Conjugal Rights - Constitutional Validity of Section 9 of Hindu Marriage Act, 1955
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Section 9 of the Hindu Marriage Act, 1955 deals with the restitution of conjugal rights. This article deals with the concept of restitution of conjugal rights and why its validity is a challenge on constitutional grounds?
Table of Content:
- Introduction
- What is Section 9 of the Hindu Marriage Act, 1955
- What is Restitution of Conjugal Right
- Conjugal Rights – When First Introduced
- Essential Elements of Conjugal Rights
- Constitutional Validity of Conjugal Rights
- Conclusion
- Case Laws
- MoonsheBuzloor Ruheem vs. Shumsoonissa Begum
- Kateeram Dokanee vs Mst. Gendhenee
- Itwari vs Asghari
- Tirath Kaur vs Kripal Singh
- Gaya Prasad vs Bhagwati
- Vibha Srivastava vs Dinesh kumar SrivastavaChandra Roukar & ors.
- Chandra Roukar & ors.
- Sareetha vs. T. Venkata Subbaiha
- Harvinder Kaur vs Harminder Singh
- Saroj Rani vs Sudharshan Kumar Chadha
- Suchitra Srivastava v. Chandigarh Administration
Introduction
Marriage is considered to be the sacramental relationship between a man and a woman which is socially acceptable. But with the passage of time, the institution of marriage is more of a civil contract than a sacramental union. Therefore, many a time’s the relation of husband and wife become bitter and they opt to live separately. Hence section 9 deals with such situations.
The marriage of Hindus is governed by the Hindu Marriage Act, 1955.
What is Section 9 of the Hindu Marriage Act, 1955
Section 9 of the Hindu Marriage Act, 1955 deals with the restitution of conjugal rights. This section applies when either the husband or the wife opts to live separately but the other one wants to reconcile with their respective spouse. This article deals with the concept of restitution of conjugal rights and why its validity is challenged on constitutional grounds?
What is Restitution of Conjugal Rights
If in a situation either husband or wife leaves the other spouse and starts living separately without any reasonable excuse, then, under section 9 of the Hindu marriage act, 1955, spouse may file a petition before the district court for the restitution of their conjugal rights. if the district court is satisfied that there is no sufficient ground or reasonable excuse to live separately then passes a decree of restitution of conjugal rights and ordered the respondent spouse to come and live with her wife (in case of husband) or with husband (in case of a wife). However, Section 22 of the special marriage act, 1954 also deals with the restitution of conjugal rights as section 9 of the Hindu marriage act, 1955 is only applicable to the Hindus. The explanation provided in section 22 of the Special Marriage Act, 1954 states that if there is a presence of a reasonable ground or cause for such withdrawal then the burden of proof to prove such reasonable ground must be on the person who stated such ground and if he/ she succeeds in proving such ground then the court cannot grant such right.
Conjugal Rights – When First Introduced
The concept of restitution of conjugal rights was introduced in India by the British crown but after Independence, many leaders such as former MP Khardekar, Brombley an author, etc. opposed this law. The concept of restitution of Conjugal rights was introduced by the court in the case of Moonshe Buzloor Ruheem vs. Shumsoonissa Begum [(1867) 11 MIA 551]. However, the privy council laid down that the concept of Restitution of Conjugal Rights is also applicable among the Muslims in the case of Kateeram Dokanee vs Mst. Gendhenee [1875 23 Suth W.R. 178].
Essential Elements of Conjugal Rights
Section 9 of the Hindu Marriage Act, 1955 provide the followings elements that must be fulfilled to claim the restitution of conjugal rights:
- Withdrawal from the community of the spouse.
- The withdrawal shall be without any reasonable cause or any sufficient ground.
- No other legal grounds for denying relief should exist.
- The court must be satisfied with the contention of a petitioner.
The term reasonable excuse must be taken into consideration by the court liberally as there is no hard and fast rule for that. The reasonable excuse can be any sufficient ground which forces someone to deprived himself or herself to live separately such as if one spouse is being cruel with the other; conversion of religion; any kind of diseases like leprosy, lunacy, etc.; unsoundness of mind; etc. In Itwari vs Asghari [(1960) AIR 684] the High court held that the conversion of religion is a kind of cruelty and is considered to be a sufficient ground to live separately.
