Harvinder Kaur v. Harmander Singh Choudhry

A wife appealed against a decree of restitution of conjugal rights (a court order to resume married life) and attacked Section 9 of the Hindu Marriage Act, 1955 as unconstitutional. Justice Rohatgi of the Delhi High Court dissented from the Andhra Pradesh decision in T. Sareetha. He upheld Section 9 and dismissed the appeal on the facts.

Quick Revision

Parties

• Harvinder Kaur — appellant; the wife. She appealed against the decree of restitution and challenged Section 9.
• Harminder Singh Chaudhary — respondent; the husband. He obtained the decree from the Additional District Judge. The judgment spells his name Harmander Singh Choudhry in the heading.
• Attorney-General of India — appeared on notice from the Court. He argued in defence of Section 9. The judgment does not give his name.

Procedural History

1. The husband petitioned for restitution of conjugal rights under Section 9 on 14 February 1979 (para 76).
2. Additional District Judge: he granted the husband a decree of restitution of conjugal rights. He disbelieved the wife and her witnesses and found no reasonable cause for her withdrawal. The decree is dated 20 April 1981 (paras 1, 78 and 92; the date is in the closing order after para 92).
3. Delhi High Court: the wife appealed. Her counsel attacked the constitutional validity of Section 9. The Court issued notice to the Attorney-General, who appeared and argued (para 2).
4. Delhi High Court judgment of 15 November 1983: the constitutional question is decided first (paras 3-75). The facts of the appeal are decided next (paras 76-92). The appeal was dismissed and the trial decree affirmed (para 92).

Facts

1. The appellant, Harvinder Kaur, married the respondent, Harminder Singh Chaudhary, on 10 October 1976 (para 76).
2. Both are working people. The wife was employed in Indian PetroChemical Limited. Her salary was Rs. 600 at the time of the marriage (para 76).
3. The husband works as a traffic manager in Sita Travels. His salary at the time of the judgment was about Rs. 2000 per month (para 76).
4. A son was born to them on 14 July 1978 (para 76).
5. The husband said the wife left the matrimonial home in May 1978. The wife said the husband turned her out on 19 January 1978 (paras 76 and 78).
6. The husband filed his petition under Section 9 of the Hindu Marriage Act on 14 February 1979 (para 76).
7. The wife filed a written statement listing her grievances. She said the husband and his mother ill-treated her. She said she would join the husband if he set up an independent residence (paras 77-78).
8. The wife alleged that on the first day of marriage her mother-in-law rebuked her for going to a fete with her husband and his relatives (para 79).
9. She alleged that she was asked, within two or three days of the marriage, to bring cash memos for the furniture given in marriage. She said the aim was to resell it (para 80).
10. She alleged that her mother-in-law took her entire salary and gave her only Rs. 50 per month. She spent Rs. 40 of it on transport (para 81).
11. She alleged that she had to cook all meals and do household work, including dusting (para 82).
12. She alleged that the husband gave her no timely medical help on three occasions when she bled. The first was a month after marriage, the second in March 1977 and the third in December 1977 (paras 83-84).
13. She alleged that the husband wanted to grab her plot in the Kohat Cooperative Society, said to be allotted on 9 February 1979. She said the petition was filed to get it (para 85).
14. She alleged that she was asked to bring old clothes from her mother's house to humiliate her (para 86).
15. The husband examined himself and his parents to rebut her case. The wife examined a number of witnesses (para 78).
16. The wife said she was ready to live with the husband, but not in the same house as his parents (para 88).
17. The wife admitted normal sexual relations with her husband until January 1978 (para 90).

Issues Raised

1. Is Section 9 of the Hindu Marriage Act, 1955 void because it violates Article 21 of the Constitution, as T. Sareetha held? (paras 3-4)
2. Does a decree of restitution of conjugal rights compel sexual intercourse, or does it enforce only cohabitation? (paras 6-12)
3. Is Section 9 void because it violates Article 14, since suits for restitution by wives are said to be rare? (para 33)
4. Is constitutional law suited to the home and to married life? (paras 34-38)
5. Did the wife prove a reasonable excuse for withdrawing from the husband's society? (paras 76-92)
6. Can a wife refuse to rejoin her husband until he sets up an independent residence? (paras 88-89)

Arguments Contended

For the appellant (the wife)

• Section 9 of the Hindu Marriage Act is constitutionally invalid. Counsel referred first to T. Sareetha v. T. Venkata Subbaiah (paras 2-3).
• Counsel relied on the reasoning of T. Sareetha. The judgment records that reasoning as the holding of Chaudhary J. and does not set out separate points by counsel (paras 3-4, 6).
• That reasoning called the remedy barbarous, uncivilised and an engine of oppression that forces the unwilling party to have sex against consent. It said this offends Articles 14 and 21 and the right to privacy (paras 4 and 6).
• That reasoning also said a restitution suit by a wife is rare, which makes the remedy unequal under Article 14 (para 33).
• On the facts, the wife pleaded ill-treatment by her husband and mother-in-law. Her complaints are listed in paras 79-86. She said she was turned out of the house on 19 January 1978 (para 78).
• She said she would join the husband if he set up an independent house to live in. Counsel relied on Bhagat Ram v. Smt. Santosh Kumari, 1981 PLR 46, to say this is a good excuse until the husband does so (paras 77, 88-89).

