Determining the Constitutionality of the Matrimonial Remedy of Restitution of Conjugal Rights under Hindu Law

Author: Vanshuk Dhiman, Campus Law Centre, Faculty of Law, University of Delhi.

Section 9 of The Hindu Marriage Act, 1955 pertains to the Restitution of Conjugal Rights (ROCR), which is one of the four matrimonial causes (the other three being Nullity, Judicial Separation, and Divorce) recognized under the Act. The object of this legal article is to examine the constitutionality of this matrimonial remedy and the question as to whether the male partner possesses the sole authority to determine the location of the marital residence. It traverses into the bare act provisions, textbooks, case laws, constitutional provisions, and the contemporary debate related to this matrimonial remedy of ROCR. The article probes into the ramifications of this remedy on marital privacy, individual privacy, human dignity, and gender equality under Articles 21 and 14 of the Indian Constitution, respectively. The study ends with the key finding that ROCR (Section 9) is not beyond the purview of the Constitution according to the Honourable Supreme Court because “it serves a social purpose as an aid to the prevention of the break-up of marriage,” while also paying heed to a number of jurists and women’s organizations who are vociferously demanding that this remedy be abolished or amended.

The Hindu Marriage Act, 1955; Section 9; Marital Privacy; Article 14; Article 21; Right to Privacy; Human Dignity; Patriarchal; Constitutional; Cohabitation; Matrimonial Home.

Section 9 of the aforementioned Act talks about the Restitution of Conjugal Rights (ROCR), which is one of the recognized matrimonial remedies within the framework of the Act. A decree for ROCR mandates that the party at fault is required to reside with the aggrieved spouse. The institution of marriage imposes a mutual obligation on both partners to live together. If one spouse declines to fulfil this duty, is it legally permissible for the aggrieved spouse to compel them to cohabit?

This notion has its origins in ancient times when marriage was fundamentally linked to the husband's ownership rights. In a patriarchal society, the wife was regarded as the husband's property and was anticipated to reside perpetually in her husband's household. Hindu legal texts acknowledged the principle that mutual fidelity should persist until death. Hindu Law mandated that spouses should share a life together. While it emphasized the expectation that the wife should obey her husband, it did not establish any regulations that would force her to return to him against her wishes. Consequently, it became essential to identify remedies that would help maintain the integrity of the marital bond. The remedy of ROCR was introduced by the British authorities in our country following the ruling in Moonshee Buzloor v. Shumsoonissa Begum. This remedy is now formally acknowledged in Section 9 of the HMA, 1955.

This remedy is considered the most inhuman and even compared to slavery by jurists and sociologists worldwide. They want this remedy to be abolished. Some jurists consider it void as it contravenes Articles 14 and 21 of our Constitution. They consider it to be the government’s invasion of marital privacy and a patriarchal mechanism of subjugation employed by the husband towards his wife. According to them, sexual cohabitation is one of the main ingredients of this decree, and its result is to compel the dissenting individual to engage in sexual activity against their consent with the party holding the decree. It is, therefore, violative of the right to privacy, human dignity, and equality of sexes under Articles 21 and 14, respectively. This legal article aims to analyze the constitutionality of this matrimonial remedy in India, considering the significant case law associated with it, and to determine whether a wife has the right to unilaterally leave the matrimonial home. This research will further discuss the impact of ROCR on the right to privacy, human dignity, gender equality, and marital privacy.

Indian law adopted this remedy from English law, which itself adopted it from the Jews. In English law, this matrimonial remedy has been abrogated by the Matrimonial Proceedings and Property Act, 1970. In our country, this remedy is available to all communities. Order 21, Rule 32 of the Code of Civil Procedure stipulates that the execution of a decree of ROCR may be carried out through the attachment of the respondent's property.

The basic ingredients of restitution under Section 9 are:

1. The defendant has departed from the company of the plaintiff without a justifiable reason.

2. The court at the district level is assured of the truthfulness of the assertions presented in the petition (pertains to proof).

3. There exists no legal basis that would prevent the petitioner from receiving the requested relief (pertains to bars under Section 23 of the HMA).

