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    Family Law-1

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    Alfed 90

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    Family Law-1

    Uploaded by

    Alfed 90
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    FAMILY LAW-1

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    5 views1 page

    Family Law-1

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    Alfed 90

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    FAMILY LAW-1

    Q.12. What are the provisions regarding restitution of conjugal rights under Hindu Marriage Act?

    Ans. Marriage constitutes the very basis of social organization. Hindu law regards marriage as
    a sacrament— indissoluble and eternal. This sacramental character of marriage has given rise
    to certain anomalies. The declaration of Manu that “neither by sale nor by desertion is wife
    released from the husband” was hitherto applied only to women and not men. Thus there was
    an element of inherent injustice on the wife in Hindu law. To counter such inequalities among
    spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was
    enacted which provided certain matrimonial remedies. One such remedy is that of ‘Restitution
    of Conjugal Rights’. The restitution of conjugal rights is one of the reliefs that are provided to
    the spouses in distress in the institution of marriage by law. Section 9 of the Hindu Marriage
    Act, 1955 provides for the restitution of the conjugal rights. The section of the Act says:“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    either the husband or the wife has, without reasonable excuse, withdrawn from the society of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 the 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”. The remedy of restitution of conjugal rights
    is a positive remedy that requires both parties to the marriage to live together and cohabit.
    But over the years, this remedy has been misused, abused and exploited. Today it is nothing
    more than a springboard to other remedies. The non-compliance to the decree of restitution is
    more ruthless than the remedy itself. The question of constitutional validity of S.9 for the first
    time came up in came up in the case of T Sareeta v Venkatasubbiah where the husband had
    himself asked the Court to pass a decree of restitution of conjugal rights and after completion
    of a year he filed a petition for divorce on the ground that the decree has not been complied
    to. The wife challenged the constitutional validity of S.9 of the Act. Justice Chaudhary of the
    AndhraPradesh High Court held S. 9 to be “savage and barbarous remedy violating the right to
    privacy and human dignity guaranteed by Article 21 of the Constitution, hence void”. The
    dictum of Chaudary, J. did not find favour with the Delhi High Court in Harvinder Kaur v
    Harminder Singh. The matter finally came before the Supreme Court in Saroj Rani v Sudarshan
    Kumar Chadha where the Supreme Court overruled T Sareeta relying on the judgement of
    Justice Rotagi in Harvinder Kaur. Referring to the judgement of the Andhra Pradesh High Court
    in T Sareeta’s case, Justice Sabyasachi Mukarji observed that, “it cannot be viewed in the
    manner the learned single Judge bench of the Andhra Pradesh High Court has viewed it and
    we are unable to hold that S.9 to be violative of Article 14 and Article 21 of the Constitution”.

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