LOCATION OF SEAT OF ARBITRATION SHALL CONFER EXCLUSIVE JURISDICTION

 

LOCATION OF Seat of Arbitration shall confer exclusive jurisdiction

 

The Arbitration & Conciliation Act 1996 as amended and up to date have undergone periodic changes. The 1996 Act itself remained a comprehensive Act in itself replacing Arbitration Act of 1940. Onset of economic liberalization in 1990s had presented a situation of complete overhaul of Arbitration process and law and therefore the 1996 Act was in place. Several amendments in the 1996 Act was carried out thereafter. The issue of jurisdiction of arbitral tribunal and the courts remained a vexed issue. However, the same is no longer a vexed issue. The arbitration proceedings have provided impetus to the speedy resolution of disputes. The arbitration clause determines the premise of arbitration and the ambit of arbitration. The interference of the courts are minimal, in view of the object of speedy resolution of disputes. No doubt, the role of courts in any case cannot be undermined, even if the role of courts as stated is minimal. The same could also be borne out from the fact that as per settled judicial precedents, the arbitral award, if published cannot be set aside, if two plausible views were possible and even when the view taken by the Arbitrator is less plausible. Still, the role of courts, even though are for limited purposes, are still important, for, that provide safety valve or adequate safeguards i.e in case the award is perceived as against public policy or otherwise perverse. The judicial superintendence to the aforesaid extent is therefore imperative.

The issue of jurisdiction of courts and location of courts, where the matters of arbitral matters could be raised are of pivotal importance. We know that Arbitral award once published could be challenged before courts only on the limited premise, as indicated above. It is also significant that the issue of jurisdiction is to be determined by the Arbitral Tribunal itself u/s 16 of Arbitration & Conciliation Act 1996 as amended and up to date. In case, the Arbitral Tribunal rejects the objection as regards the jurisdiction of Arbitral Tribunal, the same can be chall4nged before courts u/s 1996 Act, but, only after publication of award and not before that. However, in case, the objection to jurisdiction of Arbitral Tribunal is upheld by the Tribunal, then, the same could be challenged before Courts by the aggrieved party or parties u/s 37 of Arbitration & Conciliation Act 1996 as amended and up to date. Of course, even the judgment passed by Courts u/s 34 of Arbitration & Conciliation Act 1996 is further appealable as per section 37 of the said Act.

Similarly, the Arbitral Tribunal is empowered to pass injunction order u/s 17 of Arbitration & Conciliation Act 1996, whether with regard to preserving subject matter of disputes or on such relevant issues relating to arbitral disputes. The courts are also empowered to pass appropriate orders for interim relief u/s 9 of the Arbitration & Conciliation Act 1996. What is of significance in the context is that section 9 of the said Act is generally invoked before invoking arbitration clause or in case there are clear intention to invoke arbitration clause. The interim order, if passed by the courts are stipulated purely of temporary nature and once arbitration is invoked, the Arbitral Tribunal is competent to pass the injunction order afresh and the interim order could be modified in the facts by the Tribunal.

Let us now come to the second limb of the write up i.e in case of challenge of arbitral award u/s 34 of the Act or for invoking Section 9 or Section 37 of the said Act, what will be the jurisdictional location of courts? In this context, the Arbitral clause itself shall be of vital importance. What is to be seen is, whether, the exclusive jurisdiction is vested in a courts of particular location? What are the seat of Arbitration? Where the subject matter of the arbitral disputes is located? Before going further, it is also imperative to point out that the element of cause of action is to be ascertained as regards the cause of action and where the cause of action have arisen? It is no res integra that even while conferring exclusive jurisdiction as per arbitral clause, cause of action or part of it is to arise in that location, else, the exclusive jurisdiction clause in itself without cause of action shall be meaningless. If cause of action has not arisen in a particular location, even if exclusive jurisdiction is conferred in that place shall be of no value, since where cause of action have not arisen, even through agreement that cannot be conferred on a particular courts. In other words, ouster of jurisdiction of a court shall be contingent upon existence of cause of action or part of it in a particular place, else, the ouster clause shall have no applicability. 

