ABSTRACT

In this present paper, I seek to address the legal dilemma which arises during the course of
executing a decree for restitution of conjugal rights under the code of civil procedure 1908,
more specifically which relates to the newly filed challenge against the constitutionality
validity of the restitution of conjugal rights.

Firstly the concept of restitution of conjugal rights under the Hindu marriage act shall be
examined. Its scope and true nature shall be brought to light and focussed upon especially in
light of the case of Susheela Bai vs. Prem Narayan, AIR 1986 MP 225 (India). Section 9 of
the in the Hindu marriage act which forms the part of examination vis-a-vis the code of civil
procedure 1908, shall be brought into light for it is a very aspect which forms the research
question in light of the newly filed challenge to the constitutional validity of section 9 of the
Hindu marriage act, section 22 of the special marriage act, Order XXI Rule 32 and rule 33 of
the code of civil procedure 1908. I shall also be examining various cases to conduct a
thorough analysis of this entire issue and decrypt the answers to the research question which I
have proposed. I shall during the course of my analysis also be conducting a literature review
in order to understand how this entire issue has developed from grassroots to this stage.

INTRODUCTION

In the Hinduism religion, marriage is considered as sacrosanct and a holy union, one that
should never be violated under any circumstances whatsoever. It is a sacrament, religious in
nature, which binds a prospective husband and a prospective wife together in a holy
matrimony for life as well as for the coming seven generations. Despite multiple attempts to
identify a marriage performed via Hindu rites and rituals as a social contract between a
husband and a wife, it has remained holy and sacred.

In the case of Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, (1901) ILR 28 Cal 751,
(India), decided by the Calcutta High Court on 28th of March 1901, the court in very clear and
precise terms opined that a marriage that came to be performed under the Hindu law was
sacred in nature. The precise terms used by the court were, “The Hindu Law upon this subject
still retain its archaic character. Marriage in that law is not merely a contract but also a
sacrament, and the rights and duties of the married parties, are determined solely by the law,
and are incapable of being varied by their agreement. As Manu emphatically declares neither
by sale nor desertion, can a wife be released from her husband.”

Now what exactly is conjugal rights? These are rights that have the source in the marital
bonds which are formed between a prospective husband and a prospective wife after they join
in holy matrimony by performing rituals. These rights are given the name of conjugal rights
and are the very basis/platform upon which a marriage performed vide Hindu laws is based
on. The term “restitution of conjugal rights”, therefore, simply means the right of a husband
or wife of staying together with each other. However if this accepted norm of husband and
wife staying together with each other is violated without any reasonable cause or expression
by either husband and wife, the latter has been given the power under section 9 of the Hindu
marriage act to approach the court seeking “restitution of conjugal right”. Section 9 states that
when either the husband or the wife without providing any kind of justifiable excuse or
reason stops living with the other spousal partner, the party who is aggrieved can move the
District Court for the restitution of conjugal rights bestowed upon the couple. The court, upon
deeming itself to be satisfied of the averments made in the plaint, and upon examining any
and all objections and resolving them shall grant the restitution of conjugal rights to the
aggrieved party by a decree in its favour.

The second part of this paper is the execution of the decree which is awarded to the decree
holder vide an application under Order 21 Rule 32 and the results of non-compliance under
Rule 33 of the code of civil procedure 1908. The said rule under Order XXI Rule 32 is with
respect to carrying out an execution of the decree for one of three things, a) specific
performance, b) restitution of conjugal rights and c) for injunction.

Order XXI Rule 32 of the code of civil procedure 1908 states “Where the party against whom
a decree for the specific performance of a contract, or for restitution of conjugal rights or for
an injunction, stay has been passed, has had an opportunity of obeying the decree and if he
has wilfully failed to obey it, the decree may be enforced, in the case of a decree for
restitution of conjugal rights.”

Vide this Order XXI Rule 32, an aggrieved party against whom such an act of separation has
been carried out by the spousal partner in the aggrieved party having obtained the decree in
his or her favour can approach the court for execution of this said decree.
Vide Order XXI Rule 32 & Rule 33 of the code of civil procedure 1908, if the husband does
not comply with the decree for restitution of conjugal rights within a fixed time duration
provided by the Honourable Court, the judgement debtor aka the husband shall be asked to
make payments periodically to the decree holder. The Honourable Court may also from time
to time, increase or decrease the sum of money that is to be paid periodically to the decree
holder or temporarily suspend this periodical payment of money or pass any other order in
the interest of justice, equity and fair play.

