Constitutionality of Section 9 of the Hindu Marriage Act, 1955

Marriage is a sacred tie and its sanctity is upheld by personal laws of all the religions. When a husband and wife are tied in wedlock, they become one, living together in harmony. Hindus use the term ‘Ardhangni’ which means ‘half of the husband‘ to denote that a man is incomplete without his wife. In Indian society, it is also seen as a precondition to have a family. In the past, a married couple did not consider the option of dissolving the bond of marriage and start a new life as a separate individual. The transition to the current scenario of a fast-pacing and career-oriented world has given rise to many matrimonial feuds with very little patience to tackle them. With the rise in the matrimonial disputes especially in the last decade, alternative methods to solve matrimonial feuds are frequently adopted.

The concept of restitution was first found in Jewish laws. Its roots were established in the feudal society of England, where a woman was considered a man’s possession like his chattel. It was not a concept which was found in Dharmashastras or Muslim Law. It was introduced in India through British Raj and the remedy of restitution was extended to all communities.[1] After independence, this concept was incorporated under Section 9 of Hindu Marriage Act, 1955 (HMA), for Hindus. In other personal laws it was found in the general law for the Muslims, Section 32 or 33 of the Indian Divorce Act, 1869, for Christians, Section 36 of the Parsi Marriage & Divorce Act, 1936, for Parsis and Section 22 of the Special Marriage Act, 1954 (SMA), for people married under this act.

A husband and wife in a marriage have duties to perform but also enjoy legal rights. Spouses are in obligation to comfort as well as give company to each other. If a spouse is abandoned by the other without any reasonable excuse, the other can approach the court for the ‘Restitution of Conjugal Rights.’ The guilty party will be ordered to live with the aggrieved party by decree of the court. It is the only remedy given by HMA, which is to unite the parties of the marriage. Other remedies like divorce and judicial separation, aim towards the dissolution of marriage.

Section 9 of the Hindu Marriage Act, 1955

The term Restitution of Conjugal Rights is formed by two terms: Restitution (restoration of something lost) and Conjugal rights (marital rights or relationship between a married couple). According to Section 9 of the Hindu Marriage Act, 1955, “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.”

The precondition to avail the remedy of restitution of conjugal rights is a valid marriage. In Ranjana Kejriwal v. Vinod Kumar Kejriwal,[2] the petitioner was already married and the wife was able to prove that fact. Court held that the marriage was not legitimate; hence conjugal rights cannot be restored.

The prerequisites for restitution of Conjugal rights are:

  • A spouse should have withdrawn from the society of another
  • The withdrawal is without any reasonable cause
  • The statements made under the petition are true and to the satisfaction of the court
  • No legal grounds are there to decline the relief of restitution

When there is a cessation of cohabitation by a voluntary act of the guilty party without any reasonable or lawful cause, the court may order the couple to cohabit together, on verifying the validity of the statements stated by the aggrieved party. When the parties to a marriage are living separately under a separation agreement, one cannot demand restitution of conjugal rights. Also, the burden of proof is on the petitioner to prove that the respondent has withdrawn from society while the respondent is liable to prove that there was a reasonable cause behind such withdrawal.

In Swaraj Garg vs. K.M Garg,[3] both husband and wife were gainfully employed and the wife earned more than the husband. The husband did not own a house and a matrimonial home was not decided upon by both the parties. Due to the financial difficulties of the husband and his discouraging conduct towards his wife, the court held that the wife had a reasonable excuse for not resigning from her job and not coming to live with her husband at Delhi.

Checking constitutionality of Section 9 of the Hindu Marriage Act, 1955

The concept of restitution of conjugal rights was added after independence and when it was being discussed in the parliament many members opposed it. J.B. Kriplanisaid: “This provision is physically undesirable, morally unwanted and aesthetically disgusting..“. Mr Khardekar opposed the remedy, by saying, “to say the least this particular cause is uncouth, barbarous and vulgar. That the government should be abettors in a form of legalized rape is something very shocking…[4]

In the case of Moonshee Bazloor v. Shamsoonaissa Beg,[5] the Privy Council for the first time applied the remedy of restitution of conjugal rights in India. After Independence, when it was included in the matrimonial laws of the country, it became the subject of debate, especially in 1983-1984, when questions arose over the constitutional validity of Section 9 of HMA.[6] In Shakila Banu v. Gulam Mustafa,[7] the Court stated that “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural.” In Sareetha v. T. Venkata Subbaiah,[8] Justice P.A. Choudhary opined that restitution is a barbaric remedy since it violates the Right to Privacy. It is violative of the rule of equal protection of laws under Article 14 and denies human dignity guaranteed by Article 21 of the Indian Constitution. The Andhra Pradesh High Court claimed Section 9 of HMA to be unconstitutional.

