The human society rests on the two basic institutions that is family and marriage. Every society is governed by certain norms and rules which have developed into customs and usages with the passage of time. The institution of marriage is governed and recognized by the personal laws of all the religions. After a due course of time marital complexities such as divorce, judicial separation and conjugal rights came up in personal law and it became inevitable to codify the laws relating to marriage in India. Consequently, Hindu Marriage Act, 1955, Indian Divorce Act, Parsi Marriage and Divorce Act, 1936 and various other acts were codified. The concept of marriage vests the parties with certain rights that exist only out of the wed-lock. These rights are called Conjugal Rights. When parties to the marriage get separated, then a remedy in the form of restitution of these conjugal rights can be sought by the disadvantaged party. There is a doubt as to whether such provision is in conformity with the constitution. In recent times the constitutional sanction of the restitution rights is hotly debated. The object of the present paper is to judge the validity of the provisions guaranteeing restitution of constitutional rights on the touch stone of the constitutional principles by comparing it with the fundamental rights as enshrined in the part III of the constitution. Though this paper has sought to analyze this issue by referring to many cases, at certain stages, opinions are also given which are based on facts.
PURPOSE: The purpose of the paper is to understand the relationship between the Fundamental rights and section 9 of the Hindu marriage Act. The paper tries to examine various case laws which have dealt with the issue and which are relevant for the purpose. The author has endeavored to test the relevancy of section 9 in present scenario, for with the changing times and emergence of concepts like weekend marriages, the concept of restitution of conjugal rights remains nothing but just farce. The primary objective of the paper is to test the validity of section 9 on the touchstone of the constitutional principles.
SCOPE: The scope of the paper is limited to studying the concept of restitution of conjugal rights in comparison to the constitutional principles. The author has only looked into Indian scenario and dealt with only Indian cases. The span of comparison is limited to Articles 14, 19 and 21
ASSUMPTION: For the purpose of the project the author has used an argueando that Personal Laws do fall within the ambit of Section 13 and so personal laws can be subjected to constitutional review.
STATEMENT OF PROBLEM: Does Section 9 of the Hindu Marriage Act violate constitutional provisions as enshrined in Articles 14, 19 and 21?
METHOD OF RESEARCH: The method of research adopted is secondary research. The researcher has used secondary sources to answer his statement of problem. Various books and articles have been heavily referred while writing the present paper. A uniform method of citation is used and works of various scholars which were referred is gratuitously acknowledged in the citation.
Restitution Of Conjugal Rights: The Concept
Marriage is often regarded as a primary institution in our society. An individual’s existence in the society is guided by institutions which are often regarded as established forms of procedure characteristic of group activity. Two individual are vested with a set of rights and obligations. These rights may be called as “conjugal rights”. The word conjugal, in it’s literally senses means, “of relating to marriage or to married persons and their relationships”. So now we need to ask ourselves as to what exactly do we mean by the restitution of these conjugal rights.
A. Conjugal Rights As Provided Under Various Personal Laws
Section 9 of the Hindu Marriage Act, 1955 states-
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 a petition and that there is no legal ground why the application should not be granted, may decree the restitution of conjugal rights immediately.
The restitution of conjugal rights is often considered as a matrimonial remedy. It is a positive remedy that makes it mandatory for both parties to the marriage to live together and cohabit. .Hindu law also recognizes principle that “let mutual fidelity continue until death”. Hindu law provides that the spouses should have the society of each other. Though the old Hindu law emphasized on the wife’s implied submission to her husband, it did not talk about any procedure to force her to return to her husband against her will. Existence of such a concept is common in England since 19th centaury but in India it was introduced in the case of Moonshee Buzloor v. Shumsoonissa Begum, where such actions were regarded as considerations for specific performance.
This section of in the Hindu Marriage Act reproduces section 32 and 33 of the Indian divorce Act. Such provisions as to restitution of conjugal rights exist in other personal laws as well. Muslim Law equates this concept with securing to the other spouse the enjoyment of his or her legal rights. Earlier, the concept was seen as specific performance in the contract of marriage. In the case of Abdul Kadir v. Salima, the High Court of Allahbad decided that Case of restitution must be decided on the principles of Muslim Law and not on the common legal facets of: justice, equity and good conscience. The concept of the restitution of conjugal rights has also been dealt in the Christians and Parsis personal law.
