CONSTITUTIONAL VALIDITY OF RESTITUTION OF CONJUGAL RIGHTS
This article consists of the constitutional validity of restitution of conjugal rights in context with the cases of T. Sareetha and Saroj Rani Cases. This paper further talks about what is the meaning of conjugal rights in section 9 of Hindu Marriage Act, 1955. This paper also tries to link the personal laws with the fundamental rights of the Indian Constitution. It further goes on to explain how these rights violate article 19 of the Indian constitution but not article 14 and 21. The entire article is based on the problem as how restitution of conjugal rights are considered to an appropriate burden on the women and the scope of the paper is limited to the validation of restitution of conjugal rights in Indian constitution by focusing on some prominent cases.
At last this article also consists of some suggestions in the context of restitution of conjugal rights.
Key words: Restitution, conjugal rights, fundamental rights, personal laws.
Marriage is an important institution which has been recognized in all the personal laws of all the religions. With the passage of time, the complexities increased with areas such as divorce, judicial separation and conjugal rights and hence it became necessary to codify the laws relating to marriage in India. So, in the concept of marriage there exist certain rights between spouses which arise out of marital relationship with mutual relationship of companionship, support and sexual relations. Such kinds of rights are called as the conjugal rights. The word conjugal, means, “of relating to marriage or to married persons and their relationships”.
When there occurs a separation in marriage, then a remedy in the form of restitution of conjugal rights is offered to the aggrieved party. But in the recent times, this has led to a lot of dilemma regarding the constitutional validity of restitution of conjugal rights because the guarantee given by the Indian Constitution to every citizen regarding the protection of fundamental rights has left some scope for ambiguity in this provision.
A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law. Decree of restitution of conjugal rights could be passed in case of valid marriages only.
Section 9 of the Hindu Marriage Act, 1955 provides for restitution of conjugal rights which states that; “When either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved 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”.
The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Honorable High Court held that the section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.
The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law.
The restitution of conjugal rights is considered as the matrimonial remedy. It is considered as a positive remedy that requires both the parties to the marriage to live together and cohabit. The text of Hindu law also speaks that, ‘let mutual fidelity continue until death’. The old Hindu law mostly focused on the wife’s implicit obedience towards her husband but did not lay any procedure for compelling her return to her husband against her will. This concept was introduced in India in the case of Moonshee Buzloor v. Shumsoonissa Begum, where the actions were regarded as the conditions for specific performance.
The requirements of the provision of the restitution of conjugal rights are as follows:
1) There should be withdrawal by the respondent from the society of the petitioner.
2) The withdrawal should be without any reasonable cause or excuse or lawful ground.
3) There should be no other ground for refusal of the relief.
4) The court should be satisfied about the truth of the statement made in the petition.
When the question arises whether there has been a reasonable excuse for withdrawal from the society, the burden of proving with reasonable excuse always lies on the person who has withdrawn from the society but this concept is secondary in nature. The primary object of showing proof lies with the petitioner. Once the petitioner has proved his case, the burden of proof then shifts to the other party so as to prove the defense of reasonable excuse. The word ‘society’ here corresponds to cohabitation and the word ‘withdrawal’ signifies cessation of cohabitation. This must be the voluntary act of the respondent. In case of, Sushila Bai v. Prem Narayan, the husband virtually dumped his wife and thereafter was totally unresponsive towards her. This behavior was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.
The defense to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defense to a restitution petition. The courts have held in various cases that the following situations will amount to reasonable excuse to act as defense in the cases where;
1) For a ground a relief in any matrimonial case.
2) A matrimonial misconduct which is not amounting to a ground of matrimonial cause, if it is sufficiently weighty and grave in nature and,
3) Such an act or omission or conduct which makes it impossible for the petitioner to live with the respondent.
Also, under section 13 (1-A) of the Hindu Marriage Act, 1955, if the spouse fails to return home after such a decree of restitution of conjugal rights, then it can amount to the condition of divorce.
Restitution of Conjugal Rights is a part of the personal laws of a particular individual. It means; they are guided by ideals such as religion, tradition and customs. But according to article 13 (3) of the Indian constitution,
(a) ‘Law’ includes any ordinance, order, bye-law, rule, regulation or notification, custom or usage having in the territory of India, the force of law,
(b) ‘Laws in force’ includes laws passed by the legislature or any competent authority in the Indian territory before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
In the case of, State of Bombay v. Narasu Appa Mali, the court stated that, the concept of law in Article 13(3) must be read with 13(2). If done so, then the state cannot make a custom or create usage in the society. Customs and usages are a product of individual behavior and no legislature can pass a custom. Though personal laws do consist of customs, their scope is not filled within them. It was thus realized that personal laws do not mean customs as under article 13(3) of the Constitution and are distinct. However, it is believed that even if a personal law is to be held valid, it must not be in violation of any of the fundamental rights mentioned in part III of the Constitution.