The words used in the section like withdrawal or reasonable excuse have not defined anywhere in the act and therefore many questions regarding the interpretation of these words were raised such as if a wife leaves her husband because he denies her to do a job considered to a reasonable excuse? The answer to this question is given by Punjab and Haryana High Court in the case of Smt. Tirath Kaur vs Kripal Singh [AIR 1964 Punjab 28] the wife Smt.Tirath Kaur used to live separately to do her job and her husband often used to visit her to take a part of her income but when he starts demanding more money wife refused to give him money and as a consequence husband asked her to leave her job and come and live with him and he filed a suit under section 9 of the Hindu Marriage Act, 1955. J. Grover of the Punjab and Haryana High court held that withdrawing the community of a husband to do a job is not a reasonable excuse and the court passed the decree of restitution of Conjugal rights under section 9 of the Hindu Marriage Act, 1955. Based on this judgment of the Punjab and Haryana High court various other cases were decided. In Gaya Prasad vs Bhagwati [ 1996 MP 212] J.Bhargava said that as per the Hindu customs, Hindu wife fulfills her marriage obligation at her husband’s residence and cannot impose her sole decision on her husband to come and live with her at her place where she is engaged in her service.
However, an opposite judgment was passed in the cases Smt. Vibha Srivastava vs Dinesh kumar Srivastava [AIR 1991 MP 346] and Shanti Devi vs Ramesh Chandra Roukar & ors. [AIR 1969 Pat 27] where the Madhya Pradesh and Allahabad High court held that a denial to leave her job is not constituted as a ground for her withdrawal from her husband’s community.
Constitutional Validity of Conjugal Rights
For the very first time, the issue regarding the constitutional validity of section 9 of the Hindu Marriage Act was raised in T. Sareetha vs. T. Venkata Subbaiha [ AIR 1983 AP 356] in which the Andhra Pradesh High Court held section 9 of the Hindu Marriage Act, 1955 as unconstitutional as it violates the right to privacy of a person which is a fundamental right guaranteed under Article 21 of the Constitution of India. J. P.A. Chaudhary opined that forcing a spouse to live with his/her spouse is not serving any public purpose rather forcing someone to unwillingly live with someone is an infringement of Article 21 and also somewhere it touches the provision of Article 14 of the Constitution of India as Article 14 provides equal protection of the law and therefore if the court forced to someone to live with their respective spouse against their wish is doing injustice with them.
The decision of the Andhra Pradesh High Court is opposed by the Delhi High Court in the case of Harvinder Kaur vs Harminder Singh [AIR 1984 Del 66] where J. Rohtagi stated that J. Chaudhary declares section 9 of the Hindu Marriage Act, 1955, i.e., the Restitution of Conjugal rights void on the basis of sex which is not an appropriate ground.
Finally, the matter comes before the Hon’ble Supreme Court in the case of Saroj Rani vs Sudharshan Kumar Chadha [ AIR 1984 SC 1652] in which the apex court overruled the judgment of T. Sareetha’s case by a single-judge bench of the Andhra Pradesh High Court where J. Sabyasachi Mukherjee held that the purpose of section 9 is to reunite the husband and wife to live under a roof with the same love and affection and it doesn’t state that the spouse is forced to maintain a sexual relationship and hence we cannot uphold the constitutional validity of section 9 of the Hindu Marriage Act, 1955 as void as it doesn’t violate the Article 14 and Article 21 of the constitution.
Conclusion
The judgment of the apex court and the Andhra Pradesh High Court was supported as well as criticized also.
Arguments in favour of Andhra Pradesh High Court Judgment
It was contended that the concerned section related to the restitution of conjugal right must be declared void because:
- The primary purpose of section 9 of the Hindu marriage act, 1955 is to reconcile the husband and wife to live with love and affection under the same roof but when a petition is filed in the court many a time the motive of the party filing such suit is ulterior and therefore, it defeats the policy of section 9.
- Section 13 (1-A) provides that non-compliance with the decree of restitution of conjugal rights can be made as to the ground for divorce and this ultimately defeats the purpose of section 9.
- The choice to live with a spouse is very much personal and the interference of court by forcing a spouse to live with another spouse can bring bitterness in the relationship of husband and wife.
- In Suchitra Srivastava v. Chandigarh Administration [(2008) 14 SCR 989]the apex court held that the choice regarding the sexual activity of a person is very much covered under the provision of Article 21 of the Constitution of India and hence forcing a spouse to live with their respective spouse also amount to infringement of the right to privacy.
Arguments in favour of Hon’ble Supreme Court Judgment
The apex court along with the Delhi High court judgment in Harvinder Kaur’s case contended the continuation of section 9 because of the following reason:-
- The primary aim of the section is to save the marriage and if there is no sufficient ground to discontinue living together or break the marriage then why should not give an effort to save that institution.
- The restitution also a way of providing a cooling period as it provides that if the decree of restitution doesn’t comply within one year then it can be treated as a ground for divorce and in this period both husband and wife rethink their relationship and still if their relationship doesn’t stand then they can go for divorce.