To sum up, under all personal law, the necessities of the provision of restitution of conjugal rights are as follows: The respondent should have withdrawn from the society of the petitioner. The withdrawal made is on unlawful or unreasonable grounds. The relief should not be refused or barred on any legal ground. The court should be satisfied about the truth of the statement made in the petition.
The burden of proving whether the excuse for withdrawing from the society is reasonable shall be on the person who has withdrawn from the society. It must be realized that this concept is only secondary in nature. The primary object of showing proof or onus rests with the petitioner. Sec. 23(1) of the Hindu Marriage Act and other similar matrimonial statutes provide that: the burden of proof then shifts to the other party to prove the defence of a ‘reasonable excuse or cause’, once the case has been proved by the petitioner. The word ‘society’ here corresponds to cohabitation, and withdrawal signifies cessation of that cohabitation and bringing to end consortium. This must be a voluntary act of the respondent.
In Sushila Bai v. Prem Narayan, the husband virtually deserted his wife and was totally unresponsive towards her. This behaviour was held sufficient to his withdrawal from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed. ”Reasonable excuse” is a valid defense to this principle. If the withdrawal of the respondent from the society of the spouse is due to some reasonable excuse it would be considered as a complete defense to a restitution petition. In Gurdev Kaur v. Sarwan Singh, the wife’s appeal against a decree of restitution of conjugal rights was given in favor of the husband. It was held by the Court that due to absence of any reasonable reason to leave husbands society, restitution of conjugal rights shall be granted. The court has held in various cases that the following situations will amount to a reasonable excuse to act as a defense in this area i Ground for relief in any matrimonial cause. ii. A matrimonial misconduct not amounting to a ground of a matrimonial cause iii. Such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent
It is significant to note that for restitution of conjugal rights, the sanction is provided by the court where the disobedience to such a decree is willful i.e., is deliberate. The position is different from the decree of specific performance of contract.
Under Section 13 (1-A) of the Hindu Marriage Act, if the spouse fails to return to his home after such a decree, it can amount to a condition of divorce.
B. Enforcing A Decree To Restore Restitution Of Conjugal Rights
“The order of restitution of conjugal rights is observed by its breach rather than its abeyance.” The Court has a power to enforce the decree under Order 21 Rule 32 of Civil Procedure Code, 1908. Under Rule 32(1), if a person willfully fails to comply with the decree of restitution, then the Court can attach his property. Under Rule 32 (3), the Court can sell the attached property if there is failure on the part of the decree holder to comply with the decree for six months. The difficulty arises when the judgement-debtor is not in possession of any actual property. In rural India, we find that in most cases wives’ do not have actual possession over any property. In such cases, if a restitution decree is not complied with, then the court attaches the share of wife in the husband’s undivided property. But this involves cumbersome procedures. Difficulty also arises if the husband is a property-less person—say, a daily wage labourer living in a slum—how will the Court execute the decree in such cases? Coercing a person that his property would be attached and sold away can change the attitude of the adamant spouse and make him obey the decree. The objective of this remedy is to ensure cohabitation of the spouses, but when the property is attached and sold, it will lead to bitterness between the spouses and the purpose of the remedy will get frustrated.
C. Personal Laws Vis-À-Vis Fundamental Rights
In the previous chapter we saw that the restitution of conjugal rights is a part the personal laws of the individual. That is to say religion, custom and ideals guide the principles of personal law. The question here arises is that do personal law fall within the realm of the article 13 (3)? Let us look at the definition of laws as provided under article Article 13 (3)
“(a) ‘Law’ includes any ordinance, order, bye-law, rule, regulation or notification ,custom or usage having in the territory of India, the force of law,
(b) ‘Laws in force’ includes laws passed by the legislature or any competent authority in the Indian territory before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part there of may not be then in operation either at all or in particular areas.”
