RESTITUTION OF CONJUGAL RIGHTS-CONSTITUTIONAL VALIDITY

Andhra High Court
T. Sareetha vs T. Venkata Subbaiah on 1/7/1983

ORDER

1. This civil revision petition is filed by sareetha, a well- known
film actress of the south Indian screeen agianst an order passed by the
learned subordinate Judge , cuddapah ,overruling her objection raised
to the enter taining of an application filed by one venkata subbaiah,
under section 9 of the Hindu Marriage Act (hereinafter referred to as
‘the Act) for restitution of conjugal rights with her.

2. Sareetha while studying in a highschool and then hardly aged about
sixteen-years and staying with her parents at Madras was alleged to
have been given in marriage to the said venkata subbaiah, at Tirupathi
on 13-12-1975. Almost immediately thereafter they were separated from
each other and have been continuously living apart fromeach othe for
these five-years and more. Venkata subbaish had, therefore, filed under
section 9 of the Act O.P. No. 1 of 1981 on the file of the subcourt,
cuddapah for restitution of conjugal rights with sareetha. Sareetha had
taken a preliminary objection to the jurisdiction of the cuddapah
sub-court to the entertaining of that application the contention of
sareetha was that the petition filed by venkata subbaiah itself showed
lack of jurisdiction on the part of cuddapah Court to try the petition
and that the sub-court cuddapah ought to have declined jurisdiction.
The basis for this objection was an allegation “that the marriage took
place at Tirupathi and that the petitioner and respondent last resided
together at madras”. Sareetha relied upon this statement of venkata
subbaiah to say that the cuddapah Court had no jurisdiction to
entertain the petition of venkata su bbaiah. It was this preliminary
objection taken by sareetha that had been overruled by the cuddapah
sub-court, leading sareetha to the filing of this civil Revision
petition.

3. Venkata subbaiah hails from cuddapah where he owns a house and
agricultural lands. Venkata subbaiah stated in his petition for
restitution of conjugal rights that after his marriage with sareetha at
Tirupathi in December 1975, he and sareetha went to cuddapah and lived
there together for six months and that thereafter they went to Madras
and stayed at Madras with the parents of sareetha for some time.
According to venkata subbaiah, their stay a cuddapah for six months was
immediately after their marriage at Tirupathi and that was the place
where they last resided together within the meaning of the Act. The
subsequent stay at madras according to venkata subbaiah, should not be
regarded as the place where they last resided together. On the other
hand, sareetha contended that as she and venkata subbaiah had on the
statement of venkata subbaiah himself last lived to gether at madras
the cuddapah Court would have no jurisdiction to try the application of
venkata subbaiah.

4. By the date of her marriage sareetha was studying in High school and
was living with her parents at Madras. Venkata subbaiah hails from
cuddapah. The petition of venkata subbaiah disclosed that after their
marriage at Tirupathi they lived at cuddapah for six months and that
thereafter they went to the parents of sareetha at madras and lived
there for some time. There can be no doubt that Madras was thier last
place of living together because thereafter they parted company with
each other. Those were the days when sareetha was attempting to gain
access to the south Indian cinefield of which she is today one of the
most talented top actresses. According to venkata subbaiah’s
allegations, these attempts of sareetha led to misunderstanding between
him and sareetha on the one hand and also between him and the parents
of sareetha on the other, and forced venkata subbaiah to return to
cuddapah leaving sareetha at Madras. Thereafter venkata subbaiah and
sareetha never met each other.

5. Now the plea of sareetha objecting tot he jurisdiction of cuddapah
Court raised two questions. Firstly did the parties live at cuddapah
immediately after their marriage? Secondly, If they did the madras
residence supersede the cuddapah residence? Sareetha in her petition
did not specifically deny the allegation made by venkata subbaiah that
after marriage they had lived at cuddapah. All that she had stated in
her petition was:

“The respondent admitted in para 3 of his petition that the marriage
took place at Tirupathi and the petitioner and respondent last
resided together at Madras Hence the main petition does not lie in
this Court for the reason that the cause of action is raising
outside the territorial jurisdiction of this Court. As per section
19 of the Hindu Marriage Act 1955 the Court at Tirupathi when the
marriage took place or at madras where the petitioner and respondent
last resided together alone have jurisdiction to try this petition.
Hence the petition is liable to be dismissed for want of
jurisdiction”.

The learned subordinate judge construed the above pleadings of sareetha
as not amounting to a specific denial of venkata subbaiah’s allegation
that the husband and wife lived at cuddapah for six months immediately
after thier marriage at Tirupathi and before going to Madras. The
learned subordinate judge found the pleadings of sareetha to mean to
say that the Madras residence amounted in law to have superseded the
cuddapah residence. The learned subordinate Judge found,as a fact, that
the cuddapah residence was not denied by sareetha. He accordingly
examined the second question and found that the Madras stay was not
sufficient to displace the cuddapah residence. In the result he found
that the cuddapah Court had jurisdiction to try the application filed
by venkata subbaiah.

6. In this C.R.P. these findings are assailed by sareetha.

7. As already noted, venkata subbaiah had specifically pleaded that
they had lived together at cuddapah immediately after their marriage
sareetha failed to specifically deny this averment made by Venkata
subbaiah. I therefore think that the learned subordinate Judge was
right in holding believing venkata subbaiah, that the parties lived at
the house of venkata subbaiah at cuddapah. Even otherwise it would not
be easy to believe that a newly married couple as the parties are
alleged to be first went to the parents of the wife at Madras without
going to the husband’s place at cuddapah certainly this is not common
among the agricultural communities who are more firmly bound tied to
their place of residence and agriculture. Further the very plea of
sareetha that madras was the place where they last resided together
amounts to an admission on her part that there was

At least one another place where they resided together prior to their
residing at madras. That place of residence could only be cuddapah. For
all these reasons I hold that venkata subbaiah and sareetha lived at
cuddapah for some time immediately after thier marriage as alleged by
venkata subbaiah.

8. But the next question whether cuddapah or Madras should be counted
as the place where the parties had last lived together for the purpose
of section 19 of the Act still requires to be considered and answered.
For its answer this question depends upon the meaning to be given to
the statutory provision of section 19 of the Act, we should therefore
read section 19 of the Act.

9. Section 19: “every petition under this Act shall be presented to the
district Court within the local limits of whose ordinary original civil
jurisdiction-

(i) the marriage was solemnized or

(ii) the respondent, at the time of the presentation of the petition
resides, or

(iii) the parties to the marriage last resided together or

(iv) the petitioner is residing at the time of presentation of the
petition in a case where the respondent is, at that time, residing
outside the territories to which the Act extends or has not been
heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of him if he was alive’.

Of its four clauses of section 19 of the Act, we are concerned in this
case, with its clause (iii) which speaks of a place where the parties
to the marriage last reised together the words parties to the marriage”
in that clause present no difficulty and they obviously refer to the
wife and husband. It is the use of the word “resided” that causes a
degree of uncertainly in the ascertainment of the meaning of this
clause. The word is not defined by the Act. In its dictionary sense of
the word, “to reside” means, “to dwell permanently or for a length of
time”. (See webster’s dictionary) temporary place of residence or a
casual place of stay is thus excluded from being called a residence.
Further in the third clause of section 19 of the Act, the “residence”
spoken of is the joint residence. Combinedly read, the third clause of
section 19 refers to a place where the husband and wife lived together
permanently or at least for sufficinetly long period of time. Such a
place can only be a place of permanent dwelling taken up by the husband
and wife jointly for their matrimonial purposes. That place must be one
to which the parties are bound by the solemn ties of their matrimony.
That can only be the place chosen by them jointly as suitable for
fulfilling their matrimonial vous of Dharma, Artha, kama and Moksha. In
other words the third clause of section 19 of the Act refers to the
matrimonial home of the parties to the marriage.

