In the Supreme Court of India 1984 AIR 1562, 1985 SCR (1) 303 Petitioner Smt. Saroj Rani Respondent Sudarshan Kumar Chadha Date of Judgement 8 August 1984 Bench Justice Sabyasachi Mukharji; Justice Syed Murtaza Fazal Ali.
Marriages are governed by varied forms of rituals and religions in India. The law necessary arises when there is a dispute between parties to the marriage. As for Hindus Parliament has enacted Hindu Marriage Act, 1955, which embodies various provisions pertaining to solemnization of marriage, divorce, maintenance, etc.. Interpretation of laws under Hindu Marriage Act remains always in question, it puts every layman into a dilemma and even sometimes Courts take into another route where parties don’t agree with the decisions which often gives rise to conflicts. Therefore, the provisions give equal rights to husband and wife, the equity is maintained between them. In the case of Narayan Ganesh Dastane v. Sucheta Narayan Dastane,1 the husband contended about witnessing cruelty from wife, such instances can also be noticed so in whole sole the provisions bring equity between husband and wife.
Facts and Procedural History:-
The petitioner and appellant solemnized marriage as per the Hindu Marriage Act with full customs and rituals at Jallunder now Jalandhar in the year 1975. On 4th January 1976, the first daughter named Menka was born and the second daughter named Guddi was born on 28th February 1977 but unfortunately, she expired on 6th August 1977 in her father’s/Respondent house. It was contended by the appellant that the last date of cohabitation was on 16th May 1977 and on the same date the respondent-husband turned his wife appellant out of the husband’s house and advised her to withdraw herself from society. Looking at this the appellant filed a case under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights and stated before the sub judge about the ill-treatment by the respondent and in-laws. The husband denied in the written statement filed that he forced her to move out from home and society but later husband made an admission willingly to pass the decree of restitution of conjugal rights as per Section 9 of Hindu Marriage Act which resulted in the passing of Decree. After one year, from the date of the passing decree of restitution of conjugal rights, the respondent-husband filed a petition under Section 13-b of the Hindu Marriage Act for the divorce by mutual consent. In response to that Appellant contended that it is incorrect to file the petition of divorce because after the decree of under Section 9 of Hindu Marriage Act was passed there was no cohabitation between the parties took place where later wife went to husband’s house only for two days and again she was turned out of the house and also alleged that an application under Section 28A Hindu Marriage Act, is pending before the sub-judge. Looking at the gravity of the case the learned judge passed an order that the contesting of the application under Section 13-b shall not prevail on the husband’s side because of the non-enforcement of Decree of Restitution of conjugal rights. Then the Husband-respondent appealed to the High Court where again The High Court of Punjab and Haryana held that he is not entitled to such relief. The High Court in the view of Dharmendra Kumar v. Usha Kumari, 2held thatthe contentions are not open to the wife and expressions which are used under Section 23 (1) (a) doesn’t entitle the husband to get a decree for divorce. Then the matter was referred to Chief Justice for the constitution of a Division Bench of the High Court to consider the facts in a deeper version and to reconsider the matter more broadly. The division bench held under the purview of Joginder Singh v. Smt. Pushpa,3that the order which was passed for restitution of conjugal is not termed collusive and if the district judge has taken the view under the Section of 23 Hindu Marriage Act that the conciliation has been ordered then the husband would not disentitle him for a decree of divorce, therefore, the appeal was allowed by the division bench and decree of divorce was passed. Being aggrieved the wife-appellant filed a petition in the Supreme Court through Civil Appeal No. 187 of 1983.
Constitution and Statutory Provisions:-
- Articles 13,14 and 21 of the Constitution of India, 1950
- Section 9 of The Hindu Marriage Act, 1955
- Section 13-b of The Hindu Marriage Act, 1955
- Section 23 (1)(a) of The Hindu Marriage Act, 1955
- Order 21, Rule 32 of The Civil Procedure Code, 1908
- Whether Section 9 of the Hindu Marriage Act violates Article13, 14 and 21 of the Indian Constitution?
- Whether the husband is entitled to get a Decree Of Divorce under Section 23(1)(a) of the Hindu Marriage Act under the purview of expression “Wrong”?
- Whether Order 21 Rule 32 of Civil Procedure Code, 1908 contradicts Section 9 of the Hindu Marriage Act 1955?
The learned counsel urged that the husband was disentitled for the decree of divorce under context word expression “wrong” as per section 23(1)(a) even contended that due to the wrong usage of this expression the Indian husbands taking disadvantage of the poor destitute wives. And when the Apex Court tried to bring attention to the counsel of appellant that the husband respondent right from the first he was intended to get a decree of divorce and therefore did not opposed the passing decree of restitution of conjugal rights which he was aware of the fact that it will result in misleading the wife and court and there was no whisper of this facts and neither was presented in any of the pleadings nor challenged the facts of cohabitation after the decree of conjugal passed, later to this point the appellant learned counsel prayed before the apex court to allow him to amend in the pleading which the court rejected this application to amend further.
