RESEARCH PROJECT ON

RESTITUTION OF CONJUGAL RIGHTS

SUBMITTED TO
THE TAMILNADU NATIONAL LAW SCHOOL, TIRUCHIRAPPALLI.

In Fulfillment of the Requirements for Internal

Component in

FAMILY LAW
By
ARAVINDAN.M (BC0140010)
Under the guidance & Supervision of
PROF. Pranusha kulkarni
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CONTENTS

INTRODUCTION…………………………………………………………5

Conjugal Rights: The Concept………………………………………………..6

DECREE TO RESTORE RESTITUTION OF CONJUGAL RIGHTS ……7

FUNDAMENTAL RIGHTS AND CONSTITUTION OF INDIA………….9

PERSONAL LAWS AND FUNDAMENTAL RIGHTS..…………………11

SECTION 9 AND GENDER DISCRIMINATION……………………….12

THE RIGHT TO PRIVACY AND RESTITUTION OF CONJUGAL

RIGHTS……………………………………………………………..13

CONSTITUTIONALITY OF RESTITUTION OF CONJUGAL RIGHTS..15

CONCLUSION……………………………………………………………17

BIBLIOGRAPHY…………………………………………………………19
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Views of Indian Judiciary in respect to Restitution of Conjugal Rights under

Hindu Marriage Act, 1955

Introduction

The human society rests on the two basic institutions that are family and marriage. Every society
is governed by certain norms and rules which have developed into customs and usages with the
passage of time. Marriage is often regarded as a primary institution in our society. For Hindus,
marriage is union for life – a sacrament union. Every society is governed by certain norms and
rules which have developed into customs and usages with the passage of time. The institution of
marriage is governed and recognized by the personal laws of all the religions. After a due course
of time marital complexities such as divorce, judicial separation and conjugal rights came up in
personal law and it became inevitable to codify the laws relating to marriage in India.
When parties to the marriage get separated, then a remedy in the form of restitution of these
conjugal rights can be sought by the disadvantaged party. There is a doubt as to whether such
provision is in conformity with the constitution. In recent times the constitutional sanction of the
restitution rights is hotly debated. The object of the present paper is to judge the validity of the
provisions guaranteeing restitution of constitutional rights on the touch stone of the constitutional
principles by comparing it with the fundamental rights as enshrined in the part III of the
constitution. Though this paper has sought to analyze this issue by referring to many cases,
at certain stages opinions are also given which are based on facts. An individual's existence in
the society is guided by institutions which are often regarded as established forms of procedure
characteristic of group activity. Two individual are vested with a set of rights and obligations.
These rights may be called as “conjugal rights”. For Hindus, marriage is union for life – a
sacrament union. Every society is governed by certain norms and rules which have developed
into customs and usages with the passage of time. The institution of marriage is governed and
recognized by the personal laws of all the religions. After a due course of time marital
complexities such as divorce, judicial separation and conjugal rights came up in personal law and
it became inevitable to codify the laws relating to marriage in India. Consequently, Hindu
Marriage Act, 1955, Indian Divorce Act, Parsi Marriage and Divorce Act, 1936 and various other
acts were codified. The new era started with the passing of the Hindu marriage Act, 1955. The
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concept of marriage vests the parties with certain rights that exist only out of the wed-lock. These
rights are called Conjugal Rights. Under section 9 of the Hindu Marriage Act 1955, a court is
empowered to grant a decree for restitution of conjugal rights between married couples.

Conjugal Rights: The Concept

The word conjugal, literally senses means, “Of relating to marriage or to married persons and
their relationships”. Under section 9 of the Hindu Marriage Act 1955, a court is empowered to
grant a decree for restitution of conjugal rights between married couples 1. The foundation of this
relief of restitution of conjugal rights is the fundamental rule of matrimony that a wife or
husband is entitled to the society and comfort of her or his spouse – consortium – ′where either
of them has withdrawn from the society of the other without reasonable excuse of just cause 2.
The existence of a valid marriage is an essential requisite of such relief 3; such withdrawal4 from
the society must be without the consent of the parties and goes beyond physical withdrawal; the
expression ‘reasonable excuse’ has not been defined by this Act but must fall short of
matrimonial offences as being ‘grave and weighty’ 5.Manu states6 “neither by sale not by
repudiation is a wife released from her husband… such we know the law to be, which the lord of
creatures made of old. To be mothers were woman created and to be fathers men”.