10. The secular description given by Ridley J., to the place of
residence of a person as ‘the place where he eats, drinks and sleeps
indicates the connection of the place to the carrying on of the
activities by the resident. (See stoke-on-Trent Borough council v.
Cheshire country council (1913) 3 KB 699, 704, 705). In a matrimonial
matter, Lord Merriman said (in Lowry v. Lowry (1952) 2 All ER 61).

“……….I suppose the words “last ordinarily resided together as
man and wife in England” could be paraphrased by saying that the
matrimonial home at which the parties last cohabited was in
england”.

These ordinarily accepted descriptions of the word reside in
matrimonial cases would have the effect of excluding the places where
the husband and the wife stayed temporarily on shor t sojourns pursuing
temporary purposes such as seeking pleasure or visiting a friend or a
temple or attending a function from the category of residence. The
places where the wife and husband stop to eat or drink or stay for the
night during such short fojourns could never be taken to have been
intended by section 19 (iii) of the Act to be called “the place they
last resided together Such places do not reverberate with the sounds of
marriage destiny. Giving such a meaning to the words “last resided
together in section 19 (iii) of the Act would make that clause
disfunctional. Stay in Elliot’s one-night cheap hotels could not have
been intended by the Act to be treated as the place of last residence
of the husband and wife. In particular in the case of those who have a
place of permanent dwelling a matrimonial home can only refer to their
permanent dwelling place. But where the parties to a marriage have no
permanent place of dwelling to start with and move from place to place
like the wandering Gypsies, it would legally be difficult to choose one
place more than another place as their place of permanent residence In
such a case acting out of necessity created by the statute we may have
to ascribe even to a temporary place of stay the exalted status of the
last place of residence. In such a case, we may have to call a stay
even in a one-night cheap hotel as the last place of thier residence,
because there are no competing claims made by other place. More depends
on the particular facts of each case and less on the meaning of the
words. Fixation of the place where the parties last resided together
thus requires the courts to take an over-all view of the particular
facts in a particular case. But venkata subbaiah had a permanent house
at cuddapah where he eats, drinks and sleeps carrying on his
agricultural operations presumably his ancestors lived there and worked
there with the mother-earth ther he forged sacred bonds of intimacy. It
is that place to which venkata subbaiah and sareetha went immediately
after their marriage at Tirupathi and lived for six months that was the
place chosen by them for fulfilling their matrimonial vows. They thus
made cuddapah their matrimonial home. Thus, within the meaning of
clause (iii) of section 19 of the Act, it is cuddapah alone that can be
called thier matrimonial home and their place of residence in this
case. Such a residence cannot be displaced by their Madras residence.
The nature and duration of their stay at madras was temporary and
casual and had no enduring claims to make that place a place of
residence. There they were visiting the father and mother of sareetha
but without breaking their bonds of association with cuddapah. Such a
temporary or casual residence at madras occasioned by the customary
necessity of visiting relatives, cannot displace the place of their
permanent dwelling at cuddapah. It follows that resided together at
cuddapah and cuddapah Court has jurisdiction to entertain the
application filed by venkata subbaiah for restitution of conjugal
rights under section 19 (iii) of the Act.

11. The petitioner’s learned counsel cited several decisions of the
various High Court and also of the Supreme Court. It does not appear to
me to be necessary to refer to htese cases in detail, because I find
that in those cases the Judgments merely turned upon the facts of each
case. The answer to a question where the wife and husband last resided
together must, in the nature of things, depend upon on the particular
facts of each case.

12. In R. Barnet London Borough council (1981) 2 WLR 86, the divisional
Court ruled that the expression “ordinary residence” embodied a number
of factors such as time, intention and continuity each of which might
carry a different weight according to the context in which and the
purpose for which the expression was used in a particular statute.

13. In the varying circumstances of a concrete case, no general
principle of law can decide what relative weight should be given to
these various factors of time, intention and continuity. The question
therefore whether the wife and husband last resided together in a
particular place, can only be decided on the particular evaluation of
these changing and differing factors and not by folllowing any
mechanical rule of thumb. The various decisions cited by the learned
counsel cannot, therefore be taken as alying down any proposition of
law. They can only be taken at best as laying down propositions of good
sense.

14. In Qualcast wolverhampton Ltd. V. Hayness (1959) AC 743 Lord
Denning chided the country Court for treating the decisions of th House
of Lords on hte question whether the employer was guilty of negligence
or not in particular cases as laying down any proposition of law
binding upon a country Court.

15. In that case, an experienced moulder who injured himself in the
course of his employment sued his employer for negligence. Although the
country Court found as a fact that the moulder was not wearing
protective spats that were made available by the employer and which
would have prevented the injury held thinking that it was bound by the
authoritative decisions of the superior courts that the employer was
guilty of negligence, for their failure to administer warning to the
experienced moulder. The House of lords reversed that judgment holding
that the question what did reasonable care demand of the employers in
that particular case was not a question of law but a question of fact
on which no decision of the superior courts can Act as a precedential
authority Lord Denning observed in that case:

“The question that did arise was this: what did reasonable care
demand of the employers in this particulr case? That is not a
question of law at all but a question of fact. To solve it the
Tribunal of fact – be it Judge or jury – can take into account any
proposition of good sense that is relevant in the circumstances, but
it must beware not to treat it as a proposition of law. I may
perhaps draw an analogy from the Highway code. It contains many
propositions of good sense which may be taken into account in
considering whether reasonable care has been taken but it would be a
mistake to elevate them into propositions of
law…………………………………………….

I can well see how it came about that they country Court Judge made
this mistake. He was presented with a number of cases in which
judges of the High Court had given reasons for coming to their
conclusions of fact. And those reasons seemed to him to be so
expressed as to be rulings in point of law; whereas they were in
truth nothing more than propositions of good sense. This is not the
first time this sort of thing has happebed. Take accidents on the
road, I remember well that in several cases scrutton L.J. said
that”if a person rides in the dark he must ride at such a pace that
he can pull up within the limits of “his vision” (Baker v. E.
Longhurst & sons ltd. (1933) 2 KB 461, 468. That was treated as
aproposition of law until the Court of appeal firmly ruled that it
was not (Tidy v. Battman (1934) 1 KB 319). Morris v. Luton
corporation – (1946) KB 114). So also with accidents in factories. I
myself once said that an employer must, by his foreman, “do his best
to “keep (the men) up to the mark” (Clifford v. Charies H. Challen &
son Ltd) (1951) 1 KB 495 Someone shortly afterwards sought to treat
me as having laid down a new proposition of law, but the Court of
Appeal I am glad to say, corrected the error (Woods v. Durable
suites Ltd. (1953) 1 WLR 857). Such cases all serve to bear out the
warning which has been given in this House before ……”We sought
“to beware of allowing tests or guides which have been suggested” by
the Court in one set of circumstances, or in one class of “cases, to
be applied to other surroundings ” and thus by degrees to turn that
which is at bottom a question of fact into a proposition of law that
is what happened in the cases under the workmen’s compensation Act,
and it led to a wagon load of “cases”, See harris v. Associated
portland cement Manufacturers LTd. (1939) AC 71 by Lord Atkin. Let
not the same thing happen to the common law, lest we be crushed
under the weight of our own reports”.

