There is a very popular proverb that one can take the horse to a water tank, but you cannot force him to drink water. The provision of Restitution of Conjugal Rights in the Hindu Marriage Act seems to be a similar one. After solemnisation of marriage under the Act if one of the spouse abandons the other without reasonable excuse, the aggrieved party has a legal right under section 9 of the Hindu Marriage Act, 1955 to file a petition in the matrimonial court for restitution of conjugal rights.
Section 9 of the Hindu Marriage Act, 1955 reads as follows:- "When either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply, by a petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly".
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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
If, after hearing the petition of the aggrieved party, the court comes to this conclusion that the grounds made out in the petition are genuine and have satisfactorily been proved, the court in that case would pass a decree of restitution of conjugal rights.
The execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any provision of law. Of course, the non-compliance of the said decree amounts to constructive desertion on the part of the erring party. As per provisions of the present Act, the aggrieved party can move a petition for a decree of divorce after a period of one year from the date of the passing of the decree and the competent court is fully authorized to pass a decree of divorce in favour of the aggrieved party.
But under no circumstances the court can force the erring party to consummate marriage. Another advantage is that the aggrieved wife can have from this provision is that she can claim maintenance from the husband.
At the time of introducing this provision in the Hindu Marriage Act, and in the Special Marriage Act, there were heated debates in the Parliament in favour and against. Acharya J. B. Kriplani, a senior Parliamentarian is on record to say that "This provision was physically undesirable, morally unwanted and aesthetically disgusting" (Parliamentary Debates on Special Marriage Bill - December 10, 1954)
Before the Andhra Pradesh High Court, the constitutional validity of section 9 of the Hindu Marriage Act, 1955 was challenged. In T. Sarutha V/s T. Venkatasubbaiah, AIR 1983 AP 356, the Hon'ble Court observed that "section 9 of the Hindu Marriage Act is violative of right of privacy and human dignity guaranteed under Article 21 of the Constitution of Indian Republican and is, therefore, ultra vires the Constitution. It denies woman her choice whether, when and how, her body is to become the vehicle for the procreation of another human being…."
It was very practical and progressive judgment, but unfortunately the High Court of Delhi gave a dissenting judgment, and ultimately the Supreme Court over-ruled it.
The Supreme Court observed that introduction of Constitution Law in the matrimonial home was like the introduction of a bull in a china shop. The Supreme Court, in Saroj Rani V/s Sudharshan, overruled the judgment of the AP High Court delivered in T. Sarutha V/s T. Venkatasubbaiah, approving the Delhi High Court judgement.
The approach of both the judges misses one fundamental aspect of family, that is, when home is broken beyond all possibilities of repair, when it has become an arena of bouts between the spouses, neither
(Expert) 25 September 2008
PLEASE READ ENSLAVED DAUGHTERS BY SUDHIR CHANDRA,OXFORD,1998 EDITION.ITS ON RUKMABAI VS DADA CHAN JI(1884).AIR 1965 AP 407,AIR 1983 AP 356,AIR 1984 DELHI 66.YOU WILLGET THE HISTORY OF 100 YEARS FROM 1884-1984.