For the respondent (the husband)

• The wife left the matrimonial home in May 1978 and withdrew from his society without reasonable excuse (paras 76 and 87).
• The husband and his parents denied the wife's complaints. His mother's evidence was that the wife left the home of her own accord and not because of ill-treatment (paras 78 and 88).
• The judgment records no argument by the husband's counsel on the constitutional question.

For the Union (the Attorney-General, on notice)

• Marriage under Hindu law is a samsara (sacrament) and a holy union. Divorce was unknown to Hindu law before statute. He referred to Sawarjya Lakshnmi v. Dr. G.G. pad Rao and Devuloalli wara Sastri v. Polavarapu (para 39).
• The social effects of T. Sareetha are far-reaching. If it prevails, it will undermine the foundations of social organisation. He protested against the view that mere commerce between the sexes is itself marriage (para 40).
• Marriage is voluntary and consensual. The court will compel parties living apart without sufficient reason to live together again. Cohabitation is an essential term of the marriage contract (para 43).
• Section 9 is based on reason and not on brute force. The husband cannot shut up the wife in one room or take her by force. The court may refuse a decree where it is unjust or inequitable (para 44).
• Constitutionality is judged by the generality of cases a law covers and not by freak instances. He relied on R.S. Joshi v. Ajit Mills and Tamil Nadu Education Dcptt. v. State of Tamil Nadu (para 45).
• Section 9 is just, fair and reasonable under the Maneka Gandhi standard. The court decides on the facts of each case and so guards the body, mind and marital privacy of the wife. It is in the State's interest that family life is maintained (para 46).

Court's Reasoning

Opinion of Avadh Behari Rohatgi J. (the only opinion)

A. The appeal and the constitutional question

1. Noted: the appeal raises an issue of great importance, as it goes to the root of the marriage relationship. The husband petitioned for restitution. The Additional District Judge granted the decree. The wife appealed (para 1).
2. Noted: counsel for the wife attacked the constitutional validity of Section 9. The Court issued notice to the Attorney-General, who appeared and argued. The first part of the judgment deals with the constitutional question, and the rest with the facts (para 2).

B. T. Sareetha and its reasoning

1. Noted: counsel referred first to T. Sareetha v. T. Venkata Subbaiah. Chaudhary J. held that Section 9 offends Articles 14 and 21 and is null and void. It was a case on the jurisdiction of Cuddapah Court. The Subordinate Judge held the court had jurisdiction. The High Court agreed (para 3).
2. Noted: the chief point decided was the validity of Section 9. The judge called the remedy barbarous, uncivilised and an engine of oppression. He said it coerces through judicial process the unwilling party to have sex against consent. He said it degrades human dignity. He said British Indian courts thoughtlessly imported the rule (para 4).
3. Held: in the Court's opinion, this view rests on a misconception of the true nature of the remedy. The Court then set out the text of Section 9 and its Explanation (para 5).
4. Noted: Chaudhary J. thought Section 9 imposes sexual cohabitation between unwilling partners. He called it forced sex. He said it destroys sexual autonomy and reproductive autonomy. He said a wife who keeps away cannot be forced to bear her husband's child. He cited many English and American decisions (para 6).

C. Cohabitation and consortium, not sexual intercourse

1. Held: this was the first decision to take that view, and the Court respectfully dissented. A decree of restitution does nothing of the kind. It orders the respondent to return to the aggrieved party within one year, the period in Section 13(1-A)(ii). The remedy aims at preserving the marriage, not disrupting it. Tolstoy, Halsbury and Jackson v. Jackson say the court cannot enforce sexual intercourse, only cohabitation. The Court also noted that Lord Stowell in Forster v. Forster, Orme v. Orme and Rowe v. Rowe are cited for this (para 7).
2. Held: the court does not and cannot enforce sexual intercourse. Sexual relations are an almost important attribute of marriage. They do not make up its whole content. The remaining aspects of consortium are not trivial. The Court noted Shelford's description of marriage, quoted in Weatherley v. Weatherley (para 8).
3. Held: the object of the decree is to bring the estranged parties together in the matrimonial home. Noted: the Court quoted Evans v. Evans, Thomas v. Thomas and Wheatley v. Wheatley. They define cohabitation as living as husband and wife with each rendering services to the other. Sexual intercourse is strong evidence of cohabitation. Its absence does not mean there is no cohabitation. The Court said the decree does not compel intercourse by force of arms (para 9).
4. Noted: consortium (the companionship of husband and wife) includes companionship, love, affection, comfort, mutual services and sexual intercourse. The Court quoted Selby J. in Crabtree v. Crabtree (No. 2) on its fullest sense (para 10).
5. Held: sexual intercourse is one element of marriage but is not the summum bonum (the highest good). Over-emphasis on sex is the fundamental fallacy in Chaudhary J.'s reasoning. Noted: Sir Henry Duke in Jackson v. Jackson said refusal of intercourse alone, while parties live together and discharge other duties, is neither desertion (leaving the other spouse without cause) nor living apart (para 11).
6. Held: the remedy aims at cohabitation and consortium and not merely at sexual intercourse. A simple illustration proves this. A wife who lives under the same roof but refuses intercourse will get no restitution decree. The Court said it has neither the means nor the capacity to enforce its decree in the marriage bed. It is undesirable, unless a statute requires it, to reveal the secret intimacies of the marriage bed. Consummation is the exception. In a Section 9 petition the Court only asks whether a reasonable excuse exists. The burden of proof (the duty to prove a point) lies on the wife. The Court held it a fallacy that restitution is the starkest form of governmental invasion of marital privacy. A spouse is entitled to the other's society, and nothing is wrong if the law enforces this conjugal duty (para 12).

