Abstract & Introduction
The institution of marriage in Hindu law is regarded as a Sacrament(Sanskara) and not a contract. By virtue of the Hindu Marriage act, 1955, the state legislatures have enacted laws to regulate, dissolve or preserve marriages. Section 9 of the Hindu Marriage Act, 1955 deals with the ‘Restitution of conjugal rights’(RCR) one of the most contentious matrimonial remedy in Indian Jurisprudence. The restitution of conjugal rights is a remedy which is available in order to safeguard the marriage by requiring the deserting spouse to re-establish the marital co-habitation. However, in contemporary times, Section 9 of the HMA has been criticized for being an anachronism, and a violation of the fundamental rights of the individual like the rights to body, liberty or privacy. Further we will examine and critique the concept of RCR as enshrined in section 9 and 144 of the HMA. Part I will discuss the ingredients of restitution of conjugal rights, its burden of proof, the development and the constitutionality of the law on restitution of conjugal rights. Part II will be discussing the criticisms of this section and whether or not RCR should retain its position as a remedy in Indian marriages.
Foundational Concept and Statutory Ingredients
The expression ‘conjugal rights’ means the right of either of the married partners to the society and comfort of the other. If either of them, the husband or the wife, willfully deprives the other of his or her society, comfort, and/or consortium, the wronged partner may move the district court by petition for the restitution of conjugal rights. Section 9 further provides that if upon investigation the court finds the allegations in the petition to be true and that there is no law preventing the petitioner from instituting the petition, it may order restitution of conjugal rights.
A petitioner seeking restitution of conjugal rights under Section 9 must therefore prove three main statutory ingredients:
i. Complete withdrawal from the society of the petitioner by the respondent;
ii. The withdrawal must be without reasonable excuse;
iii. And the petitioner must be genuine and not filing a petition with the intent to frustrate or create obstacles to the respondent’s filing of a divorce petition at a later date.
An important point to note regarding the restitution of conjugal rights is found in the Explanation to Section 9 which provides for the allocation of the burden of proof in cases where a petition under this section is presented before the court. Per the Explanation, in the event that a petition for restitution of conjugal rights is filed, it shall be the petitioner’s responsibility to prove that the respondent ‘withheld’ him/her from co-habitation or society. In turn, if the petitioner manages to discharge this burden of proof, it shall become the respondent’s turn to show that he/she had a ‘reasonable excuse’ for withholding the petitioner from his/her society.
Contemporary Socio-Legal Criticisms
The main argument against Section 9 is that it is alien to the Hindu law as the remedy of restitution of conjugal rights was not known to the ancient Hindu law. It was the colonial legislation inserted by the British Government in India. Though it has since been repealed by the Matrimonial Proceedings and Property Act, 1970, by the UK Parliament, which considered it an anti-thesis to human rights, Indian laws continue to retain it.
The most prominent of all the criticisms pertain to Section 9 of the Hindu Marriage Act being violative of the fundamental rights of individuals as guaranteed under Part III of the Indian Constitution. Restitution of conjugal rights is a violation of the right to privacy as well as the right to life and personal liberty as guaranteed by Article 21 of the Constitution. Restitution petitions are damaging to the respondent’s psyche, particularly when the wife petitioner moves out of the marital home as the petitioner. Moreover, the restitution of conjugal rights within the bounds of a marriage is a recipe for disaster. Being forced to co-habit can cause a number of undesirable consequences such as the commission of sexual offences.
In addition, it is suggested that the husbands resort to this strategy to obtain tactical advantages when the time comes.
If the wife moves a petition for monthly allowance as maintenance under Section 144 BNSS (Section 125 Cr.P.C) or if either spouse wants to end the marriage or seeks protection from spousal abuse, the husband moves to have her return to him by filing a restitution petition stating that she has left the marital home wrongfully thereby depriving her of alimony and opens the door for a divorce petition on the ground of desertion by wife.
Judicial Developments and Constitutional Validity
The very constitutional validity of Section 9 has been subject to a bizarre range of views in various High Courts, which have provided definitive guidance on the matter to the Supreme Court:
i. In T. Sareetha v. Venkata Subbaiah AIR 1983 AP 356 , the Andhra Pradesh High Court in a judgment delivered by Justice P.A. Choudary went as far as declaring Section 9 of the HMA to be wholly unconstitutional. The restitution decree was held to be an intrusion into the personal dignity of a human being, a degradation of his or her personality and a violation of the absolute personal rights to body and mind enshrined in Articles 14 and 21 of the Constitution.
ii. However, in Harvinder Kaur v. Harmander Singh Choudhry AIR 1984 Del 66 , the Delhi High Court in a decision of equal vintage (Delhi) took an almost diametrically opposite view by Justice Avadh Behari Rohatgi. It held that the object and purpose of Section 9 was not to compel sexual intercourse or physical intimacy but to give an opportunity for reconciliation and restoration of a broken consortium. Family law, said the Court, cannot be viewed solely from the individualistic viewpoint of the constitutional law.
iii. In Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90 , the Constitution Bench of the Supreme Court has dealt with the constitutional validity of section 9 and also resolved the conflict between two High Courts. The Supreme Court has expressed agreement with the view taken by the Delhi High Court. It was held that the real object of section 9 was to prevent the dissolution of marriage. Further, a decree of restitution of conjugal rights under this Section was held to be purely directory, that is, it did not authorise any form of physical coercion to extract compliance with the decree. Contempt proceedings against the defaulting spouse were held to be maintainable in law by virtue of Order 21 Rule 32 CPC and not under Section 11 of the Contempt of Courts Act, 1971. Thus, the restitution decree was held to be a mere encouragement to the erring spouse to return to co-habitation with his or her spouse. If default, the Court ordered that the property of the delinquent spouse may be attached by execution in accordance with Order 21 Rule 32 CPC.
With the nine-judge bench ruling in K.S. Puttaswamy v. Union of India , 2017 which unanimously recognised the Right to Privacy and Bodily Autonomy as intrinsic dimensions of Article 21 of the Constitution, the very propriety of Section 9 is now once again before the Supreme Court in several petitions challenging its validity.
Conclusion & Recommendations
Section 9 of the Hindu Marriage Act, 1955 is a finely balanced instrument, seeking to reconcile the sanctity of marriage as an institution and personal liberty as enshrined in the Constitution. As it stands, this balance tends to favor neither, resulting in a state of affairs in which marital peace is achieved through coercion. Although Section 9 was enacted to promote reconciliation, its very existence may undermine the marital and individual happiness of couples by limiting spousal privacy and autonomy.
India’s family law needs to be reworked, if not replaced, in the wake of the
Puttaswamy judgment. It is not that reconciliation is not a worthy goal; the problem is the method prescribed to achieve it. Instead of making joint residence mandatory through coercion, a more humane solution would be to provide for state-funded marital counselling and mediation.
References & Authorities
1. The Hindu Marriage Act, 1955, Section 9 & Section 13(1A)(ii).
2. T. Sareetha v. Venkata Subbaiah, AIR 1983 AP 356.
3. Harvinder Kaur v. Singh Choudhry, AIR 1984 Del 66.
4. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90.
5. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
6. Code of Civil Procedure, 1908, Order XXI Rule 32.