RESEARCH PROBLEM

The research problem is the constitutional validity to Order XXI Rule 32 & Rule 33 of Code
of Civil Procedure 1908. The research problem which is the challenge the constitutional
validity to Order XXI Rule 32 & Rule 33 of Code of Civil Procedure 1908 has been brought
into existence on account of the Supreme Court’s latest and most recent judgements on the
issues of privacy rights, the criminalisation of section 377 of the Indian Penal Code as well as
adultery.

RESEARCH OBJECTIVE

The research objective is to carry out an analysis of the challenge to constitutional validity to
Order XXI Rule 32 & Rule 33 of the code of civil procedure 1908.

RESEARCH QUESTION

The question which are formulated for research is whether the present framework which is
accessible to an aggrieved party seeking execution of a decree of restitution of conjugal rights
vide Order XXI Rule 32 & Rule 33 of the Code of Civil Procedure are violative of the
opposite party’s privacy rights, her autonomy as well as the dignity of the opposite party’s
which is guaranteed to every person under Article 21 of the Constitution of India?

HYPOTHESIS
The hypothesis which is sought to be propounded here is that the present framework and laws
which are accessible to an aggrieved party seeking execution of a decree of restitution of
conjugal rights vide Order XXI Rule 32 & Rule 33 of the Code of Civil Procedure 1908 are
violative of the opposite spousal partner privacy rights, her autonomy as well as the dignity of
the opposite spousal partner which is guaranteed to every person under Article 21 of the
Constitution of India.

RESEARCH METHODOLOGY

The research methodology that has been used in preparing this project is quantitative. Cases
from the year of 1901 have been analysed to formulate the approach to conducting a thorough
analysis towards the issue of restoration of conjugal rights through the eyes of the code of
civil procedure 1908 has been used to state facts. I’ve also relied towards conducting a
literature review in this aspect in order to further understand how the concept of restitution of
conjugal rights has firstly reason. I have also taken the help of reading through, analysing the
Ratio Decidendi and the Obiter Dicta of all the cases that I have mentioned in this present
paper. Further, going through the judgements given in the mentioned cases that have relied
upon in this present paper, as well as upon perusal of the news reports of the new cases that
are being filed in this domain have enabled me to formulate my research question as well as
the hypothesis developed by me which have led me to, in return, complete my research
objective.

LITERATURE REVIEW

In the case of T. Sareetha vs. T. Venkata Subbaiah, AIR 1983 AP 356 (India), it came to be
held by the Honourable High Court of Andhra Pradesh that section 9 of the Hindu marriage
act was null and void and violative of article 14 & 21 of the Constitution of India. He further
held that personal liberty, dignity as well as privacy of an individual shall be violated and by
enforcing a decree by execution for restitution of conjugal rights, the life which has been led
by the wife shall be changing materially and drastically whereas the life which has been led
by the husband shall be more or less remaining unaffected. This is primarily on account of
the part that it is the wife who delivers a child and raise it further on. By allowing an
execution of this decree of restitution of conjugal rights, it becomes partial as it becomes
more favourable for the husband rather than the wife and the objective of the law of
providing equal protection for all individuals becomes fruitless. Therefore, personally
opining, I can state that since section 9 itself has been held as null and void by the
Honourable High Court of Andhra Pradesh, the applicability of Order XXI Rule 32 & Rule
33 of the Code of Civil Procedure 1908 does not arise at all in this case. Although, this case
deals specifically with the concerns of the wife rather than the husband (for it deems that
restitution of conjugal rights is more favourable for a husband thereby making it a partial
law), the non-applicability of Order XXI Rule 32 & Rule 33 of the Code of Civil Procedure
1908 would still present and be further affected by section 9 being rendered null and void.

