Restitution of Conjugal Rights by Rohan Johnson

Section 9 of the Hindu Marriage acts states that : “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly

This provision is based on the fact that when the husband becomes entitled to the conjugal society of his wife, while the wife is similarly entitled to that of her husband. This provision has however been subject to wide criticism with the Andhra Pradesh High Court holding in the judgement of T.Sareetha v. Venkata Subbaiah that the Section 9 unconstitutional and in violation of Article 21 and Article 14 of the Constitution. In that judgement the wife had contended that she has a “right of free choice as to whether, where and how her  body was to be used in the procreation of children and also the choice of when and by whom the various parts of her body are to be sensed.” The High Court accepted that this contention of the wife was acceptable and accordingly that Section 9 of the HMA was violative of the Rights of the Married couple.

The above judgement of the Andhra Pradesh High Court was however, rejected by the Delhi High Court in the Judgement of Harvinder Kaur v. Harmander Singh where the court held that the aim of Section 9 is to promote cohabitation and consortium thereby promoting the institution of marriage. If the decree is not obeyed for one year, the remedy of divorce could be sought ubder Section 13(1-A) of the HMA. Thus, the Delhi High Court held that Section 9 of the HMA was constitutional. A decree for restitution of conjugal rights was granted when the wife was unable to show any good cause of withdrawing her conjugal society from her husband.

In the judgement of Saroj Rani v. Sudarshan Kumar Chadha, it was held by the Supreme Court that Section 9 of the HMA serves a social purpose that is to prevent the break up of a marriage, The Court justified the Constitutionality of Section 9 by offering two different reasons. First the purpose of the Section is to “offer inducement for the Husband or wide to live together and settle their differences amicably”. The second reason provided by the Court was that the only way of enforcement of the decree when there is wilful disobedience is attachment of property, i.e. by financial sanction thereby preserving a marriage.

However, despite the clarity provided by the Courts, it can be said that the Provision if being misused. In the judgement of Huhhram v. Misri Bai, the wife had left her husband as her father in law had an evil eye towards her and her husband was mistreating her. Despite this the Madhya Pradesh High Court granted a decree of restitution to the husband, directing the wife to return back. Similarly in the Judgement of Atma Ram v. Narbada Devi, the a decree of restitution was granted against the husband though it was clearly established that he did not want to live with her.

The provision has also been used over several judgement to violate the freedoms granted under Article 19. In the judgement of Tirauth Kaur v. Kripal Singh, the wife was forced to leave her job and travel back to her husband on account of the decree of restitution granted to her husband, thereby violating her right to reside in any part of India and to practice any profession. This judgement is also not in harmony with the leading judgment of Joseph Shine v.  Union of India where, it was held that a married woman has a right to privacy and bodily autonomy. However, Section 9 has been used over several judgements to violate this right, forcing a spouse to live with his/her partner despite clear objections on their behalf. The provision has also been used as an alternative to divorce proceedings and alimony, as a divorce petition is often countered by a decree of restitution in several cases.

A restitution of conjugal rights decree can require spouses to live together, but it can’t guarantee a healthy relationship. Furthermore, if the decree infringes on different  constitutional right, it is critical that it be repealed. With all of the ambiguities that exist within the sections pertaining to restitution of conjugal rights, it is imperative that the Supreme Court investigate the matter and ensure that this right, which is considered a remedy, does not violate anyone’s fundamental rights, and that if it does, it is declared unconstitutional as soon as possible.

 

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