374

CHAPTER VXX
RESTITUTION OF CONJUGAL RIGHTS VIS-A-VIS FUNDAMENTAL RIGHTS

INTRODUCTION

Fundamental rights are the cherished gift that

Constitution has bestowed upon the people of India. Barring a
few exceptions, the fundamental rights secured to the
individual. are limitations on the state action. They are not
meant to protect persons against the conduct of private
persons. It is against the might of the state that the
individual needs Constitutional protection. In State of US.B.
•J
v. Subodh Gopal Dass" Pantajali Sastri, C„J„ saids

"The whole object of Part III of the

Constitution is to provide protection for the
freedoms and rights mentioned their in
against arbitrary invasion by the State"

Thus, violation of these rights in not. only frowned by

the guardian and protector of these rights The Supreme
Court, but also the law that so envisages their violation, is
deprived of its vitality and force by declaring it null and
void. So all 'laws' and 'laws in force' must be in conformity
with the fundamental rights. The power of Judicial Review has
been expressly conferred on the Supreme Court by Article 13 of
the Constitution. Article 13 is the foundation of the "Basic
Structure" and is beyond the amending power of.the parliament.
This view finds expression in the following observation of the
Supreme Courts

"If a Constitutional amendment cannot be

1. AIR 1954 SC 92.

 375

pronounced invalid even if it destroys the

basic structure of the Constitution, a law
passed in pursuance of such an amendment will
be beyond the pall of Judicial Review because
it wi11 receive t he protec tion o f t he
Constitutional amendment which, the courts
would be powerless to strike down-Artiele 13
of the Constitution will, then, become a dead
letter because even ordinary laws will escape
the scrutiny of the courts on the ground that
they are passed an the strength of the
Constitutional amendment which is not open to
challenge".-*

We have borrowed this concept from the working of Supreme

Court of U 3 n A » M r :r> h e-t li C.J.
U in Mar burry v = Maddison'"’, uphold
the power of Judicial Review and the power was carried out of
the' particular phraseology of the Constitution.- Kania C.J. in
A
A. SC. Gopalen v. State of Madras', ail so expressed the same
opinion that even in the absence of Article 13(1) and (2), a
legislative enactment would be void if it transgressed
fundamental rights. Thus the power of 'Judicial Review' keeps
a check on the legislative power of the legislature and other
author!ties.

2. Minerva Mill Ltd., v. Union of India, AIR 1980 SC 1/89,

1799.

37, Marshall C.J. said that those who framed written

constitutions contemplated them as forming the fundamental
and paramount law of the nation and the theory of every such
government must be that an Act of legislature repugnant to
the constitution was void. (1803) 1. Cranch 137, 177-179, 2
Led» 60.

4. (.1950) SCR 88., 100.

 376

II NATURE OF PERSONAL LAWS UNDER THE CONSTITUTION

Before considering the Constitutional validity of the

provisions;1 it is better to judge the nature of personal laws.
The question for consideration is;

Are "Personal laws"; "Laws" within the meaning of Article

13 ( )(e.) or "Laws in force” within the meaning of Article
13 ( ) (b) and Article 37.2(1) and (3) of the Constitution?

The Bombay High Court in State of Bombay v„ Marasu Appa

VS
Mali'- had the earliest, opportunity unity to deal with this
question. Chagla C.J. and Gajendragadkar J. held that the
personal laws were neither included in "Laws" referred to in
Ar tic 1 e 13 (3 ) n o r c: o v s r e d by the "Laws in Force" saved by
Ar t i c 1 e 372 (3) a n d d e f i n e d in Artie 1e 13(3)(b). Changla C J.
givers the following reasons for the same;

(a) There is a distinction between personal law and custom

because Section 112 of the Government of India Act, 19.1.5,
used both the expressions - personal law and custom while
A r t i c 1 & 13 (3) (a ) o m i f. rs t h e t e r rn p e r s o n a 1 1 a w.
(b) If personal Laws would have been included in the
expression "Laws in Force" in Article 13(3)(b), then
Article 17 would not have been framed,,
(c) The expression "Laws in Force" used in Article 372(1) and
(2) does not include "Personal Laws" because Article
■372(2) entitles the President to make adaptations and
modifications to the law in force by way of repeal and
amendment, which cannot be taken to have .included

AIR 1952 Bom. .84.

 377

"Personal Law" as to authorise the President to affect

Personal Law of any community. The. above? grounds do not
seem to be very convincing.

Chagla C» J. himself conceded that "although the point

A
urg ed before us is not by any means free from difficulty" and
wen t to the extent of observing that?

Even assuming personal law was

included... polygamy is .justified, if at all,
on social, economic: and religious grounds and
hardly ever on grounds of sex.1'

Gajendragadkar J. in reaching his decision relied mainly

on t h e r e a. s o n s g i v e n b e 1 o w s

(a) The expression "Laws in Force" used in Article 13 refers

only to "statutory Laws",,
(b) The foundation sources of both the Hindu and the
Mohammedan Laws are scriptural texts. The legislative
history of personal laws was also referred along with
A r t .1 c 1 e 4 4 o f t h e C o n s t i t u t i o n .

(3a j endragadkar J „ , also observed:

"Even if it is held that personal laws fall

with in Article 13(1), 1 am not satisfied

6„ I b i d . ,, p. 89.

Ibid.

8, "In suits regarding succession, inheritance, marriage and

caste and all relgious usages and institutions, the
Mohomedan laws with respect to Mohemedans, and the Hindoo
Law with regard to Hindoos" (Clause 15 of Bengal Regulation
IV of 1973)."
 378

that provisions of these personal laws

permitting polygamy,, amount to a
discrimination against women only on the
9
ground of sex."

Even though both the judges held that the personal law
were not included in the expression "Laws in Force" under
Article 13, yet even if it was assumed that Personal Laws were
not included in the expression "Laws in Force" under Article
13(1)5 the 'Personal law permitting polygamy did not
discriminate against women only on the ground of sex under
Article 15(1)„

So? it cam be presumed that the possibility of "Personal

Laws” being included in the expression "Laws in Force" under
Article 13 has not been completely ruled out.

The views expressed by the judges are subject to

c r i t i c i sm,,

Seervao who disagreed with the decision of their

Lordships came to the conclusion that the Personal Law of a
community is "Law" and is "Law in Force" or "Existing Law"
1 0
wi th,1 n the meaning of the Consti tution. ~ "

The question came for consideration before the Madras

1 1
High Court in Srinivas Ayyangar v. State of Madras, but the
court declined to consider the question.

9. Supra Mote, 5 at Page, 93.

10. Seervai, H.M. Constitutional law of India, Vol . 1 (1983),

401-402.

11. AIR 1953 Mad. 193.

 379

In T. Sareetha v = Venkata Subbaiah 1 o

, the Andhra Pradesh
High Court, considered the Hindu Marriage Act, .1955, very much
"Law" within the meaning of the Constitution- However, J.
Rohatgi gave a contrary observation in Harvinder Kaur v»
Harmandsr Singh'1'0 where he observed s

"Introduction of Constitution Law in the home

is most inappropriate- It is.like introducing
a bull in china shop- It will prove to be a
ruthless destroyer of the marriage
institution and all that it stands for- In
the privacy of the.home and the married life
neither Article 2.1. nor Article 1.4 have any
place., In a sensitive sphere which is at once
intimate and delicate, introduction of cold
principles of Constitution Law will have the
effect of weakening the marriage bond"

The Supreme Court upholding the validity of Section 9 of

1 s
the Hindu Marriage Act, in Saroj Rani v. Sudershan Kumar"''",
did not exclude the Hindu Marriage Act from the definition of
1 aw -

Mo case relating to the Muslims, Christians or Parsis has

been brought, to the High Court or the. Supreme Court for its
finding on the question of Constitutional validity of the
res titution provisions-.

If personal laws are not "laws' within the meaning of

12. A IF? 1983 p„ 356.

13- AIR 1984 Delhi, 66.