                     

It is held in Mcdermott International Inc Vs Burn Standard Co. Ltd & Ors  (2006) 11 SCC 181 that:

“112. It is trite that the terms of the contract can be expressed or implied. The conduct of parties would also be relevant factor in the matter of construction of a contract. The construction of the contract agreement, is within the jurisdiction of the arbitrators having regard to the wide nature, scope and ambit of the arbitration agreement and they cannot, be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties. It is also trite that correspondence exchanged by the parties are required to be taken into consideration for the purpose of construction of a contract. Interpretation of a contract is a matter for the arbitrator to determine, even if it gives rise to determination of a question of law”.

 

even if the property in question is outside of seat of arbitration: Supervisory jurisidction of “seat” remains intact

In the above reference, detailed analysis are provided in a matter reported as  Dipankar Singh & Ors Vs UOI Through NHAI 265(2019) DLT 358. Hon’ble Justice V Kameshwar Rao of Delhi High Court,  while relying upon and referring the following judgments:

(i)           Indus Mobile Distribution Pvt Ltd Vs Datawind Innovations Pvt Ltd & Ors III(2017) BC54 (SC)

(ii)         Reliance Industries Limited Vs Union of India V (2014) SLT 410

(iii)        Sundaram Finance limited Vs M.K Kurian & Anr 2006 (1) CTC 433

(iv)        Pacific Greens Infracon Pvt Ltd Vs Senior Builders Ltd 159 (2009) DLT 130

(v)          Jatinder Nath Vs Chopra land developers (P) Ltd & Anr III(2007) SLT 441

(vi)        Harshad Chiman lal Modi Vs DLF Universal Ltd & Anr VII (2005) SLT 240

The constitution bench judgment in Bharat Aluminium Co. Vs Kaiser Aluminium Technical Services Inc (2012) 9 SCC 552 has adverted to the issue “seat”  in some detail in para 96 of the said judgment:

96. We are of the opinion that “subject matter of the arbitration” cannot be confused with “subject matter of the suit”. The subject matter in section 2  (1)(e) is confined to part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the Courts having supervisory control over the arbitration proceedings. Hence, it refers to a Court which would essentially be a Court of the seat of the arbitration process. In our opinion, the Section 20 which gives recognition to party autonomy…… In our view the legislature has intentionally given jurisdiction to two courts i.e the Courts which would have jurisdiction where the cause of action is located and the Courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties.. Therefore, the Courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi (Delhi having been chosen as a neutral place as between a party from Mumbai and the other form Kolkata) and the Tribunal sitting in Delhi passes an interim order u/s 17 of the Arbitration Act 1996, the appeal against such an interim order u/s 17 must lie to the Courts of Delhi, being the Court of Supervisory jurisdiction over the arbitration  proceedings and the Tribunal. This would be irrespective of the fact that the obligation to be performed under the contract were to be performed  either at Mumbai or at Kolkata and only arbitration is to take place in Delhi. In such circumstances both the Courts would have jurisdiction i.e the Courts where the subject matter of the suit is situated and the Courts within the jurisdiction of which the dispute resolution i.e arbitration is located.”

In Reliance Industries (Supra) case, in para no. 19, the hon’ble Supreme Court has held as under:

“19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai Courts. Under the law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in Courts, a reference to “seat” is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction-that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of section 16 to 21 of the CPC to be attracted. In arbitration law however, as has been held above, the moment “seat” is determined, the fact the seat is at Mumbai would vest Mumbai Courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties”.

The hon’ble Delhi High Court in Dipankar Singh (Supra) in para 13 has therefore, summed up the issues based on the Supreme Court judgments. The summary that emerges thus is recorded by the hon’ble High Court as under:

(i)           Subject matter of Arbitration cannot be confused with the subject matter of the suit.

(ii)         The purpose of Section 2(1) (e) of Arbitration & Conciliation act 1996 has to be to identify the Courts having supervisory control over arbitration proceedings. It refers to the Court of the seat of arbitration process.

(iii)        Section 2(1)(e) has to be read with Section 20 which gives recognition to party autonomy.

(iv)        Legislature has intentionally given jurisdiction to two Courts i.e (a Courts where cause of action has arisen (b) Courts where arbitration takes place. This was necessary as the agreement may provide for a seat which is neutral to both parties and the Courts are to exercise supervisory control over the arbitration process.

(v)         The moment the seat is designated, it is akin to an exclusive jurisdiction clause.

