BY SHRISHTI MISHRA
Marriage as an institution gives rise to a relationship between two partners: The Husband and the wife, which further gives rise to more relations. This relationship also gives birth to different sets of rights and obligations. These rights and obligations cumulatively constitute’ Conjugal rights’ and can be termed as the essence of the marital union. The term ‘Conjugal Rights’ in the literal sense means ‘Right to stay together.’
Section 9 – The Hindu Marriage Act, 1955
Restitution of Conjugal Rights, “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 with 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.”
When a spouse is guilty of staying away without any reason or a just cause and if the suit of restitution of conjugal rights succeeds then the couple would be required to stay together. Thus it can also be inferred that section 9 is the marriage saving clause or section. This remedy was earlier applied in England and later on implemented by the privy council in India, for the first time in a case namely Moonshee Bazloor v. Shamsoonaissa Begum. However, this matrimonial remedy of restitution of conjugal rights has been removed in England way back in 1970.
There are three important requisites to be fulfilled for Section 9
- Spouses must not be staying together.
- Withdrawal of a party from the other must have no reasonable ground for such withdrawal.
- The aggrieved party must apply for restitution of conjugal rights
Constitutional Validity of Section 9
It is to be noted that there arises a contention that restitution of Conjugal Rights clearly violates the Right to the privacy of the wife. Although the Supreme Court is its judgment of Kharak Singh vs. the State of UP has held right to privacy “is an essential ingredient of personal liberty”. In Gobind v. State of M.Pagain, the court had to encounter the issue raised in the case of Kharak Singh. In this case, the honorable Supreme Court came to a conclusion that the right to privacy -among other rights is included in the right to liberty.
In T. Saritha Vergata Subbiah v. State, the court had ruled that S.9 of the Hindu Marriage Act relating to restitution of conjugal rights is unconstitutional because this decree clearly snatches the privacy of the wife by compelling her to live with her husband against her wish. In Harvinder Kaur v. Harminder Singh, the judiciary again went back to its original approach and help Section 9 of the Hindu Marriage Act as completely valid. The ratio of this case was upheld by the court in Saroj Rani Vs. S.K. Chadhu
Restitution of Conjugal Rights Violates
- Freedom of Association – Article 19 (1) (c)
- Freedom to reside and settle in any part of India – 19(1) (e).
- Freedom to practice any profession – 19 (1) (g)
Infringement of Freedom of Association
In our country every citizen has a fundamental right to associate with anyone according to his/her wish, By the matrimonial remedy of restitution of conjugal rights is freedom is violated as a wife is compelled to have an association against her will, with her husband. In Huhhram Vs Misri Bai the court passed the restitution against the will of the wife. In this case, though the wife had clearly stated that she would not wish to live with her husband, still the court went ahead and gave the judgment in favor of the husband. The opposite thing happened in Atma Ram. v. Narbada Dev where the judgment was passed in favor of the wife.
Infringement of Freedom to reside and to Practice any Profession
We live in a society where there is complete freedom as to which profession to choose. At times under the restitution of conjugal rights, a person is forced to live with the partner with no general wish or interest. And thus, this freedom to freely reside and practice any profession of choice seems to be violated. Several times in the past courts have tried to give a remedy. The apex court in the case of Harvinder Kaur v. start it was said that “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bull in a China shop”
Suggestions for Improvement
Restitution of Conjugal Rights is a highly debatable and controversial subject. Some people feel it is to preserve the marriage while some say that there is no meaning in forcing the other party to stay with the aggrieved party as they are not at all interested. However, there is always a scope of improvement by tweaking something.
The concept of Reconciliation may be tried in place of the rigid conjugal right. The idea of restitution is very harsh and barbaric, as it forces either party to compromise. While on the other hand the tone of reconciliation is very mild and requesting. The problem with restitution is that there are high chances that the situation may turn up ugly after both the parties are forced to live together unwillingly. But if the remedy is reconciliation then it may not be offensive to either of the parties and will also clear the air of misunderstanding.