n 1983, the Indian Supreme Court held that the right to privacy did not guarantee the

autonomy of an individual over her own body, and so the restitution of conjugal rights under
section 9 of the Hindu Marriage Act could not be said to be unconstitutional on the ground
that it violated the right to privacy. 

n 1983, the Andhra Pradesh High Court struck down section 9 of the Hindu Marriage Act, which
provided for the restitution of conjugal rights, as unconstitutional. Justice Choudary held that
compelling a person to live with his/her spouse violated the right to privacy in the Indian Constitution.
This decision was later rescinded by the Delhi High Court in Harmander Kaur v Harvinder Singh
Choudhry and the judgment of the Delhi High Court was affirmed by the Supreme Court in Saroj Rani
v Sudarshan Kumar Chadha. The fundamental issue at the heart of this debate has been whether the
right to privacy extends to the home and marital relationships.

Even less than a year later, in Harvinder Kaur v. Harminder Singh,[9] the Delhi
High Court ruled in favour of the husband considering Section 9 of HMA as an
attempt to preserve marriage. Court held that if the marriage cannot be
resolved post-decree it will be dissolved. Also, if both parties do not cohabit
together it will be dissolved on the grounds of non-compliance by the Court.
So a cooling-off period must be given to spouses before they break their
relationship abruptly. Finally in Saroj Rani v. Sudarshan Kumar Chadha,
[10] the Supreme Court upheld the judgement of the Delhi High Court stating
restitution is like a preparation for divorce if the parties are not willing to live
with each other

The dictum of Justice Chaudhary did not find favor with the Delhi High Court
when it was questioned in Harvinder Kaur v Harminder Singh.[6] Justice
Rohtagi observed “Justice Chaudhary in the case of T. Sareetha has over-relied
on sex is the basic fallacy in his opinion. As per J. Rohtagi, J. Chaudhary only
seems to suggest that restitution of conjugal rights order has only a maiden
purpose, that is, to force the disinclined wife to enter into sexual intercourse
with her husband.”[7]

The matter then finally came before the Supreme Court in Saroj Rani v
Sudarshan Kumar Chadha[8] where the Supreme Court overruled T
Sareeta[9] relying on the judgment of Justice Rotagi in Harvinder Kaur. Justice
Sabyasachi Mukarji observed that “it cannot be viewed in the manner the
learned single Judge bench of the Andhra Pradesh High Court has viewed it and
we are unable to hold that S.9 to be violative of Article 14 and Article 21 of the
Constitution.”[10] The judgment was held in favor of Section 9 of the Hindu
Marriage Act of 1955, in the legal sphere as declared by the apex court and,
most of all, the principle of restitution of conjugal rights stands constitutional in
the Indian legal system.

With regard to the violation of Article 14 of the Constitution, the Court ruled
that there is complete equality of both genders and equal safeguard of the laws
so far as the relief is concerned, thus, Section 9 could not be held to be in
violation of Article 14 of the Constitution because by the amending Act 44 of
1964 “either party to a marriage” is allowed to present a petition on the ground
given in Section 13 (I-A). 

With regard to the violation of Article 21 of the Constitution, the Court observed
that the only purpose of the remedy is ‘cohabitation’ and it is not enforcing
sexual intercourse between the unwilling spouse. The court denounced the
introduction of Constitutional Law into family law since it will prove a ruthless
destructor of the institution of marriage.

The aim of the Restitution Decree was only to encourage a united marriage and
to prevent an unwilling woman from engaging in sexual intercourse with the
husband. The only objective was to achieve ‘cohabitation’ between spouses, and
therefore, ‘consortium’ was only concentrated.

However, it was perhaps not realized by the Supreme Court and the Delhi High
Court that marital rape was legal in India. The husband can very well force his
wife to enter into sexual relationships without implications, except with a long-
drawn-out petition for divorce based on cruelty or a petition for domestic
violence bas

B. Analysis: Why it should stay in force?

1. The true objective of the section:
Just because a section has the scope to be misconstrued, it doesn’t imply it
should cease to exist. Its aim is to save one of the primary facets of marriage
and resume cohabitation. There is no reason to prevent cohabitation if there is
nothing wrong with the marriage and the way consent has been acquired. 

