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EXECUTION OF DECREE IN RESTITUTION OF CONJUGAL RIGHTS A LEGAL DILEMMA

PROJECT ASSIGNMENT EIGHTH TRIMESTER

CODE OF CIVIL PROCEDURE II

SUBMITTED BY: Amshula ID NO. 1704 III Year, B.A., LL.B. (Hons). Date of Submission: November 23rd , 2011

----------------------------------------------------------------------------NATIONAL LAW SCHOOL OF INDIA UNIVERSITY BANGALORE

TABLE OF CONTENTS

1. 2. 3. 4. 5. 6. 7. 8.

Table of Authorities Introduction Research Methodology Chapter I Statutory Provisions Related to Decree for Restitution of Conjugal Rights Chapter II The Legal Dilemma: The constitutionality of Order 21 Rules 32 and 33 Conclusion Bibliography

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TABLE OF CASES
Harvinder Kaur v. Harmander Singh Chaudhary, AIR 1984 Del 66. Kharak singh v. State of U.P, AIR 1962 SC 323. Laxmi Sauhani v. Maheswar Sahu, AIR 1985 Ori 11. M. P. Shreevastava v. Veena, AIR 1965 All 234. Mohammed Ikram Hussain v. State of UP, AIR 1964 SC 1625. Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551. Santosh Kumari v. Mohan Lal, AIR 1980 P&H 325. Sheokumari v. Mathura Ram, AIR 1936 All 657. Smt. Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562. T. Sareetha v. Venkata Subbaiah, AIR 1982 AP 122.

TABLE OF STATUTES
The Code of Civil Procedure, 1908. The Hindu Marriage Act, 1955. Constitution of India, 1950.

RESEARCH METHODOLOGY
AIMS AND OBJECTIVES: This project seeks to examine the law regarding execution of decree of restitution of conjugal rights, which related to Order XXI Rule 32 and 33 of the Code of Civil Procedure. The provisions regarding attachment of property and imprisonment in civil prison have been looked into. Also, the constitutional tussle with the provisions aforementioned has been examined.

SCOPE AND LIMITATIONS: The scope of this discussion is the execution decree of restitution of conjugal rights and detailed arguments relating to constitutional validity of restitution as a relief given in Hindu Marriage Act, along with its implications on divorce proceedings have not been examined since they are clearly out of the scope of a project for examining Civil Procedure.

RESEARCH QUESTIONS: 1. In a civil suit for restitution of conjugal rights whether imprisonment is valid? 2. In a civil suit for restitution of conjugal rights whether attachment of property is valid in light of Article 14 and 21? 3. Do these two provisions constitute as coercion forcing a husband and a life to live together? 4. 5. What is the position of law in after the Saroj Rani case? What is the procedure to be followed as given in Order XXI Rule 32 and 33 of the Code of Civil Procedure for execution of such a decree?

CHAPTERIZATION:

SOURCES: The researcher has used primary and secondary sources of data during the process of writing this paper.

MODE OF CITATION: All sources referred to have been cited. A uniform mode of citation has been used throughout the paper.

METHOD OF WRITING: The researcher has made use of an analytical and descriptive style of writing.

CHAPTER I: STATUTORY PROVISIONS RELATED TO DECREE FOR RESTITUTION OF CONJUGAL RIGHTS


Substantive Provisions Relating to Restitution of Conjugal Rights
Restitution of Conjugal Rights is a remedy available to people of all religions and is embodied in the personal laws as applicable to their community. The law relating to this remedy provided to different religions, though differently worded and enshrined in different statutes has a uniform import. The remedy is granted to the person seeking the same upon the fulfilment of certain conditions. They are as follows: i. ii. iii. The respondent needs to have withdrawn from the society of the petitioner. Such withdrawal is without any reasonable excuse or cause. The court is satisfied about the truth of the statements made in such petition. iv. There is no legal ground why relief should not be granted.1

While this relates to the substantive law on the subject, upon the decree being pronounced for the restitution of conjugal rights, the Code of Civil Procedure, 1908, gives the mode of execution of such decree.

