Family Law- Hindu Law

DARSHAN SINGH PATIALVI ADVOCATE GENERAL Restitution Of Conjugal Rights Criticism Revisited Introduction- theatrical role 11 of the Hindu connubial union dress, 1955 embodies the concept ofRestitution of Conjugal Rights at a lower place which afterward solemnization of marriage if single of the teammates abandons the red-hot(prenominal), the aggrieved ships company has a legal repair to file a petition in the matrimonial tourist judgeship for getting even of conjugal skilfuls. This right rotter be granted to any of the spouse.This constituent is identical to surgical incision 22 of the Special nuptials spiel, 1954. 2 The prep is in slightly different wordings in the Parsi Marriage and Divorce process, 1936, scarcely it has been interpret in such a manner that it has been given the same essence as to a lower place the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different under the plane region 32 Indian Divorce Act , 1869 but efforts are macrocosm make to give it such an interpretation so as to bring it in consonance with the other righteousnesss.The provision under Muslim law is almost the same as under the innovational Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws. 3The total validity of the provision has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh racy Court4 where the Honble High Court held that the impugned separate was unconstitutional. The Delhi High Court inHarvinder Kaur v Harminder Singh,5 though had non-conforming intellections.Ultimately Supreme Court inSaroj Rani v. Sudharshan,6 gave a judgment which was in line with the Delhi High Court7 views and upheld the constitutional validity of the branch 9 and over-ruled the decision given inT. Sareetha v. T. Venkatasubbaiah. 8It is a sad commentary that de venom various courts including the Apex Court of the landed estate upholding the validity of component 9. Many jurists still have doubts with respect to the soundness of this section and demand its abolishment.Abolitionists View The abolishmentists argue that it is a remedy that was unbeknownst(predicate) to Hindu law till the British introduced it in the name of genial reforms. Even when the Hindu Marriage Act, 1955 was being passed in the Parliament, at that place were voices of mental rejection regarding the efficacy of this remedy. 9 Sir J. Hannen inRussell v. Russell10 also vehemently opposed the remedy. Further, they are of the view any law that forces any psyche to live with another person is contrary to the value of the society.The remedy openly violates the fundamental right to life, covert and equality hence is unconstitutional. Further more, there is frequently insincerity in the petitioners intention. The remedy is blatantly mis utilise to achieve ulterior purp oses other than reconciliation, the musical theme cause being S. 13 (1-A)(ii) of the Hindu Marriage Act, 1955 and has created an additional maroon of divorce. Yet another major problem with getting even petitions is that it is used as a defence for criminal maintenance suits. This remedy has been repeatedly misused, abused and exploited. 11Adding more, the part prescribed to enforce this decree under Order 21 expression 32 of Civil Procedure Code, 1908 is also criticized on the fusee that in India, where most of the population and especially women (married woman) do not have real possession over any property. In such cases, if a tax return decree is not complied with, then the court is required to ascertain the lot of the wife in the property of her husband, when it is not divided and arrive at her share in the property, but this involves cumbersome procedures.Difficulty also arises if the husband does not have a property in his name. Further, it is not correct to gesta te that coercing a person that his property would be attached and sold extraneous can change the attitude of the adamant spouse and make him heed the decree. Counter View However, in my opinion, section 9 of the Hindu Marriage Act is one of the most misunderstood sections of the Matrimonial law. Despite the controversy it has continuously been upheld by the Judiciary.Even the legislature through various committees and its reports has supported this section. on the whole the reasons so verbalise by abolitionists can be easily encountered if this socially benefiting section is read in the right light and its essence is understood. It is controlling that a clear understanding of the section 9 is required because it is frequently invoked. First of all, it cannot be said that the concept of conjugal rights and that its embodiment in section 9 is foreign to the Indian culture and society.It may be borne in mind that conjugal rights. Such a right is essential in the very institut ion of marriage itself. 12 The only thing is new is the embodiment of this concept which has been prevailing since antiquity. The prime objective of section 9 is to preserve the marriage. 13 According to the Hindu Marriage Act marriage is a civil contr enactment and a religious ceremony. 14 It is a contract of the superlative importance in civil institutions, and it is charged with a vast garland of rights and obligation,15 cohabitation being one of them.It is the very soul of marriage and this section enforces the right of cohabitation. If there is no reasonable make for living apart, the court orders for cohabitation and enforces the adopt there is nothing wrong as the parties had voluntarily stipulated this at the time of entering into the marriage bond. 16 ingredient 9, in actuality, is a means of saving the marriage, it is in a sense an extension of sub-sections (2) and (3) of section 23 of the Act which make headway reconciliation by the court.It is the policy of the Act that the parties should live together and care in the maintenance of marriages. 