1
S.9 of the Hindu Marriage Act, 1955 states:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district court for restitution of conjugal rights and the court, 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, may decree restitution of conjugal rights accordingly.”
By Act 68 of 1976, S.3,
“Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of
proving reasonable excuse shall be on the person who has withdrawn from the society.”
2
Mulla, Hindu Law, vol.2 20th ed. (2007), p.63.
3
It is necessary to avail the relief granted under such Section, that a valid marriage exists between the parties. It was
held in Lakshman Singh v. Kesar Bai 1966 MP 166 that parties to such suit must prove that the valid ceremonies
were performed that would make their marriage valid. Any contention otherwise must be proved by the party putting
forward such contention that the marriage is not valid, as held in Mallikarjunappa v. Yerramma ILR 1971 AP 163;
Sridhar Dey v Kaplana Dey (1988) 1 HLR 563 (Cal): AIR 1987 Cal 213.
4 Ramesh Chandra v. Premlatha 1979 MP 15: 1978 Jab LJ 733: 1979 MPLJ 24; Venkata Subba Rao v. Surya Kumari
1980 AP 318: 1980 (2) APLJ (HC) 118.
45
This expression must be interpreted in the same way as ‘just ground’ for refusing to live with the husband in S.
125(3) of the Cr P.C. of 1973 as held in Siraj Mohammad Khan v. Hafizunnissa 1982 HLR 62 (SC).
56
Buhler G. Manusmriti.
6
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It is also stated that the duties of the wife are to be present with the husband and perform her
marital obligations at the husband’s residence.7 Similarly the duties of the husband towards the
care and protection of the wife, towards her safety and comfort and towards a happy life to her
have also been unequivocally articulated.8

Decree to restore Restitution of Conjugal Rights

The relief of ‘restitution of conjugal rights’ seeks to provide recourse in the law to promote
family wellbeing as stated in the ancient edicts and scriptures. Such edicts mention the duties of
the husband and the wife and the relief in the form of restitution of conjugal rights tries to
preserve the family and prevent its breakdown due to minor issues. Such relief has been granted
to parties in India in the case of all communities even in the absence of legislation. 9 The practical
importance of the relief is however two pronged. First that it enables the aggrieved spouse to
apply to the court for maintenance under S.25;10 maintenance ‘pendent lite’ may also be claimed
by making out a case for the same as provided in S.24 of the Act. Secondly, and more
importantly, this relief by way of restitution of conjugal rights affords a ground for divorce to
either party under S.13 (1A) which lays down that either party to a marriage, whether solemnized
before or after the commencement of the Act, may obtain a decree of divorce on the ground that
there has been no restitution of conjugal rights between them for a period of one year or upwards
after the passing of a decree for restitution of conjugal rights in a proceeding to which they were
parties.11 The concept of the court’s power to grant and enforcing such relief has been borrowed
from English Law where statutes gave jurisdiction to the King’s Courts to determine causes as
far as possible on the principle of ecclesiastical law. Such legislation was not altered and courts
were bound by precedent to follow such law. The history of the relief in India therefore lies in
precedent laid by English Courts that heard matrimonial causes. 12 The case of Monshe Buzlur

7
Gaya Prasad v. Bhawati AIR 1966 MP 212 (JB): 1965 Jab LJ 1092: 1965 MPLJ 948
8
Kailashwati v. Ayodhya Prakash 1977 HLR 177.
9
Dadaji Bhikaji v Rukmabai (1886) 10 Bom 310; Monshe Buzloor Ruheem v. Shoomsonissa Begum (1867) 11 MIA
551; Tekait Mon Mohini v. Basanta Kumar (1901) 28 Cal 751; Bai Jivi v. Narsingh Lalbhai (1926) 51 BOM329.
10
While S.25 provides for grounds for permanent alimony and maintenance, S. 24 provides for support of a party
and expenses of the proceedings to the party who it finds has no independent income sufficient for his or her
support.
11
Supra n.2.
12
Supra n. 5.
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Ruheem13 clearly marks the advent of such relief and the current law in India relating to
restitution of conjugal rights is the same as propounded therein.
Lord Herschell in the same case noted the barbarity of this remedy; The British Law Commission
presided by Mr. Justice Scarman in its report on 09-07-1969 recommended abolition of this
remedy in English law which lead to S.20 of the ‘Matrimonial Proceedings and
Property Act, 1970’ which abolished the right to claim restitution of conjugal rights in English
Courts.14 Such law did not however, bind the Indian Court where granting such relief had already
become a well-established remedy. The ecclesiastic origins of the relief that governed the Courts
of England, such remedy now have the force of law15 and are backed by sanctions.16 For a decree
for restitution of conjugal rights, three conditions must be satisfied:17

a) The respondent should have withdrawn from the society of the petitioner without
reasonable excuse.
b) The court should be satisfied about the veracity of the statements made in such a petition.
c) There should be no legal ground why such relief must not be granted to the petitioner.