Order 21 Rule 32 of the Code of Civil Procedure


Upon the pronouncement of the decree is favour of restitution of conjugal rights, if disobeyed by the judgment-debtor, the manner of execution of the same is given under Order 21 Rule 32 of the Code.2
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Supra note 1at 122. Order 21, Rule 32(1) states as follows (1) 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 the opportunity of obeying the decree and has willfully failed to obey it, the decree may be

In order for this rule to be applicable, the essentials that are required to be fulfilled are as follows: i. A decree must have been passed at the instance of one spouse against the other, ordering the latter to live with his or her spouse and allow for restitution of conjugal rights. ii. Such a decree must have been wilfully ignored, or not complied with, by the judgment debtor inspite of having a sufficient opportunity of doing so. iii. If all these conditions can be satisfied, the court can order attachment of property of the judgment debtor. Before the amendment3 of this sub-rule in 1923 a decree for restitution of conjugal rights could be enforced also by imprisonment, but after the amendment such a decree is enforceable only by attachment of defendants property.4 Sub-rule (3) of Order 21 Rule 325 of the Code of Civil Procedure provides that in cases where such an attachment as has been ordered under sub-rule (1) of the Order 21 Rule 32 of the Code of Civil Procedure has been in force for a period of six months and the decree of restitution of conjugal rights has not been complied with even after such attachment, then the decree holder may file an application for sale of such attached property, and the court can award compensation from the proceeds of such sale to the decree holder as compensation, giving the balance of the rest to the judgment debtor.

If it so happens that no application is made by the decree holder for sale under the aforementioned section within six months of the order of attachment, then the attachment ceases by the operation of sub-rule (4) of Order 21 Rule 32 of the Code of

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 injunction by his detention in the civil prison, or by the attachment of his property or by both. 3 S.2, Civil Procedure Code (Amendment) Act, 1923. 4 Sarkars The Law of Civil Procedure Vol II (10th edn, New Delhi: Wadhwa and Company, 2002) at p. 1447. 5 Order 21 Rule 32(3) states as follows (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgment debtor has not obeyed the decree and the decreeholder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fits, and shall pay the balance (if any) to the judgment debtor on his application.

Civil Procedure6. The same sub-rule also provides that if the decree is satisfied within 6 months from date of attachment and all costs of execution are paid by the judgment debtor, not only will the attachment cease but the decree will also be deemed to be satisfied. It is noteworthy that there is not specific provision which deals with satisfaction of the decree under the Code of Civil Procedure.

Order 21 Rule 33 of the Code of Civil Procedure

As mentioned earlier, law deals with particular sensitivity to issues of matrimonial disputes and therefore under Subsection (1) of Order XXI Rule 33 of the Code of Civil Procedure, the law makers have granted court the discretion to order the execution of a decree of restitution of conjugal rights against a husband (not wife, only Order XXI Rule 32 of the Code of Civil Procedure, deal with judgment debtor in general), in the manner provide by Order XXI Rule 33 of the Code of Civil Procedure. Under Subsection (2) of Order XXI Rule 33 of the Code of Civil Procedure, where the court executing a decree, pursuant to an order under subsection (1), or upon its own discretion, can order the periodical payments of sums of money by the husband to the wife in case the decree is not complied with.

Subsection (4) of Order XXI Rule 33 of the Code of Civil Procedure, provides that such an order will be executed in the same manner as a money decree is executed. This means that under Order XXI Rule 30 of the Code of Civil Procedure, this order can be executed by attachment or sale of property or by the husbands detention in civil prison or both. The mode of paying the money is as given Order XXI Rule 1 of the Code of Civil Procedure where money can be deposited to the court, or given to the decree holder. However in this case the Court requires a certificate of payment or adjustment by the decree holder and recording of such payment or adjustment by the court executing the original decree, as given in the proviso to Order XXI Rule 1(5) of the Code of Civil Procedure, which is a mandatory provision as held in Motilal v.

Order 21 Rule 32(4) states as follows (4) Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where at the end of six months from the date o the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

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Mahmood.7 If such payment is recorded or certified, it operates as a valid discharge of the decree against the judgment debtor.

The Court also has the discretion under Subsection (3) Order XXI Rule 33 of the Code of Civil Procedure, to suspend, alter, increase, diminish the periodical payments including reviving part or whole of it later as is considered just and is befitting the changing circumstances of the husband. This has been done to not cause prejudice to the wife whose maintenance is the objective of this section. If the husbands salary increases but the wife lives in penury, the law will not allow for it. It may be noted that these periodical payments are distinctly different from maintenance ordered by a family court pursuant to judicial separation or divorce and both cannot mutually coexist. This is because once a decree for judicial separation or divorce has been awarded, there is not question of restitution of conjugal rights and the aforementioned rules only take place in pursuance of such a decree.

