Restitution of Conjugal rights under Hindu Marriage Act, 1955
Hindu marriages are regulated by the Hindu Marriage act, 1955. To provide relief to the aggrieved spouse, there are certain matrimonial remedies that are provided to the individuals to obtain relief. The matrimonial remedies are namely; restitution of conjugal rights( section 9) , judicial separation (section 10 ), void and voidable marriages( section 11 and 12), divorce (section 13), divorce by mutual consent( section 13-B).
Marriage is a union between two individuals where there is an obligation between them to live harmoniously and share their lives with each other. As per the Hindu Marriage Act, a marriage is both a sacrament and civil union and each spouse has an obligatory duty to one another. In any instance that a spouse fails to reside in one’s matrimonial home and leave the other without any reasonable cause and withdraw oneself from the matrimonial society; the deserted spouse, being the affected one can file a complaint with the district court for restitution of conjugal rights. For example, if a wife in a marriage leaves the husband and her matrimonial home and lives elsewhere without proving any reasonable cause, the husband can file a petition for the wife to come back. This petition is the restitution of conjugal rights . This concept of restitution of conjugal rights was based upon English matrimonial laws. The first application of this concept in India was seen applied by the Privy Council in the case of Moonshee Bazloor v. Shamsoonaissa Begum , but later on this remedy was abolished in England in 1970.
Section 9 of the Hindu Marriage Act 1955
Section 9 of the Hindu Marriage Act 1955, states that when either the husband or the wife has, without reasonable excuse, has withdrawn from the society of the other, aggrieved party may apply, by petition to the District Court for restitution of conjugal rights. The Court may issue a decree restitution of conjugal rights only if its satisfied with the statements made in the petition. The term ‘reasonable excuse’ was inserted in the amendment act of 1976 where it stated that the burden of proving reasonable excuse is purely on the spouse who has withdrawn from the marriage and society.
ESSENTIAL CONDITIONS TO BE FULFILLED UNDER SECTION 9
To obtain relief under Section 9 of the act, there are certain essentials and condition to be fulfilled such as;
- the marriage must be a valid marriage and should fulfill all necessities and essentials of a valid marriage under the Hindu Marriage Act.
- The second essential to obtain a decree of restitution is withdrawal of the deserting spouse without any reasonable cause or excuse. The court determines the truth or validity behind the excuse provided and issues the decree accordingly.
- The court is satisfied with the truth of the statements made in the petition.
- There is no legal ground on which the petition should not be granted.
Section 5 of the act deals with the essentials for a valid Hindu Marriage. Only if a marriage is legal under the act, restitution can be granted.
Cruelty or violence by any of the spouse can act as a reasonable excuse or cause to detach from the matrimonial home and society. In the case of Sumanbai v. Anand Rao, baseless imputation of unchastity on the wife by the husband amounts to cruelty and can be a reasonable cause to the other spouse to withdraw from the society of the husband. The court was also of the opinion that impotency on part of the husband and forcing his wife to consume non – vegetarian, to consume alcohol, and to smoke amounts to reasonable cause to withdraw from the society of the husband.
Agreements made to live separately is not valid. If the parties to a marriage have made an agreement to live separately, then it is not valid. In the case of Petearaju v. Radha, the parties to the marriage entered into an agreement to live separately. The husband agreed to live with his wife at her foster father’s house. After the marriage, he returned to his home and wanted his wife to live with him. On her refusal, he filed a petition under section 9 seeking restitution. The court granted his petition on the basis that agreement by parties to a marriage to live separately is not valid.
On withdrawal of the wife from the society of the husband with reasonable cause. The law provides for maintenance for the wife. She is entitled to maintenance and separate residence under Section 18 of the Hindu Adoption and Maintenance act 1956.
CONSTITUTIONAL VALIDITY OF SECTION 9
There have been various instances where the constitutional validity of section 9 was questioned. Various scholars and jurists are of the opinion that this section is violative of the right to equality ( section 14) and personal liberty ( section 21) of the Indian Constitution. For instance, if a wife is employed in a different place and is not able to continue residence in the society of the Husband. The husband may ask her to resign and join him. If she refuses to resign, the husband may file a petition and the court may direct her to join the husband under Section 9. This can be inferred as violative of right to equality and personal liberty. This question of the constitutionality of the section came into question n the famous case of T. Sareetha v. T.Venkata Subbiah. In this case Sareetha, a famous film star got married to Venkata Subbiah; who in this case is the petitioner. After their marriage, she went to live with her parents in Madras and remained there. Venkata Subbiah filed a petition under Section 9 for Restitution. Considering the facts, the trial court granted the decree. It was later on appealed to the High Court of Andhra Pradesh where a landmark judgement was delivered by P.A Choudary in which he denied the relief under section 9 and struck it down as it was violative of the wife’s right to privacy by compelling her to have sexual intercourse which may or may not lead to pregnancy against her will. It was against the basic rights available to the citizens of our nation. But later on, the decision of the Andhra Pradesh High Court in Sareetha’s Case was dissented and the constitutionality of section 9 was upheld by the Delhi High Court in the case of Smt.Harvinder Kaur . Harmandir Kaur. This led to a conflict in determining the constitutionality of Section 9 of the Hindu Marriage Act and was finally resolved in the Supreme Court in Saroj Rani v. Sudarshan Kumar. In this case the court favored the opinion of the Delhi High court and upheld the constitutional validity of Section 9 of the act. The court stated that the idea of Section 9 is to preserve the marriage and is therefore not violative of section 14 or 21 of the constitution.
Author: Anil George,
Christ University, 2nd year