A petition for restitution of conjugal rights is maintainable only when there is a valid marriage.
In Ranjana kejriwal v.Vinod Kumar Kejriwal,18 the petitioner wife alleged that the husband was
already married and had suppressed the fact from her. The Court held that the petition for
restitution of conjugal rights is not maintainable since there is no legal marriage. The burden of
proof lies on the person who has withdrawn from the society of his/her spouse to prove that
he/she had reasonable cause to withdraw from the society of his/her spouse. The person who has
withdrawn from the society of his/her spouse may prove that it has become impossible to live
with the spouse. In Vijay Kumar v. Suman19 it was held persistent demand for dowry or causing
physical and mental torture was held to be a reasonable cause for the wife to withdraw from the
society of the husband The section 9 must be read with Section 23 of the Act which imposes
13
Monshe Buzloor Ruheem v. Shoomsonissa Begum (1867) 11 MIA551
14
Section 20, Matrimonial Proceedings and Property Act, 1970: “No person shall after the commencement of this
Act be entitled to petition the High Court or any other Court for restitution of conjugal rights.”
15
S.9 of the Act provides for legal backing for the remedy of ‘Restitution of Conjugal Rights’
16
14 Order 21 Rules 32 and 33 of the C.P.C provide for enforcement of such decree by compensation or attachment
of property to compensate the decree holder upon non‐performance of the decree by the other party.
17
Surinder v. Gurdeep, 1973 P & H 134; Sandhya v. Gopinath, 1983 Cal 167; Jaigiro v. Sohan Singh 1995 (2) HLR
258 (P&H).
18
(AIR 1997 Bom 380)
19
(1996) 1 HLR 24 (P&H)
 Page |7

upon the court the duty to inquire into and pass such decree only after satisfying itself about
certain matters. S.23 lays down grounds for refusal of grant of relief. A bona fide desire to
resume cohabitation and render faithfully ones matrimonial rights and duties and the sincerity of
the petitioner; 20an absence of reasonable excuse on the part of the respondent and the absence of
any matrimonial offence are the prerequisites of the grant of such relief. 21 As regards the
withdrawal from one’s society, the initial burden of proof that the respondent has withdrawn
from the society of the petitioner is on the petitioner. 22 Once such burden is discharged, it is for
the respondent to prove that there exists reasonable excuse for the withdrawal. 23 The nature of
reasonable excuse has not been defined under the Act 23 and it is to be decided by the court on
the merits of the facts of each individual case which are governed by its singular peculiarities;
such excuse will vary with time and circumstances. The circumstances characterized by such
section may also constitute ‘reasonable excuse’ under S.9 of the Act. 24 The nature of reasonable
excuse has not been defined under the Act 25 and it is to be decided by the court on the merits of
the facts of each individual case which are governed by its singular peculiarities, such excuse
will vary with time and circumstances. ‘Reasonable excuse’ cannot be equated with matrimonial
offences nor can it be said that reasonable excuse cannot exist except in the form of a ground
recognized by this Act.26 Such excuse may be equated with the grounds mentioned in sub-clauses
(a) to (g) of S.18(2) of the ‘Hindu Adoptions and Maintenance Act, 1956’ where in a wife may
27
live separately from her husband without forfeiting her claim to maintenance. The second
provision to S.125 (3), Cr.P.C. of 1973 uses the expression “‘just ground’ for refusing to live with
the husband”.28 Husband’s neglect of his wife29 or the constant demand for dowry30 is reasonable
grounds for the wife to stay at her parent’s place