It may be noted that Section 50 of the Code of Civil Procedure empowers the decree holder to in case of death of the judgment-debtor, before satisfaction or execution of the decree, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. In the case of restitution of conjugal rights such a provision cannot be enforced because a legal representative cannot satisfy the decree. Also thus attachment of property cannot be enforced under Order XXI Rule 33, because the remedy for revoking attachment is satisfaction of the decree. However under Hindu Marriage Act, maintenance provisions can be invoked by the wife.

CASE I: Mt. Sheo Kumari and Ors. v. Mathura Ram, AIR 1936 All 657
Facts: Mathura Ram instituted a suit in the civil court for restitution of conjugal rights alleging that Sheo Kumari had been married to him. The suit was contested by Sheo Kumari who is a minor. It was decreed and the decree of the first Court was
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AIR 1968 SC 1087.

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confirmed in second appeal by the High Court. After the termination of the proceedings in the civil case, Mathura Ram applied to the District Judge preferring two prayers. First that he should be appointed guardian of his wife Sheo Kumari. Second that he should be given the custody of his wife. The application was opposed by Sheo Kumari. The District Judge refused to grant the former. The learned District Judge under his order, dated 18th August 1934, refused the first application and allowed the second one. It directed that the custody of Sheo Kumari be given to her husband Mathura Ram under Section 25 of the Guardians and Wards Act. This order passed by the District Judge also shows that the wife had, as a matter of fact, never lived with her husband. First Appeal: An appeal was preferred by Sheo Kumari against the order of the District Judge. This was heard by a learned single Judge of the High court. This appeal was dismissed. Letters Patent Appeal: After the dismissal of the first appeal a Letters Patent appeal was preferred by Sheo Kumari. Decision: The High court reasoned that the interpretation of S.25 of the Guardians and Wards Act arrived at by the lower courts were faulty in as much as that they applied to situations concerning parent and child. The high court also noticed the initial reluctance on the part of the lower court before arriving at such an interpretation especially when the minor had never been in the custody if the person wanting to be declared as the guardian. Then the court put forward its own reasons for allowing the appeal in the following words. It opined that in the case before it the husband had gone approached the court on the allegation that his wife, though married to him, would not come and live with him. Following this, a decree for restitution of conjugal rights had been passed against her. If the husband were to go to the civil court with a prayer that he should be permitted to take forcible custody of his wife on the basis of this decree, such a prayer would never be granted. His only remedy would be to get an attachment against the property of his wife if she has any. Thus, the court reasoned that it would be altogether wrong to permit the husband (plaintiff) to achieve such an object by making an application under the provisions of Section 25, Guardians and Wards Act. Thus, the court finally held that it would be unfair and unjust in a case of this description to pass an order that the husband should

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be allowed to take custody of the wife when it is known that under the decree which he has obtained for restitution of conjugal rights he will not be able to get that privilege. Hence, the appeal was allowed.

CASE II: Laxmi Sauhani v. Maheswar Sahu, AIR 1985 Ori 11.
Facts: The plaintiff, who is the appellant, in this case was the legally married wife of the defendant. After having lived together as husband and wife, upon ill treatment by the husband, the wife left the matrimonial home and started residing separately. The plaintiff brought suit in the Court of the Sub Judge, Bolangir for restitution of conjugal rights and the suit was decreed. In the court of execution, it was alleged by the plaintiff alleged that the husband did not obey the decree and take the wife to his house in accordance with the custom governing the marriage. Moreover, he had married again and it was alleged by the wife that he had two children from such marriage. Instead, the defendant married a second wife. The plaintiff further alleged that the defendant has got two children through the second wife. She further claimed that in the aforesaid circumstances the defendant is bound to maintain her by providing maintenance and separate residence. It was also stated in the plaint that the defendant owns about ten acres of land, the annual income wherefrom would not be less than ten thousand rupees. The husband contested this. Before deciding the case the court stated the following facts to be proved. First, that the marriage of the plaintiff with the defendant was not disputed. Secondly, that the present plaintiff (the wife) was the aggrieved party and her allegation was that her husband (the present defendant) had withdrawn from her society without reasonable excuse. Thirdly, that the present defendant and his father consented for a decree to be passed in the said suit for restitution of conjugal rights. Lastly that the court passing the decree for restitution of conjugal rights had not passed an order under Sub-rule (1) of Rule 33 of Order 21, Code of Civil Procedure to the effect that the decree shall be executed in the manner provided under Rule 33. Decision of the Trial Court: The trial Court upon receiving evidence concluded that there is no sufficient proof to establish the factum of second marriage of the defendant. It was also found that the defendant is not guilty of desertion and therefore,