Article 14 is incorrectly alleged to be in the breach: this section has become

gender-neutral through the Amending Act 44 of 1964, where either party can
initiate divorce proceedings under section 13(1-A). Even if, in the restitution
proceedings the party is found guilty, they can file for divorce.
 2. The wrongful view of abolitionists:
Restitution may be a ground for divorce if not complied within one year. The
reason provided for this, however, is that a sudden break-up in a marriage
should not occur. The one year specified is needed as a “cooling period” to avoid
any hurried choice. Even then it offers for divorce if there is no cohabitation. It
actually checks that divorce is only granted after the means to revive the
marriage have been exhausted.

With regard to the problems in implementing this decree and Rule 32 of the
Civil Procedure Code, 1908, marriage is also a contract in itself and the norm is
the financial penalty for non-compliance with the agreement. Also, the property
is connected only if the pronounced decree is completely disregarded and no
other solution is applicable. There is also no weight-age argument for the
husband not having assets as this is true in all other agreements as well.

Moreover, when conjugal rights are restored, it is not just sexual rights that are
taken into account. In Halsbury’s Laws of England, he said that denying sexual
intercourse alone does not constitute a denial of cohabitation. It is also
impossible for the courts to force sexual intercourse.

Therefore, the restitution of conjugal rights is a component of the individual’s

personal laws and is driven by values such as faith, tradition, and custom. A
very important characteristic to emphasize in the restitution of conjugal rights is
that it is a remedy intended to preserve marriage. It serves to help prevent
marriage break-up, so it is a way to save the marriage. This remedy cannot be
said to be completely unconstitutional. Section 9 has adequate safeguards to
avoid a tyranny of marriage. In reality, by encouraging reconciliation between
the parties and maintaining a marriage, it serves the social good objective. It
protects society against denigration and all the years it’s been enforcing it’s
played a part effectively. 

Simultaneously, it can also be said that these regulations do not hold weight
more with the evolving times and cause more damage than good.

From what has been written above, however, it is recognized that the notion of
restitution of conjugal rights has left sufficient ambiguity as to whether it
violates any of the fundamental rights guaranteed under Part III of the
Constitution of India. This relies on facts and situations as they continue to
change from case to case. 

It is important to note, however, that while England, the country from whom we
borrowed the concept has abolished this remedy but whether we should be
going on the same lines is open to further debate and analysis.
[1] Ranjana Kejriwal v. Vinod Kumar Kejriwal,  A.I.R. 1997 Bom 380.

[2] Hindu Marriage Act, 1955. 

[3] A.I.R 1963 AP 356.

[4] Ibid at 3.

[5] Ibid at 3.

https://ccrd.vidhiaagaz.com/constitutional-validity-of-restitution-of-conjugal-
rights/#:~:text=Constitutionality%20of%20Restitution%20of%20Conjugal,the%20impugned
%20section%20was%20unconstitutional.

n Maneka Gandhi vs. Union of India, whether the decree on the restitution of conjugal rights would
be just, fair and reasonable and it didn't compel the unwilling wife to live with her husband. Then, the
sec. 9 of the Hindu Marriage Act does not violate Article 21 of the Constitution.

In Saroj Rani vs. Sudarshan Kumar Chadha, the Hon'ble Supreme Court held that the principle of
the restitution of conjugal rights was created to prevent the break up between the spouses. The
reasonable excuse for the separation of the spouse is a clear defence for the restitution of conjugal
rights.

Hence, the sec. 9 of the Hindu Marriage Act doesn't violate the Article 14 and Article 21 of the
Constitution. But still many people are against the restitution of conjugal rights, they held that the
restitution of conjugal rights was introduced by the English people in India and India is continuing it.
The Law Commission didn't oppose the restitution of conjugal right in its fifty- ninth and seventy-first
report. According to the Indian culture the marriage was considered sacramental and hence the
husband and wife should live together.

The purpose of the restitution of conjugal rights is that the husband and wife should not be
separated without any reasonable excuse. Conclusion: Even though many criticisms are evolved
against the restitution of conjugal rights, there is no clear evidence that the restitution of conjugal
rights is barbarous and violates fundamental rights.