Fundamental Rights and the Constitution of India

20
Sayal v. Syal, AIR 1968 P&H 489; Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95.
21
Pradeep Kaur v. Dalimala AIR 1983 Ori 79.
22
Bittoo v. Ramdas, 1983 All 371
23
Atmaram v. Narbada Devi AIR 1980 Raj 35.
24
Supra n 5.
25
Supra n 5.
26
Ranganath Misra and Vijayender Kumar (revs.), Meynes, Treatise on Hindu Law and Usage, 16th ed. (2008)
27
Satyanarayana v. Veerammani 1981 HLR 707 (AP)
28
Supra n 24.
29
Ram Chandra v Aadarsh AIR 1987 Del 99
30
Ashok v Shabnam AIR 1989 Del 121
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Fundamental Rights are the modern name what have been traditionally known as `natural
rights`31 It is fallacy to regard fundamental rights as gift from the state to its citizens. Individual
possess basic human rights independently of any constitution by reason of the basic fact that they
are the member of human race. These fundamental rights are important as they possess intrinsic
value. Part III of the constitution of India confirms the existence of these fundamental rights. A
right becomes fundamental right because it has foundation value.
The concept of natural rights as being derived from natural law may be traced from the stoic
philosopher Cicero, who in his De Legibus, said

′we are born for justice, and ……. right is found not in opinion but in nature. There is indeed a
true law, right reason, agreeing with nature and diffused among all, unchanging, everlasting.′32

Natural rights are those minimal rights of an individual which must be guaranteed by every
society which claims to be civilized. 33 Indian constitution confirms fundamental rights and
judiciary as its guardian. A special feature of fundamental rights under the Indian constitution is
that not only the rights themselves, but the remedy to move the Supreme court and High court for
their enforcement which also guaranteed as fundamental right as by Article 32 of the Indian
constitution, as a result of which this remedy and power of judicial review confirmed upon the
34
Supreme court in this behalf cannot be taken away by any legislation or by anything short of
amendment of the constitution.
Art.14 of the constitution of India says that every person is entitled to equality before the law and
equal protection of law. Where the state is bound to protect every human being from inequality. 35
The concepts of equal treatment presuppose is existing of similar legal foot-hold. It does not
countenance repetition of action to bring both wrongs on a par. The guiding principle is that all
persons and things similarly circumstanced shall be treated alike both in privileges conferred and
liabilities imposed. All equals must be treated equally and unequal should be treated differently.
Principles of human dignity, equality and personal liberty are the edifice on which the

31
Golak Nath v. State of Punjab, AIR 1967SC 1643(1656, Para. 16.)
32
CICERO, De Legibus, I, 10, 28.
33
RITCHIE, Natural Rights, 1894, pp.80-1.
34
Kochunni vs. State of Madras, AIR 1959 SC 735(729).
35
National Human Rights Commission v State of Arunachal Pradesh, AIR 1976 SC 1234: (1976) 1 SSC 742.
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constitution of India is based. These fundamental rights are also applicable to marital relations.
Constitution was drafted by the founding fathers keeping in mind the welfare of the people and
saw to it that there were appropriate provisions that ensured that a law was not misused. This
concept was given further force by the doctrine of Basic Structure laid down by a 13 judge bench
in 1973.

Personal Laws and Fundamental Rights

The restitution of conjugal rights is a part the personal laws of the individual. That is to say
religion, custom and ideals guide the principles of personal law. The question here arises is that
do personal law fall within the realm of the article 13 (3). The definition of laws as provided
under article 13 (3) is

(a) ‘Law' includes any ordinance, order, bye-law, rule, regulation or notification, custom or
usage having in the territory of India, the force of law.
(b) ‘Laws in force' includes laws passed by the legislature or any competent authority in the
Indian territory before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas.”

Article 13(3) (a) states that laws include customs and usages, there is a doubt as to whether
personal law would amount to a custom as mentioned under this article. The Court in State of
Bombay v. Narasu Appa Malistated36 that the concept of law in Article 13(3) must be read with
13(2). If done so, we find that a state cannot make a custom or create usage in a society. No
legislature can pass a custom as custom and usages are products of individual behaviour. Though
personal laws do consist of customs, their scope is not filled with them. This distinction which is
recognized by the Legislature would become clear if one looks to the language of Section113,
Government of India Act, 1915. This section provides that High Court shall, in matters of
inheritance and succession to lands, rents and goods, and in matters of contract and dealing
between party and party, when both parties are subject to the same personal law or custom
having the force of law, decide according to that personal law or custom. Therefore, we find that
a clear distinction is drawn between personal law and custom having the force of law.

