial interpretations and legislative actions found its way into the Hindu Marriage Act, 1955[2], Special Marriage Act, 1954[3], Parsi Marriage and Divorce Act, 1988[4], Divorce Act, 1869[5] and Muslim personal laws[6].
The concept of restitution of conjugal rights owes its origin to the ancient times when the institution of marriage was based on proprietary rights of the husband. Marriage imposes an obligation on both spouses to cohabit with each other. The Indian judiciary had maintained a tremendously archaic and platitudinous approach by holding that a wife’s first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection.[7] The wife was considered as a property of the husband and was, therefore, required to reside in the consortium of the husband at all times. Even a mutual agreement between the husband and wife to live separately was considered void as it was viewed to be contrary to public policy.[8]
Through the restitution of conjugal rights, the husband becomes entitled to the conjugal society of his wife and can, by a legal process, compel the latter to reside in his domain, if she refuses to do so, and vice versa. If either party unreasonably withdraws from the conjugal society of the other and willfully chooses not to share a household with their spouse, then the aggrieved party can petition for the restitution of conjugal rights. If the respondent has a valid ground to live separately from the petitioner, then the latter cannot succeed in the pursuance of said petition.
For a court to pass a decree in favor of the petitioner, three conditions require to be satisfied:[9]
- The respondent has withdrawn from the society of the petitioner without any reasonable excuse
- The withdrawal was not a consequence of the actions of the petitioner
- There exists no legal ground why the relief should not be granted
Provision under the Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 provides for the restitution of conjugal rights under Section 9, which reads as follows:
‘9. 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 of 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 reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.’
The explanation, which had been added following the amending act of 1976, makes it clear that the onus is upon the party who has withdrawn from conjugal society to show that there was a reasonable excuse for such withdrawal. Prior to the amendment, the section was silent on this point and judicial decisions held that the burden was on the petitioner to prove that the respondent had withdrawn from their conjugal society without reasonable excuse.[10]
Constitutionality of the provision relating to Restitution of Conjugal Rights
The question of the constitutionality of exercising the remedy of restitution of conjugal rights had been initially presented before the Andhra Pradesh High Court in 1983. In the case of T. Sareetha v. Venkata Subbaiah[11], it was argued in this court that the right to privacy confers upon a party to a marriage the ‘right of free choice as to whether, where, how and by who her body is to be used for procreation of children’ and by recognizing the remedy of restitution of conjugal rights under Sec. 9[12], the State is violating the fundamental liberty, privacy and dignity guaranteed by Article 21 of the Indian Constitution. Further, since the remedy was available to both to married men and women it was contended that by treating the wife and husband, who are inherently unequal, as equals, the impugned section offends the rule of equal protection of laws and, hence, contradictory to the essence of equality given under Article 14.
While declaring the judgment, Justice P. A. Choudhary had accepted the abovementioned arguments and sided with the respondent. He viewed that forceful cohabitation of two spouses unwilling to reside with each other would lead to forced sexual intercourse against the wife. He had elaborated on the opinions by articulating on this issue that 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, since it is the wife who has to bear the child. The judge had adopted an archaic approach by further enunciating that the inevitable consequence of the enforcement of this remedy cripples the wife’s future plans of life. With the perspective of the wife, he had associated the right under Sec. 9 as a self-destructive remedy, partial and one-sided, since it was practically available only to the husband. As a result, Justice Choudhary had ruled Sec. 9 to be unconstitutional as its provisions were anti-thesis to the fundamental rights guaranteed under Articles 14 & 21 of the Constitution.
From the viewpoint of the judge, it can be concluded that he has considered the entire question of restitution of conjugal rights from the point of view of the husband. It seems that he completely overlooked that restitution of conjugal rights can also be claimed by the wife.
Judicial Interpretation
Subsequently, within less than a year, the issue of the constitutionality of Sec. 9 had re-appeared, this time before the Delhi High Court in the case of Harvinder Kaur v. Harmander Singh[13] where the view of the Andhra Pradesh High Court was dissented from. The state of conflict with relation to the disputed section’s constitutionality was resolved by the Hon’ble Supreme Court in the same year, in the case of Saroj Rani v. Sudarshan Kumar[14] where Justice Sabyasachi Mukhatji had upheld the Harvinder case and overruled the T. Sareetha case for the following cause.
The purpose of the decree of restitution of conjugal rights is only to offer an inducement for the husband or wife to live together and did not place emphasis on the compulsion of an unwilling wife to engage in sexual intercourse with her husband. The object of the decree was only to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity. Hence, restitution of conjugal rights aimed at consortium and not merely sexual intercourse.
Simply Put
This anachronistic remedy has been highly criticized as most inhuman and has been viewed worse than tyranny.[15] All over the world, jurists and sociologists are of the view that this remedy does not establish a concrete ground in order to impeach the privacy and matrimonial rights of an individual. Not only so, but in most of the jurisdictions across the world, it has been repealed due to its outdated approach. In fact, the derivation of Sec. 9 from the British laws in itself does not hold to be valid since its repeal through the Matrimonial Proceedings and Property Act in the year 1970.
The remedy of restitution of conjugal rights attacks at a person’s basic essence of being by disabling their right to choose who and who not to reside with. Both parties in a marriage are not always at an equal standing, owing to either patriarchy or economic dependence of women, and cannot choose to dissolve the marriage entirely at their expense. Women are still considered as properties of their husbands and abandoned by their families after marriage. Issues in such a sphere cannot be resolved with a black-and-white approach. In a country where divorce is still considered a social fallacy or taboo in the 21st century, for many people who are unable to support themselves or rely on their families, this remedy encroaches upon their ability of separation without a divorce. This section grants the court the authority to force individuals to cohabitate with their partners, against their will and volition, which in many cases can cause to be a threat to their safety, security and even life. It is of my opinion that the courts, while ruling in the favor of the section’s constitutionality, have disregarded its practical aspect and issue.
[1] Moonshee Bazloor v. Shamsoonaissa Begum, 1866-67 (11) MIA 551.
[2] Sec. 9.
[3] Sec. 22, Ins. by Marriage Laws (Amendment) Act, 1976.
[4] Sec. 32, Ins. by Parsi Marriage and Divorce (Amendment) Act, 1988.
[5] Sec. 32.
[6] Abdul Kadir v. Salima, ILR (1886) 8 All 149 (FB).
[7] Tirath Kaur v. Kartar Singh, AIR 1964 Punj 28.
[8] Tekait v. Basanta, 28 Cal. 751.
[9] Surinder v. Gurdeep, 1973 P&H 134.
[10] Reba Rani v. Ashit, AIR 1965 Cal. 102.
[11] AIR 1983 AP 356.
[12] Hindu Marriage Act, 1955.
[13] AIR 1984 Del. 66.
[14] AIR 1984 SC 1562.
[15] Paras Diwan, Modern Hindu Law, 184 (20th ed., 2009)
