Abstract
This paper delves into a critical examination of the marital remedy of restation of conjugal rights as enshrined in section 9 of the Hindu Marriage Act 1955, tracing its historical context. It also provides an analysis of its evolution. It highlights the debate over whether personal laws are covered under Article 13. It further raises the question of its constitutional validity and critically examines its relevance in contemporary times. The paper delves into a critical assessment of the gender neutrality of Section 9. It highlights how it disproportionately affects women, as the provision is generally misused, which further weakens the wife’s position. The paper advocates for progressive reforms in this matrimonial remedy to protect individual rights and ensure gender justice.
Keywords
Conjugal Rights, Constitutional validity, Marital remedies, Gender Justice, Rights
Introduction
Marriage is regarded as a vital institution in society. It is not treated as a mere contract, but rather, it is considered a sacred union of two individuals. It is a complex issue that is highly associated with culture and traditional beliefs. However, the concept of marriage transformed with the evolving society, which prioritizes individual rights, equality, and personal autonomy. Moreover, various legal remedies face challenges in striking a balance between traditional beliefs and individual welfare. The remedy of conjugal rights is one of them. It is derived from the British legal system and still exists under section 9 of the Hindu Marriage Act, while it was abolished in England in 1970. The idea is to preserve the institution of marriage by ensuring reconciliation; however, in contemporary times, several questions have arisen about its fair use. Constitutionality and gender injustice. This paper explains its historical context, evolution, and deals with several critical questions.
Research Methodology
The paper encompasses a descriptive study, which allows for in-depth analysis of varied critical questions regarding the restitution of conjugal rights. This research work uses secondary sources like Articles, Journals, empirical research, and comparative study work.
Literature Review
- Restitution of conjugal rights: A comparative study
The author did a comprehensive doctrinal thesis and provided a comparative study of the marital relief of restitution of conjugal rights. The study is widely divided into thematic chapters. The initial section of the paper explores the institution of marriage from both a social and legal perspective. The paper traces the evolution and historical context of conjugal rights. It represents a wide analysis of the personal laws of Hindus, Muslims, Jews, Christians, and Parsis. A significant portion of the paper delves into assessing the social and legal implications of this legal remedy, particularly for women. The author presents a detailed section on how section 9 is used as a legal instrument for coercion rather than reconciliation, which largely affects women. In a later section author critically analyses the constitutional validity of RCR and its relevance and need in contemporary times. The author uncovers the underlying complexities of the conjugal rights. Ultimately, advocating for progressive reforms while leaving conservative traditional beliefs.
- To Restore the Comforts and Bliss of Married Life
The author did empirical research at the Madras Family Court. She provides a detailed historical and legal analysis of the RCR in India while tracing its roots in the British ecclesiastical courts. The author represents how swiftly the remedy, which was earlier used for protecting deserted wives, transformed into a tool that is tacitly used by husbands to delay the proceedings of maintenance and divorce. The author emphasizes the evolution of judicial perspective in recognizing women’s employment as a reasonable excuse. The author also examines the enforcement mechanism of the decree of RCR. The paper also highlights the constitutional challenges in key judicial judgments of section 9. Later, the author also analyses how and why predominantly the suits filed by a Muslim spouse regarding RCR are adjudicated by the key judicial precedent, and this legal remedy has no trace in Muslim personal law. Finally, the author presents some reason why this legal and marital remedy still exist in India. Furthermore, this paper contributes to the need for further research on the relevance of the section on restitution of conjugal rights, along with its impact on women and gender justice.
History and Evolution of RCR
In the colonial era, the British introduced British laws to India. But generally, they refrained from interfering in matters related to marriage, divorce, and inheritance, and let the religious authorities govern them. However, matters related to conjugal rights were adjudicated by the British courts, and conjugal rights have their origin in British church law, and it was one of the four types of matrimonial suits which had been tried in ecclesiastical courts. To restore the cohabitation, it allowed both the husband and wife to file a suit when one of them had withdrawn from society without any reasonable and justifiable cause. Earlier, the petition was largely filed by the deserted wife to seek maintenance from her all partner. If the other party denied following the order of the court, then they could face prosecution for negligence.
It was found that the legal remedy of conjugal rights did not exist in pre-British India. Neither any religious text authorized either party to coerce the deserting partner to return home, nor do any customary laws generally followed by the tribals and local communities hold any legal remedy.
