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comparison between ART21 and SEC 9 of the Hindu Marriage Act keeping in mind the judicial trend

(Querist) 16 July 2008 This query is : Resolved 
The query is bit out of the blue!but really wanted to get very clear on this issuse. I wanted to know on what basis ART 21 and Sec 9 of the Hindu Marriage act can be compared keeping in mind the judicial trend.???????
Murali Krishna (Expert) 17 July 2008
I feel that the comparision is quite weird. The ambit of Article 21 has been widened by the judiciary over a period of time. Every thing which is remotely connected to life has also been tried to be brought into within the purview of Article 21 of Constitution of India.

Still, I could not comprehend how Section 9 of Hindu Marriage Act which deals with restitution of conjugal rights can be brought within the ambit of Article 21 of Constitution of India.
arunprakaash.m. (Expert) 17 July 2008
It is a matter of judicial interpretation. In SARITA VS VENKAT SUBBAIAH it was decided that no spouse can be compelled to share a bed with other spouse. But in successive cases it was decided that a husband can have right to compel her of conjugal rights. In those cases it was decided that provisions of hindu marriage act can override the provisions of the art 21 of the constitution it does not amount to ultravirus of the constitution.
KamalNayanSaxena (Expert) 17 July 2008
S. 9 of the Hindu Marriage Act is not violative of Arts. 14 and 21 of the Constitution. The object of restitution decree is to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The leading idea of S. 9 is to preserve the marriage.

It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "conjugal" as "of or pertaining to marriage or to husband and wife in their relations to each other".

In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself, See in this connection Mulla's Hindu Law - 15th Edn. p. 567 - Para. 443, There are sufficient safeguards in S. 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission - 71st Report on the Hindu Marriage Act, 1955 - "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus-
"Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common things of the matter and of the spirit and from showering love and affection on one's off-spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It 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".

Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force.


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