14. Ibid,., p. Th­

is. AIR 1984 SC 1562-

 380

Artie 1 e 13, a substantia 1 portion of our laws f3 1 10

. OU tside
the Cons titu tional safeguards. There is no justi fication for
sue h exc: lusi on and grant ing a special status to the per sonal
1 aws. Fundaffiental Rights lose their meaning and vitalit y if
their p p I ication is i. r r a t i on a 1 ly restr j.c tad „ The
Const i tut i on 5 being par amount .and fundamental , every 1 aw
w i t hoiU t exce ption must c onform to it. If the fra raers of the
Con s t i tut i on had thought of excluding Personal L aws from the
sc o pe of Constitution» i t w o u 1 d h a v e fcj 0 0 n 0 3. i cl so in c 1 ear
words „ 1 r i the absence of specific excl usion5 the personal 1 aws
1 i k e any othe i*'“ 1 3 W ill LA 0 0 tcit io the test of the Con stitutio n„16

Mr. Jus ti.ee A.M. B hattacharjee, of Sikkam High Court „

opine■d t 1 let l. the various d i s c r i m .1 n a t i n q personal laws vi a 1 a te
Artie le 15 because the immediate and direct reason for
discrimination is only religion„ In this context be wrote;

"A uniform civil code replacing the various

per son a1 laws wou1d be n o t mere1y a
Constitutional ' goal as envisaged in Article
44 but a dire Constitutional necessity in
order to save the various discriminatory
Personal laws from being outlawed as
unconstitut.ion" .^

Thus,, the personal laws are "laws" or "Laws in Force” and

subjected to the test of Constitution.

Dr „ L .C. Dhingra, "Consti tirtion a 1 I nt.ru. s ion into Personal

Laws' in 'Law Social !i a n g e a n ci C- o mmuna1 Harmony" ,, Ed. by
S.P. S i n g h M a k k at r,, p. 30 „

(.1984) 4 Sec. (J) 33 at 38.

 381

III DIFFERENT JUDICIAL OBSERVATIONS ON THE VALIDITY OF

SECTION 9 OF THE HINDU MARRIAGE ACT.

The conflicting judicial observations relating to the

Constitutional validity of Section 9 of the Marriage Act. have
initiated a hot debate in legal circles™ The controversy needs
through examination. We are to see if the provisions of the
'}
remedy are violative of Right to Equality, Right to
1 Cl>
Freedoms ' , Right to Personal Liberty-'''"' , and Right against
exploitation’*"'*'. The Andhra Pradesh High Court in T. Sareetha
v. Venkata Subbaih-*-'-, declared Section 9 of the Hindu Marriage
Act as ultravires the Constitution whereas the Delhi High
Court in Harvinder Kaur v. Harmander Singh"1'"', upheld its
validity™ Before examining the real controversy, it is better
to look into observations of above mentioned cases,. It will
help in arriving at some conclusion™

(A) JUDICIAL OBSERVATIONS OF THE ANDHRA PRADESH HIGH COURT

Coming to the tact:s or r. Saree tha case,, tne husband

CL

petition for re■stitution of

35

conjugal r ights under

Section - >' of the Hindu Marriage Act against his star wife
Sareetha ™ She filed an objection as to the juri sdletion of
Cuddapah Court™ The trial judge held that the Cuddapah Court

18. Article 14™

.19 ™ A r t i c 1 e .1.9 ( i ) (C) ( e) an d ( g ) „

20™ Article 21™

21. Article 23™

22,, AIR 1983 AP 356™

23™ AIR 1984 Delhi,, 6e„

 382

had jurisdiction to try the petition. Against this, the wife

went in revision to the High Court, Justice Choudhary of the
High Court affirmed the lower court's order on the point of
jurisdiction. However, in the High Court, the Constitutional
validity of Section 9 was challenged by the wife. The judge
termed the provisions for restitution of conjugal rights as
'uncivilised, "barbarous" , "engine of oppression" and assailed
Section 9 as violative of Articles 14, 19 and 21 of the
Con s t i t.u t i on ,

In delivering the judgment justice P.A. Choudhary traced

the history and efficacy of the remedy and observeds

"Section 9 promotes no legitimate purpose

based on any conception of general good. It
does not sub-serve any social good".

The following observations -are quoted to support his

contention. 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 s ancrtion or p r o c e cl u re, as c ora pu 1 s i on by
t he courts to force her■ to return against her wi 11« This could
has been onlyr because o f :its re ail isaion 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—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. The British Indian Courts wrongly equating
the Ecclesiastical rule of this matrimonial remedy' with
equity, good conscience and justice, thoughtlessly imported
that rule into over country and blindly enforced it among the
Hindus and the Muslims.
 383

Thus., the origin of this uncivilised remedy in our

ancient country*. is not recent* and wholly illegitimate.
Section 9 of the Act had merely aped the British and
mechanically re-enacted that legal provision of the British
E c c 1 e s i a s t. i c a 1 a r i g i n « ^

The plain question that, arises is whether our parliament

now functioning under the Constitutional constraints of the
fundamental rights conceived and enacted for the preservation
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

Choudhary J„ while examining restitution of conjugal

rights in relation to the right to equality guaranteed under
Article? 14 of the Constitution observed:

"The Constitutional validity of Section 9 of

the Act when examined on the touchstone of
equal protection of laws also leads to a
conclusion of its invalidity. This is 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 1 aw.

Technically, there- is equality of rights by making the

remedy of restitution of conjugal rights equally available to

24. Bai Jiva v. War Singh Lai Bhai, AIR .1927 Born, 264, at 268

25. Supra Mote 22 at p. 367,

26. Ibid, r, p. 373',
 384

both the wife and husband. But this is only an apparent

equality because in restitution of conjugal rights decree,
wife in fact, is in a disadvantageous position. But the
requirement of equal protection of laws containd in Article 14
of the Constitution are not met with that apparent though
“v

majestic equality at which Antole France mocked.'1"'

Moreover, the Supreme Court has abhorred the apparent

equality test. The following observation of the Supreme Court
*
is quoted to authenticate the observations

"Bars equality of treatment regardless of the

inequality of realities is neither justice
nor homage to the Constitutional
■"50
pr me i p 1 es . "

While dealing with the question as to how this remedy works in

1 if e,, the Migh Cour-1 observed s

In our social reality, this matrimonial

remedy is found used almost exclusively by
the husband and is rarely resorted to by the
wife. By enforcing a decree for restitution
of conjugal rights the life pattern of the
wife is likely to be altered irretrievably
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 the child. This
practical but inevitable consequence of the
enforcement of this remedy cripples the
wife's future plans of life and prevents her
from usin g t hat self-destruc tive remed y.

27. The law in its majestic equality forbids the rich as well as
the poor to sleep under bridges, to beg in the streets and
to steal bread.

28. M.Match Works v. Asstt. Collector, AIR 1974 SC 497 at 503„

 385

Thus, the use of remedy for restitution of

conjugal rights in reality becomes partial
an d on e s i d ed and ava i 1 a b 1 e on 1 y to t he
husband» The pledge of equal protection of
laws is thus inherently incapable of being
fulfilled by this matrimonial remedy in our
H .i n d u S o c i e t y » A s a r e s u 11 t l'i i s r e m e d y wo r k s
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
t he w i f e an d t he hus ban d w ho a re i n h e r e n 1.1 y
unequal as equal , Ejection 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.

Chanadhary J. in A. Luxmana Murthy v. Stated0 had

expresses>d that mar e c 1 a s s i f .i c a t i o n was not enough, it must
have a reasonable bsBis d f he obser■vastion c:>f the case a re
q u o t e d i n s u p p o r t o f t h e c o n t e n t .1 o n .

"Hitler's classification of all Jews into a separate

c a teg o r y for pu r po se of bu tc he r i n g t hem an d Na x a 1 i tes

classification of all landlords into a separate category for

purposes of exterminating them cannot, therefore, be faulted

on this theory of equal protection ■ clause"

Justice Chaudhary termed the remedy as savage and

79 Supra Not Bj 22 at p. 373“74„

30. AIR 1 980 AP 293.

3.1 „ Ibid r, T.
r;. S„
 386

barbarous v io 1 ating t. h e right to privacy and human d ign i t

guaranteed by Article 21 of the Const!tuti on» Any sta-cutor
provision L i i a t.. a h r .i. d g e s any of the rights g ua r •£'1 i "i C 0 © C3 fc V Par
III of the Constitution w 11.1. have to be dec lare d void in term
o f A r t i c: 1 e 13 of the Cons ti tut ion .