The legal remedy was incorporated for the first time under the legislation of the Indian Divorce Act 1869, which was specifically enacted for the Christian community. Later, the Special Marriage Act of 1872, inclusive of the order of restitution and the act was enacted to govern interreligious marriages. The Code of Criminal Procedure of 1882 incorporated the penalties for those who disobeyed the court order about conjugal rights, and the punishment was either imprisonment or attachment of property or both.
After independence, the legal remedy of conjugal rights was incorporated under section 9 of the Hindu Marriage Act, 1955. This legislation applied to Hindus along with Jains, Sikhs, and Buddhists. This section has been derived exactly from the existing legislation, like the Parsi Marriage Divorce Act of 1963, the Special Marriage Act, and the Indian Divorce Act. It was read as:
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for a decree for restitution of conjugal rights”.
Unravelling the debate of fundamental rights over RCR
The institution of marriage has been regarded as a sacred union in Indian society. To maintain the sanctity of this institution, it falls under the realm of personal law. However, a critical debate arises as to whether personal laws are subject to constitutional scrutiny under Article 13 of the Indian Constitution. The Bombay High Court has dealt with the issue. In the case of State of Bombay v. Narasu Appa Mali, the court held that Article 13(3)(b) does not encompass personal laws. Hence, personal laws are not subject to constitutional scrutiny. However, this decision is widely criticized. H.M. Seeravai is one of the critics. He is one of the renowned constitutional jurists. He argued that personal laws are indeed the law and must be subject to constitutional scrutiny and maintain their standards. He mentions that excluding personal laws from Article 13 creates a harmful loophole and it leaves a large chunk of the legal segment deprived form fundamental rights. In this context, analyzing the constitutional validity of section 9 is a crucial matter to ensure it does not violate individual rights and autonomy ensured in Part III of the Indian Constitution.
In colonial times, the remedy of conjugal rights was adopted from the British legal system to maintain marital unity. In pre pre-independence era, the general belief was that the RCR was the legitimate way of preserving the institution of marriage from separation. However, after Independence, the nation adopted a democratic framework. Fundamental rights have been provided and guaranteed by Part III of the Constitution of India. Provisions like equality before the law (Article 14), prohibition against discrimination (Article 15), and personal liberty (Article 21) have emphasised individual autonomy, and due to which a transition has been witnessed in the judicial and judges’ reasoning. As India transitioned into a constitutional democracy, challenges arose regarding the balance between traditional legal doctrine and the individual’s rights and autonomy.
The landmark case of T. Sareetha vs. T. Venkata Subbaiah It is known for preferring individual rights and autonomy over traditional alignment. In this case, the couple lived together shortly after the marriage, and then they started to live apart. However, the husband, who was a landowner, after 6 years filed a suit for RCR, and then the wife, who was a famous South Indian actress, challenged the constitutional validity of section 9 on the ground of Article 14 and 21 of the Indian Constitution. The Andhra Pradesh declared Section 9 as in violation of the constitutional provision enshrined under Articles 14 and 21 of the Constitution of India. Justice Choudhary declared section 9 as a “Barbarous Remedy” and not a “means of saving a marriage”, he reasoned that it asks an unwilling woman to resume cohabitation with their husband is equivalent to coercing their submission of sexual autonomy.
However, this progressive idea is not carried forward later. As in the case of Harvinder Kaur v Harminder Singh, A husband has filed the suit of RCR, as the wife has left her natal home after two and a half years due to the continuous mistreatment of her mother-in-law. She was contending the suit by citing the Andhra Pradesh ruling; however, the Delhi High Court rejected the contention while upholding the constitutionality of section 9 of the Hindu Marriage Act of 1955. The judgment is primarily based on the traditional belief of marriage as a sacred union and the idea of preserving the institution of marriage.