Now we need to address the point as to does a personal law come under this article. Article 13(3) (a) states that laws include customs and usages, there is a doubt as to whether personal law would amount to a custom as mentioned under this article. The Court in State of Bombay v. Narasu Appa Malistated that the concept of law in Article 13(3) must be read with 13(2). If done so, we find that a state cannot make a custom or create usage in a society. No legislature can pass a custom as custom and usages are products of individual behaviour. Though personal laws do consist of customs, their scope is not filled with them. This distinction which is recognized by the Legislature would become clear if one looks to the language of Section113, Government of India Act, 1915. This section provides that High Court shall, in matters of inheritance and succession to lands, rents and goods, and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom. Therefore, we find that a clear distinction is drawn between personal law and custom having the force of law.
Thus, it was realized that customs as under article 13(3) of the constitution and personal laws are distinct. Justice Chagla in this regard states that the founding fathers of our Constitution did not intend that personal laws should come under the scope of Article 13. However, a validity of the personal laws would be tested against the fundamental rights as mentioned in the part III of the Constitution. When we have to look at the constitutionality of a provision, Article 13(2) must be looked at;
“The state shall not make any law that takes away or abridges the rights conferred by this part and any law made in contravention of this clause, shall to the extent of the contravention be void”.
So, we thus we confront an ambiguity when we compare personal law with article 13(3) (a). The provisions of Article 13 must not apply to a personal law if we regard that it does not fall within the ambit of “customs and usages” as mentioned in the article. Even so, if it does fall with in the realm of article 13, then it must not be in violation of any of the fundamental rights. But here we need to ascertain the constitutional validity of a provision of the Hindu Marriage Act, 1955. Though it is a personal law, we shall assume that it does come under Article 13(3) of the Constitution and see if it is in violation of any of the provisions of the Constitution as mentioned under Part III. Once again, Section 9 of the Hindu Marriage Act, 1955 states,
“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 a petition and that there is no legal ground why the application should not be granted, may decree the restitution of conjugal rights immediate”
The Hindu Marriage Act, 1955:
Is It Constitutionally Valid?
As stated earlier, for judging constitutional validity of a provision it must be compared with the fundamental rights as enshrined in the part three of the constitution. In this chapter we shall compare section 9 of the Hindu Marriage Act with the Fundamental rights. The objective of such comparison is to understand how and why the principle is or isn’t in violation of that particular article. Relevant cases are also referred in the chapter.
Principles of human dignity, equality and personal liberty are the edifice on which the constitution of India is based. These fundamental rights are also applicable to marital relations. Constitution was drafted by the founding fathers keeping in mind the welfare of the people and saw to it that there were appropriate provisions that ensured that a law was not misused. This concept was given further force by the doctrine of Basic Structure laid down by a 13 judge bench in 1973.
A. Section 9 And Gender Discrimination
Gender discrimination is very wide spread in the Indian society. More often than not, there have been instances where women were subjected violence and injustice because of their gender. Inequality with regard initiation of suit to restore conjugal rights exist in India because, “a suit for restitution by the wife is rare in the Indian Society”. This fact has been affirmed by Guptewho was quoted by the Court in T.Sareetha v. T. Venkata Subbaiah. The life of women is deplorable in our Country due to educational, economic and social factors. In our social reality, this matrimonial remedy of restitution of conjugal rights is used almost exclusively by the husband and rarely resorted to by the wife. Let us first examine Article 14
“The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India”
The guiding principle is that all persons and things similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. All equals must be treated equally and unequal should be treated differently. It must be realized that the quote of Gupte’s was pointing towards the provision of the old Hindu law and the provisions of the Hindu Marriage Act, 1955. By amending act 44 of1964, “either party to a marriage” is allowed to present a petition on the grounds given in Section 9 and Section 13(a). The gender discrimination does not exist in the Hindu Marriage Act and all are treated as equals under this section. It is opined that section 9 does not talk about classification of sexes and does not discriminate on the basis of sexes. Though as discussed above it can not be undermined that major chunk of litigation on section 9 consists of the suits brought by the husbands, the provision is non discriminatory.
