Saroj Rani v. Sudarshan Kumar Chadha

A husband got a consent decree (a decree passed because the other side agrees) for restitution of conjugal rights (a court order to resume married life) and then sued for divorce because the couple never resumed living together. The wife resisted, and she also attacked Section 9 of the Hindu Marriage Act, 1955 as unconstitutional. The Supreme Court upheld Section 9 and disapproved the Andhra Pradesh High Court's contrary decision in T. Sareetha.

Quick Revision

Parties

• Smt. Saroj Rani — appellant; the wife. She sued for restitution of conjugal rights and then resisted her husband's divorce petition.
• Sudarshan Kumar Chadha — respondent; the husband. He agreed to the restitution decree and later sued for divorce.

Procedural History

1. Sub-Judge Ist Class, Jullundur: on 21 March 1978 he granted the wife Rs. 185 per month as maintenance pendente lite (interim maintenance during the case) and Rs. 300 as litigation expenses.
2. Sub-Judge Ist Class, Jullundur: on 28 March 1978 he passed a consent decree for restitution of conjugal rights.
3. District Judge: on 15 October 1979 he dismissed the husband's divorce petition. He found no resumption of cohabitation after 28 March 1978 and decided that issue for the husband. He still refused relief because of Section 23, the consent decree and the absence of Section 13B at the time.
4. High Court of Punjab and Haryana, single judge (Goyal J.): the husband appealed in First Appeal from Order No. 199-M of 1979. The judge followed Dharmendra Kumar v. Usha Kumari and held that the husband was not taking advantage of his wrong. He still thought a consent decree of restitution was collusive, so he referred the question to the Chief Justice for a Division Bench.
5. High Court Division Bench (Chief Justice Sandhawalia): it held that a consent decree is not collusive. It allowed the appeal and granted the husband a decree of divorce, by judgment and order dated 17 August 1982.
6. Supreme Court: the wife appealed in Civil Appeal No. 187 of 1983. The appeal was dismissed with directions on maintenance and costs.

Facts

1. The parties married at Jullundur City according to Hindu Vedic rites on or about 24 January 1975.
2. The first daughter, Menka, was born on 4 January 1976.
3. The second daughter, Guddi, was born on 28 February 1977.
4. It is alleged that 16 May 1977 was the last day of cohabitation. The wife alleged that on that day the husband turned her out of his house and withdrew from her society.
5. Guddi died in the husband's house on 6 August 1977.
6. On 17 October 1977, the wife filed a suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. She set out the history of the marriage and alleged several maltreatments by the husband and her in-laws.
7. The husband filed a written statement. He admitted the marriage. He denied any demand, any dislike of her, any withdrawal from her society and any turning her out.
8. The husband then told the court that the wife's application under Section 9 be granted and a decree passed.
9. On 28 March 1978, the Sub-Judge passed the consent decree of restitution.
10. The wife alleged that she had gone to the husband's house and lived with him for two days as husband and wife. All the courts disbelieved this. The finding that there was no cohabitation after the decree was not challenged before the Supreme Court.
11. On 19 April 1979, the husband filed a petition under Section 13 for divorce. His ground was that one year had passed since the decree but no actual cohabitation had taken place.
12. The wife's reply said that her parents took her to the husband's house one month after the decree. She said he kept her for two days and turned her out again.
13. On 22 January 1979, the wife had filed an application under Section 28A before the Sub-Judge, Jullundur. She asked that the husband be directed to comply with the decree. It was pending when she filed her reply.

Issues Raised

1. Was the consent decree for restitution of conjugal rights collusive, so that the husband could not get a divorce on the strength of it?
2. Did the word wrong in Section 23(1)(a) disentitle the husband to a decree of divorce?
3. Is Section 9 of the Hindu Marriage Act, 1955 void because it violates Article 14 or Article 21 of the Constitution?
4. Should the husband pay maintenance to the wife and the living daughter after the final decree of divorce?

