Harvinder Kaur vs Harmander Singh Choudhry 15th November 1983.

    Introduction 

    Marriage in the Indian Society was considered a Sacramental practice, but over the years as the Society progressed and people had the notions about the rights and obligations that they had to perform in the relationship of marriage the concept of marriage being a sacramental practice somewhere lost its value and become obsolete and due to the issues arising out of these relationships of marriages the concept of marriage turned into a contract more and a sacrament less, this gave birth to a codified law for the Hindus which today is known by the name of HINDU MARRIAGE ACT, 1955 this act provided for the matrimonial reliefs for the people of the Hindu community. 

    This act provides for a provision of the Restitution of the Conjugal rights, which is, contained in Section 9 of the said act. Now, the section states that ‘when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the court, for the restitution of the Conjugal Rights.’ This in simple words means that if either party has failed to fulfill the marital obligations of the marriage then the court can grant a decree of the restitution of conjugal rights enforcing the party who left the house without reasonable excuse to fulfill the obligations. 

     Facts of the Case 

    1. The Appellant, Harvinder Kaur was married to the defendant Harmander Singh Choudhry.
    2. Both of them were employed and had a child born out of their wedlock. 
    3. Both the Appellant and the respondent started living separately and the husband who is the defendant in the case invoked Section 9 of the Hindu Marriage Act, 1955 for the decree of the restitution of the Conjugal right. 
    4. The learned Judge ruled in favor of the defendant and granted a decree of restitution of conjugal rights.
    5. Aggrieved by the decision of the Court the Appellant filed a petition in the Delhi High court invoking Article 14 and Article 21 of the Indian Constitution rendering Section 9 of the Hindu Marriage Act as Unconstitutional stating the reason that Section 9 destroys the purpose of both Article 14 which is Right to Equality and Article 21 which is Right to life and Personal Liberty. 

    Contentions of the Petitioner

    • The counsel invoked the constitutional validity of section 9 rendering it void.
    • The counsel has referred to the case of T. Sareetha V. T. Venkata Subbaiah in which Sareetha, a famous film star got married to Venkata Subbaiah, the petitioner in the instant case. After some time she left for her parental home, the appellant filed for the restitution of conjugal rights, and the decree was granted in favor of the defendant striking down the provision of section 9 holding that it violates the wife’s right to privacy. 
    • The main point presented was that the judge in the previous case of the above mentioned case had declared that the remedy of restitution of conjugal rights was not correct and opposed to the morals and showcase a side of cruelty towards the women gender. This was the reason that section 9 was struck down and Article 21 of the Constitution was upheld. 

    Contentions of the Respondent 

    • The main contention of the respondent was that Section 9 of the Hindu Marriage Act, 1955 was constitutionally valid and cannot be held null and void. The respondents also argued that Section 9 of the Hindu Marriage Act was not violative of Article 14 and Article 21 of the Indian Constitution.

    Judgment 

    Justice Rohtagi stated that there were several misconceptions associated with section 9 of the Act in question and states that the concept of marriage is considered a sacrament practice in the eyes of the Hindu community and this conception of it should be preserved. If either of the parties in a marriage withdraws themselves from cohabiting and ignores to perform the marital obligations in a marriage without any reasonable cause, the aggrieved party may file a petition of restitution of conjugal rights in the Court. 

    Furthermore, the Judge also stated that Section 9 of the act in the question above is not violative of the Fundamental Rights which the appellant had stated to be Unconstitutional i.e. Article 14 and Article 21 because the motive of section 9 of the act is to preserve the marriage. The restitution of conjugal rights simply does not aim to bring on sexual intercourse between the parties to the marriage but on to the realization of the marital obligation that the parties have to fulfill and the obligations, they behold as the members of society. 

    Conclusion 

    The conception of marriage is comprehensive that is the sole reason it has kept on evolving as society has progressed over time. The rights and obligations back then when this act was constituted is very much different now and this may be because of varied reasons be it the rights of women being recognized in the society when the widow remarriage act came to force or be it the prevention of the practice of the Sati Paratha, these reasons somewhere or the other recognized the rights of women in the society and tried them to keep at par with the men in the society.

    In the present times in the 21st century when technology has taken over the world and created job opportunities for people regardless of gender, the rights and recognition of women have been taken into consideration wholeheartedly. 

    The question of the fundamental rights being violated and section 9 of the act being upheld has been highly debated, in the case of 1983 before the High Court of Andhra Pradesh in T. Sareetha V. T. Venkata Subbaiah, the Hon’ble Court stated that the disputed Section 9 was unconstitutional. A wife cannot be forced, to have sexual relation with husband, without affecting her right to privacy, but in the case at hand, section 9 of the act was upheld and said that no fundamental right has been breached. Again, in the decision of the Apex Court of the country in the case of Saroj Rani V. Sudarshan Kumar Section 9 of the act was held as constitutionally valid and not violative of any right.