It cannot be said that the restitution of conjugal rights violates Article 14 and Article 21 of the
Constitution. The only purpose of the restitution of the conjugal rights is to prevent the break up
between the spouses. It promotes the reconciliation between the spouses and also maintains a good
matrimonial relationship between them. It protects society from denigrating. Hence, the restitution of
conjugal rights serves as an aid to prevent the break up between the spouses.

http://www.legalserviceindia.com/legal/article-3379-legal-provisions-and-constitutional-validity-
of-the-restitution-of-conjugal-rights.html

A decree for restitution of conjugal rights deprived, according to the learned Judge in Sareetha’s
case[xxxix] a woman of control over her choice as and when and by whom the various parts of
her body should be allowed to be sensed. Our Constitution embraces the right to privacy and
human dignity and any right to privacy must encompass and protect the personal intimacies of
the home, the family, marriage, motherhood, procreation and childbearing. It is to be noted that
the restitution of conjugal rights, unlike specific performance, is only willful in nature and the
courts must treat it only as an inducement in times to come. The institution of marriage has
been inherent in the Indian Society and all must be done to protect it. Furthermore, if a spouse
does not wish to stay with his/her partner then he may make use of remedies such as judicial
separation and divorce. Leaving a partner without a reasonable excuse cannot be justified [xl].
This is against the concepts of justice, equity and good conscience which are the basis for laws
made in our Country. Thus it must be observed that Section 9 of the Hindu Marriage Act is not
violative of Article 21 of the Indian Constitution.

Saroj rani case also given in this article.

https://www.lawctopus.com/academike/marriage-and-restitution/

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”.[15]
The guiding principle is that all persons and things similarly circumstanced
shall be treated alike both in privileges conferred and liabilities imposed[16].
All equals must be treated equally amongst themselves and unequals
unequally.[17] 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”.[18]

This right has conferred a paramount position by the Supreme Court.[19]

Over the years, this right has also included within its scope, the right to
education[20], the right to privacy[21], the right to speedy trial.[22] 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.[23] 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[24]. 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[25], the
freedom to practice any profession[26] and the freedom of free speech and
expression[27]. 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, moralit
https://www.lawbhoomi.com/post/constitutional-validity-of-restitution-of-conjugal-rights

DOWN IS INDIAN KANNON HARVINDER KAUR CASE

One thing is clear from Lord Stowell's decision in Forster v. Forster and Halsbury's statement
of law that the Court does not and cannot enforce sexual intercourse. I accept it as true that
sexual relations constitute almost important attribute of the conception of marriage. But it is
also true that they do not constitute its whole content, nor can the remaining aspects of the A
matrimonial consortium be said to be of wholly unsubstantial or trivial character. Marriage
has been described in these words : "resides the procreation and education of children,
marriage has for its object the mutual society,, help and comfort, that the one ought to have
of the other both in prosperity and adversity. Marriage is the most solemn engagement which
one human being can contract with another. It is contract formed with a view not only to the
benefit of the parties themselves, but to the benefit of third parties; to the benefit of their
common offspring, and to the moral order of civilised society." (Shelford on Marriage and
Divorce (184.1), p. 3 quoted in Weatherley v. Wentherley, (1946) 2 All E. R. I (II) (6).
Cohabitation : Its meaning.

 The object of the restitution decree is to bring about cohabitation between the estranged
parties. So that they can live together in the matrimonial home in amity. That is the primary
purpose. Cohabitation has been defined in these words : Cohabitation does not necessary
depend upon whether there is sexual intercourse between the husband and the wife.
'Cohabitation' means living together as husband and wife; and as I endeavored to point out
in Evans v. Evans, (1948) I K.B. 175 (7), cohabitation consists in the husband acting .as a
husband towards the wife and the wife acting as a wife towards the husband, the wife
rendering house-wifely duties to the husband and the husband chershing and supporting
his wife as a husband should. Of course sexual intercourse usually takes place between
parties of moderate age if they are cohabiting, and if there is sexual intercourse it is very,
strong evidence- in fact it may be conclusive evidence that they are cohabiting; but it does
not follow that because they do not have sexual intercourse they are not 'cohabiting'.
Cohabiting, as I have said, means the husband and wife living together as husband and wife.
(Thomas v. Thomas, (1948) 2 K.B, 294 (8), per Lord Goddard CJ. at p. 297.] "THE
cohabitation of two people as husband and wife means that they are living together as
husband and wife, the wife rendering wifely services io her husband; the husband rendering
husband like service to his wife. They must live together not merely as two people living in
one house, but as husband and wife."

As long ago as 1866 the Privy Council in Moonshee Buzloor Ruheem v. Shumsoonnissa
Begum, Ii M.I.A. 551(12) applied to this country the English remedy of restitution. In Indian
legislature in 1955 codified this remedy.

