ABSTRACT:
The Andhra Pradesh High Court has set a new legal landmark in the case of T. Sareetha vs T. Venkata Subbaiah it was increasingly relevant in light on the criminalization of an offence Marital rape. This case comment deals with the facts, arguments, precedents and judgment of the case. Further it introduces the angle of marital rape, which court made a reference to the judgment by relating it to the misuse of doctrine of restitution of conjugal rights to enforcement of non-consensual intercourse by the husbands to their wives. The court in T. Sareetha judgment has a large picture of women’s fundamental rights and the challenges they face from the institution of marriage which is more patriarchal in nature and legal framework.
INTRODUCTION:
Name of the case: T. Sareetha vs T. Venkata Subbaiah.
Citation of the case: AIR1983 AP 356.
Competent court: High Court of Andhra Pradesh.
Decided on date: 1st July, 1983.
Bench : Single judge bench ( Choudary )
This case was completely a question of law. The petition was filed by renowned actress i.e. T. Sareetha. In the petition she was questioning the jurisdiction of the Sub-court of Chuddapah and the decision given by the Chuddapah try to plea for the restitution of conjugal rights filed by her husband, i.e. T. Venkata Subbaiah. She even challenged the constitutional validity of the section 9 of Hindu Marriage Act, 1955. She further claimed that the section 9 of Hindu Marriage Act is against the fundamental rights under part III of the constitution. The case was dealing with the complex issues fundamental rights and women’s bodily autonomy. Through this judgment, justice Choudary gave a social ruling instead of operating within the technicalities of the law. Therefore, despite of being almost four decades old this case is still relevant in case of restitution of conjugal rights and marital rape.
FACTS OF THE CASE:
The petitioner i.e. T. Sareetha initially lived with her parents in Madras now Chennai. The respondent i.e. T. Venkata Subbaiah was originally from Chuddapah in Andhra Pradesh and owned a house and agricultural land in the same place. The petitioner was 16 years old high school student when she was married to the respondent in Tirupathi in year 1975. Within few years after wedding the couple were separated and began to live apart. After the separation the petitioner and respondent did not met each other.
- Venkata Subbaiah filed a plea for the restitution of conjugal rights under section 9 of Hindu Marriage Act, 1955 in the Sub court of Cuddapah.
- Sareetha claimed that the sub court did not hold any jurisdiction to entertain the plea as the last residence of the couple was at Madras. Under section 19 of Hindu Marriage Act, 9155.
- The sub court overruled the Sareetha’s obligation and held that it has the jurisdiction to allow the plea because the couple alleged 6 moths of stay at Cuddapah before living in Madras.
- Sareetha filed the Civil Revision Petition in High Court of Andhra Pradesh asking the HC to review the order passed by the Sub court. Herein, Sreetha was the petitioner and Venkata Subbaiah was the respondent. Additionally, she filed a plea questioning the constitutional validity of section 9 of Hindu Marriage Act, 1955 with relevance to article 14,19 and 21 of the Indian Constitution.
ISSUES RAISED BY THE COURT:
- What constitutes the last place of the couple under the definition given in section 19 (iii)of Hindu Marriage Act,1955?
- What constitutes the conjugal rights and what can enforce conjugal rights by the decree of Restitution of conjugal rights passed under section 9 of Hindu Marriage Act, 1955?
- Does the section 9 of Hindu Marriage Act, 1955 is violative of articles 14,19,21 as laid under part III of Indian Constitution?
CONTENTIONS:
From The Appellant:
Claim for the jurisdiction obligations
The petitioner claimed that since the respondent himself admitted that the last stay as couple was at Madras before started living separately. She points that the Cuddapah court lacks the jurisdiction under section 19 of the Hindu Marriage Act,1955.
Claim for the constitutional validity
First and foremost the petitioner raises a question about the constitutional validity of the section 9 of Hindu Marriage Act with relevance to the article 14,19 and 21 of the Indian Constitution. The petitioner further claims the section 9 of Hindu Marriage Act is in the cointervention to the Part III of Indian Constitution especially article 14, 19 and 2. Petitioner claims that the provision Restitution of conjugal rights violates the Right to life, personal liberty, human dignity and decency. Thus the petitioner contends that the section 9 of Hindu Marriage Act is liable to be abrogated or repeal for the Act.
From The Respondent:
Claims for the jurisdiction obligations
The respondent claims that he married the petitioner in Tirupathi and immediately afterwards, the couple lived in Cuddapah for six months. Therefore they stayed at Madras for unspecified period. Later on the disagreements arose between the respondent and petitioner as the petitioner wants to enter the film industry due to which the respondent left and the petitioner stayed at Madras. Respondent further claims that the stay at Madras should not be considered as the last place of residence under the Hindu Marriage Act,1955.