It was further classifieds

"Article 21 guarantees right to life and

personal liberty against the state action.
Tj

ulatti d i n simple ne Q icl t- ive t er nis i ts

~i

rang e of operati on po<r. i t i v ely f o r dc ing the

s tat e de priving any pers on of h: .s 1 i. f or
per s on a 1 libert y exc ept ac cord Lr g to the
proc edure estab 1isned by 1 aw,, i cn of far
reac hing dimen s .1 on s and o f 3 Y er■whs 1 m ing
Cons t,itut ion a 1 sign! f i, c a n c e :ir t 3 cle 21
prev sn ts the st ate tr Offl t rida t i n g ti 1© hu man
life as that of any other animal,, It is now
well established that the word 'Life'
occurring in Article has spiritual
significance. Article 21 protects the right
to privacy and promotes the individual
dignity mentioned in the preamble of our
Con s t i tu t i on „

Regarding the right privac was further observed);

"A decree for restitution of conjugal rights

constitutes the grossest from of violation of
an individuals's right to privacy---It denies
the woman her free choice whether,, when and
how her body is to become the vehicle for the
procreation of another human being. A decree
for restitution of conjugal rights deprives a.

Supra Note,, 29 at p„ 367.

Ibid . ,, pp„ 3fj/-68.

 387

woman of control over her choice as to when

and by whom the various parts of body should
be allowed to be sensed,,,,. The woman loses her
control over her most intimate decisions.
Clearly, therefore, the right to privacy
guranteed by Article 21 is flagrantly
violated by a decree of restitution of
conjugal rights. A wife who is keeping away
from her husband because of permanent or
temporary estrangement cannot be forced,
without violating her right to privacy to
b e a r at c h i. 1 d to y her h u s b a n d 11' „ ° r

Examining the state intervention in marital affairs it

was stressed;

"A court, descree enforcing restitution of conjugal rights

constitutes the starkest form of governmental invasion of
personal identity and individual zone of intimate decisions.
The victim is stripped of its control over the various parts
of its body subjected to the humiliating sexual molestation
accompanished by a forcible loss of the precious right to
decide when if at all her body should be at 1 lowed 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 staste 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 confined in .Article 2.1. of our

34. Ibid.
 388

j-

Con s t i tu t i on

Regarding the effect of the decree on senual relations it

was further pointed outs

"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 with the other party. The
consequences 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 stats”,,0*

Sinc©, restitution decree is capable of being enforced,

there is a financial sanction, the court felt that it is "to
coerce through judicial process the unwilling party to have
sex against the person's consent and free will with the decree
holder" .°7 To justice? Choudhary "nothing can conceivably be
more degrading to human dignity a n d m o n s t r o u. s t o hu m a n s p .1 r i t
than to subject a person by long arm of law to a positive sex

35 „ Ibid. ,, p, 370„

36 „ I bid „ , p. 365„

37. Ibid,,
 389

''•TO
act,,1"”' Regarding the enforcement rf the decree and its
efficacy it was observeds

State coercion of this nature can neither prolong nor

preserve the voluntary union of husband and wife in matrimony,,.
Neither coercion can soften the ruffled feelings nor clear the
misunderstandings between the parties,, Force can only beget
force as action can only produce counter action,, The only
usefulness of 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 of
privacy,, It is only after considering the various factors that
the 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 sacrificing of the individual's precious
“:;o

Constitutional right to privacy"

On the basis of above argument,, it was held by the court

that Section 9 is unConstitution as it is violative of
Articles 14, 19 and 21 of the Constitution.,

(B) Judicial Observations of the Delhi High Court

The Delhi High Court, in Harvinder Kaur v. Harminder

38., Ibid,,,, p„ 366 „

39. Ibid., 370.

 390

Sii ghj, gavs (:: o n t r a r y o b s e r v a t ions W1 "i lie upholding th 0

val id it y of Sec tion 9 and listed a ci vantage S Df the remedy ■■ In
thi s c ase, the husband filed a pe tition t o se ek the re ne rjv
The Ad ditional D i s t r i c t J u d g e p a s sed th e orde r granting h i rn
rel ief. Aggrieved by the orders, the wi fe came in appea 1 tD
the Hi gh Court a n d c h a 11 en g e d t hi e Con s t i t u t i o n a 1 v a 1 .i d i t y oT
Sec t i on 9 but lost. The court re pe11ed the argument wh 3. C h
■for med the bas is for dec1 aring Se c 11 on tr>
unConstitut i c ns 1
in T S £& T' 0 01*. i"’( a's case. Denounc: ing t he x ntreduction of
Con s t i t jtiona1 1 aw i n ifi a t r i m o n i a 1 1 aw „

Jus ties- Avadh Behari Rohatgi obser ved s

"The introduction of Con stitut io nal. Law into

t hie o rdinary domestic: re 1 ation sh ip o f husband
and w i f e w i 11 s t r i k e a t the very roo t of the
rel at ionship and will be tJ i t ful source of
<?s ~l

Cl i C-1:5 0 nsion and quarre 1 i n g . „ Ti he udomestic

c ommu nity does not rest on co rit rac t s sealed
wi th S 0 c?. I "5 ct H Cl 0 0 cR 1 ing wa x , nor on
Con s t .11 u 1: i o n a 1 1 a w. 11 rests on the kind of
mora 1 cement which unite s and pr od LIC es "two—
in--on sship"'^J'

Further,, on the Constitutionality o f Section 9 Justice

i Ei e h a r i R o h aitqi observed that;

"The argument which found favour with the learned Judqs^""

in holding that Section 9 is Constitutionally void are not

sound. They are a dangerous and fallacious line of argument. I

40. AIR 1984 Delhi 66.Ibid., 370.

41. 1 b id.,, p = 75»

42. Justice Choudhary in T. Sareetha's case

 391

can't agree that Section 9 is unconstitutional., however.,, the

remedy may be outmoded or out of time with the- times. The
restitution decree in the scheme of Act is a preparation for
divorce if the parties do not come together. But the
legislature first believes in coaxing and cajaoling the
withdrawing spouse to return to cohabitation, a value it
prises most, whether the wife is a top actress or an ordinary
wife, the marriage in each case has the same legal
c o n s e q u e n c e s 43

Regarding the objects and advantages of the remedy,it was

f u r t h e r c 1 a s s i f .1 e d s

"The object of the restitution decree is to bring about

cohabitation between the estranged parties so that they can
live together in matrimonial home. The leading ideal is to
preserve that marriage.... From the definitions of
'Cohabitation' and 'Consortium' it appears that sexual
intercourse is one of the elements that goes to make up the
marriage. But it is not the summun bonurn. The court, does not
and cannot enforce sexual intercourse» 1 accept it as true
that sexual intercourse constitutes a most important attribute
of the conception of marriage,, But it is also true that they
do not constitute its whole content, nor can the remaining
aspects of the matrimonial consortium be said to be of wholly
unsubstantial or trivial character. The remedy of restitution
aims at cohabitation and consortium and not merely at ' sexual
intercourse. To say that restitution decree "subjects a person
by the long arm of law to a positive sex Act" is to take the
grossest view of the marriage institution. The restitution

Supra Mote 4V at p» SI
 392

decree does not. enforce sexual intercourse. It is a fallacy to

think that the restitution of the conjugal rights const!tutes
"the starkest form of governmental invasion" of "marital
privacy „1.. 44

Various authorities are quoted to support the contention

that sex is not be all and end of a marital relationship,. The
essential of marriage is cohabitation and the court. cannot
enforce sexual intercourse but only cohabitation, and
Restitution of Conjugal Rights cannot be ordered where the
respondent refuses sexual intercourse but continues to cohabit
A
with the. petitioner" *'~

A restitution decree, according to the court is aimed at

bringing about cohabitation which "does not necessarily depend
upon whether there is sexual intercourse between the husband
and the wife",, The cohabitation means living together as
husband and wife.