19) The dictum of Chaudhary J. that the restitution decree enforces "sexual cohabitation
with an unwilling parley" and "constitutes the grossest form. of violation of individual's right
to privacy" and "offends the in inevitability of the body and the mind subjected to the
decree and offends the integrity of such a person and invades the marital privacy and
domestic intimacies of such a person" is the high water mark of his judicial pronouncement.
With respect to the learned judge cannot agree that this is what the restitution decree
does. The cases referred to by him do not prove his proposition. Jackson v. Jackson 1924. P.
19 which was approved .by the House of Lords in Weatherley v. Weatherley, 1947 (1) All
E.R. 563(13) clearly shows that the object of the restitution decree is' not to enforce sexual
intercourse as the learned judge thought. The .court simply cannot enforce it. In the nature
of thinks it is an impossible task. Breakdown theory in section 13(iii):

32) Section 9 is the only positive relief under the Act aiming at the preservation of the
marriage. The mental make up of the Anglo-Saxons is different from ours. The truth is that if
it is requisite that our marriage laws should conform to a logical coherence, that is a matter
which the legislature- must declare and provide. Time has come to recognise that
matrimonial offences are in many cases merely symptomatic of the breakdown of the
marriage and that there should also be a provision for divorce in cases where, quite apart
from the commission of such offences, the marriage has broken down completely. Courts
should be relieved of the difficult task of assigning" where fault lay, an issue in matrimony
oft-times too subtle for the average man to determine. (Raydea on Divorce Vol. I (14th
edition) (1983) p. 311]. But the remedy lies .with the legislature. On this part of the case my
conclusion is this Dicta of emment judges, notably Lord Stowell, are all against the view that
restitution decree cornels the wife "to have sex" with an "unwilling party". No case has ever
said anything of the sort. None of the cases relied upon says anything of the sort. Section
9 and Article 14 :

35) In the home the consideration that really obtains is that natural love and affection which
counts for so little in these cold courts. Constitutional law principles find no place in the
domestic code. Atkin L. J.. in a famous judgment, said : "THE parties themselves are
advocates, judges, courts, sheriffs officer 'and reporter. In respect of these promises each house is
a domain, into which the king's writ does not seek to run, and to which his officers do not seek to
be admitted."

[Balfour v. Balfour (1919) 2 K.B. 571 (15)

39 Attorney General criticised the judgment in Sareetha on. a variety of grounds. In the first
place he said that marriage, according to' Hindu Law, is a samsara or a .sacrament and a holy
union for the performance of religious duties, divorce dissolution of marriage are concepts
which were ..uoene.to 'Hindu Law before the statute stepped in to modify the.. itradi. tional'
law. He referred to Sawarjya Lakshnmi v. Dr. G.G. pad Rao and 'Devuloalli wara Sastri v.
Polavarapu. (19.11) I.L.R. 34. Mad. 422'(18).

(40) Secondly he submitted that the social

40The reciprocal duties and obligations of the husband and wife under the Hindu Law will
be found exhaustively discussed by Mahmood .1. in Binda v. Kauslia, 2nd 13 All. 126(20).
Samsara is not sex. Nor sex be 31 and end-all of marrige. Marriage is not-the mere
gratification of animal appetite. Nor a sheer self-indulgence into the lusts of the flesh. It
creates mutual rights and obligations as all contracts do, and beyond that it confers a
status.