There is complete equality of sexes hare and equal protection of the laws. Section 9 cannot be struck down as violative of Article 14 of the Constitution. The objective of the provision is to ensure that parties to marriage cohabit and harmoniously enjoy each others company. So that they can live together in the matrimonial home in amity. Cohabitation has been defined in these words: Cohabitation does not necessarily depend upon whether there is sexual intercourse between the husband and the wife. ‘Cohabitation’ means living together as husband and wife.
B. The Right To Privacy And Restitution Of Conjugal Rights:
The Right to Life of a person is regarded most important fundamental right. Article 21 of the constitution reads as follows;
“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
Article 21, though written in a negative language, confers on every individual the fundamental right to life and personal liberty. Supreme Court has given paramount position to these rights. Over the years, this right has also included within its scope, the right to education34, the right to privacy35, the right to speedy trial36, the right to travel37 etc…
It is argued that Section 9 of the Hindu Marriage Act, 1955, violates the right to privacy of an individual, as it forces a spouse to live with another thereby bringing a bar on the liberty to enjoy personal space. In Sareetha’s case the court observed, a decree for restitution of conjugal rights would deprive a woman of the control over her choice as to whether her body should be allowed to be sensed. Our Constitution puts right to privacy and human dignity to the highest pedestal. And so any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child bearing. It is to be noted that the restitution of conjugal rights, is only willful in nature. And unlike specific performance, the courts must treat it only as an inducement in times to come.
The institution of marriage being very sacrosanct its protection is very necessary and if a spouse does not wish to stay with his/her partner then he may make use of remedies such as judicial separation and divorce. Leaving a partner without a reasonable excuse cannot be justified. From the above discussion we can say that a decree to restore conjugal rights though has favorable object to save marriage. The nature of decree is such that it ensures husband and wife lives together. In the wider interest of the society and to protect the institution of marriage if court orders a party to come and stay with his/ her spouse it would be a reasonable restriction to right to privacy. Such legislative provisions which are in the wider societal interest should be commended. Hence, Section 9 of the Hindu Marriage Act is not violative of Article21of the Indian Constitution.
C. Restitution Of Conjugal Rights And Article 19:
It is argued that the restitution of Conjugal rights violates the freedom of association, expression and other freedoms as guaranteed by Article19 of the constitution. Article 19 (1) talks about the freedom to form associations and reside in any part of India41, the freedom to practice any profession42 and the freedom of freely speak and express ideas and views43.These rights not being absolute there are certain restrictions mentioned in the form of Article19 (6).It can be held that up to a certain extent, that the concept of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 is in violation of Article 19(1)(c) of the Indian Constitution. It may be stated so because by this decree, a wife is compelled to stay with his husband or vice-versa against her will. In Huhharam v. Misri Bai, complaint was made to the Court by the wife that husband ill-treated her and that his father had an evil eye on her. The husband had sought degree of restitution which was granted by the court. Such cases add to various instances where court has forced union of spouses which is contrary to the right guaranteed under Article 19(1)(c). This does not satisfy any reasonable restriction mentioned in article 19(6) in the form of public order, morality and health. The decree of restitution of conjugal rights violates this Article.
In certain cases right to move freely is violated by the decree of restitution. Such situations have largely arisen in urban areas where both the spouses were working in different cities. The problem surfaces when a decision is to be made who will shift with whom and who will loose the job. In these cases like this, the husband has, while seeking a decree of restitution, requested the Court to order that the wife stay with him under the same roof and in his protection after having quit her job. Granting such relief would violate Articles 19(1)(e) and 19(1)(g) of the Constitution. The Court has laid down in various cases46 that the refusal by a spouse to give up his/her job and live with the other does amount to ‘withdrawal from the society of the other’.
In Gaya Prasad v. Bhagawati, the Hon’ble Court observed, “According to ordinary customs of the Hindu Society, the wife is expected to perform a marital obligation at her husband’s residence and she could not impose her unilateral decision on the husband by merely stating that she has no objection to allow the husband to live with her at the place where she has accepted her service”.