The constitution of India is based on the principles of the human dignity, equality and personal liberty. The marital relations are intensively concerned with the fundamental rights of the Indian Constitution.
Right to equality and restitution of conjugal rights
The Indian society is known for its discrimination on the basis of gender. It is seen that there is an inequality in the Indian society with regards to conjugal rights because a suit for restitution by the wife is very rare in the Indian society. In India, this matrimonial remedy of restitution of conjugal rights is used almost exclusively by the husband and rarely resorted to by the wife.
According to article 14 of the Indian Constitution,
“The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India”.
The guiding principle is that all persons and things similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. All equals must be treated equally amongst themselves and unequals unequally. There is no gender discrimination in section 9 of the Hindu Marriage Act, 1955 and everyone is treated equally on the basis of their particular gender. Section 9 of the Hindu marriage act, 1955 cannot be stuck down as the violative of article 14 of the Indian Constitution.
The decision in T Sareetha v. Venkatasubbaiah case
The constitutional validity of section 9 of Hindu Marriage Act, 1955 was challenged in this case. In this case, the husband asked the court to pass the decree of the restitution of conjugal rights after the completion of the year when he had filed for divorce on the ground that decree has not been compiled to. The constitutional validity of section 9 of Hindu marriage act, 1955 was challenged by the wife in the Andhra Pradesh High Court, where the court struck down the provisions as unconstitutional. Justice.Chaudhary held that section 9 of this particular act is, ‘savage and barbarous remedy violating the right to privacy and human dignity guaranteed by article 21 of the Indian constitution and hence it is void.’
Right to Life and Restitution of Conjugal Rights
Right to life is considered as the most important aspect of the fundamental rights. It is stated under article 21 of the Indian constitution, (Protection of life and personal liberty)
“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
This right has conferred a paramount position by the Supreme Court. Over the years, this right has also included within its scope, the right to education, the right to privacy, the right to speedy trial. It is believed that section 9 of the Hindu Marriage Act, 1955 violates article 21 of the Indian constitution. It is believed that section 9 denies the spouse of his/her particular choices.
Our constitution embraces the right to privacy and human dignity and it should protect the personal intimacies of the home, the family, marriage, motherhood procreation and child bearing. Restitution of conjugal rights is only willful in nature and the courts should use it as an inducement at the times. Moreover, if a spouse does not wish to stay with his/ her partner then one can opt for remedies such as judicial separation and divorce. Leaving a partner without any reasonable cause is not justified. This is altogether against the concept of justice, equity and good conscience which are the basis of law in our country. In the case of, Saroj Rani v. Sudharshan Kumar Chadha, the court observed that the scheme of restitution of conjugal rights acts as an aid to the prevention of breakup of marriage. Thus, Section 9 of the Hindu marriage act, 1955 is not violative of article 21 of the Indian constitution.
Right to Freedom and Restitution of Conjugal Rights
It is assumed that the restitution of Conjugal rights violates the freedom of expression, association and other freedoms guaranteed under Article 19 of the Constitution. Article 19 (1) of the Indian Constitution prescribes for the freedom to form associations and reside in any area in India, the freedom to practice any profession and the freedom of free speech and expression. But one should remember that, this right is not an absolute right. There are certain restrictions mentioned in the form of Article 19(6) which are in the form of public order, morality and health.
It is believed that restitution of conjugal rights violates article 19 (1) (c) of the Indian constitution. In the case of, Huhharam v. Misri Bai the wife had complained to the Court that her father-in-law had an evil eye on her and her husband ill-treated her. In response to the husband’s claim for a restitution decree, the court granted it in the husband’s favor. This is a perfect example of a forced union of spouses which is contrary to the right guaranteed under Article 19(1) (c). Thus it is held that the restitution of conjugal rights violates this article.
There are situations in urban areas where both the spouses work before the marriage and after the marriage a decision has to be taken as who will shift and who will have to leave his/her job. In such cases usually the husbands claim the decree of restitution and request the courts to order their wives to resign from their respective jobs and live with them under their roof and protection. Asking for such a decision is quite immature in nature. Such a provision is the violative of article 19 (1) (e) and article 19(1) (g) of the Indian constitution. On the other hand, the court in many cases has also held that, the refusal of a spouse to leave his/her job and live with the other does amount to ‘withdrawal from the society of the other.’
