Introduction

Marriage as an institution gives rise to a relationship between two partners: The Husband and the wife, which further gives rise to more relations. This relationship also gives birth to different sets rights and obligations. These rights and obligations cumulatively constitute’ Conjugal rights’ and can be termed as essence of the marital union. The term ‘Conjugal Rights’ in literal sense means ‘Right to stay together.’[4]

It is a general accepted norm that each spouse should act as a support to other in hard times, should be there to comfort and love the partner. But if any of the partner leaves the other without any reasonable or sufficient cause, then the aggrieved party can knock the doors of the court to seek justice. Restitution of conjugal rights is the only matrimonial remedy available is restitution of Conjugal Rights.

Section 9 – The Hindu Marriage Act, 1955

Restitution of Conjugal Rights, “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.”.[5]

When a spouse is guilty of staying away without any reasonable or a just cause and if the suit of restitution of conjugal rights succeed than the couple would be required to stay together. Thus it can also be inferred that section 9 is the marriage saving clause or section. This remedy was earlier applied in England and later on implemented by the privy council in India, for the first time in a case namely Moonshee Bazloor v. Shamsoonaissa Begum[6]. However, this matrimonial remedy of restitution of conjugal rights has been removed in England way back in 1970.[7]

There are three important requisites to be fulfilled for Section 9[8]

• Spouses must not be staying together.
• Withdrawal of a party from the other must have no reasonable ground for such withdrawal.
• The aggrieved party must apply for restitution of conjugal rights

Constitutional Validity of Section 9

It is to be noted that there arises a contention that restitution of Conjugal Rights clearly violates Right to privacy of the wife. Although the Supreme Court is its judgement of Kharak Singh vs. State of UP[9] has held right to privacy “is an essential ingredient of personal liberty”. In Gobind v. State of M.P.[10] again the court had to encounter the issue raised in the case of Kharak Singh. In this case the honourable Supreme Court came to a conclusion that right to privacy -among other rights is included in right to liberty.

Judicial Approach

In T. Saritha Vengata Subbiah v. State[11], the court had ruled that that S.9 of Hindu Marriage Act relating to restitution of conjugal rights as unconstitutional because this decree clearly snatches the privacy of wife by compelling her to live with her husband against her wish. In Harvinder Kaur v. Harminder Singh[12], the judiciary again went back to its original approach and help Section 9 of Hindu Marriage Act as completely valid. The ratio of this case was upheld by the court in Saroj Rani Vs. S.K. Chadha[13]

Restitution of Conjugal Rights Violates

• Freedom of Association – Article 19 (1) (c)
• Freedom to reside and settle in any part of India – 19(1) (e).
• Freedom to practice any profession – 19 (1) (g)

Infringement of Freedom of Association

In our country every citizens have a fundamental right to associate with anyone according to his/her wish, By the matrimonial remedy of restitution of conjugal rights is freedom is violated as a wife is compelled to have a association against her will, with her husband. In Huhhram Vs Misri Bai[14], the court passed the restitution against the will of the wife. In this case though the wife had clearly stated that she would not wish to live with her husband, still the court went ahead and gave the judgement in favour of the husband. The opposite thing happened in Atma Ram. v. Narbada Dev[15], where the judgement was passed in favour of wife.

Infringement of Freedom to reside and to Practice any Profession

We live in a society where there is complete freedom as to which profession to choose. At times under the restitution of conjugal rights a person is forced to live with the partner with no general wish or interest. And thus, this freedom to freely reside and practice any profession of choice, seems to be violated. Several times in the past courts have tried to give a remedy. The apex court in the case of Harvinder kaur v. State[16] it was said that, “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bill in a China shop”

Suggestions for Improvement

Restitution of Conjugal Rights is a highly debatable and a controversial subject. Some people feel it is to preserve the marriage while some say that there is no meaning in forcing the other party to stay with the aggrieved party as they are not at all interested. However, there is always a scope of improvement by tweaking something.

The concept of Reconciliation may be tried in place of the rigid conjugal rights.[17] The idea of restitution is very harsh and barbaric, as it forces either of party to compromise. While on the other hand the tone of reconciliation is very mild and requesting. The problem with restitution is that there are high chances that the situation may turn up ugly after both the parties are forced to live together unwillingly. But if the remedy is reconciliation than it may not be offensive to either of the parties and will also clear the air of misunderstanding.

To implement this the judiciary should not be intervened as the function of the Court is to settle disputes not reconciliation. What can be done is a separate committee should be formed and the sole function of this specially formed committee will be to administer and solve the matrimonial disputes. The idea of reconciliation is also very effective as it is fast, effective and practical.