Restitution of Conjugal rights: An analysis of section 9 of The Hindu Marriage Act, 1955
Author: Ujjwal Tripathi
Designation: Law Student
Email ID: firstname.lastname@example.org
Marriage is a union between both partners that imposes certain marital duties and gives certain legal rights to each of them. One significant aim of marriage is that both parties should live together and provide each other with emotional and financial comfort. After the marriage solemnization, if one of the partners withdraws from the other's society without reasonable justification, the aggrieved party has the legal right to file a petition to the district court, for restitution of conjugal right.
A decree of restitution of conjugal rights may be passed by the court upon satisfaction of the truth of the statements contained in such a petition. The only remedy that can be used by the deserted spouse against the other is the restitution of conjugal rights. The implementation of the decree on the restoration of conjugal rights is however very complicated.
According to current laws, the decree of restitution of conjugal rights can be implemented by the respondent's attachment of property, but if the party still refuses to comply, the Court may punish him or her under contempt of court. So the court can not compel the erring partner to consummate marriage under any circumstances.
The Dharmashastra did not accept the remedy for the restitution of conjugal rights, nor did Muslim law had any provisions for it. It came to us through the law of Britain. The restitution was not, however, made part of any community marriage statute. It was adopted in compliance with general law. In Feudal England, where the marriage was a property contract, and the wife and children were part of the possession of a man, as a chattel. However, by making sufficient financial provisions for women, English law has improved the status of the wife and eliminated the matrimonial cause of restitution of conjugal rights.
In the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum, in India, the principle of restoration of conjugal rights was introduced, where certain acts were perceived to be specific performance considerations.
This remedy is available to Hindus under section 9 of Hindu Marriage Act 1955, under general law to Muslims, to Christians under section 32 and 33 of Indian Divorce Act 1869, to Parsis under section 36 of Parsi Marriage and Divorce Act 1936 and under section 22 to a person marrying according to the provisions of the Special Marriage Act in modern India.
Restitution of the conjugal right consists essentially of two terms.
RESTITUTION: Restoring all that was lost.
CONJUGAL RIGHT: Rights relating to marriage or husband-wife relationships.
The concept of a court decree to provide restitution of conjugal rights is to protect marriage from the break-up. It is a beneficial solution that allows the married couple to cohabit together.
ESSENTIALS TO FILE A PETITION FOR RESTITUTION OF CONJUGAL RIGHTS
The basic conditions for bringing an action for restitution of conjugal rights are as follows –
1. Withdrawal by the respondent from the petitioner's society.
2. That the withdrawal has neither a legitimate purpose nor is it legal.
3. That there was no other legal basis for refusal to grant relief.
4. That the court is satisfied with the statements of the plaintiff.
Thus, in all personal laws, these four grounds form the basis of a suit for restitution. This was again accepted in the case of Sushila Bai v. Prem Narayan, in which the court-ordered restitution and confirmed the above-mentioned essentials as a basis for restitution. In the same case, the court has set out such situations which could be taken as a defense in the restitution suit as follows.
1. If the respondent has ground to seek any marriage relief
2. If the petitioner is guilty of misconduct
3. This makes it difficult for couples to live together because of such actions or omissions.
The lawsuit for restitution is thus vitiated in these conditions, and the court is bound by an order for a Judicial Separation followed by a Divorce.
RELATIONSHIP BETWEEN Sec. 9 AND Sec. 25 OF HINDU MARRIAGE ACT 1955
In addition to providing for the restitution of conjugal rights, Section 9 of the Hindu Marriage Act 1955 also provides for an opportunity for the spouse of the applicant to claim maintenance under Section 25 of the Act. It should be noted here that maintenance could be obtained according to those provisions, even if the maintenance action is still pending. Therefore a wife who does not want marriage interruption will obtain maintenance directly from her husband through these provisions. In Seema v. Rakesh Kumar, the Hon'ble Supreme Court held that the petitioner's wife is entitled to obtain maintenance from her husband in cases for the restitution of conjugal rights if the two live with each other and the wife is unable to live a decent life on her own.