HYDE V HYDE …NO NO

(44) Fourthly the said that section 0 is based upon reason and not brute force. The husband
cannot shut up the wife in one room or take her by force. There may be good grounds for
refusing to the husband the assistance of-the Court in a restitution exercise of its discretion
may justly ietase a decree-for restitution proceeding. There may be cases in which the court
in he tion of conjugal rights. [Bai Jivi v. Nar Singh Lalbhai, (1877) R 51 Born. 429(26)]. It has
repeatedly been held that the court will not compel the wife; to summit to the embraces of
the- husband if it finds that it is iniquitous to 30 so. When court's intervention is asked for it
may be refused if it is not just and equitable in the circumstances of the. case If the
petitioner insincere and his petition is not bona fide the court will refuse restitution. The
courts are in the matter of granting restitution decree governed by principles of equity.
justice, and food conscience. (Kondal v. Ranganavaki Air 1924 Mad. 49) (27).
46) Sixthly, he argued that section 9 is constitutionally valid. Applying" the standard that
law has to be just, fair and reasonable as enunciated in Menka Gandhi, , section. 9, hs said
tries to bring the parties together. Whether to grant a restitution decreewould be just, fair
and reasonable in the facts and circumstances of a given case is left to the court to be
decided in its judicial discretion. What better guarantee can the law afford for the
"inviolability of t^e body and mind" of the wife ar.d her "marital privacy" so-call- ed. The
matrimonial home must be reserved. Section 9 is a provision turn reconciliation In the tiue
spirit of the Act. It is in the interests of the State that family life should be maintained, and
that homes should not be broken up by the dissolution of the marriage of parents. Even ?J
the absence of children, it i" m the interest of the State that if possible the marriage tie
shc^dd remain stable and be maintained, ll'at in the vast number, of cases there is no
reconciliation i^ not a ground for striking down the law. We must bear in mind all classes of
cases. Taking consortium in the widest serse of the companionship of the wife it is in public
interest that th^ marital life must be restored un- less one spouse has adopted a courr.s of
conduct calculated to break the spirit of the sufferer, or a course of conduct which is a kind
of tyranny to the other spouse

(75) In the end I will repeat what I have said before. It is for the Legislature to abolish the
remedy of restitution and not for the courts to strike down section 9 on the ground that it is
17 unconstitutional. In my opinion section 9 is perfectly valid. The appeal: Facts (76) Now I
turn to the appeal These are the facts. The appellant, Harvinder Kaur, was married to the
respondent, Harminder. Singh Chaudhary, on 10th October, 1976. The wife is a working
woman. So is the husband. The wife is employed in Indian PetroChemical Limited. She was
getting a salary of Rs. 600 at the time of the marriage. The husband is working as a traffic
manager in Sita Travels. His present salary is about Rs. 2000 per month. There is a. child of
the marriage. A son was born to them on 14th July. 1978. According to the husband the
wife left the matrimonial home in May, 1978. So he brought a petition under section 9 of
the Hindu Marriage Act on 14th February, 1979.
Fifthly, she complained of bleeding from the vagina on three occasions when the husband
did not take care of her and did not provide, medical help in time. The first occasion was a
month after the marriage. One night, she narrated, the husband had sexual intercourse
with her. Thereafter she started bleeding. The husband went to sleep. He did not care for
the wife. In the morning her brother came and took her away and then she was given
medical treatment

https://www.casemine.com/judgement/in/56098dabe4b014971138aab7

above link is for down written things.

From joginder singh v srimati pushpa……things have been concluded in saroj rani case.

https://indiankanoon.org/doc/1382895/

above link is for down written things……sudarshan case…Indian kannon

The learned judge noticed and that is a very significant point that decree for restitution of
conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil Procedure. He
also referred to certain trend in the American law and came to the conclusion that Section
9 of the said Act was null and void. The above view of the learned single judge of Andhra
Pradesh was dissented from in a decision of the learned single judge of the Delhi High Court
in the case of Smt. Harvinder Kaur v. Harmander Singh Choudhry. In the said decision, the
learned judge of the Delhi High Court expressed the view that Section 9 of the said Act was
not violative of Articles 14 and 21 of the Constitution. The learned judge noted that the
object of restitution decree was to bring about cohabitation between the estranged parties
so that they could live together in the matrimonial home in amity. The leading idea
of Section 9 was to preserve the marriage. From the definition of cohabitation and
consortium, it appeared to the learned judge that sexual intercourse was one of the
elements that went to make up the marriage, but that was not the summum bonum. The
courts do not and can not enforce sexual intercourse. Sexual relations constituted an
important element in the conception of marriage, but it was also true that these did not
constitute its whole content nor could the remaining aspects of matrimonial consortium be
said to be wholly unsubstantial or of trivial character. The remedy of restitution aimed at
cohabitation and consortium and not merely at sexual intercourse. The learned judge
expressed the view that the restitution decree did not enforce sexual intercourse. It was a
fallacy to hold that the restitution of conjugal rights constituted "the starkest form of
governmental invasion" of "marital privacy".

Andhjra ka judgement cfriticidse karne ke liye iske upar wala pata padhe Indian kannon mein.

, but the Delhi High Court criticized this view and held that the impugned section aimed
at “consortium” and not at “cohabitation”. “Consortium” has been defined as
“companionship, love, affection, comfort, mutual services, sexual intercourse”. The Delhi
High Court held that sexual relations are not the ultimate goal of a marriage and that
restitution of conjugal rights aims only at compelling the parties to a marriage to live in
the same household and does not compel them to have sexual intercourse.