The question which is the place where the husband and wife last resided
together is, in my opinion not being capable of being treated as a
question of law, I consider the matter from an overall view of the
facts.

16. In this case, the finding of fact is that the parties had lived for
six months at cuddapah immediately after their marriage at Tirupathi.
The place of the permanent residence of venkata subbaiah is cuddapah,
Venkata subbaiah has agricultural lands there. Presumably he conducts
agricultural operations from there which would require his constant
presence and attention Unless sareetha suceeds in showing that she
never lived with venkata subbaiah at cuddapah, the claim of cuddapah to
be the place of last residence in this case, cannot be rejected. It is
true that sareetha say that she never lived with venkata subbaiah at
cuddapah, but this point was never made good by her. She never argued
this point before the Court below nor is that plea proved to its
satisfaction. The question whether she lived with venkata subbaiah at
cuddapah or not is a pure question of fact. The finding of the lower
Court on such a question of fact cannot be distribed by a revisional
Court. I am thus left with no option except to accept that finding
Accepting the finding of the ocurt below that sareetha and venkata
subbaiah lived together at cuddapah for about a period of six months
after their marriage at Tirupathi I hold that cuddapah was the place
where the parties had last resided together and the Madras residence is
ineffectual to displace that cuddapah residence and that accordingly
the Court of the subordinate Judge. Cuddapah, has jurisdiction to try
the petition filed by venkata subbaiah for restitution of conjugal
rights.

PART II.

17. This leads me to the consideration of the other half of this case
which raises an important constitutional question. Sareetha in her
petition dated 31-8-1981 of which notice from this Court had been duly
given to and served upon the Attorney General Of India,New Delhi raised
for the first time a question of constitutional validity of section 9
of the Hindu Marriage Act. Through that petition, sareetha claimed that
section 9 of the Act, “is liable to be struck down as violative of the
fundamental rights in part III of the Constitution of India, more
particularly articles 14, 19 and 21 inasmuch as the statutory relief
under the said provision, namely restitution of conjugal rights offends
the guarantee to life, personal liberty and human dignity and decency’.
As the above contention of sareetha involves the question of
constitutional validity of section 9 of the Act, authorising grant of
curial relief of restitution of conjugal rights to a Hindu suitor, I
read section 9 of the Act in full and the relevant parts of its allied
procedural provisions contained in order 21 Rules 32 and 33 of the
civil procedure code.

Section 9: Restitution of conjugal rights:

“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 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.

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”.

Order 21 Rule 32 of C.P.c. Decree for specific performance for
restitution of conjugal rights,or for an injunction:

“(1) where the party against whom a decree for the specific
performance of a contract, or for restitution of conjugal rights, or
for an injunction, has been passed, has had an opportunity of
obeying the decree and has wilfully failed to obey it, the decree
may be enforced (in the case of a decree for restitution of conjugal
rights by the attachment of his property, or in the case of a decree
for the specific perofrmance of a contract, or for an injunction) by
his detention in the civil prison, or by the attachment of his
property, or by both.

(2)……………………………………………

(3) Where any attachment under subrule (1) or sub-rule (2) has
remained in force for (six Months) if the Judgment-debtor has not
obeyed the decree and the decree-holder has applied to have the
attached property sold, such property may be sold; and out of
proceeds the Court may award to the decree-holder such compensation
as it thinks fit, and shall pay the balance (if any) to the
judgment-debtor on his application.

(4) Where the Judgment-debtor has obeyed the decree, and paid all
costs of executing the same which he is bound to pay, or where, at
the end of (six months) from the date of the attachment on
application to have the property sold has been made or if made has
been refused, the attachment shall cease.

Rule 33. Discretion of ocurt in executing decrees for restitution of
conjugal rights:

(1) Notwithstanding anything in R. 32, the Court either at the time
of passing a decree (against a husband) for the restitution of
conjugal rights or at any time afterwards may order that the decree
(shall be executed in the manner provided in this rule).

(2) Where the Court has made an order under sub-rule (1), it may
order that in the event of the decree not being obeyed within such
period as may be fixed in this behalf, the judgment-debtor shall
make to the decree-holder such periodical payment as may be just and
if it thinks fit, require that the judgment -debtor shall, to its
satisfaction secure to the decree-holder such periodical payment.

(3) The Court may from time to time vary or modify any order made
under sub-rule (2) for the periodical payment of money, either by
altering the times of payment or by increasing or diminishing the
amount, or may temporarily suspend the same as to the whole or any
part of the money so ordered to be paid and again revive the same,
either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as
though it were payable under a decree for the payment of money”.

A combined residing of the above substantive and procedural provisions
relating to the grant of relief of destitution of conjugal rights by
Court makes it clear that the decree for restitution of conjugal rights
contemplated to the granted under section 9 of the Act is intended by
hte statutory law to be enforced in species under O. 21 Rr. 32 and 33
by applying financial sanctions against the disobeying party.
Additionally always a Court can enforce its decree through its contempt
powers. The Judicial committee of the privy council in Moonshed Buzloo
Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551, held that a
suit for restitution of conjugal rights filed by a Muslim husband was
rightly filed as a suit for specific persormance it is on the same
lines that order 21 Rule 32 of the code of civil procedure speaks of a
decree granted for restriction of conjugal rights as a decree of
specific performance of restitution of conjugal rights. Conjugal rights
connote two ideas. (A) “the right which husband and wife have to each
other’s society and (b) “marital intercourse”. (See the dictionary of
English Law by Earl Jowitt P. 453) In Wily v. Wily (1918) P. 1 “an
offer by the husband to live under the same proof with his wife, each
party being free from molestation by the other was held not an offer to
matrimonial cohabitation”. (See N. R. Raghavachariar’s Hindu Law, 7th
Edn. Vol II p. 980. Gupt’s Hindu Law of Marriage P. 181 and derrett’s
Introduction to Modern Hindu Law para 308). In other words, sexual
cohabitation is an inseparable ingredient of a decree for restitution
of conjugal rights. It follows, therefore that a decree for restitution
of conjugal rights passed by a civil Court extends not only to the
grant of relief to the decree holder to the company of the other
spouse, but also embraces the right to have marital intercourse of the
enforcement of such a decree are firstly to transfer the choice to have
or not to have marital intercourse to the state from the concerned
individual and secondly to surrender the choice of the individual to
allow or not to allow one’s body to be used as a vehicle for another
human being’s creation to the state. Relief of restitution of conjugal
rights fraught with such serious consequences to the concerned,
individual were granted under section 9 of the Act enables the
decreeholder through application of financial sanctions provided by
order 21 Rules 32 and 33 of C.P.C. to have sexual cohabitation with an
unwilling party even by imprisonment in a civil prison. Now compliance
of the unwilling party to such a decree is sought to be procured, by
applying financial sanctions by attachment and sale of the property of
the recalcitrant party. But the purpose of a decree for restitution of
conjugal rights in the past as it is in the present remains the saem
which is to coerce through judicial process the unwilling party to have
sex against that person’s consent and freewill with the decree-holder.
There can be no doubt that a decree of restitution of conjugal rights
thus enforced offends the inviolability of the body and the mind
subjected to hte decree and offends the integrity of such a person and
invades the marital privacy and domestic intimacies of such a person
The uninhibited tragedy involved in granting a decree for restitution
of conjugal rights is well illustrated by Anna saheb v. Tara Bai
. In that case, Division Bench of the madhya pradesh
High Court decreed the husband’s suit for restitution of conjugal
rights observing “:but if the husband is not guilty of misconduct, a
petition cannot be dismissed merely because the wife does not like her
husband or does not want to live with him………….” What could have
happened to Tarabai thereafter may well be left to the eader’s
imagination . According to law, anna saheb against her will.