■Justice Avadh Behari does not agree with the observations

of Justice Choudhary that restitution remedy under Section 9
promotes no legitimate public purpose based on conception of
general good and it does not sub-serve any social good and
observes that!

"In the legislative scheme it has a purpose to serve and

a role to play,, It allows the parties a cooling off period»
"People should be able to marry again when they can obtain a
death certificate in respect of a marriage already long since

44. Ibid., pp. 69-70.

45„ Tolstoy, Law and Practice- of Divorces (6th Ed.), p„ 99.

 393

dead." T his is a road to divorce,” 46

T he court held that. Section 9 i s i n a w 3 y 3 n ext ens i o "t o f

Sec. tion 2 3(2) a n d (3) w h i c h a i m s a t stabil x s i n g a in a r ria ga and
en cour ag ing reconciliati.on . If the d ecree of rest! tut i on s not
obeyed for the spa.ce of one year «tn d the parties c on tin ue to
1 i ve S B parately it is undbubte d 1 y the best evi d en ce of
breakd own of marriage and the pas s .1 ng of time, me St re li 3 b 1 &
eviden ce that marriage is finished , A Rest itution dec ree If
ac: ts
cl S 3n .index of commubial felic.it \// " 11 i s a short of 1 i tmus
paper. f the decree is disobeyed i t is an i n d i c a t i. on th cl t. the
,47
parties have reached a stage of no return"

I n this case, the parties get 3 g roun d f o r d i vorce 3 f ter

3 1. 3.13 S e of one years. Thus Section o/ , i n t he words of j us tice
A vac! h Bshari, aims at "two in on hi p " . Under t he Ac: t, it
s e r v s s a double purpose, It first finds tb a fault and wh 0 i/" e i t
I ies „ o eoondly it leads to the d i s so1uti on of mar r 13 ge if
there i s no resumption of cohabit at i on „ T he leg.is 1 a t Lire cl C 13
on the p rinciples "Where love cann ot be, t here can be le f t of
wed Ioc k nothing but the empty hue k " (John Mi1 ton) C- act X on 9
combin es the fault theory and th B breakd own the ory in on e
AP
go.

It is fu rther emphasiseds

T he decree? coaxes and cad ole c:. the wi thdrawin g s pou SB s to

return to t he m at t r i i n o r 11 ct 1 11 u m e and in the a 11 srn at ive,,

46. Supra Note 40 at p„ 31„

47. Ibid,.-, at p. 71.

48. Ibid., at p. 73.

 394

facilitates dissolution of th* marriage if there is no

resumption of cohabitation. F +. -i
L. X tution decree is a peg on
which to hang a divorce. It :i B foothold and handho1d for
Section 13(I-A),49

Thus,, it serves a useful p urpose by giving a "cooling off

period". Spouses live under a type of "Legal Armistice"„ The
Indian legislature believes tt at there should not be sudden
break of marriage ties. It be la eves that cooing off period is

not only desirable, but essenti a.!. .

11 is c 1 a r i f i ed t h a. t Sections 9 and .13(1 -A) are

inseparable as the later comes into existence by dint of the
former. It is surprising, accc r d i n q t o t h s c ou r t t ha t whi 1 e
'Section 9 is denounced, Section 13(1—A) (ii) is considered as
a welcome change. In declaring S ec tion 9 as u11 ravires Section
13(i--A) will also have to be si ruck down "So the good will be

thrown away with the band" „

As r eg a rd s At r f i c 1 e i ■■1, the Court hold that there is

c o m p 1 e t e e q u a 1 i t y o f t h e s e e s and a equal protection of laws

so far as; the relief is concer ned, thus, Section 9 cannot be

struck down as violative of A rticle 14 of the Constitution
because by the amending Act 4 4 of 1964 "either party to a
marriage" is -allowed to present a p e t i t i o n o n t h e g r o u n d g .1 v e n

in Section 13(1--A)» Even the pa rty found guilty in Restitution

proceedings is entitled to peti tion for divorce under Sec tion

i 3 (1A) (ii ) " T heory tha t on e c annot take advantage of ones,

49 m Ibid. , at p. 79

50 „ I b i d „ ,, at p. 81
 395

rr *
wrong has not been adhered to in the Hindu Marriage Act".’

Regarding violation of Article 21 of the Constitution, it

is observed;

As the purpose of the remedy is only cohabitation, not. to

enforce sexual interourcse between the unwilling spouse, which
the court simply cannot, enforce it is not violative of Article
2.1 of the Constitution,. The court has denounced the
introduction of Constitutional law in family laws as it will
prove to be a ruthless destroyer of the marriage institution.

Regrading the power of court to invalidate any law it was

observed s

The wisdom of the legislation the courts cannot question,

it is he duty of the judges to give effect, as best as they
can, to the laws as parliament enacts them,, whatever be their
cr -7
private opinions-or in some cases their religious beliefs.

It is the province of the judge to expound the law only

and not to speculate upon what is best, in his opinion, for
the advantage of the community. They are not authorised to
establish as law everything which they may think for the
public good and prohibit everything which they think
r-y?
otherwise,,

51. Ibid., at p. 75. (71st Report, p. 16).

52. Ibid., at p. 78.

53. Continental Tyre and Rubber Co. v. Daimler Co., (1915) I,

KB, 893, 912.
 396

11 i s f u r t h e r a d d e d s

"It may be that law is not always logical,

but neither is human behavior. Law is much
more concerned with human behavior than with
logic,, If human behaviour ceases to be
logical, then the law has to keep pace with
human behavior such as it is, and not as it
would be in a logical world,, It is for the
legislative to abolish he rented y of
restitution and not for the courts to- strike
down Section 9 of the ground that it is
unconstitutional„

Thus, on the basis of these arguments the validity of Section

9 of the Hindu Marriage Act, was upheld by the court.

(C) Judicial Observations of the Supreme Court

The Supreme Court in Saroj Rani v« Sudershan Kumar'-" ,

upheld and approved the observations of the Delhi High Court
by observings

"In India, it may be borne in mind that

conjugal rights i.s. 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. 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".'"10

54. Supra Mote, 40 at p. 87.

55. AIR 1984 SC 1562.

56. Ibid., p. 1563.

 397

Section 9 only is a codification of pre-existing law.

There are sufficient safeguards in Section 9 to prevent it
from being a tyranny. Order 21,, Rule 32 C.P.C. deals with
decree for specific performance for restitution of conjugal
rights or for an injunction. Keeping in view this aspect it
was further ad d e d .i

"It is significant to note that unlike a

decree of specific performance of contract,
for restitution of conjugal rights, the
sanction is provided by court where the
disobedience to such a decree is willful i.e.
is deliberate, inspite of the opportunities
and there are no other impediments, might be
enforced by attachment of property. So the
only sanction is by attachment, of property
against disobedience of a decree for
Restitution of conjugal rights where the
disobedience follows as a result of willful
conduct i.e. where conditions are there for a
wife or a husband to obey the decree for
restitution of conjugal rights but disobey
the same inspite of such conditions, then
only financial sanction, provided he or she
has properties to be attached, is provided
for. This is so an inducement by the court in
appropriate case when the court has decreed
Restitution for conjugal rights and that the
court can only decree if there is no just
reason for not passing decree for restitution
of conjugal rights to offer inducement for
the husband or- wife to live together in order
to give them an opportunity to settle up the
matter amicably. It serves a social purpose
as an aid to the prevention of break up of
marriage. It cannot be viewed in the manner
t he 1 ea r n e d s i n g 1 e j u d g e o f An d h r a P r a d e s h
has viewed it and we are therefore, unable to
accept the position that Section 9 of the
said Act is violative of Article 14 or
 398

Article 21 of the Constitution " v',/'

From the study of these cases we may be able to weigh the

soundness of the views expressed by the judges of the Supreme
Court as well as of two High Court,,

IV RESTITUTION OF CONJUGAL RIGHTS AND ARTICLE 14 OF THE

CONSTITUTION

Though,, the remedy for restitution of conjugal rights is

available to both spouses, yet the inherent differences
between a male and a female can't be ignored while examining
the remedy in socio-legal perspective. The availability of a
remedy is not sufficient for its use in the society,, Further,,
the implication of the remedy on the spouses must be kept in
mind we must not forget that majority of the women still enjoy
lower social and economic status in the society,, Thus, there
is only apparent equality between man and woman.

