Restitution Of Conjugal Rights - Section 9 Of The Hindu Marriage Act, 1955
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Category: Family & Personal Law
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RESTITUTION OF CONJUGAL RIGHTS: SECTION 9 OF
THE HINDU MARRIAGE ACT, 1955
Abhay A V, CMR University, School of Legal Studies
ABSTRACT
The couples must lead a marital life together as an essential consequence of marriage union. In Hindu marital laws, marriage is seen as a sacrament tie. This view of marriage serves as the foundation for the concept of restitution of conjugal rights. As a result, the relationship is thought to be indestructible and to last seven lives. The restitution decision restores or reinstates a person's marital rights or benefits under Section 9 of the Hindu Marriage Act of 1955. The rule forbids divorces based on the preferences and desires of one spouse. The recent recognition of the right to privacy under Article 21 of the Indian Constitution has rendered the provision's legality irrelevant. This research paper discusses constitutional validity and the case laws along with the critical analysis of the researcher on the topic.
INTRODUCTION
The notion of (Restitution of Conjugal Rights, i.e. Section 91 of the Hindu Marriage Act, 1955) of the court's ability to grant this remedy was adopted from English Law. An analysis of Indian court rulings on restitution of conjugal rights reveals that Lord Herschell defined the general principles influencing English law as barbarous in some ways2, but that law has since undergone significant changes, and the clauses of recent laws have the impact of eliminating the remedy. The Supreme Court ruled that this clause does not violate Constitutional Articles
14 and 213. Choudhary, J. ruled in T. Sareetha v. T Venkata Subbaiah4 that Section 9 was a
constitutional violation of the right to human dignity and privacy. In Harvinder Kaur v. Harmander Singh5, Avadh Bihari Rohatgi, J. had a different stance. The Supreme Court had agreed with Rohatagi, J.
HISTORICAL
BACKGROUND
The notion of Restitution of Conjugal Rights dates back to historical times, only when the concept of marriage was founded on the husband's ownership rights. It is an old notion that was also practiced in olden days. Jewish laws inspired the notion of restitution of conjugal rights. It was introduced into the Indian legal system not through dharma shastras or individual rules, but rather by the English Common Law of the British Raj. The Privy Council enacted it in India for the first time in 1866, and it has since been incorporated into the Hindu Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1988, Divorce Act 1869, and Muslim personal laws through judicial interpretation and legislative action.
RESEARCH
OBJECTIVES
1. To understand the reasoning for the inclusion of Section 9 of the Hindu Marriage Act of 1955, 1 When either the husband or 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.
2 Russell v. Russell, (1897) A.C. 395, 455 (H.L.).
3 Saroj Rani v. Sudarshan Kumar, A.I.R. 1984 S.C. 1562, overruling T. Sareetha v. T. Venkata Subbaiah, A.I.R.
1983 A.P. 356.
4 T. Sareetha v. T. Venkata Subbaiah, A.I.R. 1983 A.P. 356
5 Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
2. To identify any inequalities in the implementation of Section 9 of the Hindu Marriage Act, 1955. 3. To determine whether Section 9 of the Hindu Marriage Act of 1955 is constitutionally sound. 4. To analyze, evaluate, and discuss case laws relying on Section 9 of the Hindu Marriage Act, 1955, and to investigate the various judicial perspectives related with this legislation. RESEARCH QUESTIONS
1. How far may the Indian Constitution of 1950 be stretched to test the constitutionality of
Section 9 of the Hindu Marriage Act of 1955?
2. Is Section 9 of the Hindu Marriage Act of 1955 a violation of the Fundamental Rights given
by the Indian Constitution of 1950?
3. What are the various Indian Court systems' perspectives on the legality of Section 9 of the
Hindu Marriage Act, 1955?
RESEARCH
METHODOLOGY
The study used the Doctrinal method to carry out this research, relying heavily on secondary sources such as journal articles, books, legal research websites, survey results, and case laws. The reasoning for the inclusion of Section 9: Manu's statement that "neither by sale nor by desertion is woman liberated from the husband"6 had previously solely pertained to women, not males. Thus, under Hindu law, there existed an aspect of exploitative nature against the woman. To address such inequities amongst couples and to safeguard the sacramental component of marriage, the Hindu Marriage Act of 1955 was passed, which established specific marital remedies. 'Restitution of Conjugal Rights' is one such remedy. The affirmative solution of restitution of conjugal rights calls for both parties to the relationship to live together and engage. However, this cure has been abused.
As a result, obvious issues have been raised as to whether this is indeed a solution.