18. It cannot be denied that among the few points that distinguish
human existence from that of animals, sexual autonomy an individual
enjoys to choose his or her partner to a sexual Act, is of primary
importance. Sexual expression is so integral to one’s personality that
it is impossible to conceive of sexuality on any basis except on the
basis of consensual participation of the opposite sexes. No
relationship between man and woman is more rested on mutual consent and
freewill and is more intimately and personally forged than sexual
relationship. The famous legal definition of marriage given by Lord
penzance in Hyde v. Hyde (1866) LR IP & D 130 (Divorce Court), as a
voluntary union between man and woman only highlights this aspect of
free association. The ennobling quality of sex of which havelock
ennobling quality of sex of which havelock Ellis wrote in his studies
on the Psychology of sex ensues out of this freedom of choice. He wrote
that “the man experiences the highest unfolding of his creative powers
not through ascertism but through sexual happiness’. Bertrand Russell
who ought to know declared that:

“I have sought love, first because it brings ecstasy-ecstasy so
great that I would often have sacrificied all the rest of life for a
few hours of this Joy’.

Forced sex, like all forced things is a denial of all joy yet in
conceivable cases sex and statutorily be denied and even forbidden by
law between specified groups of persons. But no positive Act of sex can
be forced upon the unwilling persons, because nothing can conceivably
be more degrading to human dignity and monstrous to human spirit than
to subject a person by hte long arm of hte law to a positive sex Act.
The restitution of cnjugal rights by force of arms can be more and can
be no less than what late sri Sri, the greatest of the Modern Telugu
poets , described in his poem “Kavitha as “Rakshasa Rathi”. The Act of
sex requires primarily the participation of mind the researches of the
modern psychology had put to rest the cartesian dischotomy that has
separated body and mind since the 17th centurt. The researches of Dr.
George solomon of Univerity of california led him to conclude that
“mind and body are inseparable” and that “the brain influences all
sorts of physiological processes that were once thought not to be
centrally regulated”. And that “the brain influences all sorts of
physiological processes that were once thought not to be centrally
regulated”. Sex Act therefore, can never be treated as a mere Act of
body that can be ordered to obey by the state. The coercive Act of the
state compelling sexual cohabitation therefore, must be regarded as a
great constraint and torture imposed on the mind of the unwilling
party. The life of a man or woman which the sovereign can commandeer
through the coercive power of the state for performing an unwilling Act
of sexual cohabitation cannot but be regarded as that of a human beast
drained of all spirituality. In Russel v. Russel (1897) AC 395 Lord
herschell long-ago noted the barbarity of this judicial remedy. He
observed, I think the law of restitution of conjugal rights as
administered in the courts did sometimes lead to results which I can
only call bardarous”.

19. There is even graver implications for the wife. An Act of foerced
sex is no less potent than an Act of consensual sex in producing
pregnancy and procereating offspring. The only difference lies in the
fact that the latter is with her consent while the former is without
her consent. In the process of making such a fateful choice as to when
where and how if at all she should beget, bear deliver and rear a
child, the wife consistent with her human dignity should never be
excluded, conception and delivery of a child involves the most intimate
use of her body. The marvel of creation takes place inside her body and
the child that would be born is of her own flesh and blood. In a matter
which is so intimately concerns her body and which is so vital for her
life, a decree of restitution of conjugal rights totally excludes her.

20. The origin of this remedy for restitution of conjugal rights is not
to be found in the British common law it is the medieval Ecclesiastical
law of England which knows no matrimonial remedy of desertion that
provided for this remedy which the Ecclesiastical courts and later
ordinary courts enforced. But the British Law commission presided over
by Mr. Justice scarman, (as he then was) recommended recently on
9-7-1969 the abolition of this uncivilized remedy of restitution of
conjugal rights accepting that recommendation of the British Law
commission the British parliament through section 20 of the Matrimonial
proceedings and property Act, 1970 abolished the right to claim
restitution of conjugal rights in the English courts. Section 20 of
that Act reads thus:

“No person shall after the commencement of this Act be entitled to
petition the High Court or any country Court for restitution of
conjugal rights”.

But our ancient Hindu system of Matrimonial law never recognised this
institution of conjugal rights althought it fully upheld the duty of
the wife to surrender to her husband. In other words, the ancient Hindu
law treated the duty of the Hindu wife to abide by her husband only as
an imperfectobligation incapable of being enforced against her will .
It left the choice entirely to the free will of the wife. In Bai Jiva
v. Narsingh Lalbhai (ILR 1927 Bom 264 at p. 268) a division Bench of
the Bombay High Court judicially noticed this fact in the following
words:

“Hindu law itself even while it lays down the duty of the wife of
implicit obedience and return to her husband, has laid down no such
sanction or procedure as compulsion by the courts to force her to
return against her will”.

21. This could have been only because of its realisation that in a
matter so intimately concerned the wife or the husband the parties are
better left alone without state interference. What could happen to the
fate of a person in the position of Tara Bai (the respondent in the
abovementioned madhya pradesh Appeal) who was forced to go back to her
husband even after declaration of dislike and abhorrence towards her
husband could have been well considered by the ancient Hindu Law. With
the Brithish occupation of this country the whole legal position was
drastically altered. The British indian courts wrongly equating the
Ecclesiastical rule of this matrimonial remedy with equity good
conscience and justice, thoughtlessly imported that rule into our
country and blindly enforced it among the Hindus and the Muslims. Thus,
the origin of this uncivilised remedy in our ancient country is only
recent and is wholly illegitimate. Section 9 of the Act had merely aped
the british and mechanically reenacted that legal provision of the
British Ecclesiastical origin. The plain question that arises is
whether our parliament now functioning under the constitutional
constraints of the fundamental rights conceived and enacted for the
preservations of human dignity and promotion of personal liberty, can
legally impose sexual cohabitation between unwilling opposite sexual
partners even if it be during the matrimony of the parties.