D. Purpose of Section 9 and the breakdown theory

1. Held: the leading idea of Section 9 is to preserve the marriage. The Court said: "Section 9 is a means of saving the marriage." The inquiry is confined to one fact: is there a just cause to live apart? Section 9 extends Section 23(2) and (3), which encourage reconciliation. If the parties live together in the ordinary way, there is no need to resort to Section 9. The Act's policy is that the parties should live together and that marriages not reduced to a mere shell should be maintained. Section 9 can properly be invoked where cohabitation has completely ceased. Parties are treated as living apart unless they live in the same matrimonial home (para 13).
2. Noted: a marriage may continue in name only while its duties have long ceased. The policy is that the public interest does not favour keeping spouses bound in this way. Such a marriage leads to immorality and unhappiness (para 14).
3. Noted: Salmond J. in Lodder v. Lodder (New Zealand, 1921) stated the breakdown principle. The Court quoted it from the Law Commission's Seventy-First Report. Three years' separation is prima facie a good ground for divorce. The Court said living apart and cohabitation are mutually exclusive. It added that if a restitution decree is not obeyed for one year, that is the best evidence of breakdown (paras 15-16).
4. Held: irretrievable breakdown (a marriage that cannot be repaired) underlies Section 13(1-A)(ii). Parliament introduced it in part by Amending Act 44 of 1964. England adopted it by the Divorce Law Reforms Act 1969 and the Matrimonial Act of 1973. The Law Commission recommended it in the Seventy-First Report of 1978. The one-year gap is a cooling-off period (a wait for parties to rethink) that is desirable and essential (para 16).
5. Held: the restitution decree works as a litmus paper. If it is obeyed, there is a change of heart. If it is not, the parties have reached a stage of no return. The Act's object is to facilitate reconciliation (para 17).
6. Held: authority over 150 years in England, and in India before and after the Act, gives no warrant for the meaning Chaudhary J. assigned. The Privy Council in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum applied the English remedy in India in 1866. The legislature codified it in 1955 (para 18).
7. Held: the Court could not agree with Chaudhary J.'s dicta on forced sexual cohabitation and invasion of privacy. The cases he cited do not prove them. Jackson v. Jackson, approved by the House of Lords in Weatherley v. Weatherley, shows the court cannot enforce intercourse (para 19).
8. Noted: Section 13(iii) was inserted by Act 68 of 1976. It lets a wife seek divorce where a decree or order of maintenance was passed against the husband and cohabitation was not resumed for one year. It is akin to Section 13(1-A)(i). Living apart plus a maintenance award shows the marriage has broken down. It is another indicator of breakdown (para 20).
9. Held: the legislature is moving to the breakdown theory but has not fully left the guilt theory. Section 13(1-A) is based on the breakdown theory. Section 9 is based on the fault theory (divorce on the guilt of one spouse). The legislature has not accepted breakdown in its modern English form. In England no one is guilty or innocent, and divorce carries no stigma (para 21).
10. Noted: the modern trend is not to insist on a union that has utterly broken down after years of separation. The Court cited Friedman that a fictional marriage drives spouses to outside relations and increases adultery and bitterness (para 22).
11. Held: the fault theory has failed to give a solution to marriages on the rocks. In it, judges and lawyers are reduced to scavengers. Under the breakdown theory, judges certify the death of a marriage. If the assumption of reciprocal right to society proves wrong, divorce is the only escape route (para 23).
12. Noted: restitution began in English ecclesiastical law. Before 1813 the sanction was excommunication. Six months' imprisonment replaced it in 1813 and payments in 1884. Section 5 of the Act of 1884 also deemed non-compliance to be desertion. The Matrimonial Causes Act 1965 allowed judicial separation (a decree that ends the duty to live together without ending the marriage) or alimony on disobedience. England abolished restitution in 1970 (para 24).
13. Noted: in India, Order 21 Rules 32 and 33 of the Code of Civil Procedure abolished imprisonment but kept attachment of property. Rule 33 gives the court discretion to refuse attachment and order periodical payments. In the end only a financial sanction stands behind the decree (para 24).
14. Noted: parties may live under one roof though the marriage has broken down. The test is whether one party provides matrimonial services and whether domestic life is shared. Resumption of cohabitation is a question of fact and degree decided on commonsense principles (para 25).
15. Held: restitution is a stepping stone to divorce. The legislature believes in reconciliation and in a cooling-off period. Section 9 encourages reconciliation. For judicial separation, restitution and a maintenance order, the legislature uses one test: was cohabitation resumed within one year? If not, the marriage is dissolved (para 26).
16. Held: the Court said: "cohabitation is the highest common factor in the material provisions." Resumption of cohabitation means restitution of conjugal rights. Non-resumption means the death of marriage. The Court neither approves nor condemns legislative policy. Breakdown is a process of apathy, indifference and then aversion (para 27).

