The leading idea of Section 9 of the Hindu Marriage Act, 1955 (Restitution of Conjugal Rights) is to preserve marriage. What the court seeks is to enquire into the causes which have led to the rupture of the marital relations and a refusal to share the matrimonial life. If there is no reasonable excuse for living apart, the court orders the withdrawing party to return to the conjugal fold so that the consortium is not broken. The object of the restitution decree is to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity. From the definitions of cohabitation and consortium, it appears that sexual intercourse is one of the elements that go to make up the marriage. But it is not a summum bonum.
If the decree of restitution is not obeyed for the space of one year and the parties continue to live separately, it is undoubtedly the best evidence of the breakdown of the marriage, and with the passing of time, the most reliable evidence that the marriage is finished. Section 13(1-A) and 13(iii) of the Act are a legislative recognition of the breakdown theory.
Restitution of Conjugal Rights: Fault Theory
Section 9 of the Act, however, is based on the fault theory, that is, that after having found fault with the withdrawing spouse and after giving her time of one year for the resumption of cohabitation, the Legislature proceeds to dissolve the marriage if there is no resumption because it has broken down.
The objective of good divorce laws is two-fold. Firstly to aim at the stability of marriage. This is achieved by Section 9. Secondly, when the marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress, and humiliation. The second objective is achieved by Section 13(1-A)(ii).
In the scheme of the Act, the restitution decree is a stepping stone to the more serious step of divorce. It is a passage or passport to divorce. The Indian Legislature believes that there should not be a sudden break of the marriage tie. It believes in reconciliation. It believes that the cooling-off period is not only desirable but essential. That is why it allows husband and wife time to come together to the conjugal fold. Dicta of eminent judges are all against the view that restitution decree compels the wife to have forced sex with an unwilling party. No case has ever said anything of the sort.
Restitution of Conjugal Rights: Violative of Fundamental Rights?
Conjugal rights connote two ideas. (a) the right which husband and wife have to each other’s society and (b) marital intercourse. Under the existing laws in India, the spouse seeking restitution of conjugal rights can get a decree directing his other spouse to cohabit and take part in sexual intercourse. He can also seek coercive measures in the form of attachment of property in case the spouse willfully disobeys the decree of restitution.
Madhya Pradesh High Court in its judgment titled “Anna Saheb vs Tarabai: AIR 1970 MP 36” held that:
“if the husband is not guilty of misconduct, a petition cannot be dismissed merely because the wife does not like her husband or does not want to live with him, because he is too poor or is otherwise not fit to be a proper life companion for her. Once a marriage has been solemnized the husband is entitled to the society of his wife and he cannot be denied such society merely because she does not like him, and for reasons of her own does not feel happy with him.”
What could have happened to Tarabai thereafter may well be left to the reader’s imagination? According to law, Tarabai could be forced to have sex with Anna Saheb
against her will.
Delhi High Court in its judgment titled “Harvinder Kaur vs Harmander Singh Chaudhary: AIR 1984 DEL 66” held that:
“Wanton refusal of one or other of the parties to a marriage to have sexual intercourse is a wrong thing.” It is the intentional breach of one of the ties of marriage.”
A combined reading of the substantive and procedural provisions relating to the grant of relief of restitution of conjugal rights by the court makes it clear that the decree for restitution of conjugal rights contemplated to be granted under Section 9 of the Act is intended by the statutory law to be enforced by applying financial sanctions against the disobeying party. Additionally always a court can enforce its decree through its contempt powers.
However High Court of Andhra Pradesh in its judgment titled “T. Sareetha vs T. Venkata Subbaiah: AIR 1983 AP 356” held Section 9 of the Hindu Marriage Act to be arbitrary and void as offending Art. 14 of the Constitution of India.
A decree for restitution of conjugal rights passed by a civil court extends not only to the grant of relief to the decree-holder to the company of the other spouse but also embraces the right to have marital intercourse with the other party. The consequences of the enforcement of such a decree are first to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State. Relief of restitution of conjugal rights fraught with such serious consequences to the concerned individual was granted under Section 9 of the Act enables the decree-holder through the application of financial sanctions to have sexual cohabitation with an unwilling party.
PIL challenging the validity of Sec. 9 of Hindu Marriage Act, 1955:
A Public Interest Litigation (PIL has been filed before the Supreme Court of India challenging the validity of Sec. 9 of the Hindu Marriage Act as being violative of the right to privacy, individual autonomy, and dignity of individuals (both men and women) guaranteed under Article 21. It has also been challenged on the ground that it places a disproportionate burden on women and is therefore violative of Articles 14 and 15(1) of the constitution.
Law has since developed to recognize the right to privacy and dignity of an individual and struck down adultery as an offense. The constitution guarantees to every individual the right to be left alone — even within the framework of a family.
Any provision that forces an individual to have sexual relations or even cohabit a home without her will is violative of the right to privacy, individual autonomy, and dignity that are guaranteed by the constitution. The law of restitution of conjugal rights is also inconsistent with the changing times where the private interest of sexual autonomy, dignity, and happiness of an individual is put before. The consequence of a decree of restitution cause extreme hardship to a woman, who has to return to her marital homes and responsibilities, then it does to a man.
The content of this article is intended to provide a general guide to the subject matter. Lawyer advice should be sought about your specific circumstances.