Dissenting from the opinion of the Honourable High Court of Andhra Pradesh in the case of
T. Sareetha vs. T. Venkata Subbaiah (supra), the Honourable High Court of Delhi, in the case
of Harvinder Kaur v. Harmander Singh Choudhary, 1984 Del 66 (India), held that section 9
of the Hindu marriage act is not null and void as was held by the Honourable High Court of
Andhra Pradesh in the case of T. Sareetha vs. T. Venkata Subbaiah (supra). Justice Rohtagi
went on to further hold that the view taken by the Honourable High Court of Andhra Pradesh
was only on account of a failure to understand the true nature of the remedy of restitution of
conjugal rights. Justice Rohtagi observed that while under section 9, the district court can
pass a decree for restitution of conjugal rights, it cannot force the wife for sexual intercourse
but rather the two nature of the remedy is only to enforce the aspect of cohabitation. He
further went on to observe that the idea behind section 9 was towards the successful
preservation of a marriage which is considered sacred under the Hindu law. It is aimed at
entirely a reconciliation attempt between the husband and the wife. The court thereafter took
the view that holding section 9 as being null and void and therefore unconstitutional without
taking into consideration section 13(1-A)(ii) of the Hindu marriage act is a very narrow view
and one that is not at all acceptable. Therefore, section 9 of the Hindu marriage act was held
to be valid and constitutional. In my personal opinion, Order XXI Rule 32 & Rule 33 of the
Code of Civil Procedure 1908 becomes applicable in this present case on account of the fact
that section 9 if deemed legal and constitutional automatically attracts Order XXI Rule 32 &
Rule 33 of the Code of Civil Procedure 1908 for execution of a decree passed in favour of the
decree holder for restitution of conjugal rights. If put across in more finer words, Order XXI
Rule 32 & Rule 33 of the Code of Civil Procedure 1908 flows from section 9 itself. If section
9 is the sea, Order XXI Rule 32 & Rule 33 of the Code of Civil Procedure 1908 is the river
and as such is reliant upon section 9 itself for its existence. The execution of a decree under
Order XXI Rule 32 & Rule 33 of the Code of Civil Procedure 1908 will be rendered null,
void and infructuous if section 9 itself is held to be unconstitutional.

Following the path of the opinion of the Honourable High Court of Delhi in the matter of
Harvinder Kaur v. Harmander Singh Choudhary (supra), the Honourable Supreme Court in
the case of Saroj Rani vs Sudarshan Kumar Chadha, 1985 SCR (1) 303 (India), raised the
following issues which are related to the research objective being examined by me:-

a) Whether article 13, 14 and 21 of the Constitution of India are violated on account of
section 9 of the in the marriage act?
b) Whether Order XXI Rule 32 of the Code of Civil Procedure 1908 is in contradiction
to section 9 of the Hindu Marriage Act?

The Honourable Supreme Court relied upon the case of Harvinder Kaur v. Harmander Singh
Choudhary (supra) and went on to uphold the view that article 14 and 21 of the Constitution
of India are not violated by section 9 of the Hindu marriage act as section 9 is designed and
developed to bring about peaceful cohabitation between the estranged husband and wife. It
went on to further hold that section 9 is not limited to solely the sexual nature of relationship
between the husband and wife and/or any intention of cohabitation, it is intended to bring
about an atmosphere of compromise and/or mutual understanding in order to ensure that their
matrimonial life is in a state of bliss and happiness rather than a constant state of fighting.

On the second issue of whether Order XXI Rule 32 of the Code of Civil Procedure 1908 is in
contradiction to section 9 of the Hindu Marriage Act, the court observed that Order XXI Rule
32 of the Code of Civil Procedure 1908 is for the enforcement of decree of restitution of
conjugal rights and if the same is not complied with by the judgement debtor, financial
implication may be imposed to enforce the same. Such financial implications may come in
the nature of attachment of property or any other manner in which the court deems it fit.
Since this element is not at all contemplated within the meaning and scope of section 9 of the
Hindu marriage act, Order XXI Rule 32 of the Code of Civil Procedure 1908 is not in
contradiction to section 9 of the in the marriage act.

However, in the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SCC 1
(India), the Honourable Supreme Court of India held that the right of privacy which is
bestowed upon an individual on account of the Constitution of India also grants individuals
complete sovereign control over the own bodies. On a personal note, this observation by the
Honourable Supreme Court of India has very far-reaching implications and effects for it
comes into direct clash the very holdings and opinions of the Honourable Supreme Court of
India in the case of Saroj Rani vs Sudarshan Kumar Chadha (supra).

