Marriage is union of endless supply of the life partners certain conjugal obligations and provides for each of them certain legitimate rights. The important ramifications of marriage are that parties will live respectively. Every companion is qualified for solace consortium of the other. So after the solemnisation of the marriage if either spouse has left the other without giving any reasonable ground, the Hindu Marriage Act 1955 gives the aggrieved party remedy in the form of Section 9 under the restitution of conjugal rights. The section 9 of the HMA reads that,

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights.What the aggrieved party needs to do is file a petition to the district court and 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, the judge may decree restitution of conjugal rights in his favour.”

Historically tracing the concept of this Law we can go back to the fact that Hindu marriage is seen as a sacrosanct. It has both contractual and sacrament aspects. The smritis, which contain a noteworthy wellspring of Hindu law, generally see marriage as a fundamental samskara or religious obligation. The order of spouse as dharampatni implies an arrangement of unalienable religious duties and obligations. The courts expect that in trade for the rights gave by the individual laws on the gatherings to the marriage; they satisfy the conjugal commitments forced on them by the arrangements of the demonstration. In this unique situation, the execution of religious functions and ceremonies are regarded required and the consecrated conjugal bond as endless and in dissolvable.

The constitutional validity of the arrangement has over and over been addressed and tested. In 1983 the Andhra Pradesh High Courtin T. Sareetha v. T. Venkatasubbaiah, A.I.R 1983 A.P. 356 held that the denounced provision was unlawful. The Delhi High Court in Harvinder Kaur v Harminder SinghAIR 1984 Del.66 however had non-accommodating perspectives. At last Supreme Court in Saroj Rani v. Sudharshan Kumar Chadha A.I.R 1984 S.C 1562gave a judgment which was in accordance with the Delhi High Court sees and maintained the protected legitimacy of the segment 9 and over-ruled the choice given in T. Sareetha v. T. Venkatasubbaiah.

The instance of T.Sareetha, was the first to scrutinize the foundational authenticity of the stipulation on the rebuilding of conjugal rights. The petitioner contended that Sec 9 was “liable to be removed from the statute as it was in violation of articles 14, 19 and 21. The petitioner implied that this remedy is contrary to the freedoms of life, liberty and dignity.”

According to Justice Chowdary, marital rights connote two formulations, first that marriage partners have right for each other and second, marital intercourse. He held that “enforcing this right would amount to transfer of the right of the individual over her body, to the state”. He posited against the continued use of the section to enforce unwilling sex over a partner, under the garb of tyranny of the law.
Lord Herschell has also recorded his strong opinion about such proviso, since it violates the sanctity of the body. In Russel v Russel(1897) AC 395he went as far to say that ‘some of the case outcomes, based on restitution, bordered on the barbaric’. The judgement highlights the way that even the choice to have a child is a personal choice that ought to be taken by the lady and not something she ought to be forced into without wanting to. This provision is genuinely an indication of the ill-conceived frontier time. It needs legitimate sponsorship and is a glaring encroachment of an individual’s directly over his/her body, in this manner disregarding an individual’s freedom under Article 21 of the Indian constitution. Justice Subba Rao insightfully mentioned this objective fact and extended the privilege to life to incorporate individual’s freedom also.

One year after the historic Sareetha judgment, the Delhi High Court in Harvinder Kaur v Harminder Singh,re-examined this issue and held to the contrary. In this case the wife challenged a decree for restitution granted to her husband by the lower court. The court, while dismissing the appeal, held that the section was constitutionally valid, stating that the dual objective of the section was ‘restoring amity in marital life through a legally enforced rapprochement’. The court went ahead to include that presenting protected law in the circle of marriage resembles a bull in a china shop, and that articles 14, 21 have no place in the security of the home. The Delhi court re-imagined the establishments of conjugal connections, far from the security of appropriate to protection. Facilitate, the court considered intercourse as an imperative component of marriage, yet not really the ‘sumnumbonum’, behind petitions of restitution. Hence, not at all like Justice Chowdhary, the Delhi high court took a more restricted perspective of the stipulation of restitution.

The Supreme Court inSaroj Rani V. S.K Chadda,illuminated its position on this arrangement. The court translated that marriage, as a socially endorsed practice and family as its basic structure, gave a couple innate rights over each other’s society. The Supreme Court communicated its inspiration to ensure these uncodified laws towards, the social capacity of keeping the separation of the marriage. The Supreme Court likewise called attention to how the segment contained adequate shields to counteract abuse of a gathering to the marriage. Promote, the court held that the rule 32 of Order 21 was not coercive, but rather just a money related instrument to instigate the re-foundation of conjugal relations and to keep the separating of the conjugal tie. Hence, Justice Mukherjee found that area 9 was not disregarding Art 14 and 21 of the constitution.

In conclusion it can be said that the proverb “You can take a horse to the water, but you can’t make him drink”, suits well on the provision for restitution of conjugal rights under the Indian personal laws. The court can pass a decree for restitution of conjugal rights and request the failing mate to live together with the distressed life partner. However, it is to be noticed that the court can’t force the defaulting mate to physically come back to the solace consortium of the announcement holder life partner.

ABOUT THE AUTHOR

PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”