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maintenance cannot be claimed by the wife on such grounds. The trial Court, therefore, came to the conclusion that the suit is not maintainable and, accordingly, the same was dismissed. The plaintiff against this decision preferred an appeal. Decision of the High Court: The High court in the course of the judgment explained the working of Rule 33 of Order 21 of the Code. The Court stated that it was the obligation of the defendant to take back the plaintiff as he was guilty of withdrawal from society of the plaintiff for which a decree for restitution of conjugal rights has been passed against him. Since the plaintiff was the Decree Holder, she could execute a decree as provided under Order 21 Rules 32 and 33 Code of Civil Procedure. Order 21 Rule 32 provides that where a party against whom a decree tor restitution of conjugal rights has been passed has had an opportunity of obeying a decree and has wilfully failed to obey it, the decree may be enforced by attachment of the property of the Judgment Debtor. Rule 33 of Order 21 provides that notwithstanding anything in Rule 32 the court, either at the time of passing a decree against a husband for the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in the manner provided in this rule. It also makes a provision that where the court has so directed it may order that in the event the decree not being obeyed within such period as may be fixed in this behalf, the Judgment Debtor shall make to the Decree Holder such periodical payments as may be just, and if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments. The court held that since in the present case while passing a decree the court did not declare that the same shall be executed in the manner provided under Order 21 Rule 33 Code of Civil Procedure, therefore, fixing the time under Sub-rule (2) of rule 33 afterwards was inappropriate. Further, the court held that it was the duty of the defendant who was guilty of withdrawing himself from the society of the plaintiff, to make efforts to bring back the plaintiff, and restitute the marital life. The appeal was partly allowed.

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CASE III: Santosh Kumari v. Mohan Lal, AIR 1980 P&H 325
Facts: The facts of this case were that Mohan Lal filed an application for restitution of conjugal rights on September 12, 1973 against his wife Santosh Kumari, under S. 9 of the Hindu Marriage Act. The latter contested it on the ground of cruelty. It was dismissed by the trial Court. On appeal, the order of the trial Court was reversed on September 11, 1978 and a decree for restitution of conjugal rights was granted in favour of the husband. The wife then filed an execution application on August 16, 1979 stating that she was prepared to go to the husband but he was not accepting her. The husband in pursuance of a notice filed objections wherein he stated that he had already filed an application for divorce under S. 13 of the Act on September 14, 1979 and, therefore, he was not prepared to take her with him. The Executing Court dismissed the execution application observing that its purpose had been fulfilled. Santosh Kumari, the wife, went up in revision against that order to the High court. Decision of the High Court: It was contended by the petitioner that after the passing of the decree for restitution of conjugal rights in favour of the husband it is not only the husband who can execute it but it can be executed by the wife as well. Further, that in such cases, either of the parties to the lis becomes decree-holder after passing of the decree and can request the court for recording satisfaction thereof and therefore the court below could not have dismissed the application for execution filed by the wife. The court negatived these contentions. It explained the working of Order 21 rule 32 by stating that the rule does not provide that the court shall give physical custody of the person who suffered the decree to the decree-holder. Also, the decree for restitution of conjugal rights can be executed in a symbolic manner and that simply because a spouse refuses to resume cohabitation in spite of an execution application filed by the other spouse it cannot be said that the decree for restitution of conjugal rights stands satisfied, and the spouse refusing to resume cohabitation is not entitled to file an application for divorce. After explaining the contents of Order 21 rules 32 and 33, the paper will now move on to examining the debate surrounding the constitutionality of a decree for restitution of conjugal rights.

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CASE IV: Shreevastava v. Veena, AIR 1965 All 234.


it was held that satisfaction of the decree can still be recorded by the court and that if the judgment-debtor is willing to obey the decree but the unjustified obstruction towards the performance of the decree comes from the decree-holder then the judgment-debtor would be fully entitled to approach the Court and pray that the decree be recorded satisfied so that the decree-holder may not fraudulently and malafide utilize this decree for the purpose of securing a decree for divorce.