E. The divorce structure, the plea for abolition and Article 14

1. Held: the divorce structure in Section 13(1-A) rests on Section 9 proceedings. If Section 9 were void, Section 13(1-A)(ii) must also be void. Courts are concerned only with the power to enact statutes and not with their wisdom, as Stone J. said in U.S. v. Butler (para 28).
2. Noted: some favour abolition of the remedy, and some commentators have argued for it. The Court held that this is for the legislature and not for the courts. Others suggest an automatic dissolution after the prescribed period (para 29).
3. Noted: Professor Derrett argued for retaining the remedy. It is of considerable value in India, where spouses separate through misunderstanding or the intrigues of relatives. The Law Commission did not recommend abolition in its Fifty-ninth or Seventy-First Report. England abolished it by Section 20 of the Matrimonial Proceedings Act 1970 (para 30).
4. Held: abolition would be like throwing away the baby with the bath-water, as R.C. Nagpal wrote. The Court agreed with Derrett (para 31).
5. Held: Section 9 is the only positive relief aimed at preserving the marriage. Marriage law may be logically coherent only if the legislature so provides. Dicta of eminent judges, notably Lord Stowell, are against the view that the decree compels an unwilling party to have sex. No case says so. The remedy lies with the legislature (para 32).
6. Held: Section 9 does not violate Article 14. Chaudhary J. said suits by wives are rare, citing Gupte. Gupte wrote before the Act and was describing the old Hindu law. By Amending Act 44 of 1964 either party may petition under Section 13(1-A). Even the party found guilty in restitution proceedings may petition. There is equality of the sexes and equal protection of the laws (para 33).

F. Constitutional law and family law

1. Held: bringing constitutional law into the home is most inappropriate. It is like a bull in a china shop. In the privacy of married life, neither Article 21 nor Article 14 has any place. That England abolished the remedy in 1970 is no ground to hold it unconstitutional in India (para 34).
2. Noted: in the home, natural love and affection obtain. The Court said: "Constitutional law principles find no place in the domestic code." It quoted Atkin L.J. in Balfour v. Balfour that each home is a domain into which the king's writ does not run (para 35).
3. Held: the house of everyone is his castle. Introducing constitutional law into husband-wife relations will cause dissension and unlimited litigation. The domestic community rests on moral cement and not on contracts or constitutional law (para 36).
4. Held: Chaudhary J. quoted Havelock Ellis and Bertrand Russell. Russell held iconoclastic views on marriage, such as that adultery should not itself be a ground of divorce. The Indian legislature did not follow Russell. The law of the land is not co-extensive with the law of morals (para 37).
5. Held: Lord Herschell in Russell v. Russell did not call restitution barbarous in the sense used. He said a reasonable excuse may be something short of legal cruelty (conduct that harms the other spouse). Section 9(2) as first enacted barred any plea that was not a ground for judicial separation, nullity or divorce. The Law Commission's Fifty-Ninth Report recommended deleting it. Act 68 of 1976 deleted Section 9(2). One sentence does not empower a court to strike Section 9 down as barbarous (para 38).