36
AIR 1952 Bom 84, (1951) 53 BOMLR 779, ILR 1951 Bom 775
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Thus, it was realized that customs as under article 13(3) of the constitution and personal laws are
distinct. Justice Chagla in this regard states that the founding fathers of our Constitution did not
intend that personal laws should come under the scope of Article 13. However, a validity of the
personal laws would be tested against the fundamental rights as mentioned in the part III of the
Constitution. When we have to look at the constitutionality of a provision, Article 13(2) must be
looked at -

 “The state shall not make any law that takes away or abridges the rights conferred by
this part and any law made in contravention of this clause, shall to the extent of the
contravention be void”.
 So, we thus we confront an ambiguity when we compare personal law with article
13(3) (a). The provisions of Article 13 must not apply to a personal law if we regard
that it does not fall within the ambit of “customs and usages” as mentioned in the
article. Even so, if it does fall within the realm of article 13, then it must not be in
violation of any of the fundamental rights. But here we need to ascertain the
constitutional validity of a provision of the Hindu Marriage Act, 1955. Though it is a
personal law, we shall assume that it does come under Article 13(3) of the
Constitution and see if it is in violation of any of the provisions of the Constitution as
mentioned under Part III.

Once again, Section 9 of the Hindu Marriage Act, 1955 states:- “When either the husband or the
wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved party
may apply, by petition to the district court for restitution of conjugal rights and the court, on
being satisfied of the truth of the statements made in such a petition and that there is no legal
ground why the application should not be granted, may decree the restitution of conjugal rights
immediate.'

Section 9 and Gender Discrimination

Gender discrimination is very wide spread in the Indian society. More often than not, there have
been instances where women were subjected violence and injustice because of their gender.
Inequality with regard initiation of suit to restore conjugal rights exist in India because, “a suit
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for restitution by the wife is rare in the Indian Society”. This fact has been affirmed by the Court
in T.Sareetha v. T. Venkata Subbaiah.37 The life of women is deplorable in our Country due to
educational, economic and social factors. In our social reality, this matrimonial remedy of
restitution of conjugal rights is used almost exclusively by the husband and rarely resorted to by
the wife. It must be realized that the quote of Gupte's was pointing towards the provision of the
old Hindu law and the provisions of the Hindu Marriage Act, 1955. By amending act 44 of1964,
“either party to a marriage” is allowed to present a petition on the grounds given in Section 9 and
Section 13(a). The gender discrimination does not exist in the Hindu Marriage Act and all are
treated as equals under this section. It is opined that section 9 does not talk about classification of
sexes and does not discriminate on the basis of sexes. Though as discussed above it can be
undermined that major chunk of litigation on section 9 consists of the suits brought by the
husbands, the provision is non-discriminatory.

There is complete equality of sexes hare and equal protection of the laws. The objective of the
provision is to ensure that parties to marriage cohabit and harmoniously enjoy each other’s
company. So that they can live together in the matrimonial home in amity. Cohabitation has been
defined in these words: Cohabitation does not necessarily depend upon whether there is sexual
intercourse between the husband and the wife. 'Cohabitation' means living together as husband
and wife.

The Right to Privacy and Restitution of Conjugal Rights:

The Right to Life of a person is regarded most important fundamental right. Article 21 of the
constitution reads as follows;

“No person shall be deprived of his life or personal liberty except according to the procedure
established by law”.

Article 21, confers on every individual the fundamental right to life and personal liberty.
Supreme Court has given paramount position to these rights. Over the years, this right has also
included within its scope, the right to education, the right to privacy, the right to speedy trial, the
right to travel etc.. It is argued that Section 9 of the Hindu Marriage Act, 1955, violates the right
37
AIR 1983 AP 356
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to privacy of an individual, as it forces a spouse to live with another thereby bringing a bar on the
liberty to enjoy personal space. In Sareetha's case the court observed, a decree for restitution of
conjugal rights would deprive a woman of the control over her choice as to whether her body
should be allowed to be sensed. Our Constitution puts right to privacy and human dignity to the
highest pedestal. And so any right to privacy must encompass and protect the personal intimacies
of the home, the family, marriage, motherhood, procreation and child bearing. It is to be noted
that the restitution of conjugal rights, is only willful in nature. And unlike specific performance,
the courts must treat it only as an inducement in times to come.

