Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Harvinder Kaur Vs. Harmandar Singh Choudhry
AIR1984Delhi66, (1984)ILR 1Delhi546
Hon’ble Judges/Coram: A.B. Rohtagi, J.
Decided On: November 15th, 1983
FACTS:-
The appellant, Harvider 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 the section 9 of the Hindu Marriage Act.
ISSUE:-
Whether the remedy of Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act is constitutionally valid?
RULE AND HOLDING:-
This case, in stark contrast to the Sareetha case, 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the Court has the power to make a decree of restitution of conjugal rights to enforce the return of the spouse who has withdrawn from the society of the husband without reasonable excuse. The decree orders the respondent to return within a period of one year to the aggrieved party.
However the Court observed that under a decree of restitution of conjugal rights, the court cannot enforce sexual intercourse but only cohabitation. Restitution of conjugal rights cannot be ordered where the respondent refuses sexual intercourse due to sexual drive problems but continues to cohabit with the petitioner. Thus, refusal of sexual intercourse by itself does not constitute refusal to cohabit, but Cheap online Cialis is often in the generic form and it can be bought if erectile dysfunction is the problem. Sexual intercourse does not constitute the whole content of marriage, and the remaining aspects of matrimonial consortium cannot be said to be of an unsubstantial or trivial character.
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 orders restitution of conjugal rights when one party withdraws from the society of another without just cause or excuse, so that consortium is not broken. The Court held that Chaudary J.’s overemphasis on sex is the fundamental fallacy in his reasoning. 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 endeavour to bring about reconciliation between the parties. If there is no reasonable excuse for living apart the Court orders the withdrawing party to live together. The Court then moved on to discuss the concept of 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 breakdown of marriage and the passing of time most reliable evidence that the marriage has finished. Section 13(1-A) of the Hindu Marriage Act is the legislative recognition of this principle.
The decree of restitution of conjugal rights serves a useful purpose because it gives to the parties a cooling-off time of one year which is essential. If the marriage cannot be saved even after passing the decree of restitution it must be dissolved. If the restitution decree is not obeyed the court dissolves the marriage on proof of non-compliance of the restitution decree. Hence, contrary to what Chaudary J., thought the object of the restitution decree is not to enforce sexual intercourse.
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 concept of divorce is unique to Hindu law, that marriage is not solely for purposes of sexual congress and it creates mutual rights and obligations and it confers a status, that marriage being voluntary and consensual in character the Court will compel the parties to live together again if they are living apart without any sufficient reason, that Section 9 is based upon reason and not brute force, that the constitutionality of Section 9 has to be adjudged by the generality of cases it covers and that Section 9 is constitutionally valid. Section 9 first finds the fault and where it lies, and it leads to dissolution if there is no resumption of cohabitation. Thus, Section 9 combines the fault theory and the breakdown theories in one go.
The Court held that to hold Section 9 unconstitutional without regard to Section 13(1-A) is to take too narrow a view. Breakdown of marriage is such failure in the matrimonial relationship that no reasonable probability remains of the spouses again living together as husband and wife for mutual comfort and support. The breakdown theory recommends irretrievable breakdown as the sole ground of divorce. The Court also held that to demonstrate a breakdown of marriage, not just physical separation but mental aversion is also necessary. 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.
HELD:-
Appeal dismissed. Remedy of Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955 is not unconstitutional and is perfectly valid.
To Get Legal Opinion from Advocates/ Legal Experts, Please click here
To Get Legal Opinion from Retired Hon’ble Judges, Please click here