G. The Attorney-General's defence and the conclusion on Section 9

1. Noted: the Attorney-General criticised T. Sareetha on six grounds. First, marriage under Hindu law is samsara or sacrament. Divorce was foreign to Hindu law before statute (para 39).
2. Held: T. Sareetha treats marriage as a legalised means of sexual self-satisfaction and not primarily as a partnership for life. Samsara is not sex. Marriage creates mutual rights and obligations and also confers a status. Binda v. Kauslia, as Mahmood J. decided it, sets out the reciprocal duties (para 40).
3. Noted: a casual commerce without intention of cohabitation is not marriage. The essence of matrimony is consent (Linda v. Belisario, per Sir William Scott). Marriage is the foundation of civil society (Meganatha v. Smt. Susheela). It is a voluntary union for life of one man and one woman (Hyde v. Hyde, Lord Penzance) (paras 41-42).
4. Noted: the court compels parties to live together if they live apart without sufficient reason. The court will enforce an essential term of the marriage contract. Gatha Ram Mistree v. Mohita Kochia Atteah described the decree as a declaration of rights. Dadaji Bhikaji v. Rukambai rejected the argument that restitution is a discredited remedy (para 43).
5. Noted: Section 9 is based on reason and not brute force. The court may refuse a decree if it is not just and equitable. Where a petitioner is insincere, the court refuses it. The principles are equity, justice and good conscience (Bai Jivi v. Nar Singh Lalbhai; Kondal v. Ranganavaki) (para 44).
6. Noted: a few freak cases of hardship cannot invalidate legislation. The Attorney-General relied on R.S. Joshi v. Ajit Mills (Krishna Iyer J.) and Tamil Nadu Education Dcptt. v. State of Tamil Nadu (para 45).
7. Noted: Section 9 is just, fair and reasonable under Maneka Gandhi because the court decides on the facts and has discretion. It is in the State's interest that homes are not broken up. Failure to reconcile in many cases is no ground to strike the law down (para 46).
8. Held: the courts cannot question the wisdom of legislation. The Court said the Attorney-General's criticism was not invalid (the printed text is garbled at this point). T. Sareetha rests on a misconception of marriage, with an almost obsessive emphasis on sex. The Court entirely disagreed (para 47).
9. Noted: the Act is both traditional and modern. Marriage is a civil contract and a religious ceremony. Its features are equality of sexes, consent, rites, cohabitation, monogamy (one spouse at a time), divorce, financial provisions, maintenance and reconciliation (para 48).
10. Held: the remedy may seem a survival of marital unity and may seem outdated. It must be seen with Hindu eyes of 1955. A judge expounds the law and does not speculate on what is best (Continental Tyre and Rubber Co. v. Daimler Co., Lord Reading) (para 49).
11. Noted: on marriage the husband and wife became one person in law, as Blackstone said. This unity shows in Section 120 of the Indian Evidence Act. Many fields of English law abolished it (para 50).
12. Held: in the scheme of the Act, a restitution decree is the high road to divorce. The one-year wait takes the heat out of divorce, which is a great merit (para 51).
13. Held: Section 9 aims at two-in-oneship. First it finds the fault and where it lies. Secondly it leads to dissolution if cohabitation is not resumed. It combines the fault theory and the breakdown theory (para 52).

H. Summary and conclusion on Section 9

1. Held: Lord Stowell said the court can decree cohabitation but not sexual intercourse, as in Forster v. Forster. Orme v. Orme says the single duty the court enforces is that married parties live together. Evans v. Evans agrees. Marital intercourse in Jowitt's Dictionary means consortium and not sex (para 53).
2. Noted: Lord Stowell's knowledge of matrimonial law was unrivalled. The Court traced the history of the remedy to understand its meaning, since India adopted it from English law (para 54).
3. Noted: the Encyclopaedia Britannica defines marriage as a physical, legal and moral union in complete community of life. Procreation is essential. Westermark says marriage is rooted in the family (para 55).
4. Held: there is nothing wrong in the law enforcing cohabitation. It does not and cannot enforce intercourse. The decree in Anne Saheb v. Tarabai was not an inhibited tragedy. Tarabai had a chance to reconcile. If she refuses, the statutory right under Section 13(1-A)(ii) arises (para 56).
5. Held: wilful refusal of sexual intercourse is a serious wrong to the other spouse. The Court did not decide whether it amounts to desertion. In some cases it amounts to cruelty. Sheldon v. Sheldon held that persistent refusal over a long time, which caused grave injury to the wife's health, was cruelty (para 57).
6. Held: sex is a biological necessity and is fundamental to marriage. The restitution decree is essentially an attempt at reconciliation (para 58).
7. Noted: if reconciliation fails, the question of maintenance arises. Maintenance has a different significance in Sweden than in India (para 59).
8. Held: restitution is a peg on which to hang a divorce. To strike down Section 9 without regard to Section 13(1-A) is too narrow a view. Sections 9, 13(1-A) and 13(iii) envisage the same pattern of living together. The Court said cohabitation is the common denominator of these provisions (para 60).
9. Held: the 1964 amendment to Section 13(1-A) recognises the principle that spouses should not be kept tied after breakdown. Madhukar Bhaskar Sheorev v. Saral Madhukar Sheodev, per Nain J., is cited. The sub-section incorporates the breakdown theory (para 61).
10. Noted: breakdown means a failure of the matrimonial relationship such that no reasonable probability remains of the spouses living together. What cannot be mended should be ended. The committee the text prints as the Mortner Committee of England 1964 said divorce is a defeat for both. The Divorce Reform Act 1969 made breakdown the sole ground in England. Rayden notes it caused a massive rise in divorces (para 62).
11. Noted: a fault theory deepens the marital wound and makes reconciliation harder. Withdrawal from matrimonial obligation plus physical separation is clear proof that the marriage is at an end (para 63).
12. Held: mere physical separation is not living apart. A mental attitude averse to cohabitation must also be shown. Spouses may live together though far apart, provided the consortium has not ended (R v. Cremer) (para 64).
13. Held: the Indian Act is a mixture of the fault theory, the breakdown theory and the mutual consent theory. Divorce by mutual consent was introduced in 1976 (section 138 in the printed text). Section 13(1-A) was enacted in 1964. Section 9 gives a cooling-off period. Derrett and K.C. Srivastava see practical utility in the remedy (para 65).
14. Noted: the Law Commission of England stated two objectives of a good divorce law. They are to buttress the stability of marriage and to end an irretrievably broken marriage with minimum bitterness. Section 9 seeks the first. The court enforces cohabitation but not marital intercourse (para 66).
15. Held: Section 13(1-A)(ii) achieves the second objective. It rests on Section 9 and presupposes a restitution decree. Either party can sue for divorce after a disobeyed decree. India's divorce law has become remarkably liberal from 1955 to 1976. The Law Commission's Seventy-First Report recommends breakdown as an additional ground (para 67).
16. Noted: it is surprising that everyone denounces restitution but welcomes the divorce ground based on it. The abolition movement draws on Section 20 of the Matrimonial Proceedings and Property Act 1970 (para 68).
17. Held: Sections 9 and 13(1-A) are of a piece. Abolishing Section 9 means abolishing Section 13(1-A)(ii). Judges do not rewrite the statute. The legislature must amend the law (para 69).
18. Noted: England abolished the remedy after more than 150 years, when Parliament made breakdown the sole ground. The Indian Parliament has not done so, though it is considering it (para 70).
19. Held: the arguments that persuaded Chaudhary J. are unsound and fallacious. Section 9 is not unconstitutional even if outmoded. The legislature first coaxes the withdrawing spouse to return. The marriage of a top actress such as Sareetha has the same legal consequences as that of an ordinary wife (para 71).
20. Held: the decree has a purpose in the legislative scheme. It allows a cooling-off period. It is a road to divorce (para 72).
21. Noted: the Court said there is a soul of goodness in things evil, a line from a poet (para 73).
22. Noted: law is not always logical and neither is human behaviour. Law must keep pace with behaviour as it is (para 74).
23. Held: the Court said: "It is for the Legislature to abolish the remedy of restitution and not for the courts to strike down section 9". In its opinion Section 9 is perfectly valid (para 75).