6 Manusmriti, Manu IX, 46
THE VALIDITY OF THE CONSTITUTION It should be mentioned that there is a claim that the restitution of conjugal rights obviously breaches the wife's right to privacy. Despite the fact that the Supreme Court said in Kharak Singh vs. State of UP7 that the right to privacy "is a fundamental part of personal liberty," The court had to address the question presented in Kharak Singh again in Govind v. State of M.P.8 In this decision, the Supreme Court determined that, among many other rights, the right to privacy is incorporated in the right to liberty.
LITERATURE REVIEW
Restitution of Conjugal Rights: Constitutional Perspective - M. Gangadevi9 The remedy of restitution of marital rights is controlled by legislative rules in Hindu, Christian, and Parsi personal law. This solution has been incorporated into Muslim law from British common law. The Andhra Pradesh High Court ruled that the Hindu Marriage Act of 1955 was constitutionally valid. Section 9 of the Hindu Marriage Act gives an unhappy wife a recourse if her husband abandons her without a justifiable excuse. Section 20 of the Matrimonial Proceedings Act, 1970, repealed this remedy in England. If a court in India issues her a decree, it can be carried through via the processes outlined in the Civil Procedure Code. Section 9(b): A court may compel a wife to associate with her husband over her desire, and vice versa.
Though the husband plainly stated that he did not want to live with his wife in Atma Ram v. Narbada Devi10, the order of restitution of conjugal rights was issued in favor of the woman. It is the most obvious case of forced marriage caused by a restitution decision. The author believes that the judgment of restitution of conjugal rights violates natural law norms. It cannot be justified on the basis of justice and fairness, or on social or legal grounds. There is a significant gap between legal and social standards, which renders a legal norm meaningless. 7Gullipilli Sowria Raj v. Bandaru Pavani, 1964 S. C. R.
(1) 332 According to the 2015 Report of the High-Level Committee on the Status of Women, Ministry of Women and Child Development, restitution of conjugal rights has no relevance in independent India, and current matrimonial laws already safeguard conjugal relations, as the refusal of finalization is recognised as a ground for divorce. The study, headed by Pam Rajput, emphasized that this rule was solely utilized to thwart maintenance claims made by wives and had little other function. The Commission agrees with the Committee's proposal and advises that Section 9 of the Act of 1955, Section 22 of the Special Marriage Act of 1954, and Section
32 of the Indian Divorce Act of 1869 be repealed.11
CRITICAL
ANALYSIS
This marital remedy is open to both parties under Section 9 of the Hindu Marriage Act, 1955, however a claim for restitution by the woman is uncommon. A review of case law under the heading 'restitution of conjugal rights' reveals that, while the decision of restitution of conjugal rights was requested by the husband against his wife, it was almost always proven that he was either accused of cruelty or decided to bring the petition only to avoid the obligation to pay maintenance. 12 The incompetency and absurdity of this remedy were long recognised by specialists in English family law,13 which served as the basis for our marital statutes.
According to the events and pattern of the cases, the petitioner never expects or seeks to be reconciled with the respondent; instead, his (in India, it is usually his) goal is to either defeat the wife's claims for maintenance or pursue any other type of support or to clear his own path for divorce. There are a number of examples when the petitioner husband's goal is clearly not reconciliation, but to thwart the wife's support claim. 14 Similarly, there have been examples when the petitioner initiated restitution procedures with no intention of repayment in mind, but rather to thwart the wife's petition for judicial separation or divorce. In Annapurnamma v. Appa Rao15, a bold woman filed for divorce on the grounds that her husband had disease. The spouse filed a reparation petition in response to the petition filed.
In this scenario, the husband's behavior indicates that he either meant to postpone the 11 Govt. of India, High-Level Committee on Status of Women, Ministry of Women & Child Development, Report on the Status of Women in India (2015) (Pam Rajput, Chair). 12 Ajaya K. Vishvesha, Restitution of Conjugal Rights Under Muslim Law—A Critical Appraisal, 14 Indian B. Rev. 382 (1987)
13 Marshall v. Marshall, [1879] 5 P.D. 19
14 Smt. Venkatamma v. Venkataswamy, 1963 Mys. 118.
15 P. Rajesh v. G. Lakshmi, A.I.R. 1963 A.P. 312
divorce process or to annoy the wife unduly because disease is a valid foundation for divorce. Section 9 of the Hindu Marriage Act was held invalid in the case of T. Sareetha v. T. Venkata Subbaiah. 16 The reasoning behind the judgment was: ● “A decree for restitution of conjugal rights passed by a Civil Court extends not only to the grant of relief to the decree-holder to the company of the other spouse but also embraces the right to have marital intercourse. The enforcement of such a decree is firstly the transfer of choice to the state to have or not to have marital intercourse from the concerned individual and secondly the surrender of choice of the individual to allow or not to allow one's body to be used as a vehicle for another human being's creation to the state.