The question regarding the constitutional validity of section 9 of the Hindu Marriage Act in the Supreme Court arose in the case of Saroj Rani v. Sudarshan Kumar, 1984. In this case, the suit was filed by the wife, who was mistreated and thrown out of the marital home. The respondent has consented to the decree of restitution of conjugal rights. However, the cohabitation has never happened. The divorce was granted under section 13(1A) on the petition filed by the husband. Later, an appeal was filed by the respondent, and the appeal involves primarily two issues. One of the issues was regarding the constitutionality of section 9 of the Hindu Marriage Act, 1955. The Supreme Court declared section 9 of HMA as constitutionally valid, while aligning with the Court judgment in the Harvinder Kaur case and disagreeing with the judgment in the T. Sareetha case. The judicial decision showcased the courts’ alignment with the traditional belief that views marriage as a sacred union over individual rights and personal autonomy.
However, in the case of KS Puttuswamy v Union of India & Ors, the court held that every individual has the right to privacy, and it is guaranteed by Article 21 of the Indian Constitution. It was stated that every individual has the right to choose with whom they want to marry and live, and it is well protected by the right to privacy. So the judgment was in conjunction with the same view as in T. Sareetha case, i.e., individual rights and autonomy prevailed over traditional and societal beliefs.
Revisiting Section 9: Is It Truly Gender Neutral?
Section 9 of the Hindu Marriage Act, 1955 is a gender-neutral provision; however, it is ultimately the wife who is at a disadvantaged position, and they have to suffer the legal and social implications of this matrimonial remedy. The remedy of conjugal rights is based on the principle of reconciliation, i.e., a decree to order the couple’s withdrawal to resume cohabitation. This matrimonial remedy provides relief to both the husband and wife, but primarily it is availed by the husband. However, this remedy has varied social and legal implications. The legal implications of RCR are multifaceted, complex, and hard to devise.
The term ‘Matrimonial home’ remains a gray area in the realm of matrimonial law. Generally, the concept is that a couple should live together in their matrimonial home. However, the issue arises when the wife is a working woman and her job requires her to live at a different location from the matrimonial home. Mostly, the issue has been resolved in favor of the Husband. Generally, this issue is dealt with by a traditional mindset. Likewise, in the case of Gaya Prasad v. Mst. Bhagwati, The Madhya Pradesh High Court held that;
“‘A wife’s first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection.”
Ultimately, wives have to suffer due to the archaic and narrow interpretation. While it also indirectly challenges their identity as submissive to their husband. The two implications of this issue are either the wife resigns from their job and resumes cohabitation with their husband, or she prefers their independence and files a suit for divorce. However, in both cases, women are at a disadvantaged stage due to their vulnerable position in society. Moreover, courts also took a progressive stance on this issue by declaring that husbands do not hold sole authority in the decision of where the couple lives. But this judicial perspective is not widely accepted due to social beliefs and legal ambiguities.
The legal manoeuvring has complicated the correlation between Sections 9 and 13(1A) of the Hindu Marriage Act, 1955. Section 13(1A) Allows either spouse to file a petition for divorce after one year in case the cohabitation has not been resumed after the decree under Section 9 of the Hindu Marriage Act. This provision is generally in Favor of the husband. The problem lies in the way Section 9 of the Hindu Marriage Act is used as a tool for reconciliation, misused as a tool to put an end to their marriages. The purpose of this remedy is to keep the couple together, but litigants usually refer to it as a “passport to divorce, a high road to divorce… a peg on which to hang a divorce . . . a foothold and handhold for Section 13 (1A)”. Earlier, the period for filing a suit under section 13 (1A) for divorce was 2 years, but after the Hindu Marriage Act (Amendment) Act, 1976, it was reduced to one year. So, if the parties do not resume cohabitation for one year after the decree of restitution of conjugal rights, then either of the parties can file a suit for divorce under this provision of the Hindu Marriage Act of 1955. In case the ruling is in his Favor, he can refuse cohabitation and, later, after one year, can file a decree for divorce under Section 13(1A). In case the husband is the petitioner and the ruling is not in his Favor, he might ignore the decree. So, Section 13(1A) has broadened the chances of misuse, as witnessed many times husbands file a suit under RCR with a mindset of laying down the foundation of the future divorce petition, but in this process, wives face a challenge. The matter of concern is that when wives genuinely approach the court with a view to reconciliation of matrimonial disputes, and to restore cohabitation. Therefore, this correlation generally harms women because of the lack of accountability of the spouse who disobeys the decree of restitution of conjugal rights.