I. The appeal on its facts

1. Noted: the Court recorded the facts of the marriage and of the petition (para 76).
2. Noted: the wife pleaded maltreatment by the husband and mother-in-law. She said she would join him if he set up an independent residence (para 77).
3. Noted: the burden to prove sufficient cause for withdrawal lay on the wife. She examined witnesses. The judge disbelieved her evidence as discrepant and unreliable. He found no reasonable cause and granted the decree (para 78).
4. Held: on the first complaint, the wife's evidence was inconsistent about who went to the fete. She admitted going in the presence of her mother-in-law. The judge rightly held her unreliable and found the incident did not happen (para 79).
5. Held: on the furniture complaint, there was no trustworthy evidence. The furniture was not identified. The witness Balwant Singh was disbelieved. He produced no bill book. His account of meeting the wife's father in a Gurdwara at Karol Bagh was implausible (para 80).
6. Held: the wife admitted that the husband took her to work and that their offices were near. She admitted they lunched together. The judge rightly rejected the claim that she got only Rs. 50 (para 81).
7. Held: there was a part-time servant. Asking the wife to cook and do some work when the servant is absent is nothing wrong. It was a trivial excuse (para 82).
8. Held: on the first bleeding, a complaint can lie only for the first occasion. On the second, she went straight to her father's house. Her complaints were without substance. Dr. Sethi had treated her from 1975 (para 83).
9. Held: on the third bleeding in December 1977, the husband and his mother were not callous. The mother-in-law stayed a day in hospital and sent food. The complaint was not justified (para 84).
10. Held: on the plot, there was no worthwhile evidence. No record of the allotment, the draw of lots or membership was produced (para 85).
11. Held: the old-clothes complaint was most trivial, and the judge was right in discarding it (para 86).
12. Held: the date of leaving is not material. The parties live apart and there is a withdrawal. The only question is reasonable excuse, and she failed to prove it (para 87).
13. Held: the real dispute is the separate residence. The mother-in-law's evidence suggests that the wife left of her own accord (para 88).
14. Held: the wife cannot dictate that the husband set up an independent residence before she joins him. Bhagat Ram v. Smt. Santosh Kumari does not help her. The husband's aged parents depend on him. The choice must be made mutually and amicably by both. A unilateral demand is unreasonable (para 89).
15. Held: the couple lived together until January 1978, with normal sexual relations and a child. This is strong evidence of cohabitation and consortium. Consortium was broken when the wife left (para 90).
16. Held: after November 1977, three complaints survive: the December 1977 bleeding, the household work until January 1978 and the plot. There was no dependable evidence for them (para 91).
17. Held: the wife deliberately broke up the matrimonial home without sufficient cause. There is withdrawal from cohabitation and not only from intercourse (para 92).

