This article has been written by Ria Verma, a student at Symbiosis Law School, NOIDA. This article aims to critically analyze the judgment of T Sareetha, examine the constitutional validity of restitution of conjugal rights and why it is currently being challenged in court. 

Introduction

One basic essential of marriage is that both the husband and wife should live with each other and have certain rights and obligations. These rights and duties cannot be disregarded in any circumstances. It is a distinctive feature of a relationship that is conjugal in nature. Conjugal rights broadly signify two ideas- the right for the couple to live together and the right to marital intercourse. 

The Hindu Marriage Act, 1955, contains one of the most dreaded sections of the Indian statute books: the rule in Section 9 on the restitution of conjugal rights. This section has been variously interpreted by courts, but it should have no place in a democratic country, especially one that recognizes women as equal citizens. It restricts an individual from breaking free of the chains of marriage. The logic flows throughout the entire statute that the bond between two spouses formed by marriage is eternal. The mere idea of marriage is seen as a sacrament. 

The constitutionality of the remedy of conjugal rights is still a debatable issue due to the competing interest between the interest of the State in protecting the marriage and protecting an individual’s basic rights on the other hand. 

Restitution of conjugal rights 

‘Conjugal’ means relating to the married state or emphasizing the relations between two married individuals. One spouse has an entitlement to receive the society and consortium of the other spouse. ‘Restitution of conjugal rights’ refers to restoring these matrimonial rights to an aggrieved spouse. 

Conjugal rights are created by marriage and recognized in personal laws dealing with issues such as divorce, marriage, etc. It is the right given to both the husband as well as the wife to have the society of the other spouse. In criminal law, these rights are recognized when one spouse is obligated to pay alimony and maintenance to the other. 

One aspect of conjugal rights is recognized in Section 9 of the Hindu Marriage Act, 1955. The aggrieved spouse is given the right to move the court to compel the other spouse to cohabit with him/her. 

The concept of these rights can be traced to ancient times when marriage was treated as an institution giving the husband proprietary rights. There was an obligation for the spouses to reside in the same place. An archaic approach has been adopted by the Indian judiciary, holding that it is the primary duty of the wife to obediently submit herself to the husband and remain under his roof. The value of a wife was equated to that of an asset and therefore, she needed to be in the society of the husband. 

Cases dealing with Section 9 often have complicated procedures and legalese, with the lawyers accommodating the accounts of the spouses to fit some legal issues. Narratives of infidelity, violence, and faith are all ignored as they are considered to be non-legal. For example, an aggrieved spouse files a petition to compel the other spouse to reside with them. The onus lies on the spouse to prove that because of a ‘reasonable’ excuse they have omitted from living in the society of the aggrieved. Only the experience that would carry legal significance would be valid and not the hardships that led to one spouse’s withdrawal from the society of the other. The private sphere of an individual has been narrowed down by the intervention of the judiciary in the marital life of a couple. 

Essentials of Section 9

The view of the judges is etched with patriarchal notions and the consequences have to be suffered by women. The remedy would then amount to the husband forcefully engaging in sexual intercourse with the wife and the wife would be left with no remedy. 

The court can pass a decree in the petitioner’s favor when following three conditions as stated in Surrinder Kaur v. Gurdeep Singh (1973) are fulfilled:

1. The respondent withdrew from the petitioner’s society without any excuse that can be considered reasonable. Herein ‘society’ could refer to staying together, having intercourse, or discharging any obligations arising in the course of the marriage. 
2. The actions of the petitioner were not responsible for the withdrawal of the respondent.
3. No legal ground exists that prevents the aggrieved spouse from receiving relief. 

A revolutionary judgment – T Sareetha v. Venkata Subbaiah

Facts of the case

In this case, Sareetha, at the age of 16, got married to the respondent, Venkata Subbaiah in 1975. However, they immediately stopped living together and continued to live apart for a duration of five years. As a consequence, Venkata filed a petition for restitution of conjugal rights to compel her to live with him under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”). 