This case was a first appeal from an order of the learned District Judge by which it had been held that that Mrs. Veena, the respondent, has satisfied the decree for restitution of conjugal rights obtained by the appellant Dr M P. Shreevastava, her husband. Veena Shreevastava presented an application under S. 47 read with S. 151. of the Code of Civil Procedure, in the Court of the District Judge claiming that the decree for restitution of conjugal rights obtained by her husband Dr. M. P. Shreevasata has been satisfied and an finding be recorded to that effect. According to her allegation her husband had deserted her and later he had obtained an ex parte decree for restitution of conjugal rights and she instead of applying for setting aside the said decree considered this as an opportune moment for getting back to her husband and living with his as his wife in pursuance of the decree under Section 22 of the Special Marriage Act, 1964.

The court held that if the conjugal rights of the aggrieved party have been restored then the decree must be deemed to be satisfied and the particular grievance redressed. The court also said that it is not necessary that there be a positive affirmative provision to this effect.

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CHAPTER II: CONSTITUTIONAL CHALLENGES.


The legal dilemma is the weighing of constitutional rights of a life with dignity and an order for restitution of conjugal rights whose execution allows for financial sanction which as contended by some jurists amounts to coercion. Though this provision has been removed in the UK because of the recommendation of the Law Commission, in India it has still been retained by the Legislature despite protest by womens groups and activists. The judicial recognition of the violation of fundamental rights cause by the provision of restitution of conjugal rights which has referred to as being barbarous was started with the T Sareetha case where the Andhra Pradesh High Court upheld the contention that restitution of conjugal rights violated Article 21 of the Constitution of India which guaranteed a life with human dignity. This was followed by the single judge bench of the Delhi High Court decision in Harminder Kaurs case which did not agree with learned judges ruling the T Sareetha case. Following this in 1986 finally the Supreme Court took notice of these ruling and upheld the decision of the Delhi High Court case while considering and overruling the earlier case by the Andhra Pradesh High Court. This was the validity of Section 9 of the Hindu Marriage Act as well as the provision of execution of decree of restitution of conjugal rights in the Code of Civil Procedure was upheld by the Supreme Court which took this decision taking into account the state of current Indian society which it felt was not ready for provision like the English statutes. The analysis of the 3 cases will be done step by step in the following paragraphs.

CASE I: T. Sareetha v. Venkata Subbaiah, AIR 1982 AP 122


Facts: T. Sareetha was married to Venkata Subbaiah in 1971 and almost

immediately thereafter they were separated from each other and lived apart from each other for five years. In light of this, Venkata Subbaiah filed an application for restitution of conjugal rights against T. Sareetha under section 9 of the Hindu Marriage Act, 1955. T. Sareetha Sareetha took a preliminary objection as to the jurisdictional competence of the court before which the said application was filed. This preliminary objection taken by T. Sareetha that was overruled by the court

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hearing the application, leading T. Sareetha to the file this civil Revision petition before the Andhra Pradesh High court. While this matter was pending T. Sareetha filed another petition claiming that section 9 of the said Act, was liable to be struck down as violative of the fundamental rights in part III of the Constitution of India, particularly articles 14, 19 and 21 in as much as the statutory relief under the said provision, namely restitution of conjugal rights offends the guarantee to life, personal liberty and human dignity and decency and was arbitrary. Decision of the High Court: After ruling in favour of the respondent on the preliminary issue, the Court turned to the constitutional challenge to the said provisions. The court, after quoting Section 9, Hindu Marriage Act and Order 21 Rules 32 and 33 of the Code of Civil Procedure, opined that the provisions related to execution of such decrees may be enforced either by applying financial sanctions against the disobeying party or through the use of a courts contempt powers or even by civil imprisonment. Then citing an old case the court likened a decree for restitution of conjugal rights to a decree of specific performance of restitution of conjugal rights.8 Then the court proceeded to identify out the duties would be entailed under an order for restitution of conjugal rights. It laid down that conjugal rights connote two ideas one, the right which husband and wife have to each others society, and two, marital intercourse. Thus establishing performance as an integral part of conjugal rights, the court went out to equate an order for restitution of conjugal rights to an order to perform forced sexual intercourse. In other words, it was reasoned that sexual cohabitation being an inseparable ingredient of a decree for restitution of conjugal rights it followed that a decree for restitution of conjugal rights extended to not only grant the relief to the company of the other spouse, but also to the right to have marital intercourse. The court also noted that the enforcement of the decree had graver implications for the wife who would be forced into procreating offspring. After thus characterizing the substantive and procedural aspects of a decree for restitution of conjugal rights the court held the same to be unconstitutional on two grounds. First, that since such a decree was akin to a decree for forced sexual intercourse therefore a decree for restitution of conjugal rights constitutes the grossest from of violation of an individual's right to privacy. Further it opined that the decree for restitution of conjugal rights denies the woman her free choice whether when and
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Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551.

