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By: Robin Pandey                                                                        Date: 10/03/2022

The Single Judge Bench of Andhra Pradesh High Court in T. Sareetha case expressed the view that Section 9 of the HMA providing for the remedy of restitution of conjugal rights is void as it offends Articles 14 and 21 of the Constitution. He observed that Section 9 of the Act is intended to be enforced by Order 21 Rules 32 and 33 of the CPC by applying financial sanction against the disobeying party. The Court could also enforce its decree through its contempt powers. The consequences of the enforcement of such decree are firstly to transfer the choice to have or not to have marital intercourse to the State 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. The effect of the decree for restitution is to coerce the unwilling party to have sex against the person s consent and free will with the decree holder. This is a savage and barbarous remedy constituted the grossest form of violation of any individual's right to privacy. It denied the woman her free choice whether, when and how her body was to become the vehicle for the procreation of another human being. It deprived a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be sensed. The woman losses her control over her most intimate decisions. It, therefore, violates the right of privacy and human dignity guaranteed by Article 21 of the Constitution. The learned judge was also of the view that Section 9 promotes no legitimate public purpose based on any conception of general good. By treating the wife and the husbands, who were inherently unequal as equals, Section 9 violates the rule of equal protection of laws contained in Article 14. Since it did not subserve any social good, it must be held to be arbitrary and void offending Article 14. Bare equality of treatment regardless of the inequality of realities was neither justice nor homage to the Constitutional principles.

The above view was dissented from in a single judge Bench of the Delhi High Court in Harvender Kaur's Case. The Court observed that Section 9 of the Act was not violative of Articles 14 and 2l of the Constitution. It was a fallacy to hold that the restitution of conjugal rights constituted the starkest form of governmental invasion of marital privacy. The object was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The leading idea of Section9 was to preserve the marriage. From the definition of cohabitation and consortium, it appeared that sexual intercourse was one of the elements that went to make up the marriage, but that was not the Summum bonun. Sexual relations constituted an important element in the conception of marriage, but the courts do not and cannot enforce sexual intercourse. The remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse. The restitution decree did not enforce sexual intercourse. Order 21 Rule 32 and 33, CPC constitute a financial sanction behind the restitution decree. The Court observed that the introduction of the constitutionallaw in the home is most inappropriate and it is like introducnga bull in a China shop. 

The Supreme Court has now settled the law with regard to the Constitutionality of Section 9 of this Act. In Saroj Rani's Case, the Supreme Court speaking through Justice Sabyasachi Mukharji upheld the Constitutional validity of Section 9. The court observed that in India conjugal rights i.e. right of the husband or the wife to the society of other spouse is not merely creature of the Statue. Such a right is inherent in the very institution of the marriage itself. Section 9 is only a codification of pre-existing law. The term 'Conjugal Rights" may be viewed in its proper perspective by keeping in mind the meaning of the expression "Conjugal". The right which husband and wife have to each other's society and marital intercourse are conjugal rights. But conjugal rights cannot be enforced by the act of either party. This remedy is not tyrannical. There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The provision of "reasonable excuse" for withdrawal is a "built in safeguard" against the misuse of Section 9. The remedy gives the husband and wife an opportunity to settle up the matter amicably and live together. It serves a social purpose as an aid to restoring the marital tie. Order 21, Rule 32 CPC deals with the execution of the decree for specific performance of contract and of restitution of conjugal rights. It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by court where the disobedience to such a decree is wilful i.e., is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property. So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where the disobedience follows as result of wilful conduct i.e., where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for. This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights. The Supreme Court observed that we are unable to accept the position that Section 9, HMA is violative of Article 14 or 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view. 

It is submitted that no spouse can get the restitution of conjugal rights just by filing a petition for it because it is a sensitive matter, important not only for the parties but also for the whole society. If the withdrawing spouse has a reasonable excuse for leaving the society of the petitioner spouse, no decree can be passed against him or her. We have seen above that where the behaviour of the petitioner is not gentlemanly or where the respondent is not getting a honourable matrimonial home, he or she has a reasonable excuse to stay away from the petitioner.


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