CONCLUSION

Thus, the position that has emerged based on Bharat Aluminium (Supra) judgment rendered by constitution bench and as also followed by Delhi High Court in Dipankar Singh (Supra) that where the seat of the arbitration as agreed by the parties, is situated, the courts of that jurisdiction shall be competent to entertain challenge to the award u/s 34 of Arbitration & Conciliation Act 1996 and matters arising out of arbitration.  That is so, as the supervisory jurisdiction shall be vested in the said Court based on the provisions as contained in Section 2(1) (e) of the Arbitration & Conciliation Act 1996 and the judicial precedents evolved over the years.

                          --------------       

                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

REFUND OF ENTIRE COURT FEE BASED ON OUT OF COURT SETTLEMENT

 

Refund of entire court fee based on out of court Settlement

The suit or claim instituted by a party to the lis is to be valued in accordance with Suit Valuation Act and as per Court Fee Act, 1870 the court fee shall be payable. If the money value is sought to be recovered then ad valorem court fee shall be payable. However, during the pendency of the suit, the parties may settle the disputes. Earlier, there was no provision for refund of court fee in such cases.  Now, under the auspices of court mediation process, the court fee paid is liable to be refunded, if settlement is arrived at during the pendency of the case. The court fee shall also be refunded in case out of court settlement is reached between the parties as well.

In terms of Section 16 or 16 A of Court Fee Act 1870 based on settlement and pursuant thereto if the judgment is passed and decree is drawn, the court fee is liable to be returned to the plaintiff. However, before analyzing it further, Section 89 of Code of Civil Procedure shall also be of relevance in the context. 

Section 16:- Refund of fee.—

Where the Court refers the parties to the suit to any one of the mode of settlement of dispute referred to in section 89 of the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the collector, the full amount of the fee paid in respect of such plaint.] 

Section 16 A of Court Fee Act 1870:

Refund of Court Fees on settlement before hearing: Whenever by agreement of parties –

(i)            Any suit is dismissed as settled out of court before any evidence has been recorded on the merits of the claim; or

(ii)          Any suit is compromised ending in a compromise decree before any evidence has been recorded on the  merits of the claim; or

(iii)         Any appeal is disposed of before the commencement of hearing of such appeal; half the amount of all fees paid in respect of the claim or claims in the suit or appeal shall be ordered by the Court to be refunded to the parties by whom the same have been respectively paid.

(The section 16 A was provided for vide Court Fee (Delhi Amended) Act 2010 and assent of President was accorded on 17.01.2011)

From the foregoing provision of Section 16 A and as per the object of the Act, it appears that the legislature intended to provide for refund in a situation, where, the parties settle their disputes out of court and even without recourse to section 89 of the Code. Though, section 16 A is conditional and is to apply only in a settlement arrived at in pre-evidence stage and then too, it provides for 50% of refund of court fee only.

Section 89 of Code of Civil procedure

Section 89:Settlement of disputes outside the Court —

(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:–

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat: or

(d) mediation.

(2) Were a dispute has been referred –

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.”

HISTORY

The Section 16 of the Court fee Act 1870 and Section 89 of Code of Civil Procedure were inserted in the statute book by Code of Civil Procedure ( Amendment) Act 1999 which was made effective on 01.07.2002. It was also highlighted that in order to implement 129^th Report of Law Commission of India and also to make conciliation scheme effective, it should be made obligatory to the Court to refer the disputes after framing of issues for settlement either by arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. In case parties are failed to resolve the issues between them even after such alternate process as narrated above, that the matter should be proceeded with in Court in which the claim/suit is filed.

The hon’ble Supreme Court had the occasion to interpret Section 89 of CPC in a judgment reported as Afcons Infrastructure Limited Vs Cherian Varkey Construction Company Private Limited & Ors III (2010) CLT 351:

“7. If Section 89 is to be read and required to be implemented in its literal sense, it will be a Trial Judge's nightmare. It puts the cart before the horse and lays down an impractical, if not impossible, procedure in sub-section (1). It has mixed up the definitions in sub-section (2). In spite of these defects, the object behind Section 89 is laudable and sound. Resort to alternative disputes resolution (for short `ADR') processes is necessary to give speedy and effective relief to the litigants and to reduce the pendency in and burden upon the courts. As ADR processes were not being resorted to with the desired frequency, Parliament thought it fit to introduce Section 89 and Rules 1-A to 1-C in Order X in the Code, to ensure that ADR process was resorted to before the commencement of trial in suits. In view of its laudable object, the validity of Section 89, with all its imperfections, was upheld in Salem Advocate Bar Association Vs Union of India reported in [2003 (1) SCC 49 - for short, Salem Bar - (I)]  but referred to a Committee, as it was hoped that Section 89 could be implemented by ironing the ceases. In Salem Advocate Bar Association  Vs Union of India  [2005 (6) SCC 344 - for short, Salem Bar-(II)], this Court applied the principle of purposive construction in an attempt to make it workable”.