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how her body is to become the vehicle for the procreation of another human being and that a decree for restitution of conjugal rights deprives a woman of control over her choice as to when and by whom the various parts of her body should be allowed to be sensed. Thus, it was violative of the right to privacy enshrined in Article 21 of the Constitution. Second, since in the particular socio-economic setting of India, such a decree was mostly sought to be enforced against women therefore it was arbitrary and hence violative of article 14. Thus, the revision was allowed and S.9 of the Hindu Marriage Act, 1955 along with the procedural provisions providing for the execution of decrees under this section were held to be unconstitutional.

CASE II: Harvinder Kaur v. Harmander Singh Chaudhry, AIR 1984 Del 66
Facts: The appellant, Harvinder Kaur, was married to the respondent, Harminder. Singh Chaudhary. The wife was a working woman. The husband was also gainfully employed. The wife was employed in Indian PetroChemical Limited and was getting a salary of Rs. 600 at the time of the marriage. The husband was working as a traffic manager in Sita Travels and had a salary of about Rs. 2000 per month. They had a child from this marriage. 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. The wife alleged that she had been treated cruelly at her husbands house and thus had reasonable grounds for leaving the same. The ground of unconstitutionality was also pleaded before the High Court. Decision of the Additional District Judge: This petition was opposed by the wife. The Additional District Judge disbelieved the wifes allegations of cruelty and held that the evidence led by her did not prove cruelty. Thus, a decree of restitution of conjugal rights was granted to the husband. From that decree the wife appealed to the High Court challenging the constitutional validity of Section 9 of the Hindu Marriage Act.

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Decision of the High Court: The High Court agreed with the lower court on the issue of cruelty and further negative the contention of unconstitutionality of section 9 of the Hindu Marriage Act. The court reasoned as follows. The majority judgment in upholding the constitutional validity of Order 21 Rule 32 of the Code of Civil Procedure based their reasoning on the true nature of the remedy of restitution of conjugal rights, which according to the court had been ignored by the Andhra Pradesh High Court in the T. Sareetha case and the minority judgment in this case. The first argument of the court was that it could not enforce sexual intercourse, but only cohabitation, because restitution of conjugal rights can not be ordered where the respondent refuses sexual intercourse but continues to cohabit with the petitioner. Referring to the T. Sareetha case the court remarked that Chaudhary, J.'s overemphasis on sex is the fundamental fallacy in his reasoning. The court then reasoned that the leading idea of section 9 of the Hindu Marriage Act is to preserve the marriage and that the section was aimed at encouraging reconciliation by the court. Therefore a distinction was made that such a restitution of conjugal rights would never be allowed in the first place when a judge applied his mind and empathized with the opposite partys refusal to share marital intimacies. The objective of this remedy was merely to give the parties a chance at reconciliation by testing whether they could cohabit, i.e., live together in the matrimonial home in amity. All that the court in a husbands petition under section 9 does is to seek to enquire whether there is a reasonable excuse for the withdrawal by the wife from the society of the husband. Section 9 is a means of saving the marriage. Highlighting another facet of a decree of restitution of conjugal rights the court said that it acts as an index of connubial felicity or a sort of litmus paper. It was said to show a change of heart if the restitution decree is obeyed. On the other hand if the decree is disobeyed it is an indicator that the parties have reached a stage of no return. Thus, the court dissented from the position in T. Sareethas case that restitution decree compels the wife to have sex" as an "unwilling party", and thus, not violative of Article 19. On the procedural aspect of the remedy the court noted that the Order 21 Rules 32 and 33 of the Code of Civil Procedure has abolished imprisonment but has retained attachment of property. Further, Rule 33 confers discretion on the court to refuse