Due to ignorance, financial dependency and other factors,

the benefits of various laws and remedies are generally reaped
by male in the man-dominated society,, Thus, there is only an
apparent quality as the wife is placed in a disadvantageous
position in majority of the cases,,

Regarding the emancipation of women and t he xr roles Lord

Denning in his book "The Due Process of Law" has ex pressed as
under s

"No matter how you may dispute and argue, you

cannot alter the fact that women are

57. Ibid,,, p. 1568-69.

 399

different from men,, The principal t -*3. R in

life of women is to bear and rear chi1dren,
and it is a task w h .1 c h a c c u p i e s the best
years of t he i r 1 ivss. i he (nan * s part in
brining up the children in no d ou b t
important as hers, b u t o f n e c e s s .11 y he ca.nnot
devote so much time to it. He is
temperamentally the mere aggressive and she
the more submissive. It is he who takes the
initiative and she who responds. These
diversities of function and temperament lead
to differences of outlook which cannot be
ignored. But they are; none of them. any
reason for putting women under the subjection
of man. A woman feels as keenly, thinks as
keenly, as a man. She in her sphere does work
as usefully as man does in his. she has as
much right to freedom, to develop her
personality to the full, as a man. When she
marries, she does not become her husband's
servant but his equal partner. If his work is
more important in the life of the community,
her is more important in the life of the
family. Neither can do without the other.
Neither is above the other or under the
other,, They are equal.'1'

L. o r d Den n i n g has ightly painted out that women have a

different role to play in the society and family and they are
dif ferent f rom men.

While dealing with the question as to how the remedy

works in 1ife, t he Andhra Pradesh Hi gh Court. has rightly
observed:

"By enforcing a decree for Restitution of Conjugal

Rights, the life pattern of the wife is likely to be altered
irretrievably whereas the husband can remain almost as it was
before. This is so because it is the wife who has to beget
 400

and bear a child, this practical taut inevitable consequence of

the enforcement, of this remedy cripples the wife's future plan
of life and prevents her from using that self destructive
remedy. Thus, the use of remedy for restitution of conjugal
rights in reality becomes partial and one sided and available
only to the husband."'"*®

These observations of the court are based on reality of

facts. The remedy in actual life works . as "Engine of
Oppression" against the wife.

Regarding the test of reasonable classif ication as-

provided under Article 14, J. Choudhary has rightly pointed
out that mere c1assification is not enough it must have a
reasonable basis. While disagreeing with Choudhary J., Rohtagi
J„ of Delhi High court observes

Disproportionate emphasis on sex, almost bordering on

C(Q
obsession has coloured the view of the learned judge."'

We can't ignore the importance of sex in the marital

life. It is the integral part of the marital union. One of the
aims of the marriage is to legalise sexual intercourse and to
procreate the children. While passing the decree for
Restitution of Conjugal Rights in favour of the husband, the
court can't guarantee the wife that while living under the
roof of husband, sex will not be forced on her against. her
wishes. Thus, she can be subjected to sexual intercourse even
against her wishes. If she is decree holder, there is no

58„T. Sareetha v„ T. Venkata Subbiah, AIR 1983 AP 356 at 373.

59. Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66 at 78,

 401

cer t a .1 n ty th a L s he w i 1 1 be able to r esu me c o h a b 11 ation v- ith

her husba nd» I n both c i. rcumstances the wi fe is pi aced in a.
d i f f .1 c u 11 s i t uati on „ I f she complies the d e cree of the cot. rt,
she (nay be sub jected to sexual exp loi tat i on ,, 1n case she
bee omes p regnant and t ”ie husband tur n is he r out of home,, he r
f u t ure wi 11 be i n dark Her pregnane y m ay create p roblems in
her f utu r e ad j u stfflent a n d r e m a r r i a c] e a f te r divert: e „ On the
ot her hand , t he husband i s leas t a f f e c t e d b y the compliancE of
the d e c r e e. If t he wif s is the decre e h o i d er the h usband may
not. comply it . I f there is no cohabit a t i on between the part ies
t O r" a pe r i c d o f on e y ear or more, e i t h er of the spouse 1,3
en t i 11 ed to seek cli vor :::e under Sect i on 13 (I-A) of the Hi ndu
Mar riage Ac t T Pf U O H a wife is the s u f f ere r wheth er she is
dec: ree hoi der o r j uclgme vt debtor,,

K' o h t a gi j» in Har vinder's case e m in has .1 s e s t o retain the

rem ed y as th ere roay toss a hope for re conci1 iation, but we c 3. n
not ignore th e so c i a 1 f a c t s t h a t p at r t ies ap proaches the cc u r t
on 1 y when al 1 hopes for recon ciliatio n have been ex h cH H O *t * O d an d
the y have n o t bee n able t o s e 111 e t. h e .1 r d i f ferences •

An lysi 5 Of the judicial t. ren d and rel igi. DU 5

phi losophi es wi 11 at 1 so “i e 1 p ± n a. r r i v i ng at the cone 1 us ion ,, 1 he
t'.rends und er dif f erent nersona1 1aws are gi ven belo W “

(A). Trends Under Hindu Law

Though no statistical data is available, yet if we

analyse case law we see that the remedy is frequently resorted
to by the husband * Women have no sufficient means and tendency
to approach the courts for spurious litigation™ The women
still suffer from many disabilition and are unable to approach
 402

the c o art. E n aft er pa ss .1 n g of the dec re i t .is use d by t j"} 0

hushan ::! to p re par e gr oun d for di vorce. The cr ocia 11 y a nd
scon om ically p r i v i 1 sgec sP ouse has a 1 so t he leg al sy stem to
bac k h im and h a c a n leg a lly sees p t o r rej e ct the ¥■. ife a i f s he
was on protaa ti on. T hus , the r e i s no equaIi ty of tr eatment an d
equa 1 i t.y of a f ter e f feet s a Cj. T a K" the remed y unde Hind u law i s
c on c er ned. Th e Hi n du r e 1 i q ious phi Iosoph y a 1 is o lay s gre at
0 ili p) [“‘f 3 3 i. s .f.
or"j e qual i t ■■/ ol
r .1 g hts Sin d equa1x ty of reatment as

far as husba nd and w £ T 0 a t*" 0 cone erne d. But .1 n ac 1“ ?_ a I 1 ife, t he

p r a. n c i pie of 6/ qual i. t y i sr be x n g i g n o r ed „ "i hue , t he pr in c i. p I e of
equa li ty en S i‘" rined in Ar t ic Is 14 o f th e Con S i tu t ion,
r is
violated foy unequal treatment of the remedy,,

(B) Trends Under Muslim Law

We do not find a single reported case to have been

institution by a wife to seek the remedy. A Muslim husband has
uni. lateral and absolute power of divorce. If a wife goes to
the court for Restitution of Conjugal Rights, the husband, can
easily frustrate her claim by pronouncing divorce on her.

Their lordship of the Judicial Committee of the Privy

Count:: i 1 observed s

uit of this nature can : je entertained,, we may

c o ill p s .1. a M u isamalnee to return to In ?r husband's hou to toe

divorced the m i n u t e a T t e r w a r d s b y -a n .1 m p r e c a t i o n " & ‘"}

Thus,' for all practical purpose the remedy is available

to the husbands only, hence, violati of right to equality„

60,Ardaseer Cursetjee v. Perozeboye, 1856 VI. MIA -U-3.

