In Supreme Court of India
AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
Harmander Singh Chaudhary
Date of Judgement
15 November 1985
Marriage incorporates the very base of social organization in the society that we inhabit. Marriage is regarded as one of the most sacred practice in the Hindu community and in law. It is regarded as a sacrament that is absolute and eternal but history is proof that there is a vehement issue that arises with anything and everything that is just and obsolete and to counter such inequalities amongst spouses and to protect the pure and sacramental aspect of marriage,The Hindu Marriage Act, 1955 was implied which provided significantmatrimonial remedies; one of the aspect of this remedy is the ‘Restitution of Conjugal Rights’ under which both the spouses are required to inhabit and live together.The very appeal that we discuss today raises an issue of great concern to the well being of the nation as it challenges the very root of values in a matrimonial relationship. The husband had petitioned for the restitution of conjugal rights and the wife opposed. The Additional District Judge ruled in favor of the husband and granted a decree of restitution of conjugal rights to him. The wife opposed and hitherto appealed the court.
1. Harvinder Kaur who is the appellant was married to Harmandar Singh Choudhry who is the respondent. They were married on the 10th of October, 1976
2. They both were independent and had jobs of their own.
3. They had a son who was born to them on the 14th of July, 1978.
4. They both started living on their own and separately as the appellant left the house accusing the respondent that is her husband and his mother of malpractice and maltreatment.
5. Due to these circumstances the husband applied for a petition under Section 9 the Hindu Marriage Act, 1955 which seeks and exemplifies the restitution of conjugal rights.
6. The Additional District Judge ruled in favor of the husband and granted a decree of restitution of conjugal rights to him.
7. The other party challenges the validity and significance of the constitutionality of the section 9 of the Hindu Marriage Act.
8. The wife also raised an objection pertaining to the jurisdiction of the court.
1. Constitutional validity of section 9 in the Hindu Marriage Act.
2. Objection to Article 14 and Article 21.
1. The counsel attacked the constitutional validity of Section 9 of the Hindu Marriage Act, 1955
2. In the forefront of his arguments the counsel referred the bench to ‘T. Sareetha vs T. Venkata Subbaiah’.
3. In the aforementioned case the bench held that section 9 of the Hindu marriage act, 1955 offends article 14 and 21 of the constitution and thus, declared it null and void. It was a very simple case in which the husband had filed a petition against the wife for restitution of conjugal rights under section 9 of the act. The wife hitherto, raised an objection to the jurisdiction of the court.
4. The subordinate judge believed that the court had the jurisdiction to try the petition in revision to the high court.
5. But the chief point presented was that the learned judge in the previous case had declared that the remedy of restitution of conjugal rights was “barbarous’, “uncivilized” and “an engine of oppression”. The most significant reason for believing that section 9 offended Article 21 of the Constitution was that a decree for restitution of conjugal rights was in simpler terms an operation “to coerce through: judicial process, the unwilling party to have sex against that person’s consent and freewill with the decree-holder”.
6. He believed that this was very “degrading to human dignity and monstrous to human spirit”. The learned judge reasoned out his view by stating that the British Indian courts “thoughtlessly imported that rule into our country and blindly enforced it among the Hindus and the Muslims” and that “The origin of this uncivilized remedy in our ancient country is only recent and is wholly illegitimate.”
7. The counsel held the view that section 9 imposes “sexual cohabitation between unwilling, opposite sexual partners.” He stated that it is “forced sex”, “coerced sex” and “forcible marital intercourse”. He further reasoned that to hold that the state interference destroyed the “sexual autonomy” and “reproductive autonomy” of the individual. And “A wife who is keeping away from her husband, because of permanent or temporary arrangement, cannot be forced, without violating her right to privacy, to bear a child by her husband”. A vast number of both American and English case statements have been cited in support of this view.
1. In contrary to the statements made by the petitioner the respondent argued that section 9 is constitutionally valid.
2. The counsel also stated that section 9 does not contravene with Article 14 and 21 of the Indian constitution
3. They also stated that section 9 is not merely dependent on sexual intercourse between the husband and the wife and furthermore it leans more towards cohabitation.