CONSTITUTIONAL VALIDITY OF SECTION 9 OF HMA, 1955
Several cases challenged the constitutional validity of the s.9 of the Hindu Marriage Act. Certain courts have held it unconstitutional that it violates article 21 of the Indian Constitution but the Supreme Court through its judgments has put an end to the controversy. Andhra Pradesh High Court in T. Sareetha v. T. Venkatasubbaiah, in which the Hon'ble High Court ruled that the section challenged was unconstitutional. In Harvinder Kaur v Harminder Singh, however,
the Delhi High Court had non-conforming views. In Saroj Rani v. Sudharshan, the Supreme Court finally issued a judgment that was consistent with the views of the Delhi High Court and upheld the constitutional validity of Section 9 of the Hindu Marriage Act 1955.
In T.Sareetha v. T.Venkata Subbaiah Justice P.A.Choudhary of the Andhra Pradesh High Court held Section 9 of the act ultra vires since it offended Articles 14 and 21 of the Constitution. The High Court held: "A decree for restitution of conjugal rights constitutes the grossest form of violation of an individual's right to privacy … the decree … denies the woman her free choice whether, when and how her body is to become the vehicle for the procreation of another human being." Given all the above arguments, section 9 was termed as "savage", "barbarous" and "uncivilized" and declared null and void.
The Delhi High Court in Harvinder Kaur v Harmander Singh not only upheld the validity of section 9 but also discussed that restitution aims at cohabitation and consortium and not merely sexual intercourse and that there is nothing barbarous or coercive about it. "A disproportionate emphasis on sex, almost bordering on obsession, has colored the views of the learned judge [referring to T Sareetha]" the court observed The court also criticized the induction of constitutional law into family law and termed it as "introducing a bull in a china shop.”
The issue of the constitutional validity of section 9 was settled down by the Supreme Court in Saroj Rani v Sudershan Kumar. The court upheld the Harvinder Kaur v Harmander Singh judgment. The Supreme Court held that "the right of the husband or the wife to the society of the other spouse is not just a tool of the statute. Such a right is inherent in the very institution of marriage itself… There are sufficient safeguards in section 9 to prevent it from being a tyranny" The decree serves as a social purpose to prevent the break-up of a marriage. The section is not violative of articles 14 and 21 of the constitution if the proper meaning of s.9 is understood and if the method of its execution in cases of disobedience is kept in view.
In Indian society, marriage is considered as the union of 2 souls. One purpose of marriage is that the spouses will stay together and provide emotional and financial comfort to each other. Restitution of conjugal rights is a western concept and it was introduced in India by the Britishers. Now in modern India restitution of conjugal rights is a part of the special laws of the communities. If either of the spouses withdraws himself/ herself from the society of the other then the aggrieved spouse may file a petition in the district court for the enforcement of conjugal rights. The court, if satisfied by the statement may pass a decree, However, under no circumstances the court can force the erring spouse to live with the petitioner. It can be understood from a proverb “you can lead a horse to water but you can’t make him drink”
The constitutionality of conjugal rights (sec.9 HMA, 1955) in the past has always been in question. Whether it violates article 14 and art 21 of the Indian constitution. However, the supreme court settled this question in the Saroj Rani v Sudershan Kumar case. The court held that the aim of sec.9 is to establish coexistence between the spouse and prevent the marriage from the breakup. It does not violate article 14 and art. 21 of the constitution if its proper meaning is understood and if the method of its execution in cases of disobedience is kept in view.
 Moonshee Buzloor Ruheem v. Shumsoonissa Begum, (1867) XI MIA p „ 551  Sushila Bai v. Prem Narayan , AIR 1986 MP 225  Seema v. Rakesh Kumar , (2000) 9 SCC 271  T Sareetha v T Venkatta Subbaiah, AIR 1983 AP 356.  Harvinder Kaur v Harminder Singh , AIR 1984 Delhi 66  Saroj Rani v Sudershan Kumar, AIR 1984 SC 1562.  Supra, 4  Ibid, p 366.  Supra 5  Ibid, p 78  Supra 6  Ibid, p 1568. https://www.bbc.co.uk/worldservice/learningenglish/language/2012/09/120924_todays_phrase_horse_to_water.shtml#:~:text='You%20can%20lead%20a%20horse,force%20them%20to%20take%20it.