17 By enforcing cohabitation, the court is serving this purpose of the Act. Further, it is criticized on the ground that it allows the withdrawing spouse to take an advantage of his own wrong, which is against the scheme of section 23 and allows him/her to apply for a decree in case of non movement of the marriage within one year of firing of decree. However inDharmendra Kumar v.Usha Kumari,18 the Honble Court clearly stated that The expression in order to be awrongwithin the intend of section 23(1) (a) the conduct say has to be something more than mere disinclination to agree to an offer of reunion, it essential be misconduct serious enough to justify denial of the temperance to which the husband or the wife is otherwise entitled to. 19It is also oftentimes championshiped to be gender discriminatory and violative of Article 14. T. Sareetha case20 confirmed this view. It is straightforward that the judge considered the entire question of indemnification from the point of view of the woman.It seems that it has been overlook that restitution of conjugal rights can also be claimed by the wife. It is relevant to state that the section is gender neutral as by the Amending Act 44 of 1964 either party to a marriage has been allowed to present a petition for divorce on the ground given in section 13(1-A). Even the party found guilty in restitution legal proceeding is entitled to petition for divorce under section 13 (1-A)(ii). at that place is complete equality of sexes here and equal protection of the laws. 21 Therefore this claim of abolitionist is incorrect.Section 9 is also criticized for being an instrument of forced knowledgeable relation and hence being violative of right to privacy underwrited under Article 21. But much contrary is its purpose. The remedy of restitution aims at cohabitation and consortium and not merely at versed intercourse. 22 InHalsburys Laws of England23it is detect (cohabitation) aces not inevitably mean serial intercourse, which the court cannot enforce, so that refusal of sexual intercourse by itself does not constitute refusal to cohabit. 24 In support of this offer the high authority of Lord Stowell inForster v. Forster,25Orme v. Orme, 26 andRowe v. Rowe27 may be cited. whiz thing is clear from Lord Stowells decision inForster v. Forster28 and Halsburys statement of law that the Court does not and cannot enforce sexual intercourse. In cases resembling T Sareetha, 29 the concept of marriage is pictured as if consists as if it consists of nothing else yet sex. Chaudhary, J. s over-emphasis on sex is the fundamental fallacy in his reasoning.He seems to project that restitution decree has only one purpose, that is, to compel the unwilling wife to have sex with the husband. This view was discarded long ago in as early as 1924 Sir Henry Duke President inJackson v. Jackson. 30To say that restitution decree subject a person by the long arm of the to a positive sex act is to take the grossest view of the marriage institution. 31Therefore, it is fallacy to hold that the restitution of conjugal rights constituted the starkest form of governmental invasion of marital privacy. 32 Further, applying the threadbare that law has to be just, clean-living and reasonable as enunciated inManeka Gandhi,33 section 9 said tries to bring the parties together. Whether to grant restitution decree would be just, fair and reasonable in the facts and circumstances of a given case is left(p) to the court to be decided in its discriminative discretion. What better guarantee can the law afford for the inviolability of the body and mind of the wife and her marital privacy34 And therefore it can be safely stated that section 9 is not violative of Article 21.It also stated by critique that restitution decree serve as a stepping fossa to divorce and is condemned to be a passage or passport to divorce. The reason behi nd the scheme of putting non consummation of marriage after one year of passing the decree of restitution of conjugal rights under section 13 of the Act is that the Indian Legislature believes that there should not be a sudden break of the marriage tie. It believes in reconciliation and that that cooling-off rate of flow is not only desirable but essential. If the marriage cannot be salve even after passing the decree of restitution it must be dissolved.A factual separation gives an easily justifiable indication of breakdown. 35 That is, under the Act it serves a double purpose. It first finds the fault and where it lies. Secondly it leads to the dissolution of the marriage, if there is no resumption of cohabitation. Further, recognizing non-consumption of marriage after 1 year of passing of Restitution Decree as a ground of divorce enables the aggrieved spouse to apply to the court for maintenance under section 25 and maintenance pendente lite may also be claimed by making by a case for the same as provided in section 24.This enables a wife, who does not desire disruption of the marriage or even judicial separation from the husband, to secure provision for her support by an order of the court under the matrimonial jurisdiction conferred on it, instead of filing a suit for maintenance under the law relating to maintenance now corporal in the Hindu Adoptions and Maintenance Act 1956. 36People who are against the concept of restitution of conjugal rights argue that England which is the nation of origin of the concept has deleted this remedy from its enactment and India is still continuing it.The Law Commission, in their Fifty-ninth Report have- not recommended its abolition nor in their Seventy-First Report of 1978. The Commission was aware that it had been abolished in England under section 20 of the Matrimonial Proceedings Act 1970. However, it is germane to state that retaining this section all these years is not without reason. The truth is that the leg islature has not recognized the breakdown theory in toto, as has been accepted in England. 