Section 16 of the Court Fee Act 1870 was also inserted vide the very same amendment, probably with a view to incentivize alternate dispute redressal mechanism.

The insertion of section 16 of the Court fee Act 1870 was carried out by an amendment and is consequential to the new section 89 of the CPC so as to enable the parties to claim refund of court fee in case the matter in dispute is settled outside the Court. It is of significance that Court fee Act 1870, as enacted did not have provisions of refund of court fee in suits in case of its earlier resolution or in case final adjudication was not required. Though, it is pertinent to mention that in Court Fee Act 1867 analogous provisions were there.

The Division bench of Delhi High Court has held in a matter reported as Nutan Batra Vs M/s Buniyaad Associates 255 (2018) DLT696 (DB). The hon’ble Division Bench has held in para no. 11 that:

“. On a literal reading of  Section 16, a plaintiff would be entitled to the refund of the Court fees on a mere reference to Alternate Dispute Resolution (ADR) under Section 89 of the Code of Civil procedure regardless of whether the reference ended in a successful settlement or not…..”

The 238^th Law Commission Report submitted in December 2011 and the Law Commission was critical of the drafting error which gives rose to conflict with section 21 of Legal Services Authorities Act (LSA) 1987 in as much as it is provided in LSA that in cases placed for resolution through Lok Adalat shall be refunded in a manner as provided under Court Fees Cat 1870, only if compromise or settlement has been arrived at between the parties. However, Section 16 of Court fees Act 1870 shall as per the plain language indicates that court fee shall be refundable merely on the reference to alternate dispute redressal mechanism, irrespective of its outcome. It implies that failed process of settlement and continuation of proceedings in court for adjudication shall also entitle a party refund of court fee.  It means that in most of the cases court fee shall be refunded to the parties on mere reference of seeking settlement. If this is to be understood, then every suit could be contested for free. It was never the object and intention of the Court Fee Act.

It may be noted that actual wording of the section and intention of legislature are in conflict. Clause 35 to the Amendment of Court fee Act 1870 clearly reflected that the proposed amendment is consequential to section 89 of CPC and court fee could be refunded upon settlement of disputes outside the Section.

There is clear conflict in what is contained in Section 16 of Court fees Act 1870 and Section 21 of LSA Act. It is certainly not a conscious departure, but confusion has emanated from the improper drafting. The Law Commission has recommended that provisions of The Court Fees Act 1870  should be amended to make it in sync with Section 21 of LSA 1987 so that court fee could be refundable only if the ADR resulted into settlement as that is the avowed object.

Though, validity of Section 89 of CPC despite its imperfection has been upheld in  Salem Advocate Bar Association (1) Vs Union of India (2003) 1 SCC 49, but while referring to a Committee it was hoped that anomaly of Section 89 of CPC shall be dealt with and ironed out.

The Division bench of Delhi High Court has agreed with the 238^th Law Commission Report in Nutan Batra (Supra) and it is further held that purpose of return of Court fee is only with a view to encourage a party to settle the disputes between them rather than to await for the adjudication in courts. However, in case the settlement process is failed, then, there could be no occasion or purpose to refund court fee. This is contrary to the intent of the legislation and therefore the anomaly is required to be done away with. In the interregnum, however, section 16 of The Court fee Act 1872 is invoked only in case of resolution of disputes between parties through the alternate dispute resolution process only and not otherwise. Clearly, that is the object of the amendment.

 In the above said context, the relevant precedents are in J.K Forgings Vs Essar Construction India Ltd & Ors in IA No. 9711/2009 in CS (OS) 156/2009 wherein Delhi High Court has held Section 16 of Court Fee Act 1870 shall be applicable in all circumstances in which parties arrived at settlement irrespective of stage of proceedings. In the said judgment the refund of court fee was permitted under section 16 of the Act even when out of court settlement was arrived at and not by recourse to Section 89 of Code of Civil Procedure. It was prior to the insertion of Section 16 A of the Code. Similarly, in Sayed Mohammed Rafey Vs Mumtaz Ahmed & Ors in FAO (OS) 343/2010 & in CM  9014/2010. The J.K Forging (Supra) was overruled by the Division Bench of Delhi High Court and it was held that if a statutary provision prohibits refund then no refund could be permitted. Of course, both J.K Forging (Supra) and Sayed Mohammed (Supra) was rendered before the insertion of Section 16 A by the Delhi amendment.