22. The Hindu marriage Act was enacted by our parliament in the year
1955 and the legislative competence of the parliament to enact section
9 of the Act under item 5 of the List III of the VII schedule to the
Constitution is undoubted. But the question is whether that provision
runs foul of part III of the Constitution. The petitioner attacks
section 9 of the Act on the ground that granting of restitution of
conjugal rights violates the petitioner’s rights guaranteed under
articles 14, 19 and 21 of part III of our constitioner attacks section
9 of the Act on hte ground that granting of restitution of conjugal
rights violates the petitioner’s rights guaranteed under articles 14,
19 and 21 of part III of our Constitution. Let us, therefore, first
examine the content of Article 21 Article 21 of the Constitution
guarantees right to life and personal liberty against the state action.
Formulated in simple negative terms, its range of operation positively
any person of his life or personal liberty except according to the
procedure liberty except according to the procedure established by law
is of far reaching dimensions and of overwhelming constitutional
significance. Article 21 prevents the state from treting the human life
as that of any other animal. It is now well established by the
decisions of the Supreme Court that the word ‘life’ occuring in the
above Article 21 has spiritual significance as the word life occuring
in the famous 5th and 14th Amendments to the American Constitution
does. In those constitutional provisions of the American Constitution
the life is interpreted by Mr. Justice field in this dissenting
judgment in Munn v. Illinois, (1877) 24 L Ed p. 17 to mean and signify
“more than a person’s right to lead animal or vegetative existence.
Field J., said in the above munn’s case “by the term life as here used
something more is meant than mere animal existence”. The contrast drawn
by field J., emphasising the difference between existence of a free
willing human and that of an unfree animal was accepted by our Supreme
Court first in kharak singh v. State of U.P. and next
in Govind v. State of M.P. transforming Article 21 of
our Constitution into a charter for civilization In Kharak singh v.
State of U.P. (supra) Rajagopala Ayyangar J., for the
majority and subba Rao, J., for the concurring miniority accepted the
above meaning and significance given to the word ‘life’ by observing
that the expression life’ used in that Article cannot be confined only
to the taking away of life, that is causing death.” Subbarao J., in the
same case gave greater importance to the words “personal liberty”,
occuring in Article 21 of the Constitution. But both held that Art. 21
of our Constitution to be the source for the protection of our personal
liberty and life in the elevated sense. Subbarao J., perceptively
observed that right to privacy forms a part of the guaranteed right of
personal liberty in Art. 21 of the constitution. In a scientific age,
psychological fears and restraints generated by the use of scientific
methods, he feared, may constitute even greater denial of personal
liberty then mere crude physical restrainsts of a bygone age.

23. In a later decision of the Supreme Court in Govind v. State of M.P.
, (supra) Mathew J., taking the lead given by the
minority Judgment of subbarao j.,in the abovementioned Kharak singh’s
case and adverting to the american legal and
philosophical literature on right to privacy and to the american cases
reported in Griswold v. Connecticut, (1965) 14 L Ed 2 d 510 and Jane
Roe v. Henry wade, (1973) 35 L Ed 2d p. 147 ruled that Article 21 of
our Constitution embraces the right to privacy and human dignity. The
centrepiece of the judgment in Govind’s case is to
hold that right to privacy is part of art. 21 of our Constitution and
to stress its constitutional importance and to call for its protection.
The learned Judge then examined the content of the right to privacy and
observed that “any right to privacy must encompass and protect the
personal intimacies of the home, the family, marriage motherhood,
procreation and child rearing.” The learned Judge stressed the
primordial importance of the right to privacy for human happiness and
directed the ocurts not to reject the privacy-dignity claims brought
before them except where the countervailing state interests are shown
to have overweighing importance. He observed that “there can be no
doubt that the makers of our Constitution wanted to ensure conditions
favourable to the pursuit of happiness. They certainly realised as
Brandies J., said in his dissent in Olmstead v. United states of
America, (1927-277 US 438, 471) the significance of man’s spiritual
nature of his feelings and of hisintellect and that only a part of the
pain, pleasure satisfaction of life can be found in material things and
therefore they must be deemed to have conferred upon the individual as
against the Government a sphere where he should be left alone”. The
learned Judge also stated “there can be no doubt that privacy-dignity
claims deserve to be examined with care and to be denied only when an
important countervailing interest is shown to be superior”. Govind’s
case (Supra) thus firmly laid it down that Article 21
protects the right to privacy and promotes the individual dignity
mentioned in the preamble to our Constitution . Govind’s case also lays
it down that the ocurts should protect and up-hold those important
constitutional rights except where the claims of those rights for
protection are required to be subordinated to superior state interests.

24. However it must be admitted that the concept of right to privacy
does not lend itself to easy logical definition This is so partly
because as Tom Gaiety said in his Article “Redefining privacy” (12 Harv
civ Rts. – Civ. Lib rev p. 233,) the concept was thrown up in great
haste from a miscellany of legal rock and staone and partly because of
the inherent difficulties in defining such an elusive concept. The
difficulty arises out of the fact that this concept is not unitary
concept but is multidimensional susceptiable more for enumeration than
definition. But it can be confidently asserted that any plausible
definition of right to privacy is boudn to take human body as its first
and most basic reference for control over personal identity. Such a
definition is bound to include body’s inviolability and integrity and
intimacy of personal identity including marital privacy A few
representative samples would bear this out. Gaiety defined privacy as
“an autonomy or control over the intimacies of personal identity.”
Richard B. Panker in his ” A definition of privacy”, quoted in
“philosophy and public Affairs” (1975 Vol 4 No. 4 p. 295-314 wrote:

“……………Privacy is control over when and by whom the various
parts of us can be sensed by tohers. By “sensed” is meant simply
seen, heard touched smelled or tasted”.

Gary L. Bostwick writing in california Law review Vol. 64 P. 1447
suggests that “privacy is divisible into three components (a) repose
(b) sanctuary and (c) intimate decisions of these three components he
holds, that the last one is an eminently more dynamic privacy concept
as compared to repose and sanctuary (P. 1466) prof. Tribe in his
American constitutional Law. P. 921. Stressed another fundamental facet
of the right to privacy problem. He wrote, inter alia.

“Of all decisions a person makes about his or her body the most
profound and intimate relates to two sets of questions first,
whether when and how one’s body is to become the vehicle for another
human beings cration”.

25.Applying these definitional aids to our discussion it cannot but be
admitted that a decree for restitution of conjugal rights constitutes
the grossest from of violation of an individual’s right to privacy
applying Prof. Tribe’s definition of right to privacy, it must be said
that the decree for restitution of conjugal rights denies the woman her
free choice whether when and how her body is to become the vehicle for
the procreation of another human being applying parker’s defintion, it
must be said that a decree for restitution of conjugal rights deprives
a woman of control over her choice as to when and by whom the various
parts of her body should be allowed to be sensed. Applying the tests of
gaiety and Bostwick, it must be said, that the woman loses her control
over her most intimate decisions clearly, therefore, the right to
privacy guaranteed by Art. 21 of our Constitution is flagrantly
violated by a decree of restitution of conjugal rights.

26. A few decided American cases have also taken the same view of the
constitutional right to privacy in that country.

27. The observations of Justice Mc reynolds in Meyer v. Nebraska,
(1923) 67 L Ed 1042 highlight certain facets of this right to privacy.
There the learned Judge observed:

“Without doubt, it denotes not merely freedom from bodily restraint
but also the right of any individual to contract, to engage in any
of the common occupations of life, to acquire useful knowledge to
marry establish a home and bring up children to worship God
according to the dictates of his own conscience, and generally to
enjoy those privileges long recognised at common law as essential to
the orderly pursuit of happiness by free men………….
………….. ………….. The established doctrine is that this
liberty may not be interfered with under the guise of protecting the
public interest, by legislative action which is arbitrary or without
reasonable relation to some purpose within the competency of the
state to effect”.