Sareetha contended that the petition showcased a lack of jurisdiction of Cuddapah Court. This contention was overruled by the Cuddapah Sub-Court leading to the filing of the current Civil Revision Petition.

Her second claim was that Section 9 of the Act is a sheer violation of the fundamental rights enshrined in the Constitution of India. She claimed that by legally imposing cohabitation between two spouses without their mutual willingness, the Section violates the right to human dignity and decency, personal liberty, and the right to life.  

Prominent issues raised 

1.  Would the Madras residence supersede the Cuddapah residence under Section 19 (iii) of the Hindu Marriage Act, 1955?

2.  Can sexual cohabitation be legally imposed between unwilling, opposite wedded spouses by the Court by issuing a decree of restitution of conjugal rights?

3.  Would the decree infringe the fundamental rights of the individual against whom it is issued? 

Judgment

The Court addressed the confusion and uncertainty caused by the term ‘resided’ while interpreting the clause. It was held that the matrimonial home of the spouses, that is, the parties to the marriage, would be the place where they last resided together. A place where the parties resided for short sojourns would not fall under the ambit of this clause.

The Court was also of the view that it is a common tradition within agricultural communities for the spouses to go to the husband’s place since the community is attached to the place where their residence and occupation coincide. Sareetha did not deny the averment that they had resided together in Cuddapah nor did she prove that plea to the satisfaction of the Court. Therefore, the Judge agreed with the view taken by the lower court and reiterated that the residency in Madras residence would not supersede the residency in Cuddapah.

To resolve the second and the third issue put forth by the petitioner, the Court scrutinized the validity of the restitution of the conjugal rights by citing several case laws and arguments made by prominent scholars and jurists. The crux of these issues is related to the legal backing of forceful sexual intercourse between two spouses.

The objective of obtaining a decree of restitution of conjugal rights is to compel the unwilling legally wedded spouse to cohabitate with the other spouse. It would transgress the sanctity of the union of marriage by invading the privacy, integrity and suppressing the voice of an individual. The State invades the domestic intimacy of an individual and commits a coercive act.

However, according to Justice Choudhary’s interpretation, it would subsequently lead to forceful intercourse between the two spouses. He emphasizes an unequal balance maintained by the family and the mental, physical pressures that a woman has to bear along; and how she does not even receive any form of protection from her own family. He cast doubts on how Section 9 is in lieu of the fundamental rights enshrined under the Indian Constitution.

A significant point of distinction between human beings and animals as pointed out by the Court is sexual autonomy. It is considered that the sexual relationship between a man and woman is based on the grounds of mutual consent and free will. Nothing can be more degrading for a human to be subjected to forceful intercourse by the ‘long arm of the law’.

Justice Choudhary interprets privacy as an individual right inclusive of bodily autonomy and not merely limited to a space whose doors are closed by the State. He laid emphasis on not suppressing the privacy claims brought by the citizens by outweighing the interests of the State. A woman is totally excluded from the microscope within this Section and stripped of her voice in the most intimate decisions. Her privacy and bodily integrity were not at all considered by the lawmakers.

The connection between cohabitation and forceful intercourse lies in unbalanced rights given to the individual. The husband remains in the same place after the decree is enforced however the wife has to beget and bear a child, killing her future ambitions. If a woman is contemplating divorcing her husband, this Section could bring about forceful intercourse and subsequently, forceful conception. Her mindset, body, life would be ruined and it would be a sheer violation of her dignity. He concludes by calling the remedy “an engine of oppression to be operated by the husband for the benefit of the husband against the wife.” Hence, the Court held that Section 9 of the Act was null and void.

Analysis of the judgment

Holding Section 9 valid would not align with widely accepted principles of human rights because of the following reasons:

1. Personal laws are subject to the Indian Constitution

The Constitution of India is the suprema lex, that is, the superior law. It cannot be superseded by any laws. It has been seen in prominent cases such as Re:Amina v Unknown, (1991) wherein it was scrutinized by the Court whether personal laws would be subjected to Part III of the Constitution (that deals with fundamental rights) and, the recent case of Shayara Bano v Union of India, (2017) that criminalized triple talaq. H.M. Seervai, an eminent jurist, known for his book ‘Constitutional Law of India’ opined that the Supreme Court incorrectly interpreted the provision several and that personal laws would be subject to fundamental rights.