 403

In Ameerumissa Begum v. Hah boob Begum0” the Supreme Court,

recognised intra-personal law equality. The right to equality

has been given great importance in the Muslim religious

philosophy,, The Holy Prophet Mohammed while giving the

farewel1 Shermon to a mammoth gathering at Macca, a few months

before his demise in the tenth year of the Hijra (632 A.D.)
said s

The Arab is not superior to non-Arab; the

non-Arab is not superior to the Arab; you are
all sons of Adam and Adam was made of
A
earth,, ..

Acc arding to I ban Hisham s

"No where has the true spirit of Islam been

so tersely summarised as in this last speech
of the founder of Islam",,0""'

Thi s *'f ci r ewe 11 (Shermon iclearly esta blishes the principle

equaIi ty and 1eaves no room for favouratism or

iminat ion „ The Prophet of Islam dedared in unequivocal

terms :

Righteous actions are the only mark of

distinction and not wealth or birth or status
in life".
Thus, the right to equality is clearly emphasised,, These
views find support in the following observation of Dr. Tahir

Mahmood:

61. AIR 1953 SC 91.

62,, Quoted in Fyaee A. A. A. s Outlines of Muhammadan Law, (1974), p.

14.

63. Ibid.
 404

It is due to this great emphasis on the

principle of equality of mankind that there
is no caste system in Islam,, The concepts of
'nobility' noble birth high and low castes
and the like are wholly foreign to Islam.^

In order to popularise the concept of absolute equality of

make and female children the prophet of Islam told his people
by way of an incentive;

One who has two daughters and no son and

spends his life in their proper upbringing
and education? will be closest to me in the
,heaven„ 65

So. both son and daughter are eqt.ua! in the eyes of the Holy
prophet„

Unlike the modern socio-legal status of Muslim wife in

India,, whose status is determined and limited on the basis of
capricious and arbitrary whims of husband, Islam regards the
man and his wife on an equal footing to act as the Libas
(associate protector) of each other

But inspite of recognition of equality in unequivocal

terms, the unequal status of the husband and wife exists in
reality which is neither supported by Constitutional law nor
by Islamic principles. Thus, in real life a Muslim wife is

64. Tahir Mahmood, The Islamic Law on Human Rights, Islamic and
Comparative Law Quarterly, Vol. IV No. 1 and 2, March and
June 1984, 32 at 34,

65 „ Ibid. ,, at 36.

66. Ibid,,, at 41.

 405

placed in a very disadvantageous position,, The Muslim wife is

e n 1.i i c 1 ed to her iequal . status in the ffi a t r i. fit o n .1 a 1 h o fit s n o t on 1 y
on the 1:oasis of the C o n s t i t u t i o n a 1 law but also in the basis
of the tr "Lie Islamic: L 3. W u

(C) Trends Under Christian Law

The survey of the re portec c ases reveal S t !"i a t the r'eme ::iy
has been resorts*d to spar ing 1 y by the wives. Un 1 ik s t h e H i n du.
1 aw , the non—c ompliance of 1 .he decree nev er i'i'iB tures as a
gro und ft: jr divoi' te under the If idi a n D i v o r c e Ac t, 1 869. T "it.lS a
dea d.1 DC may be create d and th e decree ho 1 der cannot se ek
d i v a re e on the ground of non-t Z O iTi pi iance of the de tree b' / t he
O t h er sfr ouse. Though th e woffu-tn enjoy a bet ter Cl. talus und er
Christian law, yet inequality is discernible in the use of the
remedy by the spouses.

This barbarous and savage ' remedy has already bean

abolished in England wherefrom it was imported in India,,

(D) Trends Under Parsi Law

The decree of restitution under Parsi Law seems to be

futile remedy because there is not a single reported case to
say anything on the basis of facts.

The judi a .1. a 1 trends of cases and the af te r ts f t e c t s o'!' the

remedy clear .1 y indicate this t thoug h Art icle 14 guarant BBS
equal pro tec: t i on of law to both this s pou ses, t hi e ba 1 an c e of

67 Matrimonial Proceedings and Properts Act,, 1970,, Section

abolished the Remedy of Restitution of conjugal lights in
Eng 1and„
 406

r i g h t: and remedy always weighs in fav our of men ignoring the

fact that iwomen bna v e t o !bear the brum t and agony ot pregnai n c y =
Even j us t ice Roh atgi ag r e e s t h a t it i s not in t une with the
t.IfnB $

Today i L mi a y a p pea r outdated bee a!use law is fast charigi lit]

in respo nse to the ■changing need s and id eals of the
society" „c>°

Thus, on the basis of the use and effects on the spouses,,

the provision ot the remedy are violative ot Article 14 of the
Const!tut.ion.

V RESTITUTION OF CONJUGAL RIGHTS AND RIGHT TO PRIVACY

(ARTICLE 21)

Article 21 of the Constitution provides for the

protection of life and personal liberty of individuals in
India„ The supreme Court took a very narrow view of the term
£_ O
personal liberty in A.K. Gopalan v„ State of Madras ', and it
was confined to freedom from detention or physical restraint.
However,, through judicial decisions the scope has been
considerably widened and includes all the faculties of mind
and body. The right to privacy has also been included within
the scope of Article 21 of the Constitution.

The quest for privacy is inherent in human behaviour. It

is a natural need of a man to establish individual boundaries
and to restrict the entry of others in that area.

AS. Supra Note 59, p„ 78.

69. AIR 1950 SC 27.

 407

It is very- difficult to define privacy’" The right to

privacy is a right whose contours still remain undefined. It
is not a unitary concept but it is multi-dimensional
susceptible more for enumeration than definition. Baity
defined privacy/ as "an autonomy or control over the intimacies
of personal identity."'^5

ftccording to Richard B. Parkers

Privacy/ is control over when and by whom the various

parts of us can be sensed by others., By "sensed" is meant
■y .
simply seen, heard, touched, sensed or tested."'■

This view protects the physical autonomy in sexual matters.

I n t h e o p i n i a n o f C1 i n t o n R o s s i t e r s

"Privacy seeks to erect an unbreakable wall of dignity

a n d res c u e a g a i n s t. t h e e n t .1 r e w o r 1 d „

Some writer has defined it a "Zero relationship" between

7 ~r
persons or two groups or between a group and a person" ""

70'. Baity, Redefining Pri v acy, 12 HCR-CLR:2-3*3 „

71. Richard B. P a r k a r , ft Defini.ticpn of Priv acy, P hilosophy and

tr —3
Public Affairs (1975) Vol 4, Mo„ 4, at .14 .

See !<. K!. Mathew,, The R ight to be Let A1 on e, ( 1979), 4 SCCI

(Journa 1 Section) at P p

73. Edward S h i 1 s, P r i v a c y :c ts Con:sti tut ion and v icissitudes,

1 a w a n d C o n -i e m p o r a r y P roble■ms„ (1966), p. 2 81 „
 408

Ga r y L „ Bo s tw i c k s a ys s

"Privacy'" is divisible into three components (a) Repose,

(b) sanctuary and (c) intimate decisions. Repose is freedom
from anything that disturbs or excites,, It partakes of calm,
peace and tranquility' the purpose of sanctuary is to keep
certain things within the zone which means prohibiting others
from seeing, hearing and knowing,, 74

This definition covers all the aspects of privacy. The

right to privacy' has been developed on a constitutional basis
by the? U.S.A. Courts. The credit goes to Mr. Justice Douglas
for declaring the right to privacy as a separate
constitutional right in U.S.A. In jane Roe v„ Henry Wade"",
the court finally established the constitutional right to
privacy,, The court held that privacy right could not be
absolute and restrictions can be imposed on it from time to
time. It was also emphasised that right to privacy also
includes concept of human dignity which is not lost by
i ff Y " K" i ci Q n

However, in England, the position is different. The

concept of individual freedom is; that every person is free to
do as one wishes unless the law provides otherwise. The task
of constitutional law is to determine in what ways individual
liberty is restricted by law and not how it is preserved. Like
U.S. A. it is not an absolute right and subject. to
restrictions.,

74 , Gary L . Bostwick , A Taonomy of Privacy s Repose, Sanc tuary

and Contemporary Problem, (1966), 325„

75, (1973) 35 Ed. 2d, 147.