In Griswold v. Connecticut, (1965) 14 L Ed 2d 510 Mr. Justice Douglas,
while invalidating a connecticut statute which made the use of
contraceptives a criminal offence, wrote for the Court that “this law,
however operates directly on an intimate relation of husband and wife
and their physician’s role in one aspect ot that relation……”,
implying that the right to privacy encompasses within itself intimate
relationships such as those between husband and wife about the use of
contraceptives. Of course, the question from where this right to
privacy should be derived gave rise to different answers in that case.
Mr. Justice Douglas in Griswold v. Connecticut, (1965-14 L ed 2d 510)
has found penumbral areas of specific guarantees in the bill of Rights
as providing the basis for the right of privacy . But Mr. Justice
Goldberg wrote, in that case highlighting in the process the
theoretical confusions in the stitution that the right of marital
privacy falls within the category right to privacy Griswold’s case is
in authority for the proposition that the reproductive choice to beget
and bear a child does not belong to the state and that belongs to an
individual. In jane Roe. V. Henry wade, (1973) 35 L Ed 2d 147 Mr.
Justice Blackmun for hte Court observed that the earlier decisions of
the american Supreme Court held that only personal rights that can be
deemed fundamental” or implicit in the concept of ordered
liberty”……… are included in this guarantee of personal privacy
they also make it clear that the right has some extension to activities
relating to marriage………procreation, contraception, family
relationships, and child rearing and education………”

“Yet the marital couple is not an independent entity with a mind and
heart of its own but an association of two inviduduals each with a
separate intellectual and emotional make up. If the right of privacy
means anything, it is the right of the INDIVIDUAL , married or
single, to be free from unwanted Government intructing a person as
the decision whether to bear or beget a child”.

This is a clear recognition of the legal position that right to privacy
belongs to a person as an individual and is not lost by marital
association. In planned parenthood of Missouri v. Danforth, (1976-49 L
ed 2d 788) the Court reiterated the position taken by the American
Supreme Court in Eisenstadt v. Barid (1972) 405 US 438) (supra) that
the right to privacy belongs to each one of the married couple
separately and is not lost by reason of their marriage. The Court
observed, invalidating a statutory condition, that the husband’s
consent is necessary for termination of pregnancy, “We cannot hold that
the state has constitutional authority to give a spouse unilaterally
the ability to prohibit a wife from terminating her pregnancy’. The
Court further observed that “Inasmuch as it is the woman who physically
bears the child and who is the more directly and immediately affected
by the pregnancy, as between the two, the balance weight in her
favour”. Earlier in skinner v. Oklahoma, (1941-86 L Ed 1655) the
American Supreme Court characterised the right to reproduce as one of
the basic civil rights of man. In the same case Justice Jakson spoke of
the state interference with reproductive decisions as involving dignity
and personality. See aslo the decisions in Loving v. Virginia, (1967-18
L Ed 2d 1010) and Zablocki v. Redhall, (1978) 54 L ed 2d 618).

28. The above cases of the American Supreme Court clearly establish the
proposition that the reproductive choice is fundamental to an
individual’s right to privacy. They uphold the individual’s
reproductive autonomy against the state intrusion and forbid the state
from usurping that right without overwhelming social justification.
That this right belongs even to a married woman is clear from justice
Brennan’s opinion quoted above. A wife who is keeping away from her
husband, because of permanent or even temporary estrangement cannot be
forced, without violating her right to privacy to bear a child by her
husband. During a time when she is probably contemplating an action for
divorce, the use and enforcement of section 9 of the Act against the
estranged wife can irretrievably alter her position by bringing about
forcible conception permanently ruining her mind body and life and
everything connected with it. During a moment’s duration the entire
life-style would be altered and would even be destroyed without her
consent. If that situation made possible by this matrimonial remedy is
not to be a violation of individual dignity and right to privacy
guaranteed by our Constitution and more particularly Art 21, it is not
conceivable what else could be a violation of Article 21 of our
Constitution.

29. Examining the validity of S. 9 of the Act in the light of the above
discussion, it should be held, that a Court decree enforcing
restitution of conjugal right constitutes the starkest form of
Government invasion of personal identity and individual’s zone of
intimate decisions. The victim is stripped of its control over the
various parts of its body subjected to the humiliating sexual
molestation accompanied by a forcible loss of the precious right to
decide when if at all her body should be allowed to be used to give
birth to another human being. Clearly the victim loses its autonomy of
control over intimacies of personal identity. Above all, the decree for
restitution of conjugal rights makes the unwilling victim’s body a
soulless and a joyless vehicle for bringing into existence another
human being. In other words, pregnancy would be foisted on her by the
state and against her will. There can therefore be little doubt that
such a law violates the right to privacy and human dignity guaranteed
by and contained in Article 21 of our Constitution. It is of
constitutional significance to note that the ancient Hindu society and
its culture never approved such a forcible marital intercourse. Our
ancient law-givers refused to recognize any state interests in forcing
unwilling sexual cohabitationbetween the husband and wife although they
held the duty of the wife to surrender to the husband almost absolute.
Recently the British law commission headed by Mr. Justice scarman also
found no superior state interests implicated in retaining this remedy
on the British statute Book. It is wholly with out any social purpose.
State coercion of this nature can neither prolong nor preserve the
voluntary union of husband and wife in matrimony. Neither state
coercion cna soften the ruffled fellings nor clear the
misunderstandings between the parties. Force can only bebet force as
action can only produce counter-actions the only usefulness in
obtaining a decree for restitution of conjugal rights consists in
providing evidence for subsequent action for divorce. But this
usefulness of the remedy which can be obtained only at enormous expense
to human dignity cannot be counted as outweighing the interests in
upholding the right to privacy It is only after considering the various
factors that hte scarman commission recommended for the abolition of
this matrimonial remedy in england and the British parliament enacted a
law abolishing it. It is therefore legitimate to conclude that there
are no overwhelming state interests that would justify the sacrificing
of the individual’s precious constitutional right to privacy.

30. Duncan Derrett in his “modern Hindu Law” para 306 however, while
approving the abolition of this remedy in England advocated for
somewhat strange reasons the continuance of this remedy in India. He
wrote that”…………… The practical utility of the remedy is
little in contemporary England”. He however says, that:

“In India, where spouses separate at times due to misunderstandings,
failure of mutual communication, or the intrigues of relatives, the
remedy of restitution is still of of considerable value especially
when coupled with the right under section 491 of hte criminal
procedure code to recover (under certain circumstances0 custody of a
minor bride, and in the light of the rule that where restitution has
been ordered a decree for separate maintenance cannot without proof
of new facts, issue in favour of the respondent”.

