The remedy of restitution of conjugal rights is aimed at preserving the marriage and encouraging cohabitation and consortium, not at coercing sexual intercourse. Section 9 of the Hindu Marriage Act is constitutionally valid.

Judgement Key Points

AVADH BEHARI ROHATGI

( 1 ) THIS appeal raises an issue of great importance to the well-being of the nation, as it goes to the very root of the marriage relationship. The husband petitioned for restitution of conjugal rights. The wife opposed. The Additional District Judge granted a decree of restitution of conjugal rights to the husband. From that dscree ths wife appeals to this Court.

( 2 ) 0n appeal counsel for the wife. attacked the constitutional validity of section 9 of the Hindu Marriage Act. I issued notice to attorney-general. He appeared and argued the case. This part of the judgment deals with the constitutional question. The rest is concerned with the facts of the case.

( 3 ) IN the forefront of his arguments, counsel referred me to T. Sareetha v. T. Venkata Subbaiah, AIR 1983 Andhra Pradesh. 356 (1 ). In that case P. A. Chaudhary J. held that section 9- of the Hindu Marriage Act, 1955, (the Act) offends Articles 14 and 21 of the Constitution and therefore declared it null and; void. It was a simple case in which the husband had filed an application against the wife for restitution of conjugal rights under section 9 of the Act. The wife raised an objection to the jurisdiction of the court. The subordinate judge held that Cuddapah Court had jurisdiction to try the petition. The wife went. in revision to the High Court. Chaudhary J. , in agreemeat with; the subordinate judge, held that Cuddapah Court had jurisdiction to try the petition.

( 4 ) BUT the case is not important On this point. Ths Chief point decided was about the constitutional validity of section 9 of the Act. The learned judge held that the remedy of restitution of conjugal rights was "barbarous , "uncivilised" and "an engine of oppression". The main reason for holding that section 9 offended Article 21 of the Constitution was that a decree for restitution of conjugal rights was an order "to coerce through: judicial process, the unwilling party to have sex against that person s consent and freewill with the decree-holder". This, he held. , was "degrading to human dignity and monstrous to human spirit". The learned judge took the view that the British Indian courts "thoughtlessly imported that rule into our country and blindly enforced it among the Hindus and the Muims. The origin of this uncivilized remedy in our ancient country is only recent and is wholly illegitimate. Section 9 had merely aped the British and mechanically re-enacted that legal provision of the British ecclesiastical origin. " Restitution of Conjugal Rights.

( 5 ) IN my opinion this view is based on a misconception of the true nature of the remedy of restitution of conjugal rights. Section 9 reads as under :

"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.

EXPLANATION Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse "shall be on the person who has withdrawn from the society. "

( 6 ) CHAUDHARY J. thought that section 9 imposes "sexual cohabitation between unwilling, opposite sexual partners. " He called it "forced sex", "coerced sex" and "forcible marital intercourse". He went on to hold that tile state interference destroyed the "sexual autonomy" and "reproductive autonomy" of the individual. "a wife who is keeping away from her husband, because of permanent or temporary arrangement, cannot be forced, without violating her right to privacy, to bear a child by her husband" he said. A large number of English and American decisions have been cited in support of this view.

( 7 ) THIS decision is the

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