Section 9 of the Hindu Marriage Act is referred to as a stepping stone for other matrimonial relief. This can be witnessed by analysing the consecutive suits after the maintenance suit. The petitions for the restoration of conjugal rights are often filed to defeat and delay the maintenance petition of wives. In these cases, the idea is not to reconcile the marriages. Litigants and legal professionals often refer to RCR as not a matrimonial remedy, but rather as a “stepping stone for other remedies”. As a deserted wife generally filed the earlier petition, but a transition has been witnessed, and in current times, mostly the petition is brought by men to delay the decree filed by the wife for maintenance under section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023. So, Section 9 of the Hindu Marriage Act is also used as a tool for escaping financial responsibility. Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 allows women to leave separately from their husbands without retaining their maintenance entitlements. This is evident in the case of Balbir Kaur v. Baldev Singh, where the wife has applied for maintenance was followed by the husband’s petition for restitution of conjugal rights. The trial court ruled in favour of the husband but later, when an appeal was filed by the wife in the high court, it was found that the petition under section 9 of the Hindu Marriage Act was not bona wide and filed to delay the wife’s application of the maintenance, and the petition was dismissed. Likewise, in the case of Smt. Venkatamma v. Venkat Swamy, the couple did not live together for eight years, and the husband neglected and never asked the wife and children to return. When the wife filed a petition for maintenance, it was followed by a petition for restitution of conjugal rights, filed by the husband. The court recognizes the husband’s tactics for delaying or frustrating the wife’s claim for maintenance by strategically using section 9 of the Hindu Marriage Act. These cases showcase a structural inequality that lies in section 9 while deeming it to be gender neutral. It can be used to maintain patriarchal dominance. In case the decree of restitution has been passed by the court, the wife has to return to their matrimonial home while losing their maintenance right. Even if the court can navigate the strategic move of the husband under the guise of section 9, the wife still suffers because of their economic and social position in society. Therefore, section 9 is often used as a legal instrument that challenges a wife’s agency. It also showcases that the lived reality is way different from what has been enshrined under statute.
The chances of marital deadlock in the decree of conjugal rights are high. This deadlock affects the wife, and it can be created in both cases, when the decree is in favour of and against the husband. When the decree is passed in favour of the husband, he might prevent the woman from complying with it by way of inherent authority, which further affects her ability to seek other legal recourse. When the decree is against the husband, he might ignore or refuse to comply with the judicial order of restitution. Section 9 of the Hindu Marriage Act is widely susceptible to legal manipulation, generally by the husband, which further diminishes and endangers the position of the wife and her autonomy. Wives are generally in a weaker and disadvantaged position in society, and they generally refrain from taking the recourse of divorce due to the social stigma attached to it. In the latter scenario, it is not just the marital status that gets affected, but the family and society are also disrupted.
As discussed earlier, this matrimonial remedy is widely criticized in contemporary times. As it violates the Right to Equality, the Right to Privacy, and dignity guaranteed by the provisions of the Indian Constitution, it is not in Favor of the wife.
Suggestions
To address the critical impact of conjugal rights on women and gender justice, below suggestions can be followed:
- First and foremost, a comprehensive review of section 9 of the Hindu Marriage Act should be undertaken by parliament to ensure that couples are also individuals and should not be deprived of their inherent fundamental rights, like the right to equality, guaranteed by the Indian Constitution.
- A vigilant approach must be undertaken by judicial bodies to ensure that this legal remedy is not misused under the guise of reconciliation.
- To further ensure the legal remedy is not misused, Punishment like a fine can be imposed in cases of frivolous or mala fide petitions.
- Legal awareness campaigns can help in sensitizing women about their rights and personal autonomy.
- Encouraging more research work concerning the legal remedy of restitution of conjugal rights, which uncovers the legal ambiguity of lived experiences.
Conclusion
The matrimonial remedy of conjugal rights has been enshrined under section 9 of the Hindu Marriage Act, 1955. The section is primarily associated with traditional beliefs. However, the legal remedy underwent a high transformation. With time critical question has arisen regarding the relevance and existence of this legal remedy in contemporary times. This section encompasses a wide legal and social implications, which further questions its neutrality. Despite its impact on women, individual rights, personal autonomy, and gender justice, it persists. Hence, this section requires a critical analysis by lawmakers to provide individual rights and ensure gender justice.
Sneha Raj
Chankya National Law University, Patna