Arguments Contended

For the appellant (the wife)

• Before the Division Bench: counsel did not challenge the finding of no cohabitation. He did not press the ground that the husband could not take advantage of his wrong. He did press the ground that the consent decree was collusive.
• Before the Supreme Court: counsel did not challenge the Division Bench finding that the consent decree was not bad or collusive.
• The word wrong in Section 23(1)(a) disentitled the husband to a divorce decree. Counsel said the husband wanted a divorce from the very beginning and so did not oppose the restitution decree.
• The husband allowed the decree knowing he would not honour it, and so misled the wife and the Court. He then refused to cohabit and could not take advantage of his own wrong.
• When the lack of pleading was pointed out, counsel asked to amend the pleadings. He said the parties should not suffer for the mistake of lawyers.
• The phrase taking advantage of his or her own wrongs in Section 23(1)(a) must be read so that Indian wives do not suffer at the hands of cunning and dishonest husbands.
• Section 9 was arbitrary and void as offending Article 14. This point was not argued in the courts below, and the Court allowed counsel to raise it as a legal proposition. The Court's attention was drawn to T. Sareetha v. Venkata Subbaiah and to Geeta Laxmi v. G.V.R.K. Sarveswara Rao. The judgment does not say who drew attention to them.
• In Indian social reality, a divorced wife is at a great disadvantage materially.

For the respondent (the husband)

• The judgment records no separate arguments for the respondent before this Court.
• In the High Court, the husband was the appellant against the dismissal of his petition. The High Court relied on Dharmendra Kumar v. Usha Kumari to reject the own-wrong objection. The Division Bench followed the Full Bench decision in Joginder Singh v. Smt. Pushpa to reject the collusion objection.

Court's Reasoning

Opinion of Sabyasachi Mukharji J. (for the Court)

The judgment has no numbered paragraphs, so no paragraph numbers are cited.

A. Collusion and the consent decree

1. Noted: the High Court single judge, following Dharmendra Kumar v. Usha Kumari, held that the husband was not taking advantage of his wrongs. That case said a wrong under Section 23(1)(a) must be more than mere disinclination to agree to an offer of reunion. It must be misconduct serious enough to justify denying relief. The Court there also said it would not be reasonable to deny relief to the spouse who did not comply with a restitution decree against him or her.
2. Noted: Section 23(1)(a) requires the Court to be satisfied that a ground for relief exists and that the petitioner is not in any way taking advantage of his or her own wrong or disability. This does not apply to relief sought on the grounds in Section 5(ii)(a), (b) or (c).
3. Noted: the Division Bench followed the Full Bench majority in Joginder Singh v. Smt. Pushpa. It held that a consent decree is not always collusive where the court tried conciliation and the parties agreed after attempts at settlement.
4. Noted: Section 23(2) makes it the court's duty to try to bring about reconciliation before granting relief. The proviso (an exception added to a rule) excludes relief under clauses (ii) to (vii) of Section 13(1).
5. Held: on the facts, there was no collusion. The wife petitioned on certain allegations. The husband denied them and said he was willing to take her back. A decree was passed on that basis.
6. Held: the Court agreed with the Full Bench majority that not all consent decrees are collusive. It adopted the view that consent decrees in matrimonial matters are not collusive per se.
7. Noted: Section 13B shows that divorce by mutual consent is no longer foreign to Indian law. It was a later amendment and did not apply when the decree was passed. The Court accepted the Division Bench majority view on this point.