Significance of the Judgement
1. This case in a stark contrast to the Sareetha case upheld it’s view and declared that section 9 is not unconstitutional.
2. The Hon’ble court observed that the view stated by the learned counsel in the Sareetha case was simply based on a misunderstanding of the true and real nature of the remedy of the restitution of conjugal rights.
3. The court respectfully expressed its dissent towards the opinion of the Andhra Pradesh high court and observed that under section 9 the court has the right to imply a decree of restitution of conjugal rights to ensure the return of the spouse who has repulsed from the society of the husband without any reasonable and justified excuse. The decree orders the respondent to return within the time frame of a year.
4. The court also stated that the it does not promote sexual intercourse but cohabitation. It stated that sexual intercourse is not the entire content and basis of marriage and the leftover facets of matrimonial consortium cannot be said to be of irrelevant or trivial character.
5. The main objective of the restitution decree is to promote cohabitation amongst the estranged parties so that they can coexist together in their matrimonial home in peace and harmony.
6. Sexual intercourse is not a condition that is important for cohabitation. Cohabitation means that the husband and wife live together as a husband and wife.
7. The court orders restitution of conjugal rights when one party is reclusive from the society of another without any justifiable excuse so that consortium is not broken.
8. The court stated that the counsels’ overemphasis on sex is the fundamental fault in his reasoning.
9. The court held that under section 9 the husband sought to enquire if there is any justified cause or reason for the withdrawal of his wife from his society. A spouse is entitled to the other’s society and if the law implies this conjugal duty on them then there is nothing wrong with that.
10. The court believed that the driving force of section 9 is to preserve the marriage. Section 9 is an endeavor to bring about peace between both the parties. If there is no justified cause for living separately then the court must order the withdrawing party to live together.
11. The court then cited the concept of breakdown of marriage as explained by Salmond J., in Lodder v. Lodder. If the decree for restitution is not followed for the time of one year and the parties continue to live separately then that is the best and the most reliable evidence that the marriage come to an end. Section 13(1-A) of the Hindu Marriage Act is the legislative recognition of this principle.
12. This decree is useful as it gives both the parties a cooling off time of one year and if the marriage cannot be resolved by the decree then it is considered to be dissolved and if the restitution decree is not followed then the court finishes off the marriage on grounds of non- compliance. Therefore, contrary to what the counsel stated the restitution decree does not enforce sexual intercourse.
13. The court also stated that section 13(1-A) is based on proceedings under Section 9. If section 9 is unconstitutional then section 13(1-A) is also null and void which implies no decrees of restitution and no divorce under section 13(1-A). The court also declared that the abolition of section 9 can only be done by the legislature and not the courts. The court also frowned upon the usage of principles of constitutional law in the private matters of family.
14. It was stated that section 9 finds the fault and where it lies and then it leads to debate if there is any scope for reconciliation or cohabitation.
15. The court held that to see section9 as unconstitutional without referring to section 13(1-A) is a very narrow view. The breakdown of marriage is such a failure in which no hopes for reconciliation remain for both the spouses to live together as husband and wife for mutual support and comfort.
16. The court also stated that for a breakdown of marriage physical as well as mental aversion is also required.
17. Therefore the court held and substantiated its point by ruling that even though the remedy under section 9 is outdated it is not unconstitutional. Hence section 9 is valid and following up on this reasoning the court struck down the appeal and the contentions of the appellant
The significance of this case is highlighted in the fact that it functions to preserve the sanctity of marriage till the last shred and offers a hope for reconciliation. It also states that marriage is not only about sexual intercourse but is a union between the soul as well. It promotes companionship and unity as the basis of marriage and favors discussion over leaving the spouse so as to conserve the societal and sacred values of our community. This shows that the house is a castle for the man and a fortress for the woman. The spouses are free to obtain sacred protection behind closed doors that is away from the society and the family which the civil authorities cannot penetrate or obstruct. Mentioning constitutional law in domestic household and matters will result in dissent, quarrelling and tension. The ‘domestic community’ does not rest on sealed promises and contracts neither on constitutional law. It rests on a cemented morality and ideals which act as a uniting force and produces a relationship that is ‘two in one’.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje