Restitution - Is this the way?

Is it not surprising that a law which was thrust upon us by a foreign power in the name of ‘social reforms' and found its way in our statute despite criticism in no fewer words from all quarters and has been deleted by the statutes from almost all civilized countries including the one which introduced it in the first place- STILL survives and flourishes in our courts and books of law. The concept of Restitution Of Conjugal Rights is embodied in section 9[**] of Hindu Marriage Act 1955 which conceptualises that after the solemnization of marriage if one of the spouses abandons the other, the aggrieved party as the matter of legal right may file an application under section 9 of Hindu Marriage Act 55 for restitution of his/her conjugal rights.

DID INDIA ‘NEED’ THIS LAW IN THE FIRST PLACE?

Nowhere more than in India was and still is a marriage considered a sacrament both eternal and indissoluble. Not that it was without its share of anomalies and biases. The Declaration of Manu that 'neither by sale nor by desertion the wife can part her way from the husband' was certainly misogynist in nature. It was hitherto applicable only to women and not to men.

The inherent justice was sought to be remedied by a ‘social reform' by the then English rulers. This was actually a derivative of Jewish laws which found its way in our statute and is now known as section 9 of Hindu Marriage Act. The reformist judicial remedy was criticised from several quarters, notable amongst them Sir J. Hennen (1897 RC 195) [1] Russell vs Russell vehemently opposed the remedy saying 'I have not once known a restitution petition to be genuine, that these were merely convenient devices either to enforce a money demand or to obtain porce'.

Also even as Hindu Marriage Act 1955 was being passed in the parliament, there was huge opposition. In the words of Mr Khardekar, 'to say the least this particular clause is uncouth, barbarous and vulgar’. That the Government should be abettors in the form of legalized rape is something very shocking.'

Despite all opposition and rampant misuse of this law, like a Phoenix which rises from the ashes, the law has stayed in India surviving the scrutiny of the 71st report of Law Commission in 1978. This, despite the fact that the Commission was aware that the said remedy has been abolished in England under Section 20 Matrimonial Proceedings Act 1970.

The fact remains that the court “breakdown theory” pertaining to Hindu marriage has not been accepted in its present sense by the legislature and it still considers the Hindu society Not to be mature enough to wade the turbulent waters of matrimonial disputes without the phantom support of this remedy.

THE ABOLITIONIST VIEW

The almost rote memorised case of T. Sareeta vs Venkatasubaiah [2] was the first time the constitutional validity of Section 9 Hindu Marriage Act 55 challenged. Justice Chowdhary was generous with words. He held that 'Section 9 is a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void.'

Add to this, Russell vs Russell (supra) and you had the Abolitionists’ lobby ready to take the ground.

But it was not to be...

Delhi High court in Harvinder Kaur vs. Harminder Singh [3] chose to differ withT. Sareeta (supra).Justice Rohatgi observed 'the over emphasis of sex in T. Sareeta case is a fundamental fallacy in the reasoning of Justice Chowdhary. He seems to suggest that restitution decree has only one purpose, that is to compel the unwilling wife to have sex with her husband'. (emphasis added)

The Guardian of constitution, the Hon’ble Supreme Court, finally dealt with the matter in Saroj Rani vs.Sudarshan Kumar Chadha [4] where the Supreme Court overruled T. Sareeta relying on the judgement of Delhi High Court in Harvinder Kaur. Herein Justice Sabyasachi Mukherjee observed that 'it cannot be viewed in the manner learned single judge bench of Andhra Pradesh High Court has viewed it and we are unable to hold Section 9 to be violative of Article 14 and 21 of the Constitution.

Does the matter rest?

I daresay ‘no’. At least the Abolitionist kept on incessantly pushing for their demand to delete the said remedy while the supporters kept reading the aforesaid judgement of the Hon’ble Supreme Court and of course ‘The Manu Smriti’.

But Section 9 of Hindu Marriage Act 1955 remained.

My 2 cents

I will start with what Restitution of Conjugal rights is usually used in Indian courts as against what it is intended for. The source of mischief is Section 13/1A(ii) HMA 1955. It says that if restitution degree has not been complied within a period of 1 year, the party can file for porce.

Consider a legal fiction when a married couple has parted ways and discontinue to cohabit, the aggrieved party has having filed a restitution application, opposite party doesn’t willingly comply with the said decree and after the statutory period of 1 year, files for a porce under Section 13/1A(ii) on the ground of noncompliance of the said decree, does it not frustrate the entire object of Section 9 of Hindu Marriage Act 1955. In Veena Handa vs Avinash Handa [5] this was precisely themodus operandi of the husband.

In the words of Justice Rohatgi in Harvinder Kaur-“ the legislature has created restitution of conjugal rights an additional ground for porce.”

Another problem is how to enforce the decree in the first place?

“The order of restitution of conjugal rights is observed only when it is breached.”

When a person fails to comply with decree of restitution of conjugal rights the court has the power to enforce the decree under Order 21 Rule 32 of CPC 1908. Under rule 32(1), the court can attach the property of JD and sell it under rule 32(3). Well, easier said than done especially in the case of vast majority of poor Indians, where either both the parties and more so the women would usually have no property in her name, how will court execute such a decree?

On second thoughts, was not restitution of conjugal rights intended to be a positive remedy to start with, to bring about reconciliation between the man and the woman?

How would attaching and selling of the property help this intent?

I wonder...

THE ‘KEEP-IT VIEW

“Section 9 tries to bring the parties of the marriage together. Whether to grant restitution of conjugal rights to be just and reasonable in the fact and circumstance of the given case is left to the court to be decided in judicial discretion? What better guarantee can court afford for inviolability of the body and mind?”-J.Rohatgi in Harvinder Kaur (supra)

Thus by no means section 9 is violative of Article 21 of the constitution of India. The overemphasis of sex and section 9 being an instrument of forced sexual relation and hence violative of articles 14 and 21 of the constitution of India is again countered by criticism of T.  Sareeta by the Supreme Court. In Halsbury's Law of England, it is observed that cohabitation doesn’t necessary mean sexual intercourse which the courts cannot enforce. Refusal of sexual intercourse doesn’t mean refusal of cohabitation. This view has been supported in  Rowe vs.Rowe[6].

As far as Section 9 being criticised as an added ground of porce the Hon’ble Supreme Court sums it up-“ So the legislation is creating a number of grounds for porce, what is bad in it? The remedy may be outdated or out of tunes with times however in my opinion, Section 9 is not unconstitutional and is perfectly valid.”

Conclusion

The Hon’ble Supreme Court has held time and again section 9 not to be ultra-viresof the Constitution of India. However the same judgement also calls the remedy as outdated not in tune with the times.

So what may be needed is the middle way such that restitution may be replaced with reconciliation. If the unwilling respondent is forced to cohabit, this may spoil the relationship more than make it up.

'Don’t poison the fishing waters' the wise men said.

If the intent is reconciliation let the approach be soft. The court should not take an active role in reconciliation rather appoint a responsible social member to mediate and only keep a supervisory role in the mediation. The definition of the proceeding should be counselling so that the proceeding sound and look inoffensive aimed at clearing the misunderstanding and difficulties of the married couple which can lead to cohabitation. No one member should be made to feel like an accused rather both the parties must be made to act on equal level as parties to Reconciliation.

Only then a better solution, less time consuming and practical in nature can be reached, rather than blindly following this archaic remedy.

REFERENCES:

[1]1897 RC195

[2]AIR 1963 AP356

[3]AIR 84 DR66

[4]AIR 84 SC1652

[5]1865 (34) LJP M&A 111

**Section 9 Restitution of conjugal rights. — 7 [***] 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. 8 [ 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.