Section 9, Hindu Marriage Act, 1955: Restitution of Conjugal Rights ( Saroj Rani v. Sudarshan Kumar)

The parties were married at Jullundur City according to Hindu Vedic rites on or about January 24, 1975. Two daughters were born out of the wedlock.  It is alleged that May 16, 1977 was the last day of cohabitation by the parties as respondent husband turned the appellant out of his house and withdrew himself from her society. On October 17, 1977, the wife appellant filed a suit against the husband-respondent herein under Section 9 of the Hindu Marriage Act, 1955 hereinafter referred to as the said Act for restitution of conjugal rights. A consent decree was passed by the court for RCR by the learned Sub-Judge First Class, but no cohabitation took place during the one year. The husband moved a motion 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 learned Judge 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 13-B of the said Act i.e. “divorce by mutual consent”, the learned Judge 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. The court then led upto the supreme court. 

Issue:

Whether Section 9 of the HMA violated Article 14 and Article 21 of the Constitution.

Can the party against whom the RCR decree is passed and has failed to comply with it be allowed to move divorce petition under section 13 of the act?

 

Sections:

Constitution of India 1950, Articles 13,14 and 21.

Hindu Marriage Act 1955, Sections 9, 13 and 23(1) (a).

Arguments

The Appellant argued that the Respondent always intended to divorce her, and thus did not object to the decree for restitution of conjugal rights with the view to dishonour it and ultimately be granted a divorce on those grounds. Moreover, the Appellant also drew attention to the case of T. Sareetha, which held restitution of conjugal rights as unconstitutional as it violated the right to privacy of choice and autonomy under Article 21 of the Constitution.

 

The Respondent should not have been allowed to take advantage of his “wrong” as per Section 23 of the HMA and thus should not have been granted the decree for divorce. 

 

Ratio Decidendi:

 

The Court rejected the Appellant’s contention as the aforementioned arguments were not in the pleadings, and the facts averred were contrary to those presented before the lower courts. The Appellant had first alleged that she had cohabited with the Respondent for two days, but later denied this while stating that the Respondent purposely disobeyed the consent decree for the purpose of obtaining the decree for divorce. The Court held this contradiction to be fatal to the Appellant’s case. 

 

To answer the second issue, the Court considered the question of the constitutionality of Section 9 of the HMA that gives a party the right to file a suit for restitution of conjugal rights vis-à-vis the right to privacy. In the course of determining this question, the Court analysed T. Sareetha’s case, which had held that Section 9 of the HMA violated the right to privacy and human dignity under Article 21 of the Constitution and was thus void. It considered courts’ interference in mandating compulsory cohabitation a gross violation of personal choice and autonomy and observed that a decree for restitution of conjugal rights denied the woman sexual autonomy and the free choice of procreation, thereby denying her privacy over her most intimate decisions. Though the right under Section 9 of the HMA was equally available to both husband and wife, the High Court in T. Sareetha observed that it was mostly used by men and thus differentially and adversely impacted women.The Court noted that the judgment of the Delhi High Court in Harvinder Kaur disagreed with the view taken by the Andhra Pradesh High Court in T. Sareetha. The Delhi High Court held that Section 9 of the HMA did not violate Articles 21 or 14. It noted that the purpose of restitution of conjugal rights was to restore matrimonial harmony and not to enforce sexual cohabitation, and that sexual intercourse was not the only element of conjugal rights under Section 9 of the HMA.  The Supreme Court considered both the views and held that Section 9 of the HMA did not violate Article 21. It considered the technical definition of conjugal “of or pertaining to marriage or to husband and wife in their relations to each other”, and thus sided with Harvinder Kaur in observing that matrimonial consortium did not necessitate sexual cohabitation. Although the Court did not explicitly discuss the right to privacy, in overruling T. Sareetha, it suggested that enforcing Section 9 of the HMA did not constitute a breach of privacy. 

 

For the first issue, the court stated, 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

"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."

 

The Court noted that the remedy for failure to obey a decree for restitution of conjugal rights was attachment of property (financial sanctions), but not specific performance hence, the motion for divorce was accepted.  

 

Judgement:

The Court thus granted the Respondent the decree for divorce, and ordered him to pay maintenance to the wife until she remarried and for the daughter up till her marriage because they lived apart for more than one year after decree of RCR.