Author: Kunwar Bir Singh, UILS, Panjab University, Chandigarh
Harvinder Kaur v. Harmander Singh Chowdhary, AIR 1984 Delhi 66
BENCH: A Rohatgi
Harmander Singh Chowdhary
Date of Judgment: 15th November 1983
Facts: The appellant, Harvinder Kaur was married to the respondent, Harmandar Singh Choudhry on October 10th, 1976. Both the appellant and respondent had jobs of their own. A son was born to them on July 14th, 1978. The wife and the husband started living separately, as the appellant left the respondent’s home alleging maltreatment on part of the husband and his mother. The husband brought a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. The other party challenges the validity of the constitutionality of section 9 of the Hindu Marriage Act.
Whether the remedy of Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act is constitutionally valid?
The Contention of the Petitioner
The petitioner contended that section 9 of the Hindu Marriage Act, 1955 is violative of Articles 14 and 21 of the Constitution of India. The side placed its reliance upon the Andhra Pradesh High Court judgment of Sareetha v. T. Venkatta Subbaiah in which the HC held the said section to be violative of the constitutional provisions. The court held that “Life” occurring in Article 21 has spiritual significance and placed its reliance upon the two judgments of SC, one in Kharak Singh v. State of U.P. and another of Govind v. State of M.P. Both judgments held Article 21 to be the source for the protection of personal liberty and life in the elevated sense. In Govind’s case, it was held that Article 21 encompasses the right to privacy and human dignity. Using various definitions of “privacy”, the Court found that the right to privacy is flagrantly violated by a decree of restitution of conjugal rights.
This case is in stark contrast to the Sareetha case, and J Rohatgi held that Section 9 of the Hindu Marriage Act is not unconstitutional. The Court observed that the view taken by P.A. Chaudary J., in Sareetha case was based on a misconception of the true nature of the remedy of restitution of conjugal rights. The Court, while dissenting from the opinion of the Andhra Pradesh High Court observed that under Section 9 the Court has the power to make a decree of restitution of conjugal rights to enforce the return of the spouse who has withdrawn from the society of the husband without reasonable excuse.
However, the Court observed that under a decree of restitution of conjugal rights, the court cannot enforce sexual intercourse but only cohabitation. The object of the restitution decree is to bring about cohabitation between the estranged parties so that they can live together in their matrimonial home in amity. Sexual intercourse is not a necessary condition for cohabitation. Cohabitation means the husband and wife living together as husband and wife. The Court held that all that the Court in a husband’s petition under Section 9 seeks to enquire is whether there is a reasonable excuse for the withdrawal by the wife from the society of the husband. A spouse is entitled to the other’s society and if the law enforces this conjugal duty there is nothing wrong.
The Court held that the leading idea of Section 9 is to preserve the marriage. Section 9 is an endeavor to bring about reconciliation between the parties. The Court then moved on to discuss the concept of the breakdown of marriage as enunciated by Salmond J., in Lodder v. Lodder. If the decree for restitution is not obeyed for the space of one year and the parties continue to live separately it is undoubtedly the best evidence of the breakdown of marriage and the passing of time the most reliable evidence that the marriage has finished.
The decree of restitution of conjugal rights serves a useful purpose because it gives the parties a cooling-off time of one year which is essential.
The Court also observed that Section 13(1-A) is based on proceedings under Section 9. If Section 9 is unconstitutional, then Section 13(1-A)(ii) is also constitutionally void. Thus implying no decrees of restitution and no divorce under Section 13(1-A)(ii). The Court held that the abolition of Section 9 is to be done by the legislature and not the courts. As the ground for divorce under Section 13(1-A) is available to either party to a marriage, there is complete equality of sexes and equal protection of the laws. Hence, it is not violative of Article 14 of the Constitution. The Court even scorned at the introduction of principles of constitutional law in the private matters of family. The Court held that to hold Section 9 unconstitutional without regard to Section 13(1-A) is to take too narrow a view. The Court held that though the remedy under Section 9 may be outmoded, it is not unconstitutional. Thus, Section 9 is perfectly valid. Following this line of reasoning, the Court shot down all the contentions of the appellant.
In the early case of Govind v State of MP, the Supreme Court held that the right to privacy protects “the personal communions of the home, the family, marriage, motherhood, conception, and child-rearing”. This definition seems to treat the home as a private space where the law could not impede.
A different interpretation of privacy was adopted by the Andhra Pradesh High Court in T.Sareetha v Venkata Subbaiah when it held that “the right to privacy belongs to an individual and is not lost by marital affiliation”. The court observed that the enforcement of section 9 against an individual forced her to have sexual relations with her spouse, thus bereaving her of control over her body. This, according to the court, was a severe aperture of the right to privacy as it transfers “the choice of whether or not to have marital intercourse to the State from the concerned individual”. Regrettably, the Delhi High Court, in Harvinder Kaur v Harmander Singh Choudhry, returned back to the narrow definition of privacy given in Gobind v State of MP and the Supreme Court ratified this view.
However, last year in K.S. Puttuswamy v Union of India, the Supreme Court held that individuals have a right to privacy which grants them complete sovereignty over their bodies. The Court has thus adopted the egocentric definition of privacy as argued by Justice Choudary in T.Sareetha v Venkata Subbaiah.
The Andhra Pradesh High Court had observed that the enforcement of a decree of section 9 forces a person to have sexual intercourse with her spouse, thus bereaving her of control over her own body, but the Delhi High Court lamented this view and held that the challenged section aimed at “union” and not at “cohabitation”. “Consortium” has been defined as “companionship, love, affection, comfort ”. The Delhi High Court held that sexual relations are not the eventual goal of marriage and that restoration of conjugal rights aims only at urging the parties to a marriage to live in the same household and does not force them to have sexual intercourse.
With the steady understanding that the law needs to intercede in family matters and protect the rights of individuals, restitution of conjugal rights has been criticized across common law jurisdictions, leading to its abrogation in the UK, Australia, Ireland, and South Africa. It is time that India, too, abrogates restitution of conjugal rights, taking into consideration the blatant breach of the right to privacy it denotes.
1). AIR 1983 AP 356
2). 1963 AIR 1295
3). 1975 SCR (3) 946
4). 1921 New Zealand Law Reports 786
5). WRIT PETITION (CIVIL) NO. 494 OF 2012