 409

7 l-i ere are no express words i n the constitu ti. on o f Ind xa

a bou t the right t :n priva cy and i t can not be fo und in ny
statut e „ Th e Supreme Court ,, for th e f i r s t. t i m e, con s i d ered the
w_
right to privacy in Kharak Singh Vo State of U .p.' 6 w here
po1ice sur vei1 lane s and domestic visit at nigh t was st rue k
down s un consti tu. tion a 1 because "an un au t ho ri £P d i n tru s i on
in to &pe rson's home and the disturbance c au sed to h i. m
thereb V j i , i olatecl 1 Person al Liber ty' enshrined in Art i c 1 e 2i

of the c on s ti tut.ion But j ais these was no invasi on til 1 t here

is se c ret in trusi an or t. respass , secret picket i n 3 w as held
p e r m .1 s s i b 1 e Just ice Su bba Rao 3 delivered th0 ifi .1 n o rity
j udgsir en t.« In Govind v. State of H.P. ,77
c du r t t he
establ i shed that ri g h t t o privacy is a fundament al r.ig h 15 . . .LL
Uti
like i L. s American c punterp a r t, i t was included i n the 1 i b erty
c 1 au.se ■ Def in.ing th i s r i g h t Justic e Mathew obser V 0 d t. h 5 *t £ " an y
right to privacy must com pas s s an d p r o t e c t. t he pers onal
in him a c iss of the home 3 t h e f am i 1 y , m a r r 1 a g e ji mo t herhood ,
procre a t i on and c hi Id re aring". It has held by the Sup J*" fcf
Court s

"The right to personal liberty, the rig!ht to I'fiOV e freely

and the freedom of speec h create an xnde pendent right of
Privacy as; an emanation fr om them while one can c ha racteri.se
as a fundamental right,."
If was he'Id that the p o lice s u r v e i. 1 1 a n <::e would violate
the right to Privacy and persona1 Liberty indirec tly. The
right is; not absolute and r easona h1e rest ric tions on the basis
o f c o m p e 1 1 i n a p u b 1 i c .1. n t e r e■st may be imposed a

76. AIR 1963 SC. 1295,,

77. • AIR 1975 SC 1378.

 410

The uprerne CouLft in Mane■ka Sandhi v. Union of T

J. ndia
7Q
3
acce pted t he minorit■Y viev\i i n Khe? r a k S11") g h' C* 3.O © t hat r i <:jht
to priva cy is a fund armantesi ri g h 'tv, „ Howe'/or jt i. h w a s hel d ti sat

r i g h t to bo fundament.3. i hcrT:a to be an intiegra 1 part o f a named

i un d.amen t 3 .1 right,, / Evia f y ac ti v i t:■■/ necesT C- £> f y f o r s ere isi ru“I a
fund amen t,3.1 r i. g h t c am"1 o t be els V t.cz*CJ to the sta tus of a
fund,ament al right for ti "i ere- by ev■ery acHi" i v t ty wou1d be C OfflB a
pa r t of so me fundams’n tial i i g h t. 1! c:ind so 1"the object. o f mak.i n g

£7 i>
However , in T = Sareetha v. Venka ta Su b ba i a h'.., t he A n d I’ i r' a
Pradesh High Court has recognised rig I") t to P r i vac y as a
fundamental right. J ustic e C haud ha ry extended the pro tec ti on

of privacy' to inhuman and degrading t rea tmen t ot f oreib1e

sexual eohabi tation and it was treafe d as part of Artie: le 21.

Thus, the right to privacy has been recognised as an

important right in the modern society,. The spouses are

supposed to cohabit after marriage. However, the right to

privacy is not lost by marriage. The legal concept of Privacy

in modern time also includes the right to be left alone, This

right may be asserted by an individual. This right helps in

prote c ting human be■ings invio1 ate personal i t y aq a i n s t the

i n t ru. S X V o behavio u r o f t he othe r i n c luding t. hat of the wife

and h usband •j ry ■[" pa j-"- e, The s* i~ a. L. e a Iso c an't int erfers with this
right The right t o p ri va cy and human dignity c an be c u r t a i n ed

78 „ AIR 19 78 SC 5 79.

70
/ f a I bid „ p. 640—41.

80. Ibid „

81 . AIR 19 83 AP 3 56,
 411

on I y any superior state interest is involved,,

By enforcement of a decree for Restitution of Conjugal

Rights,, one spouse may be compelled to provide company to
other,, This involves starkest form of government invasion in
the personal affairs, of the individuals,, thus, violating
rights to privacy and human dignity Wo doubt, the decree does
not arrange the bed, we can't ignore the sexual aspect of
marital union. By enforcement of the decree, the wife may be
subjected to positive sexual act even against her wishes.
Compulsion is an inherent element of the decree, by which an
unwilling spouse may be compelled to return to conjugal fold
and render conjugal duties. The fact that the decree can be
executed only by a financial sanction doss not reduce the
compulsive element,,

Further, the forced sexual union is most painful and

hampers the development of wife's personality. It has been
rightly pointed outs

"Nothing can conceivably be more degrading to human

dignity and monstrous to human spirit then to subject a person
CO
by the long arm of the law to a positive sex act."w,t

The sexual intercourse involves not only the activities

of the bodies but participation of mind also. The researches
of Dr. George Solomon of University of California reveals that
"mind and body are inseparable and that "the brain influences
all sorts of psychological processes that were once though not
to be centrally regulated". Thus, the coercive act of the

82 I bid . p„
 412

state,, leading to cohabitation and sexual intercourse against

the wishes of the parties,, must be regarded as a great
constraint and torture imposed on the. mind of the unwilling
spouse. Thus, it has been rightly pointed outs

The life of a man and woman which the

sovereign can commanderer 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 spiritual ity"

Thus, the execution of the decree has graver implications

for the wife. The act of forced sex is not less potent then an
act of consensual sex in producing pregnancy and procreating
offspring. Thus, the execution of the decree makes serious
inroads into the right to privacy, Further the decree does not
serve any direct or remote state interest, The physically and
mentally separated spouses can't be united by the decree of
the court the marital union can neither be preserved nor
prolonged simply by passing the decree of court. The decree
can't heal the wounds of the spouses. Thus, the decree is
violative of rights to privacy enshrined in Article 21 of the
Con s t i t u t i on .

VI RESTITUTION OF CONJUGAL RIGHTS AND RIGHT TO FREEDOMS

(ARTICLE 19)

The decree is also violative of three freedoms which are

guaranteed under Article 19 (1) of the Constitution, These are
(i) Freedom of Association (ii) Freedom to reside and settle
in any part of India, and (ixi) Freedom to practice any

S3 Ibid
 413

pro tessi on.

Art i c: 1 e 19 (.1.) ( C ) de dares that a 11 c i tisens shall i- iave

the f re adorn- to form asso ciations or unions . The freedom to

BSt c\ i3 1 1 »;> h 35501c i. a tion s a 1 so implies ti_le neg a t i vb r ight of not

.j o i n i n g assoc iat ions or unions„ But i t .1 s doub>: ful if the
neg v Cv? right of not join ing an assoc:: iat ion or un ion can a; 1 SO
t
P ji­
be regarded as a fundamental right,,

The right to form association implies that individuals

v u 1 un t a r x 1 y assoc iates fjith each O t hier. ut the decree for
rest!tution impos e s f o r c e d u n i o n n a t w i t h s t at n d x n g the fact
t h <31 m a t r x monia 1 laws of the Hind!us, Muslims, Chri stians and
Parsis allows dissolution of marital ties. The per sonal laws
of all communities abhor forced union,, Thus,, the remedy is
violative of the freedom provided under Article 19 (1} (c ) „

Further, Freedom of Residence is guaranteed under Article

19(1) (e) of the Constitution,, This freedom is violated if the
spouses desire to settle at different places. After marriage
the freedom is abrogated by implication and the spouses are
not free to settle at different places. If one sjDOU.se
unreasonably insists to reside at a place,, the other spouse is
entitled to a decree for Restitution of Conjugal Rights. Thus,
the decree violates the freedom guaranteed under Article
19(1)(E). These is no case law on this point.