Restitution of conjugal rights originated in England where marriage is

considered as a contract and wife is a chattel supposed to be owned and
possessed by the husband. The same started having its roots in India from
the case of Monshee Buzloor V Shumsoonaissa Begum[10] in 1866. But
in Britain itself, this remedy was abolished in 1970. It is clear that
restitution of conjugal rights is a remedy that had never existed in ancient
India; it was implemented in India from England even in England this had
been abolished in 1970. Moreover, this remedy infringes the fundamental
right of right to privacy. Therefore, it is high time for the legislature to
amend this outdated unconstitutional provision for the protection of dignity
and privacy rights.

Subsequently, the question was put forth before the High Court of Delhi in the
case of Harvinder Kaur versus Harmander Singh, less than a year later, but here,
the aforementioned Andhra Pradesh High Court judgment was dissented from.
Ultimately, the Supreme Court, in the judgment of Saroj Rani versus Sudarshan
Kumar Chadha, resolved the conflict between the two judgments by upholding
the views put forth by the Delhi High Court, stating 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".

The concept was introduced in India in the case of Moonshee Buzloor  v.

Shumsoonissa Begum[iv], where such actions were regarded as considerations for
specific performance. The Privy Council laid down that it was available to the
Muslims in  Kateeram Dokanee v. Mst. Gendhenee[v], so on the basis of this decision
it was held that such a suit was permissible for the Hindus as well as mutatis
mutandis. This was followed in Jogendronundini Dossee  v.  Hurry Doss
Ghose, [vi] Brindabun  v.  Chundra[vii], Binda  v. Kaunsila[viii] and Dadaji Bhikaji v.
Rukmabai[ix]. Then onwards relief in the nature of Conjugal rights was available to
the Hindus in civil courts. After the passing of the Hindu Marriage Act, 1955, Section
9 gives a statutory sanction to a proceeding for restitution of conjugal rights.

The issue came up once more before the Delhi High Court in Harvinder Kaur v.
Harmendar Singh where the constitutionality of Section 9 was upheld and the
judgment in Sareetha overruled. The court justified the alleged violations of the
‘Equality Protection’ and the ‘Right to Life and Liberty’ by giving a more wholesome
definition to the aspect of ‘Restitution of Conjugal Rights’. The purpose of restitution
of conjugal rights was emphasized as providing impetus to the undo any damage
done to their marriage to couples who’ve withdrawn from the societies of each
other. The concept of marriage was emphasized as to include the ideas of both
‘contract’ and ‘sacrament’ and therefore, it was argued that such special obligations
demanded that the institution of marriage should not be easily amenable to break
down. Sexual intercourse was not the summum bonnum of a marriage and was only
one of the elements. The decision of the Hon’ble High Court was upheld by the
Supreme Court in the case of Saroj Rani and this case effectively overruled the
precedent set by J.Chaudhary in Sareetha.

The Decision in Saroj Rani v. Sudarshan

Kumar:
In this case, 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 subsequently filed a petition to
which she was granted interim maintenance by the Court. The husband later filed a
consent memo for the passing of the decree and the decree of restitution of
conjugal rights was accordingly passed in favor of the wife. One year later, the
husband applied for divorce under Section 13 (1-A) of the Hindu Marriage Act,
1955 on the ground that he and his wife had lived separately during the one year
period.

The question of cohabitation arose wherein the spouses stayed together for a period
of two days after the decree was passed. It was submitted that the ground for
divorce was unjustified and the husband was getting away with his ‘wrongs’. This
argument was based on the principles of natural law, i.e. justice, equity and good
conscience. It was further argued that the concerned section, that is Section 9 of
the Hindu Marriage Act violated Articles 14 and 21 of the Indian Constitution. The
Hon’ble 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.”

Thus the Court granted the divorce but at the same time understanding the situation
of the wife and daughters, ordered the husband to pay prescribed maintenance to
the wife until she remarries. The Hon’ble Court has thus considered the interests of
both parties and maintained harmony in this area.