37 Adding on, a recent writer38 has suggested that the opinion of Derrett is more realistic and that the Hindu society is not mature enough to do away with the remedy.Its abolition would be like throwing away the baby with the bath-water. 39It is also argued that the methodology adopted in execution of the decree as mentioned in the Code- of Civil Procedure (0-21 Rules 32 and 33) is senseless as it provides for financial stock-purchase warrant in case of non fulfillment of this decree. It is to be remembered that marriage is also contractual in nature. Providing for a financial sanction in case of non fulfillment of contractual obligation is a super acid practice. Also that enforcement by attachment of property is provided by court where the noncompliance to such a decree is willful i. e. s deliberate, in spite of the opportunities and there are no other impediments. 0 21, Rules 31 and 3 2 C. P. C. provide only a financial sanction to serve as an inducement by the court to effectuate restitution and serve a social purpose i. e. retardion of the break-up of the marriage. 40Often the case ofRussel v. Russel41 is quoted by abolitionist, however the larger picture as to why Lord Herschell called this remedy as unrelenting is not brought in light. What he said and meant was that reasonable excuse, an essential for the decree of Restitution of Conjugal Right, was not confined only to the grounds of divorce.It can as well be something short of legal cruelty which strength constitute a reasonable excuse for refusing restitution. What was stated by him was that if the meaning of reasonable excuse was restricted to the grounds, then this remedy shall be barbarous. This is precisely what has been taken care of in India as the history of the Act would show. Section 9(2) as originally enacted provided that Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce. This created bulky difficulty. The Law Commission in its Fifty-Ninth Report recommended its deletion. It is now possible for the party to plead a reasonable excuse which may not necessarily be a ground either for judicial separation or nullity or divorce. So the Act was amended and by Act No. 68 of 1976 section 9 (2) was deleted. This brought the law in amity with the opinion of Lord Herschell. It will, therefore, appear that Lord Herschells expression barbarous was used in a different context. 42Conclusion In summation, it may be stated that the grounds and arguments are baseless and they do not sufficiently cut that the Remedy of Restitution of Conjugal Rights is archaic, barbarous and violative of the basic adult male Rights. It cannot be said that this remedy is unconstitutional. Section 9 has sufficient safeguards to prevent the marriage from being a tyranny. 43In truth, it serves the social good purpose, by promoting reconciliation between the parties and maintenance of matrimonial. It protects the society from denigrating. And all the years that it has been enforce it has efficiently played its a role.References 1 Section 9 of the Hindu Marriage Act, 1955 reads as follows- When either the husband or the wife has without reasonable excuse move from the society of the other, the aggrieved party may apply, by a petition to the regularise 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. 2 After the Marriage Laws (Amendment) Act, 1976. 3 Paras Diwan, Law of Marriage Divorce, quaternary Ed. p. 328. 4 T. Sareetha v. T. Venkatasubbaiah, A. I. R. 1983 A. P. 356. 5 A. I. R. 1984 Del. 66. 6 A. I. R. 1984 S. C. 1562. 7 Harvinder Kaur v Harm inder Singh, A. I. R. 1984 Del. 66. 8 A. I. R. 1983 A. P. 356. 9 Jaspal Singh, Law of Marriage and Divorce in India , (1983), p. 83. 10 (1897) AC 395. 11 A citation has been made to Mr. Prashanth S. J, Hindu Women And Restitution Of Conjugal Rights Do We choose The Remedy 12 Kondal v. Ranganavaki, A. I. R. 1924 Mad. 49. 13 Harvinder Kaur v. Harmander Singh Choudhr, A. I. R. 1984 Del. 66. 14 Harvinder Kaur v. Harmander Singh Choudhr, A.I. R. 1984 Del. 66. 15 Linda v. Belisario (1795) 1 Hag. Con. 216(21) per Sir William Scott at pp. 30, 232. 16 Harvinder Kaur v. Harmander Singh Choudhr, A. I. R. 1984 Del. 66. 17 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 18 A. I. R. 1977 S. C. 2218. 19 Dharmendra Kumar v. Usha Kumari, A. I. R. 1977 S. C. 2218. 20 T. Sareetha v. T. Venkatasubbaiah, A. I. R. 1983 A. P. 356. 21 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 22 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 23 12th Vol. , 3 rd Ed. , p. 284. 24 A reference may be made to Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 25 (1790) I Hag. Con. 144. 26 (1924) 2 Addf 382-162 E. R. 335 27 (1865) 34 L. J. P. MA 111 28 (1790) I Hag. Con. 144. 29 A. I. R. 1983 A. P. 356. 30 (1924) Probate 19 (2). 31 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 32 A reference may be made to Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 33 Mrs. Maneka Gandhi v. Union of India (UOI) and Anr, A. I. R. 1978 S. C. 597. 34 Harvinder Kaur v. Harmander Singh Choudhry, A. I.R. 1984 Del. 66. 35 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Delhi 66. 36 S. A. Desai, Mulla Hindu Law, Vol. 2, 19th Ed. , p. 60. 37 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 38 R. C. Nagpal, Modern Hindu Law, (1983), p. 110. 39 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 40 Saroj Rani v. Sudharshan Kumar Chadha, A. I. R. 1984 S. C. 1562. 41 (18 97) A. C. 395 (16). 42 Harvinder Kaur v. Harmander Singh Choudhry, A. I. R. 1984 Del. 66. 43 Saroj Rani v. Sudharshan Kumar Chadha, A. I. R. 1984 S. C. 1562.