The Nutan Batra (Supra) judgment rendered by hon’ble Division bench has settled at rest the issue of refund of court fee in very clear term. The para 19 of the judgment is worth reference:

“19. A difficulty arises however, in the case of mediation/conciliation, initiated upon a reference by Court ( as understood in the light of Afcons (supra). These case can potentially fail both within Section 16 and Section 16 A of the Act. On a plain reading, Section 16 would apply as the parties are referred to mediation by an order of Court. However, Section 16 A would also apply, as long as the mediation is at pre-evidence stage of the suit, and the settlement agreement has been incorporated in a compromise decree. This court has framed Rules  under Part X and Section 89 (2)(d) of the CPC, entitled the Mediation & Conciliation Rules 2004. Rules 24 & 25 of the said Rules require an agreement between the parties to be reduced into writing and signed by them, which would be forwarded to the Court in which the suit or proceeding is pending. On receipt of the settlement agreement , the Court upon its satisfaction is required to pass a decree in terms thereof, that the parties have settled their disputes.

 In para 20 it is further held:

“In such a case, we are of the view that an interpretation of the statute inuring to the litigant’s benefit should be preferred. If plaintiff is able to demonstrate that the case falls within the requirement of Section 16, refund of the full amount of the Court fee ought to be granted.. However, as held by the Division Bench of this Court in Sayed Mohd Rafey (Supra), if the elements of the provision are not satisfied, then refund in terms thereof cannot be granted. It may then be examined as to whether the condition laid down in section 16 A have been fulfilled, so as to grant refund of 50% of the Court Fee paid.” 

CONCLUSION

From the broad analysis of the foregoing what is borne out is that The Court Fee Act 1870 originally did not contain the provision of refund of Court Fee. The same has been brought to the statute book for the first time in 1999, when Code of Civil Procedure was amended and Section 89 of CPC was made part of the Code and Section 16 was made part of The Court Fee Cat 1870, thereby making provision of refund of court fee. Though, In Court Fee Act 1867, the provision was there, but the same was done away with in Court Fee Act 1870. Since parliament has encouraged the process of mediation and settlement outside the court and as an incentive thereto, the provisions of refund of court fee in litigations such as suits is envisaged. Though, mere reading of section 16 shall entail as if mere reference to alternate dispute redressal (ADR) shall in itself, entitle a party to refund, irrespective of the outcome. That cannot be the intent of the legislature. No wonder, thus, that, the Law Commission of India in its 238^th Report had criticized it. The courts has recognized the anomaly and held that literal meaning of Section 16 of Court Fee Act 1870 shall lead to incongruous and unreasonable consequences. The provisions of Section 16 and Section 16 A of Court Fee Act, 1870 were to be harmonized and with a view to encourage out of court settlement not only through the mode of ADR i.e alternate mode of redressal of disputes, but in case of out of court settlement  arrived at by parties of disputes themselves. The judgment/precedents as reported in Nutan Batra( Supra) has settled the issue finally and for good measure with a view to encourage out of court settlement and also with a view to encourage settlement through alternate mode of redressal of disputes.

                                  -----------

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

SECTION 9 OF HINDU MARRIAGE ACT, 1955

 

Section 9 of Hindu Marriage Act, 1955

The provision of restitution of conjugal rights finds mention under section 9 of The Hindu Marriage Act (HMA) 1955 and any spouse can move to the Family court of a District for seeking restitution of conjugal rights. The underlying object of the restitution of conjugal rights are to re-establishment of the marital relationship between husband and wife. The object of marriage is that parties will consummate and shall be in comfort of each other. The idea behind the provision is to preserve the marriage or matrimonial union and to enable the courts to intervene, in case of necessity.

The principles of restitution of conjugal rights relates to a situation when either of the spouse withdraw from the society of others without any reasonable cause. In such a situation, the aggrieved spouse, my file a petition before a principal family courts of the concerned district for seeking restitution of conjugal rights. Before grating relief of restitution of conjugal rights courts, the petitioner shall have to satisfy the court as regards the truthfulness of the contents of the petition. If the court is satisfied about the contents of the petition, then, the court may pass the decree of restitution of conjugal rights.