In today’s world one must understand that, the women has right to work and express herself and the marriage should not act as a hurdle for her. However the constitutional validity of section 9 under this article still remains as question. But in certain provision it has violated article 19 of the Indian constitution.
The Decision in Saroj Rani v. Sudharshan Kumar
In this case, the wife filed the petition for the decree of restitution of conjugal rights. She was married in 1975 and had 2 daughters from this brief marriage. Soon she was turned out of her matrimonial house in 1977 and subsequently she filed for the petition for which she was granted an interim maintenance from the court. Later, the husband filed the consent memo for passing of the decree and hence the decree of restitution of conjugal rights was accordingly passed in the favor of wife. After 1 year, the husband filed the petition for divorce under section 13 of Hindu marriage act, 1955 on the ground that he and his wife had lived separately during the one year period. It was held that the ground for divorce was unjustified and the husband was getting away with his ‘wrongs’. It was further held that section 9 of the Hindu Marriage Act, 1955 violates article 14 and 21 of the Indian Constitution. The Hon’ble Supreme Court under Justice Sabyasachi Mukhatji observed:
“We are unable to accept the position that Section 9 of the Hindu Marriage Act is violative of Art. 14 and 21 of the Indian Constitution. Hindu Marriage is a sacrament and the object of section 9 is to offer an inducement for the husband and wife to live together in harmony. If such differences may arise as in this case, it may be a valid ground for divorce after a period of one year. Hence Section 9’s validity is upheld”.
The court in this case granted for divorce in this case but taking into consideration the situation of wife and daughters, the court ordered the husband to provide maintenance to wife and daughters, till the wife does not remarries.
The concept of restitution of conjugal rights violates article 19 of the Indian constitution and not any other articles which are provided under part III of the Indian constitution. After cases such as of Sareetha and Saroj Rani, the constitutional validity has seen a new dimension. In such an area it is difficult for the personal rights and fundamental rights to come together.
Suggestions can be laid that, instead of term restitution to be used one can use the term reconciliation as it sounds mild and convincing. In the matters of reconciliation, court can appoint a committee instead of taking the matters in its own hands. This leads to an inoffensive approach and solves the misunderstanding. But if the committee fails in a particular case, it can appoint an expert in that particular field as their guide. This procedure can be termed as counseling. The chances of success of reconciliation are higher than the chances of intervention by courts. Perhaps this will led to reduce the burdens on the courts, since no cumbersome procedure is involved. In fact, reconciliation can be considered as the fast, practical and effective solution to the restitution of conjugal rights.
 AIR 1983 AP 356
 AIR 1984 DEL 66
 1984 SCC90
 S.J. Peasants, “Hindu Women and the Restitution of Conjugal Rights : Do we need a remedy”
 (1867) ii, Moo IA 551.
 AIR 1964 MP 225
 Aditya Swarup, Validity of Restitution of Conjugal Rights, 2018
 Shakuntala v. Babu Rao, AIR 1963 MP 10
 Article 13(3), the Indian Constitution.
 AIR 1952 Bom 84
 Aditya Swarup, Validity of Restitution of Conjugal Rights, 2018
 Vijendra Kumar, “Restitution of Conjugal Rights : An Analysis with Reference to Fundamental Rights”, Ranbir Singh and Vijendra Kumar, (eds.), MATERIALS AND CASES ON FAMILY LAW-I, 2006, p. 42
 Article 14, the Constitution of India
 Satish Chandra v. Union of India, AIR 1953 SC 250
 Builders Association of India v. Union of India, (1989) 2 SCC 645; Prem Chand Shah v. Union of India(1991) 2 SCC 48.
 Article 21, the Constitution of India
 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : Kehar Singh v. Union of India, AIR 1989 SC 653
 TMA Pai v. State of Karnataka, AIR 2000 SC 1301
 Govind v. State of M.P., AIR 1975 SC 1378
 Hussainara Khatoon v. Home Secretary of Bihar, AIR 1976 SC 1360
 Vijendra Kumar, “Restitution of Conjugal Rights: An Analysis with Reference to Fundamental Rights”, Ranbir Singh and Vijender Kumar, (eds.), MATERIALS AND CASES ON FAMILY LAW, 2006, p.42.
 Saroj Rani v. Sudharshan Kumar Chadha¸ AIR 1984 SC 1652
 41 Article 19(1) (g) The Constitution of India
 42 Article 19(1) (c), The Constitution of India
 43 Article 19(1) (a), The Constitution of India
 AIR 1979 MP 144
 Tirath Kaur v. Kirpal Singh, AIR 1964 Punj 28: Surinder v. Gurdeep, AIR 1973 P & H 20 : Kailashwati v. P. Prakash, P.L.R. (1977) 216.
 AIR 1984 SC 1652