The institution of marriage being very sacrosanct its protection is very necessary and 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 but
reasonable excuse is justified. From the above discussion we can say that a decree to restore
conjugal rights though has favorable object to save marriage but the marriage should not be
saved at the cost of forceful cohabitation. The nature of decree is such that it ensures husband
and wife lives together but forcefully in nature. In the wider interest of the society and to protect
the institution of marriage if court orders a party to come and stay with his/ her spouse it would
not be a reasonable restriction to right to privacy. Such legislative provisions which are in the
wider societal interest should be commended but not exerting individual rights. Hence, Section 9
of the Hindu Marriage Act is violating Article 21of the Indian Constitution.

In Gaya Prasad v. Bhagawati, the Hon'ble Court observed, “According to ordinary customs of the
Hindu Society, the wife is expected to perform a marital obligation at her husband's residence
and she could not impose her unilateral decision on the husband by merely stating that she has no
objection to allow the husband to live with her at the place where she has accepted her service”.

Right to privacy in the constitution provides for protection of a person against deprivation of his
life and personal liberty Art.21 says that ″No person shall be deprived of his life and personal
liberty except according to procedure establish by law″. The word personal liberty does not for a
merely empty formality in Indian Constitution. Liberty is a very comprehensive, and let alone, it
would include not merely freedom to move about unrestricted but such liberty of conduct, choice
 P a g e | 13

and action as the law gives and protects.38 It is established in A.K. Gopalan case39 that when a
person`s liberty is restricted or taken away according to procedure that should be reasonable or
as per the procedure made by law. The scope of this right first come into consideration in Kharak
Singh`s case40 which was concerned with the validity of certain regulation that permitted
surveillance of suspects. The right to privacy was again considered by the Supreme Court in
1975.41The right to privacy is right to be let alone. 42 In the context of surveillance, it has been
held that surveillance, if intrusive and seriously encroaches on the privacy of citizen can infringe
their freedom of movement guaranteed by Art. 19 (1) (d) and Art. 21.

Constitutionality of restitution of conjugal rights

As stated earlier, for judging constitutional validity of a provision it must be compared with the
fundamental rights as enshrined in the part III of the constitution. In this chapter the author shall
compare section 9 of the Hindu Marriage Act with the Fundamental rights. In the case of Saroj
Rani v. Sudarshan Kumar,43 the wife had filed a petition for the restitution of conjugal rights. She
was married since 1975 had given birth to two daughters out of the wed-lock. She was turned out
of her matrimonial house in 1977 after which she filed a petition for an interim maintenance
which the court granted. 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 a 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
husbands ground for divorce was questioned as the spouses had stayed together for a period of
two days after the decree was passed. It was argued that the ground for divorce was unjustified
and the husband taking advantage of his own wrongs. 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:

38
Allegeyer v Louisiana (1897) 165 US 578.
39
A.K Gopalan v State of Madras, AIR 1950 SC 27, 1950 SCR 88 1958 SCJ 174
40
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295: (1964) 1SCR 332
41
Govind v State of Madhya Pradesh AIR 1975 SC 1378, 1385.
42
Jane Roe v Henry Wade, 410 US 113, 35 Law Ed.147.
43
AIR 1984 SC 1562 : 1984(2) SCALE 118 : (1984)4 SCC 90 : [1985] 1 SCR 303 : 1985(17) UJ 146
 P a g e | 14

′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.′

The major grounds for challenge to the constitutionality of S.9 of the Act are as in violation of
Articles 14 and 21 of the Indian Constitution. Even though Sareetha has been the first case where
the Constitutionality of S.9 of the Act has been challenged, it is pertinent to point out the
observations of Lord Herschell in Russell v Russell 44 where he noted the barbarity of such
remedy of forced cohabitation between couple. Such observation is the touchstone against which
all arguments in favour of the unconstitutionality of S.9 may be placed. In Bhikaji v. Rukmabai 45
the argument struck down that a suit for restitution of conjugal rights is a discredited remedy. It
has also been held by our courts in Ghatha Ram Mistree v. Mohita Kochin Atteah 46 that such
remedy is a mere declaration of rights of the couple. The discretion of the court to refuse such
decree on just grounds was iterated in Jivi Bai v. Nar Singh Lal Bhai. 47 Justice, equity and good
conscience have been held to be the principles governing the courts order for a restitution of
conjugal rights.48 The intent behind such a remedy was enunciated as not allowing minor
instances of hardship and strife between the couple to destroy a marriage.