Article 19(1)(g) of the Constitution guarantees to all

citizens, the freedom to practise any profession or to carry
on any occupation, trade or business,. Under Hindu Law, if the

Tika Ram j i v. State of U.P, AIR 1956 SC,

 414

husband and wife are posted at different places and the wife
refuses to resign at the instance of the husband, this amounts
to withdrawal from the society without reasonable cause. The
absolute right of the husband to determine the locus of
matrimonial home has been recognised by decisions of some High
R5
Court-"" While other high courts have taken the progressive
view and held that a husband is not entitled to restitution of
conjugal rights if the wife refuses to resign the job when
posted away from matrimonial home. 86

No case relating to this aspect is reported under the

Muslim, Christian and Pars! Laws,. In the modern age, a wife
has ceased to be an appendage of the husband, She has every
right to undertake a job if the financial exigencies demand
so- To coerce her to resign the job is not in the interest of
the spouses, children and the family. Thus a decree for
restitution which deprives a person of the freedom of trade
and occupation, is violative of Article 19(1)(G) of the
Constitution,

VII RESTITUTION OF CONJUGAL RIGHTS AND RIGHT AGAINST

EXPLOITATION (ARTICLE 23)

Article 23 of the Constitution prohibits "Traffic in

human beings”, and 'beggar' and other similar forms of forced

S5« Tirath Kaur v. Kirpal Singh, AIR 1964 Pun, 28

Gaya v. Bhagwati, AIR 1966 MP’212.
Kai lashwati v. Ayodhya Park ash, AIR 1977 PLR 2.1.6,

86. Bhanti v = Ramesh, 197.1 ALJ 67,

Parvsen Ben v. Suresh, AIR 1975 Suj„ 69.
N.R. Radha Krishnan v. Dhanlakshmi, AIR .1975 Mad,
Mi re hu Mai v, Devi Bai, AIR .1.977 Raj, 113.
Swaraj Garg v. K.M. Garg, AIR 1978 .Delhi 296,
 415

labour. The contravention of this provision is punishable in

a c. c a r d a n c e w .11 h 1 a w«

The wife being in disadvantageous position;, is adversely

affected by the decree for Restitution of Conjugal Rights™ Law
can't enforce a contract of personal service. But through the
decree for restitution,, the wife can be subject to sexual
intercourse against her wishes. In such situation she is not
better than a slave.

By compliance of the decree a wife may also be compelled

to undertake the household obligations of the family. This is
a kind of forced labour and is included in the expression
"other similar forms of forced labour" embodied under Article
23(1) of the Constitution. Thus, by enforcement of the decree,
a wife may be asked to do beggar and her body may be made a
vehicle for enjoyment of the husband only without her consent
and even on protest if the relations are not normal. Such
exploitation of the wife is inhuman and disgraceful„

The law is subject to change and it must satisfy the

needs of the society. But the human beings are to initiate the
change. The need for change has been accepted even by the Holy
Quran. It has been rightly saids "surely Allah does not change
the condition of the people untill they change their own
ay
condition»

The court of civilised countries are gradually

recognising the need of change. The generally accepted rule of
interpretations that a statute must be interpreted as at the

87 Holy Quran II
 416

date of its enactment, has been modified in view of the fact

that ordinar j words,, i.e. 'family', or 'child' must be
On
interpreted a ::cording to changing social attitude and norms.

VIII APPRAISAL

The Co nsti tt t i on o f I n d .1 a i s the' supr erne 1 aw of the 1 and „

The2 acts,, L aws, ( erd in a H C e s etc p a ssed by 1 eg is 1 a ture mus t not

cor 11 raven© any jDrovi S .1 O n of t he C on s t i tut ion . Th e impor 1 a n c e
..

o f right to 1 if© and per c:. on a 1 1 i be rty has n o t on 1 y been prime

f a c,. i 0 0 S1 t7:\ b 1 is he(::l but i t I’ J a S a 1 so rece i ved a spec ial emp h as is
by the Co nsti ttj t ion i t self. by prov id in g that this r ight
c a rmot be SUSpf;nded ev n dur i n g emer gene V <i The remedy for
restitution of conjugal rights can be invoked by the spouses
law, there is no harm if the provisions Constitution are
invoked to examine the validity of the decree,,

The remedy is generally used by the husband to coerce the

wife. As these is inequality of treatment and the use of the
remedy,, it is violative of Article 14 of the Constitution. The
right to privacy is also recognised as an important right by
judi c: i a J. d ec i s ions T he r ight t O privacy ;l. gua ran teed to bo .f..t.t..! 1
*
the spouses and c a n .L
L. b e t a k eTi a w a y b yf mar i**" i a ge„ A wif i'”i
.1 S
a 1 so en tit1ed to a cl ign i f i ed a nd hi on ou r a Li 10 1 i f 0 = The d<ec r ee
.... ....
..G
l Of- Res tituti on 0f Con j ugal R ig hts mak 0 S i n r oad s i n 10 t he
ri ght t0 pri v a c ’y- -i- hus
K.. v .101 a t. i v s 0 "f Ar t i c l 0 21 of t h0
i Jon s t i tu tion . ThiS O bss r vation s of Rolvt angi J „ n H arv ind er .J..

e: a s 0 89 that the dec ree for Re st itution of C on j uga 1 R.i g h t s

SB. See Dyson's. Holdings Ltd. v. Cox (1976) Q.B. o03 C.A„
Minister of Home Affairs v. Fischer (1980), A„C. 319 (P„C„)

99. AIR 1984 Delhi 66.

 41?

should not be examined in the perspective of principles of

Constitutional], law, are not convincing.

C?f)
The Supreme Court in Saroj Rani v= Budershan Kumar'",
up held the va I id it y of Section 9 of th o Hindu Marri age Act. 11
is submitt ed tha t c ase was r e I at ed to divorce where the
hu sband wan ted to iB \B R d i v o r c e c n t he gr ound of nor ■-compi xa nee
of restitut i on dec ree passH'cf by mu t ual c on sent, of t he parti S3 „
Th s Supreme Cour t held that j{ as he consen t decree for
Re stitution c f lJon jug a 1 i. h b s was n c t of collu&i ve natu re,
th e husband W -G s en titl d i"0 S89 Is d i vor C jtj under Sect ion 1.3 < l-
A) 3. Pi 3 fit* Gf of n on — comp 1 lance fo r a per i o d of one ye ar or mo re«

The Supreme court was not bound to pass judgment

gardin g t he Cos isti tu t i on a .1. v a 1 i. .dit y of S ection 9 .1 n set of
C .1 rcuinsta nee s The mat ter could rlot b G? G? X <*» mined an d ana1ysed
in all r aspect s before the honoursI b 1 e c ou r t . It is & j udgment
su bsi1en t i on, not fully argued anc3 ne eds th rough e X -:A mi nation ..
Th e v a 11 d .11 y o f Section 9 of the f■fC t was no 'fc C |“i V ci 3 d in the
CO urts b e 1 ow.. The props r procedure? r‘3’ quired under 1 aw was a1so
no t obse rved. Before deciding the que st ion o f v ci I ..i cl i *t y, notice
wa s not served to the Union of 1'ri d x a or th e Attorn ey S? n (B V" ct 1

of I n d i a . Thus , the ju dgment was giv en wit hout any j udicious

an a I y s .1. s . The whole as peci needs re- cons.id eration i n view of
ch anging circu instances..

The d i g n ity, hono ur and the f re edoms o f t he in dividuals

ar e recognised and resp■ected in tfie c ivi1is ed socle tv
•" thus, ws t

do not find a ny justif i cart ion to ret a i n t h e remedy which is

vi olat.lv e of- right to equality. rig ht to privacy and human

AIR .1984 SC ,1.562

 418

and rig ht to freedoms. The legislature is supposed to

the oc:c fission to modify laws according to the needs of