A decree enforcing restitution of conjugal right constitutes the starkest form of Government invasion of personal identity and individual's zone of intimate decisions. There can, therefore, be little doubt that such a law violates the right to privacy and human dignity guaranteed by and contained in Article 21 of our Constitution. ” ● “By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievably whereas the husbands can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but inevitable consequence of the enforcement of this remedy cripples the wife's future plans of life and prevents her from using that self-destructive remedy. Thus the use of remedy of restitution of conjugal rights, in reality, becomes partial and one-sided and available only to the husband.
The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this matrimonial remedy in our Hindu society. Therefore, Section 9 violates Article 14 of our Constitution. ” However, in Saroj Rani v. S. K. Chadha17, the Supreme Court held that "the courts do not and cannot compel sexual intercourse. " Sexual connections were a key component in the notion of marriage, but they did not represent its entire substance, neither could the remaining characteristics of marital partnership be described as completely insignificant or of a trifling nature. The reparation remedy aims at living and collaboration rather than just sexual
16 Supra 4
17 Supra 3.
intercourse. According to the learned court, the reparation decision did not require sexual intercourse. It was a mistake to believe that restoring conjugal rights represented "the most blatant kind of state violation" of "marriage privacy. " It is worth noting that, apart from a ruling of specific performance of a contract, the approval for restitution of conjugal rights is provided by the court where the conflict to such a ruling is willful, i. e. intentional, in regardless of the possibilities and there are no additional barriers, and may be imposed by connection of property. RECENT TRENDS INDIAN COURTS' VIEWS ON THE ASPECT OF THE RIGHT TO PRIVACY ASSOCIATED WITH THE RESTITUTION OF CONJUGAL RIGHTS: "The right to privacy is a necessary component of personal liberty" stated by The European Convention on Human Rights of 1953.
Personal intimacies such as family, home, motherhood, marriage, reproduction, and child-rearing must be included and safeguarded by any right to privacy. In T. Sareetha v. T. Venkata Subbaiah18 The High Court of Andhra Pradesh ruled that section 9 of the Hindu Marriage Act, 1955, relating to the restitution of conjugal rights, was unlawful because the ruling clearly violates the privacy of the wife by urging her to reside with her husband against her desires. However, in Harvinder Kaur v. Harmander Singh19, the High Court of Delhi ruled that Section 9 of the Hindu Marriage Act was lawful. The Supreme Court of India affirmed this viewpoint in Saroj Rani v. S. K. Chadha20. The court ruled since neither article 21 nor 14 had any place in the seclusion of the home and marital life.
Warren and Brandeis argued that the law would preserve the right to privacy by providing both a criminal law and a private law remedy21. ARTICLE 19(1)(C) OF THE CONSTITUTION OF INDIA, 1950 AND THE RESTITUTION OF CONJUGAL RIGHTS: Freedom of Association: In Haram v. Misri Bai22, the woman claimed to the judges that her father-in-law had a bad eye on her and that her husband abused her. Despite this, the court
18 Supra 4
19 Supra 5
20 Supra 3
21 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193–220 (1890)
22 Shakuntala v. Nilkanth, A.I.R. 1979 M.P. 144.
issued a ruling in favor of the spouse in response to his demand for reparation. If her father-inlaw sexually assaults her after her affiliation with her husband as a result of the ruling, only the court decree is to blame. Even though the husband expressly said that he no longer wanted to live with his wife in Atma Ram v. Narbada Devi23, the order of restitution of conjugal rights was issued in favor of the woman. It is the most obvious case of forced union caused by a restitution decision.
CONCLUSION
By doing this research, the study discovered that the Notion stipulated in Section 9 of the Hindu Marriage Act, 1955 cannot be claimed to preclude sexual intercourse based on the dynamic decisions of the Indian Courts. It is one of the most significant aspects of married relationships and can thus be imposed on the unwilling partner, who is usually the woman. As a result, it violates Articles 14, 19, and 21 of the Indian Constitution of 1950. As a result, this provision of personal law fails the test of not infringing on the Fundamental Rights guaranteed by Part III of the Indian Constitution. Section 9 should so be found unlawful.
23 Supra 10.