Constitutional Validity of the Section 9 of the Hindu Marriage Act, 1995

This remedy was known in England and was originally applied in India by the Privy Council for the first time in 1866 in Moonshee Bazloor v. Shamsoonaissa Begum; 1866-67 (11) Moo. Ind. App. 551. In England itself this remedy has been abolished in 1970.

There has been a lively controversy in recent times as to the constitutional validity of s. 9. It has been set at rest by the Supreme Court in Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.

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Earlier Conflicting Decisions:

The Andhra Pradesh High Court held in Sareetha v. Venkata Subbaiah, AIR 1983 AP 356, that s. 9 providing for the relief of restitution of conjugal rights is unconstitutional as it offends against Art. 21 of the constitution (Rights to liberty which includes right to privacy) and Art. 14 of the Constitution (Right to equality).

In that case the petitioner for restitution of conjugal rights was the husband and the petition was opposed by his wife who was a famous cinema star (Sareetha). On behalf of the wife it was argued that the right to privacy confers on a woman “a right of free choice as to whether, where and how her body is to be used for the procreation of children and also the choice of when and by whom the various parts of her body are to be sensed”. This freedom of choice is part of her right to privacy.

This is guaranteed by Art. 21 as part of her “liberty”. By recognising under s. 9 of the Hindu Marriage Act the remedy of restitution of conjugal rights the State is violating this fundamental liberty guaranteed by Art. 21. Further, the remedy violates Art. 14 by making this remedy available to both married men and married women, thereby treating as equals those who are inherently unequal and this is forbidden by Art. 14.

So it was urged that s. 9 is unconstitutional. Hon’ble Sri Justice P.A. Choudhary accepted this argument. He struck down s. 9 holding that it violates the wife’s right to privacy by compelling her to have sexual intercourse (probably leading to pregnancy) against her will. The husband’s petition for restitution of conjugal rights was accordingly dismissed.

The view of the Andhra Pradesh High Court was dissented from by the Delhi High Court in Smt. Harvinder Kaur v. Harmander Singh, AIR 1984 Del. 66. In this case also the husband was the petitioner for restoration of conjugal rights. His wife (Respondent) opposed the petition.

The decision of the Andhra Pradesh High Court (Sareetha’s case) was cited in support of the arguments that s. 9 is invalid. Mr. Justice Avadh Behari Rohatgi dissented from the Andhra Pradesh decision. According to him, sexual intercourse is only one of the elements in the concept of marriage. The courts do not and cannot enforce sexual intercourse.

The remedy of restitution aims at cohabitation (living together) and consortium (conjugal society) and seeks to uphold the institution of marriage. It is enforced not by imprisonment or detention of defaulter, but only by financial sanctions under the Civil Procedure Code. Further, it is only a step towards divorce.

If the decree is not obeyed for one year, the remedy of divorce can be sought under s. 13 (1-A). So “to declare s. 9 unconstitutional without having regard to s. 13 (1-A) is to take too narrow a view”. The constitutionality of s. 9 was upheld by the Delhi High Court. A decree for restitution of conjugal rights was granted when the wife was unable to show any good cause for withdrawing her conjugal society from the husband.

Supreme Court Decision:

In this state of case law, the Supreme Court resolved the conflict in Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562, the wife petitioned for restitution of conjugal rights. She was married in 1975 and had given birth to two daughters during her brief married life. She was turned out of her matrimonial house in 1977 and filed the petition on 17-10-1977.

On 21-3-1978 she was granted interim maintenance by the court in a sum of Rs. 185 per month. On 28-3-1978 the husband, filed a consent memo for the passing of the decree and the decree for restoration of conjugal rights was accordingly passed in favour of the wife.

One year later the husband applied under s. 13 (1-A) for divorce on the ground that he and his wife were still living separated though one year expired from the date of the earlier decree under s. 9. Two questions of law arose for consideration:

(i) Can the husband who failed to give effect to the decree for restoration of conjugal rights passed against himself apply for divorce under s. 13 (I-À)? Does s. 23 which provide that a party cannot take advantage of his own wrong stand in his way?

On the authority of the earlier Supreme Court decision in Dharmendra v. Usha Kumari, AIR 1977 SC 2218, it was held that mere disinclination to give effect to a decree for restoration of conjugal rights does not disqualify under s. 23 a person from seeking the benefit of s.13 (1-A). The misconduct must be something more than that. In this case, therefore, the husband is not barred by s. 23 (a) from claiming relief under s. 13 (1-A).

(ii) The second question of law was whether the decree passed under s. 9 was itself invalid as s. 9 is unconstitutional. If this is so s. 13 (1-A) (ii) will also fall to ground because it comes into play one year after the decree under s. 9 is passed. So, if the decree cannot be passed under s. 9 there would be no question of giving relief under s. 13 (1-A) (2) (ii).

The Supreme Court considered the cleavage of judicial opinion as between the High. Court of Andhra Pradesh and the Delhi High Court. It expressed its preference for the view of the Delhi High Court. Sabyasachi Mukhatji, J., of the Supreme Court observed: “we are unable to accept the position that s. 9 of the said Act (Hindu Marriage Act) is violative of Art. 14 or Art. 21 of the Constitution”. This is because firstly the purpose of the decree for restitution of conjugal rights is only “to offer inducement for the husband or wife to live together” and to settle their differences amicably.

Secondly, the only way of enforcement of the decree when there is willful disobedience is attachment of property, i.e. by financial sanctions. So the constitutionality of s. 9 was upheld. The husband was granted divorce but was required to pay maintenance to the divorced wife at the rate of Rs. 200/- per month until she remarries and of Rs. 300/- per month to the daughter until she marries. The successful respondent (Husband) was also required to pay the costs of the appeal (Rs. 1500/-) to the appellant.