 

In India, the remedy of restitution is available for different sects/religion. As regards Hindus, the same is provided for under section 9 of the Hindu Marriage Act. As for Muslims, the same shall be available under general law, amongst Christians, under Sections 32 and 33 of the Indian Divorce Act, 1869. In Parsi, under section 36 of the Parsi Marriage and Divorce Act, 1936. Apart from that under section 22 of the Special Marriage Act 1954 the similar provisions are there.

The provisions of Restitution of conjugal rights in section 9 of HMA 1955 is as under:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party 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.  [Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.] 

What are reasonable excuse?

The term ‘reasonable excuse’ used under Section 9 of HMA shall imply the following:

1.  In case respondent shall be entitled to matrimonial relief herself/himself against the petitioner spouse;

2.  If the petitioner is guilty of matrimonial misconduct which may not be a ground for divorce in itself or judicial separation, but may nevertheless constitute a reasonable excuse, being serious;

3.  If the petitioner is guilty of conjugal misconduct rendering the respondent almost impossible to live with the petitioner.

4.  The  following may be construed as reasonable excuse:

(i)   Cruelty.

(ii)  Demand of dowry

(iii)                 Refusal to cohabit

(iv)                 Impotency.

(v)   False accusations of adultery

(vi)    Any such act which makes it impossible for the other person to continue to live with  the petitioner.

 

This Section states that the court may grant a decree for restitution of conjugal rights under the following conditions:

(i)    If either of the party without giving any reasonable cause has withdrawn from the society of the other spouse;

(ii)   If the court is satisfied with the fact that the statements made in the petition are true;

(iii)      If there is no legal ground on which the petition shall be declined.

The prescription of Section 9 of Hindu Marriage Act, 1955

In order to prefer a petition u/s 9 of Restitution of Conjugal Rights, the Hindu Marriage Act, 1955, the following shall be the sine qua non:

(i)   The marriage between the spouse is legal, valid, and existing.

(ii) One of the spouse should withdraw from the society of the other.

(iii)  Withdrawal from society by a spouse should be unjust and unreasonable.

(iv)  The court should be satisfied with the contents of the petition and about veracity of it.

(v) There exists no legal ground to refuse the decree.

 

The petition for restitution of conjugal rights could be preferred by a n aggrieved spouse against other spouse before a family court having territorial jurisdiction over the area. The jurisdiction of the court shall be attracted as per the following parameter:

(i)            The location where marriage was solemnized;

(ii)          The place/location, where both the spouses lived together after marriage;

(iii)         The wife is presently residing.

If the opposite party/other spouse did not comply with the terms of judgment and decree passed by the competent family courts, even after expiry of one year from the date of the judgment, then the petitioner can institute a case of divorce.

Grounds for rejection of the petition

Upon receipt of a notice from a court of competent jurisdiction the respondent i.e other spouse may defend the petition u/s 9 of the HMA under the following parameter:

(i)                  If the petitioner is guilty of misconduct

(ii)                 If there existed a situation rendering living together of spouse impossible;

(iii)              Cruelty by the petitioner

(iv)               Remarriage of the spouse

(v)                Delay in the institution of proceedings

(vi)               If the petitioner has, for a period of not less than one year immediately preceding the presentation of the petition, been suffering from of leprosy or has been suffering from venereal disease in a communicable form.

The above are the broad parameter and for illustrative purposes only.

Execution of decree of restitution of conjugal rights:

After obtaining a decree of restitution of conjugal rights, the petitioner will have to file execution petition, in case the other spouse failed to comply with the terms of the judgment and decree. The petition or a party for execution shall have to be filed before the court who passed judgment and decree for restitution of conjugal rights. The execution petition shall have to be preferred under Order 21 rule 32 of Code of Civil procedure. The said provision is akin to execution of a decree of specific performance and in case the other spouse does not obey the terms of judgment and decree or omits to do so, then in execution the same can be enforced through a punitive measures such as :

(i)          Detention in civil prison; or

(ii)        Attachment of property.

What is of significance is that unlike a decree of specific performance of contract, for restitution of conjugal rights the sanction is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property..