Even less than a year later, in Harvinder Kaur v. Harminder Singh,[9] the Delhi High Court ruled in favour of the husband considering Section 9 of HMA as an attempt to preserve marriage. Court held that if the marriage cannot be resolved post-decree it will be dissolved. Also, if both parties do not cohabit together it will be dissolved on the grounds of non-compliance by the Court. So a cooling-off period must be given to spouses before they break their relationship abruptly. Finally in Saroj Rani v. Sudarshan Kumar Chadha,[10] the Supreme Court upheld the judgement of the Delhi High Court stating restitution is like a preparation for divorce if the parties are not willing to live with each other.

PIL challenging constitutional validity of restitution of conjugal rights

Public interest litigation (PIL) has been filed in the Supreme Court by Ojaswa Pathak and Mayank Gupta—students of Gujarat National Law University, Gandhinagar.[11] It challenged the marital remedy of restitution of conjugal rights given under Section 9 of HMA and Section 22 of the SMA. Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908 were also challenged which back the remedy by financial coercion.

The matter will be heard by a three-judge bench of the Supreme Court of India, comprising of Ranjan Gogoi (former Chief Justice of India), Justices Deepak Gupta and Sanjiv Khanna.[12] The cause of the petition is that it places a disproportionate burden on the women. The provisions challenged are claimed to be violative of Articles 14 and 15(1) of the Constitution. It also questions privacy, dignity and individual autonomy of the individuals which is assured under Article 21 of the Constitution.

Ministry of Women and Child Development, through a report by the High-Level Committee on Status of Women in 2015, denied the relevance of restitution of conjugal rights. Also, the Law Commission of India in its ‘Consultation Paper on Reform of Family Law’ issued on August 31, 2018, suggested deletion of Section 9 from HMA, Section 22 of SMA, and Section 32 of Indian Divorce Act, 1869.

The PIL stated that this remedy is not originated in India and neither recognised by any personal law systems of the country. It was feudal law of England which was itself abolished in the United Kingdom in 1970. The decree of restitution of conjugal rights is a direction by the court to a spouse to cohabit with the aggrieved spouse, which also includes taking part in sexual intercourse. There are also measures like attaching of the property with the case to prevent the spouse from disobeying such a decree. A decree of restitution terminates the personal autonomy of a person to make them conform to societal rules of maintaining a family life. It is a personal discretion and the courts should not interfere in the personal matters like these. This is a recent appeal and its verdict is yet to come.

Conclusion

Marriage binds a couple in a unity. The concept of restitution of conjugal rights was included in the Indian matrimonial laws as a means to facilitate the scope of reconciliation between the spouses. However, it is generally used by husbands to make their wives submit themselves to their company. An unwilling wife forced into cohabitation with her husband, bound to perform marital obligations and forced to perform sexual intercourse, can be seen as a violation of Article 14 and 21 under the Constitution. This issue is catching the attention of the people and is soon to be rectified due to practical glitches.


[1] Paras Diwan

[2] AIR 1997 Bom 380

[3] AIR 1978 Del 296

[4] Parliamentary Debates on Special Marriage Bill (10th December 1954)

[5] 1866-67 (11) MIA 551

[6] Ekta Kumari, “Restitution of Conjugal Rights: An Analysis”, July 26 2018, available at https://www.latestlaws.com/articles/restitution-of-conjugal-rights-an-analysis-by-ekta-kumari/#_ftn1 (last visited on May 28, 2020)

[7] AIR 1971 Bom 166

[8] AIR 1983 AP 356.

[9] AIR 1984 Delhi 66

[10] AIR 1984 SC 1562

[11] Samanwaya Rautray, “SC to decide the validity of provisions governing restitution of conjugal rights”, Mar 06, 2019, available at https://economictimes.indiatimes.com/news/politics-and-nation/sc-to-decide-validity-of-provisions-governing-restitution-of-conjugal-rights/articleshow/68279688.cms?from=mdr (last visited on May 28, 2020)

[12] By The Leaflet, “Supreme Court issues notice to Centre on a plea challenging the constitutional validity of restitution of conjugal rights under the Hindu Marriage Act and Special Marriage Act”, March 15, 2019, available at https://theleaflet.in/supreme-court-issues-notice-to-centre-on-a-plea-challenging-constitutional-validity-of-restitution-of-conjugal-rights-under-the-hindu-marriage-act-and-special-marriage-act/ (last visited on May 28, 2020)

Mansi Mathpal from Vivekananda Institute of Professional Studies, New Delhi

“Uncertainity in certain things is the fascinating space scoping for magic”


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