Formatted on 3rd March 2019.

https://www.lawctopus.com/academike/marriage-and-restitution/#:~:text=The
%20Decision%20in%20Saroj%20Rani%20v.&text=In%20this%20case%2C%20the
%20wife%20petitioned%20for%20restitution%20of%20conjugal%20rights.&text=One
%20year%20later%2C%20the%20husband,during%20the%20one%20year%20period

Subhangi photo of navtej singh johar for husband

One great defect of Andhra judgment, it appears to me, is that it regards marriage as a
legalised means of sexual self-satisfaction and not primarily as a partnership for life.
Marriage does not exist solely for sexual congress. The reciprocal duties and obligations
of the husband and wife under the Hindu Law will be found exhaustively discussed by
Mahmood .1. in Binda v. Kauslia, 2nd 13 All. 126(20). Samsara is not sex. Nor sex be
31 and end-all of marrige. Marriage is not-the mere gratification of animal appetite. Nor a
sheer self-indulgence into the lusts of the flesh. It creates mutual rights and obligations as
all contracts do, and beyond that it confers a status.

 Fifthly, attorney general argued, that the constitutional lity of section 9 has to be
adjudged "by the generlity of cases it covers, and not by the freaks and exceptions it
martyrs". That a few freak instances of hardship may arise on either side cannot be a
ground to invalidate t^e legislation. This, he said, was established by the Supren,e Court
decisions in R. S. Joshi v. Ajit Mills, per Krishna ^yei J. and Tamil Nadu Education
Dcptt. v. State of Tamil Nadu^ Air 1980 Sc 279 (383) (29).

Counsel for the wife referred to Bhagat Ram v. Smt. Santosh. Kumari. 1981 Plr 46 in
support of her contention that this was a good excuse for the wife and until and unless the
husband sets up an independent house she has a sufficient cause for not joining her. This
question was raised before the judge in the court below. He was of the view that the
husband's parents are aged and dependent on him and it would not be right for him to
leave them because "after all the parents eave some right upon their children and children
correspondingly owe some duty to their parents. A balance has to be struck by the
husband in his love towards the parents and that towards his wife". It cannot, in my
opinion, be urged by the wife as a ground for living apart. The casting vote is not with
her. Nor with the husband. It is a matter which has got to be decided mutually and
amicably between them. By both in co-operation. There may be cases where the husband
may have to choose between his parents and his wife. But that is a question for the
husband and the wife to resolve together The wife. cannot dictate to the husband that
unless and until he sets up an independent residence she will not join him. That will be a
unilateral decision. If it is unilateral without regard to the wishes and desires of the
husband it must be termed as 'unreasonable'.

The learned judge noticed and that is a very significant point that decree for restitution
of conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil
Procedure. He also referred to certain trend in the American law and came to
the conclusion that Section 9 of the said Act was null and void. The above view of the
learned single judge of Andhra Pradesh was dissented from in a decision of the learned
single judge of the Delhi High Court in the case of Smt. Harvinder Kaur v. Harmander
Singh Choudhry. In the said decision, the learned judge of the Delhi High Court
expressed the view that Section 9 of the said Act was not violative of Articles 14 and 21
of the Constitution. The learned judge noted that the object of restitution decree was to
bring about cohabitation between the estranged parties so that they could live together
in the matrimonial home in amity. The leading idea of Section 9 was to preserve the
marriage. From the definition of cohabitation and consortium, it appeared to the
learned judge that sexual intercourse was one of the elements that went to make up the
marriage, but that was not the summum bonum. The courts do not and can not enforce
sexual intercourse. Sexual relations constituted an important element in the conception
of marriage, but it was also true that these did not constitute its whole content nor
could the remaining aspects of matrimonial consortium be said to be wholly
unsubstantial or of trivial character. The remedy of restitution aimed at cohabitation
and consortium and not merely at sexual intercourse. The learned judge expressed the
view that the restitution decree did not enforce sexual intercourse. It was a fallacy to
hold that the restitution of conjugal rights constituted "the starkest form of
governmental invasion" of "marital privacy".

Section 9 only is 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 injuction. Sub-rule (1) of Rule 32
is in these terms:

"Where the party against whom a decree for the specific performance of a contract, or
for restitution of conjugal rights or for an injunction, has been passed, has had an
opportunity of obeying the decree and has willfully failed to obey it, the decree may be
enforced in the case of a decree for restitution of conjugal rights by the attachment of
his property or, in the case of a decree for the specific performance of a contract, or for
an injuction by his detention in the civil prison, or by the attachment of his property, or
by both."

Maneka Gandhi
case…………………………………………………
In pdf in moot folder