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“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]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.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com