With respect I am unable to agree with this recommendation Firstly
Derrett did not examine the matter from the constitutional point of
view of right to privacy guaranteed by Art. 21 of the Constitution.
Restitution of conjugal rights is an instance of punishing a criminal
without a victim. Secondly his remedy of restitution of conjugal rights
is not only execussive but is also inappropriate. As Telugu proverb
says, it is like setting fire to a house to burn it so is not the
appropriate way to bring about reconciliation between the estranged
wife and husband . the observations of Justice Blackmun in the above
planned parenthood’s case, (1976-49 L Ed 2d 788) are worthy of note in
this connection. He observed:

“But it is difficult to believe that the goal of fostering mutuality
and trust in a marriage and of strengthening the marital
relationship and the marriage institution, will be acheived by
giving the husband a veto power exercisable for any reason
whatsoever or for no reason at all. Even if the state had the
ability to delegate to the husband a power it itself could not
exercise, it is not at all likely could not exercise, it is not at
all likely that such action would further as the district Court
majority phrased it the interest of the state in protecting the
mutuality of decisions vital to the marriage reltionship.

I therfore hold that there are no overwhelming state interests to
justify the subordination of the valuable right to privacy to any
state interests.

31. On the basis of my findings that section 9 of the Hindu Marriage
Act providing for the remedy of restitution of conjugal rights violates
the right to privacy guaranteed by art. 21 of the Constitution, I wil
have to hold that section 9 of the Hindu Marriage Act is
constitutionally void. Any statutory provision that abridges any of the
rights guaranteed by part III of the contitution will have to be
dec;ared void in terms of Article 13 of the Constitution. But the
earlier decisions of the Supreme Court, particularly the earliest in
Gopalan’s case , had narrowly interpreted the language
of Article 21 of the Constitution as merely requiring a statutory
procedure to be provided or established . if the validity of section 9
of the Act were to be considered on that basis, I would have been left
no option except to uphold its validity.

32. The protection to life and personal liberty contained in Art. 21 of
our Constitution is confined by Gopalan’s interpretation only to the
executive action taken without the backing of a supporting statutory
law providing for procedure. In other words the efficacy of that
Article as a fundamental right is almost denuded becaus e taking of
life or personal liberty according to the procedure established by a
legislative enactment is rendered by that interpretation
constitutionally unobjection-able under that Article. Thus interpreted,
Article 21 offers no protection against legislative action. The cook of
Bishop of Rochester could still be boiled to death, because the
parliament ordained that Given that meaning, Article 21 would have been
left with no constitutional mission to subserve, because a
constitutional limitation imposed in the form of a fundamental is
needed not against the arbitrary exercise of legislative power. Under
our system of jurisprudence, where the executive would be ineffective
to deprive any person of his life or personal liberty except under the
authority of legislative sanction even in the absence of a fundamental
right. A fundamental right which mainly operates against an executive
action would be purposeless. Yet this is clearly the interpretation of
Art. 21 that commended itself to Gopalan’s case .
Added to that is the rule laid down by Gopalan’s case to the effect
that each fundamental right in Part III of the Constitution is a
constitutional island to itself. According to this interpretation, the
state action, in order to be valid, need not pass the test of
cumulative prohibition contained in the relevant fundamental rights.

33. In both these aspects the rule in Gopalan’s case was found to be
unsatisfactory almost from its inception. These rules are therefore
considerably modified by the later decisions of hte Supreme Court in
such as those rendered in the Banks Nationalisation case,
and maneka Gandhi’s case, . In sunil
Batra v. Delhi Administration, while dealing with the
question as to whether a person awaiting death sentence can be kept in
solitary confinement, Krishna Iyer J., said:

“That though our Constitution did not have a “due process” clause as
in the American Constitution, the same consequence ensued after the
decisions in the Bank nationalisation case and Maneka Gandhi case.
For what is punitively outrageous, Scandalizingly unusual or cruel
and rehabilitatively counter-productive is unarguably unsual or
cruel and rehabilitatively counter-productive, is unarguably
unreasonable and arbitrary and is shot down by articles 14 and 19
and if inflicted with procedural unfairness, falls foul of Article
21.”

In the same case Desai J., observed that:

The word ‘law in the expression procedure established by law’ in
Article 21 has been interpreted to mean in maneka Gandhi’s case that
the law must be right just and fair and not arbitrary fanciful or
oppressive otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied. If it is arbitrary,
it would be violative of Article 14″.

The above quotations are taken from Mithu v. State of Punjab
which referred to those observations with approval.

34. In Mithu v. State of Punjab (supra) the Supreme Court went even
farthest where it struck down S. 303 I.P.c. on the ground that that
section violated not only Article 14 but even Article 21. The Supreme
Court while approvingly referring to the above quotations observed in
Mithu’s case that:

“These decisions have expanded the scope of Article 21 in a
significant way and it is now too late in the day to contend that it
is for the legislature to prescribe the procedure and for the
legislature to provide the punishment and for the courts to impose
it”.

Explaining the scope of expansion which Article 21 has undergone by
reason of Bank Nationalisation case and Maneka
Gandhis case the Supreme Court in Mithu’s case
declared:

“If a law were to provide that the offence of theft will be
punishable with the penalty of the cutting of hands, the law will be
bad as violating Article 21. A savage sentence is anathema tothe
civilized jurisprudence of Article 21”.

In Mithu’s case the Supreme Court implied that imposition of death
sentence even under section 302 I.P. C. Would have been held in Bachan
singh’s case invalid and ultra vires of the
protection guaranteed by Article 21 if the parliament had not provided
for alternative sentences of life imprisonment and death sentence but
provided for only a mandatory death sentence. A mandatory death
sentence would then have been shot down by the civilized jurisprudence
of Article 21. Now savagery of a death sentence is more an attribute of
substantive law. In Mithu’s case , Chinnappa Reddi,
J., ascribed the whole of his concurrence to Article 21. The reasoning
of our Supreme Court in Mithu’s case comes very close to the reasoning
adopted by the American Supreme Court in cases like Lambert v.
California (1957)2 L Ed 2d 228 decided, upon the basis of substantive
due process clause. In Lambert v. California (supra) the American
Supreme Court invalidating a state criminal law held that:

“Where a person did not knwo of the duly to register and where there
was no proof of the probability of such knowledge, he may not be
convicted consistently with due process”.

After Mithu’s case, it is not easy to assert that Article 21 is
confined any longer to procedural protection only. Procedure and
substance of law now comingle and overlap each other, to such a degree
rendering that a finding of any law that can competently establish a
valid procedure for the enforcement of a savage punishment impossible.

35. In a imperfect word where the clash of competing interests is the
only certainly where issues are therefore inherently complex, where
judges are falliable, and where man-made institutions have limits
solutions to problems will inevitably be less than optimum (see-
preface to chase and Ducat’s “constitutional Interpretation” (second
edition). In its search to recognize the true boundaries between the
individual and the community constitutional theory should therefore be
open- ended without its categories being permanently closed. (See paul
A. Freund “on Law and Justice” page 163).

“Each new claim to constitutional protection must be cnsidered
against a background of constitutional purposes, as they have been
rationally perceived and historically developed. Though we exercise
limited and sharply restrained Judgment yet thereis no “mechanical
Yardstick”, to mechanical answer”. The decision of an apparently
novel claim must depend on grounds which follow closely on
well-accepted principles and criteria. The new decision must take
its place in relation to what went before and further (cut) a
channel for (1953) 347 US 128, 147 98 L. Ed 561 578 74 S ct 381
9dissenting opinion) the matter was well put in Rochin v.
California, (1951) 342 US 165, 170 171 96 L. Ed 183, 188, 189:72 s.
Ct205 :25 ALR 2d 1396″.