The presence of a bona fide marriage is essential for its applicability: The matrimonial remedy under Section 9 of the HMA, 1955, presumes a genuine and ongoing marriage between the two parties. In cases where the marriage contravenes Section 5(iii) of the Act, it has been determined that such a marriage is neither void nor voidable, and therefore, this does not constitute a valid reason to refuse relief under Section 9.

The Marriage Laws (Amendment) Act of 1976 inserted an explanation to Section 9, which addresses this matter. The initial burden to demonstrate that the defendant has disengaged from the plaintiff's society rests with the plaintiff who seeks a decree for ROCR. It is for him/her to establish the above-mentioned three important ingredients. The petition is accepted only if the responsibility of demonstrating the aforementioned conditions is sufficiently fulfilled. Once this is done, the burden now lies with the defendant to demonstrate the presence of a valid excuse. In accordance with Section 23, should there be no legal basis to reject the application, the court is authorized to issue a decree under Section 9. Furthermore, as stipulated in Section 23(1)(a), the court must ascertain that the plaintiff does not derive any advantage from their own wrongdoing in seeking relief, and under Section 23(1)(b), it must be confirmed that the plaintiff has not condoned the actions that are the subject of the complaint.

It refers to the voluntary cessation of cohabitation by the defendant, as well as the disengagement from the marital relationship, which includes the refusal to engage in marital intimacy with the other spouse. The term ‘society’ in Section 9 means ‘cohabitation.’ This phrase encompasses a psychological component in addition to the physical act of separation. If she intended to return to the matrimonial home and had no plans for a permanent withdrawal, then the temporary act of leaving would not be classified under this expression. The characteristic of permanence serves as a fundamental element that distinguishes "desertion" from "withdrawal of society." To establish that the wife has indeed distanced herself from her husband's presence, the mere ipse dixit of the male partner is not enough. It is also necessary to prove that the husband is not responsible for the wife's decision to withdraw from his company.

Our judiciary has dealt with this question differently in each case, depending on the facts and circumstances of the case at hand. In the landmark case of Kailash Wati v. Ajodhia Parkash, the question arose: Can a wife unilaterally withdraw from the matrimonial home by virtue of being employed away from it? The Honourable Court stated that the matrimonial residence is fundamental to the institution of marriage. It is the husband's responsibility to establish a matrimonial home that provides comfort for his spouse, and he must be acting bona fide. Subject to the above-mentioned two qualifications, a wife does not have the right to unilaterally leave the marital residence. The obligations under both general and Hindu Law require the husband to provide support not only for his wife but also for the children (illegitimate as well). In contrast, there is no equivalent responsibility placed on the wife to support her husband or the family, even if she possesses financial independence. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 125 of the Criminal Procedure Code, 1973) establishes that a husband has a legal duty to provide maintenance for his wife and family, with the potential for severe legal consequences akin to those found within the realm of criminal law. As per Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife is granted a general right to receive maintenance from her husband throughout her lifetime. Briefly, heed must also be paid to Section 6 of the Hindu Minority and Guardianship Act, 1956, which states that a Hindu father serves as the natural guardian of his minor children. The burdensome responsibility imposed on the Hindu husband is inherently connected to his right to decide the residence of the matrimonial home. Mulla’s Principles of Hindu Law asserts that a wife's primary obligation to her husband is to accept his authority and to reside “under his roof and protection.” The expectation of cohabitation within a shared household is an intrinsic aspect of Hindu marriage, which cannot be unilaterally severed by the wife. The Honourable Court dismissed the appeal and ruled that such a situation does not constitute a valid justification under Section 9 of the Hindu Marriage Act.