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 in the case of Saroj Rani v. Sudarshan
Kumar. Thus, the Court granted the divorce but at the same time understanding the situation of
the wife and daughters, ordered the husband to pay a 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. Forced marital and sexual cohabitation are seen to be gross violations of
this right when held in light of the ruling of the Supreme Court in the cases of Kharag Singh v.
State of Uttar Pradesh49and Govind v. Madhya Pradesh50 which pronounced that the right under
Art. 21 extend to the privacy and personal autonomy of the person; forced marital and sexual
cohabitation ergo is a violation of this right. The ambit of this right has been increased in the
44
(1897) A.C. 395 as cited in Harvinder Kaur v. Harmendar Singh AIR 1983 Del 66.
45
(1886) ILR 10 Bom 301 as cited in Harvinder Kaur v. Harmendar Singh AIR 1983 Del 66.
46
(1875) 14 Beng LR 298 as cited in Harvinder Kaur v. Harmendar Singh AIR 1983 Del 66.
47
(1927) ILR 51 Bom 329: AIR 1927 Bom 264 as cited in Harvinder Kaur v. Harmendar Singh AIR 1983 Del 66.
48
Kondal Ranganayaki, AIR 1924 Mad 49.
49
AIR 1963 SC 1295: (1964) 1 SCR 332
50
AIR 1975 SC 1378, 1385.
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interpretations of it subsequent to A.K.Gopalans Case,51 from then it was pronounced that such
right extends not just to procedural protection but includes substantive protection, 52 in essence if
a law itself was bad, Art.21 would not be confined to executive action itself and could proceed
against legislative action as well. The violations of Article 14 are held against the inherent
differences in men and women and that such legislative provision effectively grants the same
rights and remedies against both the sexes; Art.14 demands “equality in reality and not just
equality in law”53 and therefore such Section would fall short of constitutionality under Article
14. The issue came up once more before the Delhi High Court in Harvinder Kaur v. Harmendar
Singh54 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.

Conclusion

From the above discussion it is thus understood that there is enough ambiguity as to whether the
concept of Restitution of Conjugal Rights, violates any of the fundamental rights guaranteed
under part III of the Indian Constitution. It is submitted that a decree for restitution of conjugal
rights does not meet the demands of today’s society. While the Constitutionality of such Section
has been upheld by the Apex Court in Saroj Rani, its validity is still being questioned and
debated.55

After Sareetha & Saroj Rani's cases, discussion regarding constitutional validity has taken a new
dimension. Today, this area is viewed as being highly unstable as there is a clash between
personal laws and fundamental rights altogether. As mentioned earlier, personal laws do not
come under the ambit of Constitutional Review, but the author has made an assumption that even

51
A.K.Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88
52
Mithu v. Punjab reiterating the developments in Article 21 of the Indian Constitution in Maneka Gandhi v Union
of India, AIR 1978 SC 597 : (1978) 1 SCC 248; Sunil Batra v Delhi Administration, AIR 1980 SC 1579 : (1980) 3
SCC 488.
53
Matd. Works v. The Asst. Collector
54
Harvinder Kaur v. Harmendar Singh, AIR 1984 Del 66.
55
R.K.Agarwal, Restitution of Conjugal Rights in Hindu Law: A Plea for Abolition of the Remedy, 1970 JILI, p.297.
 P a g e | 16

if they do come, they violate of some provisions of the Constitution. This concept of restitution
of conjugal rights is already abolished in England. In the opinion of this paper, the concept of
restitution of conjugal rights should be reconsidered in India. It is however hoped that we may
foresee that in the near future, India too will progress towards realization that the rights of an
individual are important and must be protected at all costs. The author has done best to present
this paper in the best manner possible and deeply regret if any loop hole arises in the same.
 P a g e | 17

BIBLIOGRAPHY

LIST OF WEBSITES REFERRED

www.indg.in/social-sector/...faqs/14.restitutionofconjugalrights.pdf

www.indiankanoon.org/search/?formInput=restitution...conjugal+rights

http://www.jstor.org/discover/10.2307/4374973?uid=3738256&uid=2&uid=4&sid=21105201984593

http://heinonline.org/HOL/LandingPage?handle=hein.journals/cjil2&div=8&id=&page=

www.indianlawcases.com/Act-The.Hindu.Marriage.Act,.1955-549

LIST OF BOOKS REFFERED

Prof. Kusum - Family Law Lectures - Family Law I

Family Law in India- Prof. G.C.V.Subba Rao

Mulla Hindu Law Updated 21st Edition