Such decisions are based on obsolete ideology that Hindu Marriage is a sacrament and that all must be done to preserve that holy union between the husband and the wife. It is found that the oppressed position of the woman in Indian society is ignored by the courts in various circumstances. Though economically, educationally and professionally women are at par with men but their social status is still subjugated by the patriarchal setup. In today’s society, the woman is understood to work and move up the ladder and marriage must not act as a hurdle in such endeavors. The progressive approach of court is reflected in some recent decisions48, the Court has held that mere refusal by the spouse to resign his/her job and move with her husband is not a ‘withdrawal from the society’ of the other. But the mystery of constitutional validity in this area still remains as this question still remains unanswered by the court. However, if the issue of coercion is proved, we can conclude that such a provision under Section 9 of the Hindu Marriage Act does violate the relevant Constitutional Provisions.
D. The Decision In Saroj Rani V. Sudarshan Kumar:
In this case, the wife had filed a petition for the restitution of conjugal rights. She was married since 1975 had given birth to two daughters out of the wed-lock. She was turned out of her matrimonial house in 1977 after which she filed a petition for an interim maintenance which the court granted. The husband later filed a consent memo for the passing of the decree and the decree of restitution of conjugal rights was accordingly passed in favour of the wife. One year later, the husband applied for a divorce under Section 13 (1-A) of the Hindu Marriage Act, 1955 on the ground that he and his wife had lived separately during the one year period. The husbands ground for divorce was questioned as the spouses had stayed together for a period of two days after the decree was passed.
It was argued that the ground for divorce was unjustified and the husband taking advantage of his own wrongs It was further argued that the concerned section, that is Section 9 of the
H.M.A. violated Articles 14 and 21 of the Indian Constitution. The Hon’ble Court under JusticeSabyasachi Mukhatji observed:
“We are unable to accept the position that Section 9 of the Hindu Marriage Act is violative of Art. 14 and 21 of the Indian Constitution. Hindu Marriage is a sacrament and
the object of section 9 is to offer an inducement for the husband and wife to live together in harmony. If such differences may arise as in this case, it may be a valid ground for divorce after a period of one year. Hence Section 9’s validity is upheld.”
Thus, the Court granted the divorce but at the same time understanding the situation of the wife and daughters, ordered the husband to pay a prescribed maintenance to the wife until she remarries. The Hon’ble Court has thus considered the interests of both parties and maintained harmony in this area
From the above discussion it is thus understood that there is enough ambiguity as to whether the concept of Restitution of Conjugal Rights, violates any of the fundamental rights guaranteed under part III of the Indian Constitution. It is found that this provision violates article 19 and 21 but it is not violative of any other constitutional provisions.
After Sareetha & Saroj Rani’s cases, discussion regarding constitutional validity has taken a new dimension. Today, this area is viewed as being highly unstable as there is a there is a clash between personal laws and fundamental rights altogether. As mentioned earlier, personal laws do not come under the ambit of Constitutional Review, but the author has made an assumption that even if they do come, they are not violative of some provisions of the Constitution. This concept of restitution of conjugal rights is already abolished in England. In my opinion, the concept of restitution of conjugal rights is a sham and must not exist in India.It is however hoped that we may foresee that in the near future, India too will progress towards realization that the rights of an individual are important and must be protected at all costs. The author has done his best to present this paper in the best manner possible and deeply regrets if any loop hole arises in the same
- Hindu Marriage Act, 1955.
S.J. Peasants, “Hindu Women and the Restitution of Conjugal Rights : Do we need a remedy”, http://www.manupatra.com/Articles/Articles.asp
- Indian Divorce Act, 1929
Paras Diwan, The Law of Marriage and Divorce, 4th ed. 2002, p. 285.
- Parsi Marriage and Divorce Act, 1936.
A.G. Gupte, Hindu Law, 1st ed. 2003
- Vijendra Kumar, “Restitution of Conjugal Rights : An Analysis with Reference to Fundamental Rights”, Ranbir Singh and Vijender Kumar, (eds.), MATERIALS AND CASES ON FAMILY LAW-I, 2006
P.M.Bakshi, The Constitution of India,6th ed. 2005, Universal Law Publishing Co. Pvt. Ltd
- Gupte, Hindu law in British India, 2nd ed. 1947