PERSONAL OPINION

The research question that is sought to be analysed and answered in this paper is whether the
present framework which is accessible to an aggrieved party seeking execution of a decree of
restitution of conjugal rights vide Order XXI Rule 32 & Rule 33 of the Code of Civil
Procedure 1908 are violative of the opposite party’s privacy rights, her autonomy as well as
the dignity of the opposite party’s which is guaranteed to every person under Article 21 of the
Constitution of India

It is my personal opinion that the Honourable Supreme Court as well as the various
Honourable High Courts all over India fail to realise when passing judgements in various
cases in detaining either an application for restitution of conjugal rights under section 9 of the
Hindu marriage act or for execution of a decree for constitution of conjugal rights under
Order XXI Rule 32 & Rule 33 of the Code of Civil Procedure 1908, which follow the line
and approach adopted by the Honourable Supreme Court in Harvinder Kaur v. Harmander
Singh Choudhary (supra), that marital rape is a very real threat that is present all over India in
various households. As such, the wife has no other option but to go for a long run of divorce
proceeding which is based on either the ground of domestic violence or cruelty and either one
of these does not have any far-reaching effects on the husband. By entertaining an application
for execution of decree for the solution of conjugal rights under Order XXI Rule 32 & Rule
33 of the Code of Civil Procedure 1908, the courts essentially strip away any protection be
bestowed upon the wife under article 14 and 21 of the Constitution of India for they go
beyond the scope of the remedy of its vision of conjugal rights that is the only enforce
cohabitation and rather foray into the domain of consortium as well which is not permissible
as per article 14 and 21 of the Constitution of India as well as on account of the holdings of
the Honourable Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) vs. Union of
India (supra). The court does not have, under any circumstance, the power to force
consortium under the guise of enforcing a decree for restitution of conjugal rights under
Order XXI Rule 32 & Rule 33 of the Code of Civil Procedure 1908. It cannot dictate an
individual’s decision on whom to reside with. The remedy of enforcing a decree for
restitution of conjugal rights under Order XXI Rule 32 & Rule 33 of the Code of Civil
Procedure 1908 by way of an execution application only becomes a tool for forcing
consortium upon unwilling wife and against their own decision, desire and will. In certain
drastic scenarios, this can even prove to be a threat to the unwilling wife and as such this
reality needs to be incorporated by the courts at the time of entertaining year an application
under section 9 of the in the marriage act or at the time of entertaining an execution
application for enforcing a decree for restitution of conjugal rights under Order XXI Rule 32
& Rule 33 of the Code of Civil Procedure 1908.

As such, the present framework which is accessible to an aggrieved party seeking execution
of a decree of restitution of conjugal rights vide Order XXI Rule 32 & Rule 33 of the Code of
Civil Procedure 1908 are violative of the opposite party’s privacy rights, her autonomy as
well as the dignity of the opposite party’s which is guaranteed to every person under Article
21 of the Constitution of India

CONCLUSION

The positive aspect to this is that it is being increasingly recognised that under the garb and
guise of preserving family values and the sacredness of a marriage between the husband and
wife, it is the duty on part of the law to ensure that no fundamental rights that are bestowed
upon an individual are violated under any circumstance. The concept of restitution of
conjugal rights is an aspect that has been demolished in many countries and set aside. It is
only high time that India to follow suit and removes this concept for it is detrimental to the
very fundamental rights bestowed upon the citizens of this country.

The research question therefore accordingly stands answered and the hypothesis also proved
in the positive.

CITATIONS

1. Susheela Bai vs. Prem Narayan, AIR 1986 MP 225 (India)

2. Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, (1901) ILR 28 Cal 751, (India)
3. T. Sareetha vs. T. Venkata Subbaiah, AIR 1983 AP 356 (India)
4. Harvinder Kaur v. Harmander Singh Choudhary, 1984 Del 66 (India)
5. Saroj Rani vs Sudarshan Kumar Chadha, 1985 SCR (1) 303 (India)
6. Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SCC 1 (India)