(Justice Harlan, in, poe v. Ullman, (1916) 6 Led 2d p. 989 at 1020).

The constitutional doctrine of privacy is not only life giving but also
is lifesaving. It gives spiritual meaning to life which sankara
described as emanation of Brahman and saves such a life from “inhuman
and degrading treatment” of forcible sexual cohabitation. (Art 5 of the
Universal Declaration of Human Rights) (see also the Right to be let
alone by K.K. Mathew, ( Journal section) and also
“torture and the right to human Dignity” by paras diwan , (1981) 4 SCC
p. 31 (journal section). Nothing much that is reasonable in my opinion
can be urged in support of this barbarous remedy that forces sex at
least upon one of the unwilling parties.

36. Following the reasonaing adopted in the above mithu’s case, section
9 of the Hindu marriage Act, should be declared as unconstitutional for
the reason that the remedy of restitution of conjugal rights provided
for by that section is a savage and barbarous remedy, violating the
right to privacy and human dignity guaranteed by Article 21 of our
Constitution.

37. The constitutional validity of section 9 of hte Act when examined
on the touch-stone of equal protection of laws also leads to a
conclusion of its invldity. This is so because of two reasons. Firstly,
section 9 of the Act does not satisfy the traditional classification
test. Secondly it fails to pass the test of minimum rationality
required of any state Law.

38. Of course section 9 of the Act does not in form offend the
classification test. It makes no discrimination between a husband and
wife. On the other hand, by making the remedy of restitution of
conjugal rights equally available both to wife and husband, it
apparently satisfies the equality test. But th requirements of equal
protection of laws contained in Article 14 of the Constitution are not
met with that apparent though majestic equality at which anatole France
mocked. Our Supreme Court declared that:

“Bare equality of treatment regardless of the inequality of
realities is neither justice nor homage to the constitutional
principle”.

(See M. Match works v. Asst. Collector ).

The question is how this remedy works in life terms In our social
reality, this matrimonial remedy is found used almost exclusively by
the husband and is rarely resorted to by the wife. A passage in Gupte’s
Hindu law in Brilish India’ page 929 (second edition) attests to this
fact. The learned author recorded that although the rights and duties
which marriage creates may be enforced by either spouse against the
other and not exclusively by the husband agianst the wife; a suit for
restitution by the wife is rare”.

The reason for this mainly lies in the fact of hte differences beween
the man and the woman . by enforcing a decree for restitution of
conjugal rights the life pattern of the wife is likely to be altered
irretrievable whereas the husband’s can remain almost as it was before
this is so because it is the wife who has to beget and bear a child.
This practical but the inevitable consequence of the enforcement of
this remedy cripples the wife’s future plans of life and prevents her
from using that self-destructive remedy. Thus the use of remedy of
restitution of conjugal rights in reality becomes partial and one-sided
and available only to the husband. The pledge of equal protection of
laws is thus inherently incapable of being fulfilled by this
matrimonial remedy in our Hindu society. As a result this remedy words
in practice only as an engine of oppression to be operated by the
husband for the benefit of the husband against the wife. By treating
the wife and the husband who are inherently unequal as equals, section
9 of the Act offends the rule of equal protection of laws. For that
reason the formal equality that section 9 of the Act ensures cannot be
accepted as constitutional. Section 9 of the Act should therefore be
struck down as violative of Article 14 of the Constitution.

39. Section 9 of the Act has also to be examined fo rits constitutional
validity from the point of view of the test of minimum rationality. The
American constitutional writes and Court decisions on the equality
clause of the American 14th Amendment recognize the inadequacies of the
mere classification theory of minimum rationality not merely as an
additional test to the above theory of classification but even as basic
to the whole of the 14th Amendment. Writing for a division Bench of
this Court in A. Laxmana Murthy v. State (aIR 1980 Andh pra 293 at 298)
I expressed our view of inadequacies of the theory of classification in
these words:-

‘Hitler’s classification of all jews into a separate category for
purposes of butchering them and Nazalities’ classification of all
landlords into a separate category for purpose of exterminating them
cannot, therefore be faulted on this theory of equal protection
clause”.

Our Supreme Court had accepted the theory of minimum rationality in
E.P. Royappa v. Tamil Nadu in the following words:-

“From a positivistic point of view equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies,
one belongs to the rule of law in a republic while the other to the
whim and caprice of an absoulte monarch. Where an Act is arbitrary
it is implicit in it that it is enequal both according to political
logic and constitutional law and is therefore violative of Article
14″. ……..They require that state action must be based on valent
relevant principles applicable alike to all similarly situate and it
must not be guided by any extraneous or irrelevant considerations
because that would be denial of equality”.

But our Supreme Court called the test as test of arbitrariness and
followed it in the subsequent decisions in maneka Gandhi case
and the International Air port case
, and Ajay Hasia v. Khalid Mujib and
Air India v. Nergesh The theory of minimum
rationality test which is heavily criticised by seervai in his latest
constitutional Law, 3rd Edition page 272 is described by prof. Tribe as
requiring all legislation to have “a legislative public purpose or set
of purposes based on some conception of general good”. (See his
American constitutional Law, page 995) Examined from this point of
view, it is clear that whether or not section 9 of the Hindu marriage
Act suffers from the vice of over-classification as suggested in the
preceding paragraph it promotes no legitimate public purpose based on
any conception of the general good. It has already been shown that
section 9 must thereofe be held to be arbitrary and void as offending
art. 14 of the consitution.

40. In the view I have taken of the constitutional validity of section
9 of the Hindu Marriage Act, I declare that section 9 is null and void.
As a corollary to that declaration, I hold that O.P. No. 1 of 1981 on
the file of subordinate Judge, cuddapah, filed by venkata subbaiah for
the relief of restitution of conjugal rights with sareetha is legally
incompetent. Accordingly, I prohibit the Court of the subordinate
Judge, cuddapah from trying O.P. No. 1/81.

41. The civil Revision petition is allowed, but without costs.

42. Revision allowed.

One thought on “RESTITUTION OF CONJUGAL RIGHTS-CONSTITUTIONAL VALIDITY

  1. the denial by court the restitution of conjugal right to a husband raises many questions.
    A man living under the sanctity of marriage and denied sex by wife for frivolous reasons is also exploitation of the man’s mind and soul which destroys his self respect shakes his confidence and integrity. Sex is a natural need for a man just like food and he has lesser control on his desires than the woman who uses her control to exploit his feelings and desires for unjustified reasons most of the time. He takes the responsibility of a woman for life to fulfill his needs. Man marries for sex and the woman marries for security stability and support. Family comes as a bye product which he has to care and support for life. He fulfills his commitment in supporting her and the family and expects her to just take care of his needs.
    In the case of wife denying sex to him even after enjoying the support comforts of life provided by the man is as unjustified as not paying wages to a worker who has toiled the entire day. It is exploitation of man’s mind which is no less than the exploitation of a woman’s body when subjected to forced sex. With prostitution being illegal in the country it becomes even more painful for a man to carry on with his duties towards his family including wife and not getting any thing in return. Under these circumstances it makes more sense for him to keep a girlfriend or keep with no obligations and live a better life. Most of the woman in India are financially, socially dependent on her husband so it does become her duty to fulfill his desires so that the institution of marriage will continue to survive

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