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execution by attachment and to order periodical payments to be made by the judgment-debtor to the decree-holder. So in the end there is only a financial sanction behind the restitution decree. Even if the Court is bound to make a decree, for restitution in a fit case it is no longer bound to enforce it as before by imprisonment or attachment. This position of law was not noticed by the Court in T. Sareetha case. On the issue of violation of Article 14 the court said that even the party found guilty in restitution proceedings is entitled to petition for divorce under section 13(1-A)(ii). Further that the theory that one cannot take advantage of one's wrong has not been adhered to in the Hindu Marriage Act and there is complete equality of the sexes in this legislation and equal protection of the laws. Thus, section 9 cannot be struck down as voltaic of Article 14 of the Constitution. he court applying the just, fair and reasonable test enunciated in Maneka Gandhi, it was held that whether to grant a restitution decree that would be just, fair and reasonable in the facts and circumstances of a given case was a matter of judicial discretion. Section 13(1-A)(ii) allowed either party to seek divorce and presupposes a restitution decree under section 9 and therefore constituted an adequate remedy. The appeal was dismissed.

CASE III: Smt Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562
Facts: Saroj Rani and Sudarshan Kumar Chadha were married in 1975 and had two daughters Menka and Guddi. It was alleged that the respondent-husband turned the appellant out of his house and withdrew himself from her society. After 5 months the wife-appellant filed a suit against the husband/respondent under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights in the court of the Judicial Magistrate 1st Class who passed a consent decree for restitution of conjugal rights. After 1 year of the said decree, the respondent/husband filed a petition Under Section 13 of the Hindu Marriage Act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of conjugal rights, but no actual cohabitation had taken place between the parties. The appellant in her reply said that there had been cohabitation after the grant of the decree for restitution of conjugal rights. It was also stated by her that she had filed an application Under

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Section 28A of the Hindu Marriage Act in the court of Sub-Judge, 1st Class, with the request that the husband should be directed to comply with the decree passed against him Under Section 9 of the said Act and the application was pending at the time when the reply was filed by the wife to the petition for divorce. Decision of the District Judge: The learned District Judge dismissed the petition of the husband for divorce. Two issues were framed by the District Judge. One was whether there had been any restitution of conjugal rights after the passing of the decree for the same, and secondly to what relief was the husband entitled to? After considering the evidence of civil and criminal proceedings pending between the parties, the court came to the conclusion that there had been no resumption of cohabitation between the parties after the passing of the decree for the same and decided this issue in favour of the husband. But on the question of relief the court was of the view that in view of the provisions of Section 23 of the said Act and in view of the fact that the previous decree was a consent decree and at that time there was no provision like provision of Section 13B of the said Act i.e. divorce by mutual consent, the court was of the view that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce. Against this decision an appealed was preferred. Decision of the High Court: the High Court negatived the contention of the wife that the husband was attempting to take advantage of his own wrong and was hence not entitled to a decree for divorce. On the issue of the consent decree in petitions for restitution of conjugal rights the court held that the decree for restitution of conjugal rights could not be passed with the consent of the parties and therefore being a collusive one disentitled the husband to a decree for divorce. But, the judge felt that this view required reconsideration and he therefore referred the matter to the Chief Justice for Constitution of a Division Bench of the High Court for the consideration of this question. The Division Bench of the High Court came to the conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle the petitioner to decree for restitution of conjugal rights. Thus, the court held that the husband was entitled to a decree for divorce. Decision of the Supreme Court: Since the ground of the decree for restitution of conjugal rights being collusive was not raised before the apex court the court did not