Provisions discussed

• Section 9, Hindu Marriage Act, 1955: a spouse who withdraws from the other without reasonable excuse (a valid reason that the withdrawing spouse must prove) can face a petition for restitution. The Explanation puts the burden of proof on that spouse (para 5). The Court held it valid (paras 71 and 75).
• Section 9(2), as originally enacted: barred any plea that was not a ground for judicial separation, nullity or divorce. Act 68 of 1976 deleted it (para 38).
• Section 13(1-A)(i) and (ii): divorce for non-resumption of cohabitation for one year after a decree of judicial separation or of restitution. Inserted by Amending Act 44 of 1964 (paras 7, 16, 20 and 28).
• Section 13(iii): divorce by the wife where maintenance was awarded against the husband and cohabitation was not resumed for one year. Inserted by Act 68 of 1976 (paras 20 and 26).
• Section 10: judicial separation, available to the husband also (para 20).
• Section 23(2) and (3): the court's duty to try reconciliation (para 13).
• Section 18, Hindu Adoptions and Maintenance Act, 1956; Section 125, Code of Criminal Procedure, 1973; Section 488, Code of Criminal Procedure, 1898: maintenance orders for the wife (para 20).
• Order 21 Rules 32 and 33, Code of Civil Procedure: imprisonment abolished and attachment kept. The court may refuse attachment and order periodical payments (para 24).
• Section 120, Indian Evidence Act: reflects the community of interest of husband and wife (para 50).
• Articles 14 and 21 of the Constitution: the Court held Section 9 violates neither (paras 33-34 and 71).
• English law, divorce reform: the Divorce Law Reforms Act 1969 and the Matrimonial Act of 1973 (paras 16 and 62).
• English law, restitution: Section 20 of the Matrimonial Proceedings and Property Act 1970 abolished it (paras 30, 34 and 68). The Matrimonial Causes Act 1965 and Section 5 of the Act of 1884 are described in para 24.

Authorities

• T. Sareetha v. T. Venkata Subbaiah (no citation in the judgment): not followed; the Court dissented (paras 3-7, 19, 28, 33, 38-40, 47 and 71-72).
• Jackson v. Jackson, (1924) Probate 19: relied on; the court cannot enforce intercourse (paras 7, 11 and 19).
• Forster v. Forster, (1790) 1 Hag. Con. 144 (Lord Stowell): relied on; the court decrees cohabitation, not intercourse (paras 7-8, 53, 66).
• Orme v. Orme, (1824) 2 Add 382, 162 E.R. 335: relied on (paras 7 and 53).
• Rowe v. Rowe, (1865) 34 L.J.P. M&A 111: cited with Forster and Orme (para 7).
• Weatherley v. Weatherley, (1946) 2 All E.R. 1 and 1947 (1) All E.R. 563: marriage description; approved Jackson (paras 8 and 19).
• Evans v. Evans, (1948) 1 K.B. 175: cohabitation without intercourse (paras 9 and 53).
• Thomas v. Thomas, (1948) 2 K.B. 294 (Lord Goddard CJ): meaning of cohabitation (para 9).
• Wheatley v. Wheatley, (1950) 1 K.B. 39: cohabitation requires living as husband and wife (para 9).
• Crabtree v. Crabtree (No. 2), (1964) Australian Law Reports 820 (Selby J.): meaning of consortium (para 10).
• Lodder v. Lodder, (1921) New Zealand Law Reports 876 (Salmond J.): germ of the breakdown theory (paras 15-16).
• Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 11 M.I.A. 551 (Privy Council, 1866): applied English restitution in India (para 18).
• U.S. v. Butler, 297 U.S. 1 (1936) (Stone J.): courts concerned with power, not wisdom (para 28).
• Balfour v. Balfour, (1919) 2 K.B. 571 (Atkin L.J.): the home is a domain the king's writ does not enter (para 35).
• Russell v. Russell, (1897) A.C. 395 (Lord Herschell): barbarous used in a different context (para 38).
• Sawarjya Lakshnmi v. Dr. G.G. pad Rao and Devuloalli wara Sastri v. Polavarapu, I.L.R. 34 Mad. 422 (year garbled in the text): cited by the Attorney-General on Hindu marriage as sacrament (para 39). Names are printed as in the text.
• Binda v. Kauslia, 13 All. 126 (Mahmood J.): reciprocal duties of spouses (para 40).
• Linda v. Belisario, (1795) 1 Hag. Con. 216 (Sir William Scott): essence of matrimony is consent (para 41).
• Meganatha v. Smt. Susheela, AIR 1957 Mad. 426: marriage is the foundation of civil society (para 42).
• Hyde v. Hyde, (1866) L.R. 1 P and D 130 (Lord Penzance): marriage a voluntary union for life (para 42).
• Gatha Ram Mistree v. Mohita Kochia Atteah, 14 Beng. L.R. 298: restitution decree as declaration of rights (para 43).
• Dadaji Bhikaji v. Rukambai, (1886) I.L.R. 10 Bom. 301: rejected the argument that restitution is discredited (para 43).
• Bai Jivi v. Nar Singh Lalbhai, (1877): court may refuse the decree (para 44).
• Kondal v. Ranganavaki, AIR 1924 Mad. 49: restitution governed by equity, justice and good conscience (para 44).
• R.S. Joshi v. Ajit Mills (Krishna Iyer J.) and Tamil Nadu Education Dcptt. v. State of Tamil Nadu, AIR 1980 SC 279: validity judged by the generality of cases (para 45).
• Maneka Gandhi (printed Menka Gandhi): the just, fair and reasonable standard (para 46).
• Continental Tyre and Rubber Co. v. Daimler Co., (1915) 1 K.B. 893 (Lord Reading): judges bound by the law (para 49).
• Anne Saheb v. Tarabai: the case Chaudhary J. described as an inhibited tragedy; the decree was not wrong (para 56).
• Sheldon v. Sheldon, (1966) 2 All E.R. 257 (CA): persistent refusal of intercourse can be cruelty (para 57).
• Madhukar Bhaskar Sheorev v. Saral Madhukar Sheodev (Nain J.): the 1964 amendment (para 61).
• R v. Cremer, (1919) 1 KB 564: spouses live together though apart (para 64).
• Bhagat Ram v. Smt. Santosh Kumari, 1981 PLR 46: relied on by the wife; did not help her (para 89).
• Other sources: Tolstoy, Halsbury, Shelford, Jowitt's Dictionary, Friedman, R.K. Aggarwal, Derrett, R.C. Nagpal, Rayden, Gupte, Bertrand Russell, Blackstone, Encyclopaedia Britannica, Westermark, Graveson and Crane, Law Commission of India Fifty-ninth and Seventy-First Reports, Law Commission of England Field of Choice (Cmnd. 3123) and the committee printed as the Mortner Committee.
• Also cited in footnotes: none. The judgment has no footnotes.