In another decisive case of Swaraj Garg v. K.M. Garg, the primary issue that emerged was the determination of the matrimonial home following the marriage, particularly when both spouses were employed at separate locations prior to their union. The Honourable Court noted that Hindu law does not provide any provision that would render the Hindu wife without a voice in the selection of the matrimonial residence. Article 14 of our Constitution ensures that both spouses are entitled to equality before the law. Any legislation that would confer upon the husband the sole authority to decide the location of the matrimonial home, without taking into account the validity of the wife's claim, would be in violation of Article 14 and thus violative of the Constitution for that reason. Due to the husband's financial challenges and the wife's stable economic situation, coupled with the husband's negative demeanour towards her, the Honourable Court concluded that the wife had a valid justification for not resigning from her employment and for not relocating to Delhi to be with her husband. Furthermore, since both parties were unable to agree on the establishment of their matrimonial residence, the issue of the wife distancing herself from her husband was not pertinent. The fault for the lack of any agreement between them was possibly of the husband and not of the wife. The esteemed court determined that the husband did not provide sufficient justification for the granting of restitution of conjugal rights.

A request for ROCR will not be successful if it can be demonstrated that the defendant has distanced themselves from the plaintiff's company, provided there is a valid justification for such withdrawal. This term is not defined within the Act. In the matrimonial law of a modern society, it will be deemed to be a reasonable excuse in the following three cases:

1. Existence of a ground because of which the defendant can seek any matrimonial relief (e.g., cruelty, impotency, the plaintiff being a sapinda).

2. The plaintiff being guilty of any matrimonial misconduct whose nature is weighty and grave.

3. An act or omission of the plaintiff rendering it unfeasible for the defendant to cohabit with the other partner.

Reasonable excuse cannot be defined by any straight-jacket formula and would vary depending upon the facts and circumstances of each case. The following cases have been considered as reasonable excuses by the Honourable Court:

• False charge of adultery

• Dictatorial conduct

• Ill-treatment by the husband

• Husband being a drinker and a gambler and forcing his wife to lead an immoral life

• Persistent demand for dowry

• The husband being totally blind

  
  

In T. Sareetha v. T. Venkata Subbaiah, Justice P.A. Choudary of the Andhra Pradesh High Court opined that the matrimonial remedy of ROCR under Section 9 of the HMA is a cruel and inhumane remedy infringing an individual’s privacy and the respect for human dignity under Article 21 of the Constitution. Consequently, the experienced judge concluded that Section 9 is constitutionally invalid. He observed that Section 9 of the HMA is meant to be enforced by Order 21, Rule 32 of the Code of Civil Procedure by administering financial sanctions against the defying party. The court could also execute its decree via its contempt powers. According to him, sexual cohabitation is one of the main ingredients of this decree, and its outcome is to compel the unwilling individual to engage in sexual activity against their consent and free will with the individual holding the decree. Any legal provision that curtails the Fundamental Rights protected by Part Three of the Constitution must be deemed null and void under Article 13 of our Constitution. It was opined that a decree for ROCR constitutes a clear infringement on a person’s privacy. The esteemed judge asserted that it deprived the woman of her autonomy regarding the decision of whether, when, and in what manner her body would serve as the means by which another individual is conceived. It was observed that though Section 9 of the HMA is applicable to both spouses, the remedy, in fact, works to the detriment of the wife whose life pattern is remodelled, whereas the husband’s situation may remain unchanged from its previous state. He considered it to be the government’s invasion of marital privacy and, in reality, a patriarchal mechanism of subjugation employed by the husband towards his wife. The woman is deprived of her control over her most private decisions. By treating both spouses at par who are inherently unequal, Section 9 violates the principle of equal protection under the law as outlined in Article 14 of our Constitution. It fails to advance any social benefit and should be considered unreasonable and null, as it contravenes Article 14. The learned judge observed that, within our societal context, the remedy was primarily accessible to the husband and was rarely utilized by the wife. He additionally referenced the Scarman Commission’s report from England, which recommended its elimination.