2. Violation of privacy

In Shreya Singhal v Union of India (2017) and  K.S Puttaswamy v Union of India (2018), the Court opined that the right to privacy is intrinsic to the right to life enshrined under Article 21 of the Constitution of India. A similar stance was taken by the Court in Joseph Shine v Union of India (2018), wherein the Court held that the State should refrain from intruding in the private domain between two spouses hence, protecting the dignity of a woman which does not get engulfed after marriage. Privacy is a part of human dignity intrinsic to Article 21. An archaic decree of restitution of conjugal rights should not trample upon the basic human rights of an individual. 

3. Bias against women 

The provision is not gender-specific but the costs are weighed on women disproportionately. They have to suffer the brunt of the law and further live a miserable life with the non-existent dignity of chattel. 

4. Misuse of the provision

The provision is misused as a shield against proceedings initiated for divorce and maintenance. The aggrieved spouse files a divorce petition from their place and the other spouse retaliates by filing for a decree of restitution of conjugal rights. In this way, the spouse is unable to get a divorce and again, has to suffer the brunt of the law. 

Its aftermath

In the same year, the Delhi High Court in the case of Harminder Kaur v. Harmander Singh, (1983) upheld the validity of the provision and stated that applying constitutional laws at home would be similar to introducing a bull in a china shop. Introducing the constitutional principles would be a significant factor in weakening the bond between the spouses. The court further pointed out that Justice Chaudhary’s over-emphasis on the aspect of forced intercourse is the logical fallacy in his reasoning. Justice Rohatgi criticised the T Sareetha judgment stating that it is in the interest of the State for the marriage to remain stable and no home should be broken because of the parents dissolving their marriage. 

The Supreme Court then intervened as two High Courts had given different rulings on the same matter. In the case of Smt. Saroj Rani vs Sudarshan Kumar Chadha (1984). The Supreme Court opined that the right of the spouse to the company of the other spouse is not just a creature of the statute, but this right is inherently present in the institution of marriage itself. Therefore, the provision ‘serves a social purpose as an aid to the prevention of break-up of marriage’. The view held by the Andhra Pradesh High Court in the T Sareetha judgment was overruled.

Today, Section 9 is currently being challenged in the Supreme Court on the ground that it is a stark violation of the right to privacy. A plea has been made by two law students, contending that the passing of a  court-mandated decree of restitution of conjugal rights would be a ‘coercive act’ by the State. Alongside violating the right to privacy and dignity, it would also violate an individual’s sexual and individual autonomy.  

Conclusion

The decree would make the body of the unwilling spouse, especially the female, nothing but a ‘joyless vehicle’ for giving birth to a new being in the world. Such a forcible act has never been approved in ancient Hindu society. Hence, a decree of restitution of conjugal rights is a flagrant infringement of the fundamental rights guaranteed to every citizen, under Articles 14,19, and 21. Section 9 of the Act was deemed to be constitutionally void as per the provisions mentioned under Article 13 of the Constitution. 

The reasoning given by Justice Choudhary has been a catalyst for initiating change and is applicable even today especially against the non-criminalization of marital rape. It is the need of the hour for India to do away with the restitution of conjugal rights considering it as a blatant infringement of the fundamental right to equality, dignity, life, and freedom of speech and expression. Outdated laws must be replaced with the progressive ideals of modern society.

The decree acts as a noose around their necks who leave their husband’s house after tolerating years of abuse and cruelty. Marriage should not be viewed as a sacred ceremony but by its autonomous aspect- two individuals consenting to live their life together. 

References

1. http://oxfordpoliticalreview.com/2020/10/14/restitution-of-conjugal-rights-an-anathema-to-human-rights/
2. https://www.legallyindia.com/blogs/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-decision.

---

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/L9vr7LmS9pJjYTQ9

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.