Based on the previous judgment and the above argument. The Respondent contends that the Cuddapah Sub court has a competent jurisdiction to decide the case. Further since he pleas under section 9 of Hindu Marriage Act,1955 for a decree for the restitution of conjugal rights, He also claims that the petitioner has withdrawn from his society without reasonable excuse.
RATIONALE:
The judgment was delivered in two parts, with first part ruling on the Obligations on the jurisdiction and the second part was ruling regarding to the constitutional validity of section 9 of Hindu Marriage Act.
Jurisdiction
In the issue of jurisdiction, the court considered two questions, firstly whether to consider or not that the couple stayed at Cuddapah at all. Secondly if they did what about the subsequent stay at Madras as it was the last residence under section 19 of Hindu Marriage Act. The court came to a conclusion that the last residence
Under section 19 of Hindu Marriage Act involves “time, intentions and continuity” which are the question of facts in the case they varies from one case to another case. Therefore, a temporary stay such as Madras is not to be taken into account and replacing the matrimonial home in Cauddapah. Thus, the court held that the last place of residence of the court according to section 19 (iii) was Cauddapah and hence the sub court had a jurisdiction to hear the petition.
Constitutional validity of section 9 of Hindu Marriage Act.
Firstly the court observed that the sexual cohabitation is one of the ingredient in restitution of conjugal rights. Therefore, the court determined section 9 of HMA and order 21, rule 33 and 34 of CPC serve to enforce marital intercourse on an unwilling person. Thus, a decree of restitution of Conjugal Rights “offends the inviolability of the body and mind” and “integrity of a person” it invades the marital privacy and domestic intimacies that one should have control over.
Reference of precedents
The court additionally also observed that the provisions diminish the value of consent by using judicial process to coerce an individual to engage in sexual cohabitation. The court even acknowledged that this is worst consequences for women as pregnancy could result from non-consensual intercourse in this way the section 9 of HMA is violative of article 21 The court gave an example of Anna Saheb vs Tarabai where decree was passed in Favor of husband and led to force sex and pregnancy.
The court referred several case with regard privacy firstly referred with Kharak Singh vs State of UP and Gobind vs State of MP and stated that the privacy forms an important part of article 21 of the Indian Constitution and that exceeded the family, marriage, motherhood procreation &child rearing and finally came to a conclusion that integrity of the body and marital privacy are key parts of right to privacy. lastly the learned judge relied on Eisenstadt vs Baird, Meyer vs Nebraska and Griswold vs Connecticut to establish bodily autonomy. Based on there key references the court concluded section 9 is violative of article 21 and there can be no curtailing state interests that justify the invasion of privacy. This decision was the massive step in the direction of criminalising of marital rape and must to be used in argument in restitution of conjugal rights Further, in the case of Independent Thought vs Union of India the Supreme court declared that sexual intercourse by man on his minor wife is considered as an offence. This case has set a mark for criminalising of marital rape to aged women same as in exceptional clause now it is applicable to adult wives as well. As held in Putta Swamy vs Union of India case privacy is a fundamental right and bodily autonomy being vital part of privacy, must not be put in jeopardy through the institution of marriage.
Ratio Decidendi
- Section 9 of HMA is void and unconstitutional as it violates right to privacy and human dignity guaranteed under article 21 of the Constitution.
- Section 9 of HMA is violative of article 14 by treating who are inherently unequal as equals, thus perpetuating inequality and oppression.
- Section 19 of HMA only refers to matrimonial home chosen by both husband and wife.
DEFECTS IN LAW:
- Restitution of conjugal rights may enforce intercourse on an unwilling party which is very much violative of human dignity and is a misuse of legal procedure in terms of coerce cohabitation.
- Individual bodily autonomy has to be considered in institution of marriage and it is par amount over the state interests.
- Section 9 of HMA promotes no public good and oppressive and discriminatory.
INFERENCE:
This judgment can be considered as a landmark not only in field of family law but also in criminal law, particularly it focuses on marital rape. After several years of debate and activism, the marital rape was not considered as a criminal offence in India. In fact IPC section 375 expressly excludes the ambit of rape with an exception clause, which states sexual intercourse by a man with his own wife is never considered as rape as long as the wife is above 15 years of age. Through the judgment of T. Sareetha vs T. Venkata Subbaiah it can be seen that the restitution of conjugal rights can be misused to force sex on the respondent spouse and in patriarchal, male dominated society, it disproportionately victimises women. Such provision may be used to coerce there wives to cohabit with them and further commit marital rape on them. Respectfully the two subsequent judgments may be taking the same narrow view of legal procedure that was criticised in T. Sareetha and Recently, Saroj Rani vs SK Chadha and Ojaswa Pathak vs Union of India was a petition that challenged the validity of section 9 on several grounds based on
T. Sareetha case. It acknowledged that women are the worst affected by the section and the Restitution of Conjugal Rights is an archaic and oppressive procedure that forces women for cohabitation.
By- Chennoju Shanmukha Priya
College : PENDEKANTI LAW COLLEGE