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rule on it. Further, it was sought by the appellant to raise a new ground at this stage. This was also turned down by the Supreme Court. After dealing with these two issues summarily the court dealt with the constitutionality of the concerned provisions in the following manner. After summarizing the decision and differences between the High Courts in the cases of T. Sareetha v. Venkata Snbbaiah9 and Harvinder Kaur v. Harmander Singh Choudhry10 the Supreme Court pointed out that conjugal was not restricted to marital intercourse but also included the right which husband and wife have to each other's society. Further, the court argued that in India this right was not merely creature of the statute but inherent in the very institution of marriage itself. More significantly, form the point of view of this paper, the court observed that unlike a decree of specific performance of contract, the execution of a decree for restitution of conjugal rights allows the court discretion to impose sanction only where the disobedience was wilful i.e. is deliberate and in spite of the opportunities to do the same i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal right but disobeys the same in spite of such conditions, than only financial sanction, provided he or she has properties to be attached, is provided for. The court went on to order maintenance to the daughter and wife separately and dismissed the appeal. Another distinction be made is that civil imprisonment is only provided for in cases where periodical payments by the husband are not made as provided for under Order XXI Rule 33 of the Code of Civil Procedure. For non compliance of the decree only attachment of property is ordered and if the decree is satisfied such attachment is withdrawn. The appeal was dismissed. Thus, in light of the existing case-law the inexorable conclusion is that Section 9 of the Hindu Marriage Act, 1955 and Order 21 Rule 32 and 33 of the Code of Civil Procedure, 1908 are intra vires the Constitution.

10

AIR 1982 AP 122. AIR 1984 Del 432.

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CONCLUSION
Conjugal rights as held by the Supreme Court, is a right inherent in the institution of marriage itself, and allows the husband or wife to have the society of the other spouse. It does not mandate sexual intercourse. Also, the judge who orders such a decree applied his mind as to the unwillingness of a spouse to engage in marital intercourse and it such unwillingness is found such a decree is never give. There are sufficient safeguard in Section 9 to prevent it from being tyranny. Having regard to the purpose of the decree of restitution of conjugal rights and its inducement offered by the civil procedure code in the form of order XXII rule 32 as a result thereof, the method of execution cannot be ultra vires the Constitution of India under article 21 or 14 because the Section 9 of the Hindu Marriage Act itself is not unconstitutional and merely embodies pre existing law. Where the substantial law is constitutional, its method of execution cannot said to be unconstitutional on grounds other than fair procedure. The case of Saroj Rani v. Sudarshan11 cleared the confusion surrounding this point of law. These have merely been included by the Legislature since these are mostly enforceable against husbands who desert their wives.

It was found that the reasoning of the Andhra Pradesh High Court in the T. Sareetha case was founded on questionable bases. These were, as pointed out by the Delhi High Court in the Harvinder Kaur case, as follows. First, the characterization of the remedy of restitution of conjugal rights as forced sex. Secondly, a misreading of the Order 21 rules 32 and 33 to the extent that they could be used to imprison the judgment debtor. It was pointed out by the later decisions that the provisions in question were a aimed towards preservation of the marriage and were part of a structure facilitating divorce on the ground of irretrievable breakdown of marriage. It was also noted by the Supreme Court that the relevant provisions of the Code of Civil Procedure did not provide for imprisonment. On the issue of misuse of these provisions the court opined that the judge who orders such a decree applies his mind as to the existence or absence of a reasonable excuse for the ensuing separation between the spouses. If a reasonable excuse exists then such a decree cannot be

11

AIR 1984 SC 1562.

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granted. Thus, there are sufficient safeguards provided by the law to prevent such a remedy from being misused.

Order XXI Rule 33, is a welcome inclusion since it allows the court to order a husband to make to the wife periodical payments in the nature of maintenance if a decree for restitution of conjugal rights has not been followed. Till such time as an order for judicial separation and divorce is given this ensures that the wife is not left in penury. Since it also follows that after a period of restitution of conjugal rights if the parties still feel they cant live together they can file for judicial separation or divorce under Section 13 of the Hindu Marriage Act.

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BIBLIOGRAPHY
BOOKS:

1. 2.

Halsbury laws of England, 4th edn,Vol. 17. Justice C.K. Thakker, Civil Procedure Code 5th edn. (Lucknow: Eastern Book Company, 2005).

3. 4.

M.P. Jain, Code of Civil Procedure (Nagpur: Wadhwa Co., 2004). Mulla Code of Civil Procedure 16th edn. (S. Pauk & A. Srivastava, ed., New Delhi: Butterworths, 2004). S. Sarkar & Manohar, Code of Civil Procedure 10th edn. (Nagpur: Wadhwa Co., 2004). V. Aiyer, Code of Civil Procedure 6th edn. (Hyderabad: Gogia Law Agency, 2000).

5.

6.

7.

V. Jagannadha Rao, Code of Civil Procedure (Hyderabad: Asia Law House, 1990).

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