DARSHAN SINGH PATIALVI - ADVOCATE GENERAL
| Restitution Of Conjugal Rights: Criticism Revisited|
Section 1 of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. This right can be granted to any of the spouse.This section is identical to section 22 of the Special Marriage Act, 1954. The provision is in slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws.The constitutional validity of the provision has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court where the Hon'ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh, though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan, gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the section 9 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.It is a sad commentary that despite various courts including the Apex Court of the Country upholding the validity of section 9. Many jurists still have doubts with respect to the soundness of this section and demand its abolishment.Abolitionist's View The abolitionists argue that it is a remedy that was unknown to Hindu law till the British introduced it in the name of social reforms. Even when the Hindu Marriage Act, 1955 was being passed in the Parliament, there were voices of scepticism regarding the efficacy of this remedy. Sir J. Hannen in Russell v. Russell also vehemently opposed the remedy. Further, they are of the view any law that forces any person to live with another person is contrary to the value of the society. The remedy openly violates the fundamental right to life, privacy and equality hence is unconstitutional. Further more, there is frequently insincerity in the petitioner's intention. The remedy is blatantly misused to achieve ulterior purposes other than reconciliation, the root cause being S.13 (1-A)(ii) of the Hindu Marriage Act, 1955 and has created an additional ground of divorce. Yet another major problem with restitution petitions is that it is used as a defence for maintenance suits. This remedy has been repeatedly misused, abused and exploited.Adding more, the procedure prescribed to enforce this decree under Order 21 Rule 32 of Civil Procedure Code, 1908 is also criticized on the ground that in India, where most of the population and especially women (wife) do not have actual possession over any property. In such cases, if a restitution decree is not complied with, then the court is required to ascertain the share of the wife in the property of her husband, when it is not divided and arrive at her share in the property, but this involves cumbersome procedures. Difficulty also arises if the husband does not have a property in his name. Further, it is not correct to think that coercing a person that his property would be attached and sold away can change the attitude of the adamant spouse and make him obey the decree.Counter View However, in my opinion, section 9 of the Hindu...