On the issue that whetherthe word/expression “wrong” mentioned in section 23(1)(a) does not entitle the husband to obtain the Decree of divorce, the Apex Court cited that the appellant didn’t mention to challenge in any of the pleadings or any of the statements about the refused cohabitation by husband after the passing of conjugal rights secondly there were no factual allegations and the allegations which were made out before Apex court are contrary from the points and facts mentioned in lower courts, therefore, the apex Court is in the view that the husband is in full possession to obtain the title of the decree of divorce not reversing the decision of the division bench.
On the issue that whether the remedy specified under Section 9 of the Hindu Marriage Act infringes or violates Article 13,14 and 21 of The Indian Constitution, the Apex Court by citing the case of Smt. Harvinder Kaur v. Harmander Singh Choudhry,4 stated that the remedy of Section 9 does not violate the Article 14 and 21 of the Constitution as Section 9 of Hindu Marriage Act is canvassed to bring cohabitation between the estranged partiesso that the parties may live happily after proper understanding and this does not only limit to bring sexual relationships or any cohabitation purpose but to draw a mutual understanding between husband and wife so that they can live happily in the matrimonial home in amity. The Court even drew attention to the judgment of Andhra Pradesh High Court in the case of Geeta Laxmi v. G.V.R.K. Sarveswara Rao, 5that in this case the husband ill-treated his wife and threw her out of the house which resulted in non-entitlement of a decree of divorce, where the element of ill-treatment was absent from the above-mentioned case and no such evidence has been produced.
On the third issue, the court pronounced the interpretation of order 21 of Rule 32 of CPC with Section 9 of the Hindu Marriage Act it was held that Order 21 Rule 32 is for a decree for specific performance of restitution of conjugal rights or an injunction. In other terms when the decree of restitution of conjugal rights is passed for specific performance against the party, he has the opportunity of obeying the decree and if he willfully fails to comply with the decree of restitution of conjugal rights, then on him financial implication would be imposed by attaching the property in other words disobeying wilfully the enforcement of decree of restitution of conjugal rights will result in attaching the property for non-compliance of the decree, therefore, this element was not proved and does not amount to indulge with the meaning of Section 9 of Hindu Marriage Act, where Section 9 is only the codification of pre-existing law.
While in the issue of where Section 9 of the Hindu Marriage Act violated Articles 21 and 14 of the Constitution, the Court contemplated the expression “conjugal” by taking reference of Shorter Oxford English Dictionary,6 the meaning of ‘conjugal’ as “of or pertaining to marriage or husband and wife in their relations to each other” and “Conjugal rights” interpreted well in the Dictionary of English Law,7 defines ‘conjugal rights’ as: “The right which husband and wife have to each other’s society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, s. 15), but will not enforce it by attachment, substituting however for attachment if the wife is the petitioner, an order for periodical payments by the husband to the wife (s.22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson 8)”. The importance of ” conjugal rights” can also be seen as per Indian version Commission-71st Report on the Hindu Marriage Act, 1955- “Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated as 9
“Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage-“breakdown” and if it continues for a fairly long period, it would indicate destruction of the essence of marriage- “irretrievable breakdown”.
Lastly, the Apex Court dismissed the appeal of the appellant wife by considering the above facts to resolve the issues which were in contention and upheld the judgment which was passed by the division bench of Punjab and Haryana of a decree of divorce in favor of respondent-husband. The apex court also looked upon the relationship between the husband and wife where non-cooperation or non-maintainability of marriage can easily be noticed, therefore court affirms to stand with the decision of dismissing the appeal of a wife. In addition to it, the apex court directed the respondent-husband to pay the maintenance of Rs 200 per month to wife and Rs 300 daughter per month until she remarries and maintains the one living daughter of the marriage.
The Apex Court gave its verdict as per law and in the interest of justice by minutely analyzing the issues and facts. Some of the facts were pressed out by the appellant-wife counsel which he failed to consider in his pleadings was the biggest failure on his side where the Apex Court caught those loopholes, where the whole dice game turned in to favor of respondent-husband.
The basic and the most important element in any matrimonial issue is that the whole process is not based upon conceptual proceedings but it relies upon the psychology process of husband and wife, what type of mentality they carry with each other, how much understanding do they keep between themselves and most importantly how much sacrifice they are making for each other, a mere comfort can easily eradicate disputes between relationships and if the matter or dispute is brought before the court the conciliation portion must be at large to solve the disputes rather than believing to the third party, yes of course court and governing laws are always intact but the court will never understand the mutual understanding between wife and husband, the court will follow their procedures but the real judgment of making dispute resolve is with husband and wife.
“The views of the authors are personal“
1 Narayan Ganesh Dastane vs Sucheta Narayan Dastane,1975 AIR 1534, 1975 SCR (3) 967.
3 Joginder Singh v.Smt. Pushpa, 1988 64 CompCas 141 P H.
5 Geeta Laxmi v. G.V.R.K. Sarveswara Rao, AIR 1983 AP 111.
6 Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371 notes.
7 Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt.
8 R.V. Jackson  1 Q.B. 671.
9 Commission-71st Report on the Hindu Marriage Act, 1955- “Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5.