CONSTITUTIONALITY OF SECTION 9 HMA

The very necessity of section 9 of HMA 1955 has been a subject of intense debate. The constitutionality of the said provision is also challenged. In T Sareetha versus Venkata Subbaiah AIR 1983 AP 356 , the Andhra Pradesh High Court has held that the provision was against the individual’s Fundamental Right to Liberty, Privacy and Dignity guaranteed by Article 21 of the Constitution. It was also felt that both husbands and wives, who are inherently in unequal positions and therefore ,provision of section 9 , violates the Right to Equality. It was held that, in effect, the decree compelling an unwilling wife to have sexual intercourse with her husband, violates her bodily autonomy. The court thus struck down Section 9 of the Hindu Marriage Act, declaring it to be violative of Article 14 and Article 21 of the Constitution.

The question was also raised subsequently before the High Court of Delhi in the case of Harvinder Kaur versus Harmander Singh, AIR 1984 Delhi 66 ,  but, the Delhi High Court had differed from Andhra Pradesh High Court.The Delhi High Court in para no. 73 and 74 had held as under:

“(73) It appears to me that restitution decree serves a legislative purpose in family law. As the poet has said: "There is a soul of goodness is things evil, Would men observantly distil it out."

(74) I might add that it may be that law is not always logical, but neither is human behavior. Law is much more concerned with human behavior than with logic. If human behavior ceases to be logical, than the law has to keep pace with human behavior, such as it is, and not as it would be in a logical world”.

The conflict was later resolved by the hon’ble Supreme Court in the judgment Smt Saroj Rani Vs Sudarshan Kumar Chadha 1984 AIR 1562.

It is held that in India  conjugal rights  i.e. right of the husband or  the wife  to the  society of the other spouse is not merely creature of the statute. Such a right is inherent in the very  institution of  marriage itself. There are sufficient safeguards in Section 9 of the Hindu Marriage Act to prevent it from being a tyranny. It is only a  codification of    pre-existing law. Rule 32 of Order 21 of the Code of  Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction. It is not violative of Article 14 or Article 21  of  the Constitution if the  purpose of the decree for restitution of conjugal rights in the said Act is understood in  its proper  perspective and  if the method of execution in cases of disobedience is kept in view.

The view of Delhi High Court was upheld and it was observed that that the objective of the decree was only an inducement for the spouses to live together, and that it did not force an unwilling wife to engage in sexual relations with the husband. The aim was only to bring about "cohabitation" between spouses, and therefore, it was only focused on "consortium".

CONCLUSION

The conflict in view, about the very necessity of section 9 of HMA has been in vogue since long. It is felt by many that the judgment and decree under section 9 shall tantamount to subjecting an unwilling wife to forced "cohabitation" and "consortium". In fact, it is argued by them that such decree in effect may subject the wife to forceful sexual intercourse with the husband. It is thus felt that section 9 of HMA compromises the basic rights i.e fundamental rights guaranteed under Article 21 of the Constitution of India. The judgment of restitution of conjugal rights, shall, according to them, shall strip a woman of her bodily autonomy and dignity which is the cornerstone of rights. It is also argued by the opposite side of Section 9 of HMA that the remedy of restitution of conjugal rights, in essence,  violates a person's right to opt or decide  The spouses in a marriage are not always on an equal footing, more so in  patriarchal society and if such a law is allowed to remain in statute book then, the remedy of restitution of conjugal rights could be used by husbands to strong-arm their wives in hegemony and force her into submitting to his company, irrespective of possible cruelty and domestic violence.

However, in the larger interest of society and due to the fact that the basic object of marriage is union of solemnity or a contract in some other cases, hence, it is understood that the family system, despite some hiccups could not be subjected to perceived constitutionality or lack of it and therefore in Saroj Rani (Supra) the Supreme Court has not allowed the submerging of the provision on the touch stone of constitutionality. No system could be infallible, but sensing it from the angle of selective wisdom alone may be catastrophical. There cannot be a better wisdom to the wisdom of several others. Law is codified after deliberation and upon analysis of whole gamut of things and legislating in any case is a domain of legislature, unless, vires of the provision is in question.  If the very institution of marriage is allowed to submerge to a selective wisdom owing to perceived unconstitutionality, then, the same may open the lid of Pandora box leading to chaos. The society needs stability and order. The Section 9 of HMA is still in statute book, in view of judgment of hon’ble Supreme Court in Saroj Rani (Supra) and the issue raised in opposition to that is set to rest.

                                        ------

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com