Judgement

1. The appeal is dismissed (closing order after para 92).
2. The decree of the trial judge dated 20 April 1981 is affirmed (closing order after para 92).
3. The parties are left to bear their own costs (closing order after para 92).

Legal Principle / Ratio

Section 9 of the Hindu Marriage Act is valid under Articles 14 and 21. A decree enforces cohabitation and consortium and cannot enforce sexual intercourse. The remedy leads to divorce under Section 13(1-A)(ii) if the parties do not reunite.

Key holding: "It is for the Legislature to abolish the remedy of restitution and not for the courts to strike down section 9".

Subsequent Treatment

This section is based on one later judgment, Saroj Rani v. Sudarshan Kumar Chadha, Supreme Court of India, bench of Sabyasachi Mukharji and Syed Murtaza Fazalali, decided 8 August 1984. That judgment has no numbered paragraphs.

Saroj Rani v. Sudarshan Kumar Chadha

• The headnote records that T. Sareetha was over-ruled and that Smt. Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66, was approved.
• The Court noted that the Delhi High Court judge dissented from T. Sareetha and held that Section 9 does not violate Article 14 or Article 21.
• The Court summarised the Delhi judge's view. The decree aims to bring the parties together. The leading idea is to preserve the marriage. Sexual intercourse is not the summum bonum, and courts cannot enforce it.
• Having considered both views, the Court preferred the view of the Delhi High Court judge on the validity of Section 9.
• The Court held that Section 9 does not violate Article 14 or Article 21 if the purpose of the decree and the method of execution on disobedience are understood.
• It held that the only sanction is attachment of property after wilful disobedience, under Order 21 Rule 32. This works as an inducement to reconcile.
• It held that the right to the other spouse's society is inherent in marriage, and that Section 9 has sufficient safeguards to prevent tyranny.

Comparative Analysis

• The Andhra Pradesh judge saw Section 9 as forced sexual cohabitation that violates privacy and dignity. The Delhi judge saw it as protecting consortium without enforcing intercourse.
• The Supreme Court in Saroj Rani preferred the Delhi view. It relied on the point that the only sanction is attachment of property.
• Saroj Rani records that the Andhra Pradesh judge referred to a commission report recommending abolition. This judgment records that England abolished the remedy in 1970 and says that is no ground to hold Section 9 unconstitutional (para 34).

Critical Analysis

Analysis based on the judgment text.

• The Court said that no case holds a decree compels the wife to have sex (para 32).
• The Court said the remark that wives rarely sue was about the old Hindu law before 1955 (para 33). The judgment gives no figures on who uses Section 9.
• The Court said that constitutional principles have no place in domestic life. It did not apply the Maneka Gandhi test itself but recorded the Attorney-General's argument on it.
• The Court held that the legislature should abolish the remedy if it wishes. This leaves open the question of reform that the Court said was before Parliament (paras 70 and 75).
• The Court's finding on the separate residence demand depends on the husband's aged and dependent parents (para 89).

Significance

• It upheld Section 9 against Articles 14 and 21 and dissented from T. Sareetha, which the Court called the first decision of its kind (para 7).
• It stated the link between Section 9 and Section 13(1-A)(ii).
• It explained the meaning of cohabitation and consortium, and said that intercourse cannot be enforced.
• It decided that a wife cannot insist on a separate residence as a condition for returning.
• The Supreme Court later approved it in Saroj Rani.

Exam-Important Points

• Rule: Section 9 is valid under Articles 14 and 21. The decree enforces cohabitation only.
• Rule: the burden of proving reasonable excuse lies on the spouse who withdrew.
• Rule: sections 9 and 13(1-A)(ii) stand together. Striking one down would strike the other.
• Rule: a wife cannot dictate that the husband set up a separate home as a condition for rejoining him.
• Trap: this is a Delhi High Court decision. Cite Saroj Rani for the Supreme Court's position.
• Trap: the Court did not decide whether wilful refusal of intercourse is desertion (para 57).
• Cases to name: T. Sareetha (dissented from), Jackson v. Jackson, Forster v. Forster, Lodder v. Lodder, Bhagat Ram v. Santosh Kumari.

Prepared from the full text of the judgment. Paragraph numbers follow the judgment text; law reports may number the same paragraph differently.