Justice Avadh Behari Rohtagi of the Delhi High Court expressed a dissenting opinion from the judge of Andhra Pradesh in Harvinder Kaur v. Harmander Singh Choudhry. The learned judge maintained that Section 9 of the Hindu Marriage Act (HMA) did not infringe upon Articles 14 and 21 of the Constitution. He emphasized that the objective of a restitution decree was to facilitate cohabitation between the parties at loggerheads, enabling them to reside together in their matrimonial home in a state of harmony. The essence of this section was to uphold the sanctity of marriage. The judge noted that while the terms “cohabitation” and “consortium” implied that sexual intercourse is a significant aspect of marriage, it should not be regarded as the summum bonum (ultimate goal). The courts are neither able to nor permitted to compel sexual relations. It is true that sexual acts played a significant role in the establishment of marriage; however, they did not encompass its entirety, nor can the other dimensions of marriage be regarded as entirely trivial. This decree of restitution emphasized cohabitation and partnership rather than solely addressing sexual relations. The court ruled that this decree did not force sexual intercourse. The only efficacy, as per the learned Justice, is that one year’s defiance with this decree can lead to divorce under Section 13(1A)(ii). It was an error to believe that the ROCR amounted to “the starkest form of governmental invasion” of “marital privacy” by the learned judge of the High Court of Andhra Pradesh.

In our nation, it is essential to recognize that conjugal rights are not solely a product of a legal statute. Rather, such rights are inherently embedded within the institution of marriage. The significance of the remedy of ROCR is highlighted in the context of the Law Commission’s 71st report concerning the HMA, 1955, which addresses “Irretrievable Breakdown of Marriage as a Ground for Divorce.” It states that:“The essence of marriage is a sharing of common life and an experience of the joy that comes from enjoying, in common, things of the matter and from showering love and affection on one’s offspring. Living apart is indicative of a disruption of the essence of marriage—‘breakdown’—and if it continues for a fairly long period, it would indicate destruction of the essence of marriage—‘irretrievable breakdown’.”

The Honourable Supreme Court overruled the ruling of the High Court of Andhra Pradesh and endorsed the judgment of the High Court of Delhi in Saroj Rani v. Sudarshan Kumar, which was a landmark case. Justice Sabyasachi Mukharji remarked that Section 9 of the HMA has enough safeguards to preclude the marriage from being an oppression. Order 21, Rule 32 of the Code of Civil Procedure pertains solely to a financial penalty intended to serve as a means of persuasion by the judiciary, aimed at facilitating restitution and aiding in the prevention of marital dissolution, thus achieving a social purpose.

As per the apex court, although Section 9 of the HMA is not violative of our Constitution, many jurists and women’s organizations are vociferously demanding that this remedy should be either repealed or modified to benefit women. They believe that the efficacy of the decree of ROCR is almost zero. England has already repealed this matrimonial remedy by the Matrimonial Proceedings and Property Act, 1970.

This article traced the beginnings of this matrimonial remedy concerning the ROCR and how it got incorporated into the HMA, 1955. Thereafter, it analyzed the basic ingredients of this remedy under Section 9 of the Act and examined the constitutionality of this matrimonial remedy and whether the wife can unilaterally withdraw from the matrimonial home. This study shed light on the ramifications of this remedy on marital privacy, individual privacy, human dignity, and gender equality. The apex court ruled that Section 9 is not unconstitutional as it is not in conflict with Articles 14 and 21 of our Constitution, but many jurists are still demanding its abolition and questioning its efficacy as they feel that this remedy has a disproportionate impact on women.

1. JOHN D. MAYNE, MAYNE’S TREATISE ON HINDU LAW AND USAGE 93-94, 201-204, 215 (Bharat Law House 2008).

2. DR. PARAS DIWAN, MODERN HINDU LAW 192-199 (Allahabad Law Agency 2023).

3. FACULTY OF LAW, UNIVERSITY OF DELHI, https://lawfaculty.du.ac.in/userfiles/downloads/LLBCM/Ist%20Term_Family%20Law-%20I_LB105_2023.pdf (last visited Feb. 6, 2025).

4. Kailash Wati v. Ajodhia Parkash, 1971 CLJ 109 (P & H).

5. Swaraj Garg v. K.M. Garg, AIR 1978 Del. 296.

6. T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356.

7. Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Del 66.

8. Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.

9. The Hindu Marriage Act, 1955, § 9, No. 25, Acts of Parliament, 1955 (India).

10. The Hindu Marriage Act, 1955, § 13(1A)(ii), No. 25, Acts of Parliament, 1955 (India).

11. The Hindu Marriage Act, 1955, § 23(1), No. 25, Acts of Parliament, 1955 (India).

12. INDIA CONST. art. 14.

13. INDIA CONST. art. 21.