B. Own wrong under Section 23(1)(a)

1. Noted: before the Supreme Court, the wife's counsel did not challenge the finding that the consent decree was not collusive. He argued only that the husband was disentitled by his wrong.
2. Noted: the wife now alleged three things. The husband wanted a divorce from the start. He consented to the decree knowing he would not honour it. He thereby misled the wife and the Court. There was no whisper of these allegations in the pleadings.
3. Held: the request to amend the pleadings was refused, for three reasons. There was no pleading. The ground was not urged in any court below, and it is a question of fact. The wife's pleaded case was that the couple lived together for two days after the decree, and the new case was inconsistent with it.
4. Held: the lack of any pleading is a serious and fatal defect. There is no scope to let the wife make an inconsistent case at this stage.
5. Held: even if the broad reading of taking advantage of his or her own wrongs had some scope, it has no factual application here. If such a reading is wanted, it requires legislation.
6. Held: the husband's alleged conduct could not come within his own wrongs in Section 23(1)(a) so as to disentitle him to the divorce decree.
7. Noted: the Court reached this conclusion without mental compunction. The marriage had broken down and the parties could no longer live together. It said "it is better to close the chapter."
8. Noted on Geeta Laxmi v. G.V.R.K. Sarveswara Rao: the Andhra Pradesh High Court Bench there held a husband not entitled to a decree under Section 13(1A) because of his wrong under Section 23(1)(a). The husband had admittedly not complied with the restitution decree, had ill-treated the wife and had driven her from the house. Those facts were entirely different. Here there was no allegation or proof of ill-treatment or of driving the wife out, so the case did not help the appellant.

C. Validity of Section 9

1. Noted: the validity of Section 9 was not argued in the courts below. The wife's counsel raised it before this Court as a legal proposition, and the Court allowed him to do so.
2. Noted, as recorded by this Court: in T. Sareetha, the Andhra Pradesh High Court judge called the remedy savage and barbarous. He said it violated the right to privacy and human dignity under Article 21, so Section 9 was void under Article 13.
3. Noted: that judge read Article 21 as a wide guarantee against State action. He said a decree of restitution was the grossest violation of the right to privacy. It denied a woman her free choice over whether, when and how her body would be the vehicle for procreation.
4. Noted: he said the woman loses control over her most intimate decisions. A wife keeping away from her husband because of estrangement cannot be forced to bear his child. Using Section 9 against an estranged wife who might be planning a divorce could bring about forcible conception and ruin her mind, body and life.
5. Noted: he referred to the Scarman Commission's report in England recommending abolition. He found that Section 9 served no legitimate public purpose and no social good. He therefore held it arbitrary and void under Article 14.
6. Noted: he accepted that Section 9 passes the classification test in form, because it is equally available to husband and wife. He said bare equality of treatment regardless of the inequality of realities is not justice. He relied on Murthy Match Works v. The Assistant Collector of Central Excise. He based this on his view that the remedy was used almost exclusively by husbands and rarely by wives.
7. Noted: the judge also noticed, as a very significant point, that a restitution decree is enforced only under Order 21 Rule 32 of the Code of Civil Procedure. He referred to trends in American law and held Section 9 null and void.
8. Noted: the Delhi High Court judge in Harvinder Kaur v. Harmander Singh Choudhry dissented. He held that Section 9 does not violate Article 14 or Article 21.
9. Noted: the Delhi judge said the object of the restitution decree is to bring estranged parties together in the matrimonial home. The leading idea of Section 9 is to preserve the marriage.
10. Noted: that judge said sexual intercourse is one element of marriage, but it is not the summum bonum. He said "The courts do not and can not enforce sexual intercourse."
11. Noted: he held that the remedy aims at cohabitation and consortium, not merely at sexual intercourse. Sexual relations are an important element of marriage, but the other aspects of consortium are not trivial. It is a fallacy to treat restitution as the starkest form of governmental invasion of marital privacy.
12. Held: having considered both views, the Court preferred the view of the Delhi High Court judge on the validity of Section 9.
13. Noted: conjugal means, in the Shorter Oxford English Dictionary, pertaining to marriage or to husband and wife in their relations to each other. Earl Jowitt's Dictionary of English Law defines conjugal rights as the right of husband and wife to each other's society and marital intercourse.
14. Noted: Jowitt adds that the English court will decree restitution but will not enforce it by attachment. For a wife petitioner, it substitutes periodical payments by the husband (Matrimonial Causes Act, 1950, sections 15 and 22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R. v. Jackson).
15. Held: in India, the right of a spouse to the society of the other is not merely a creature of the statute. The Court said "Such a right is inherent in the very institution of marriage itself." It cited Mulla's Hindu Law.
16. Held: "There are sufficient safeguards in Section 9 to prevent it from being a tyranny."
17. Noted: the Law Commission's 71st Report (item 6.5) describes the essence of marriage as sharing a common life. Living together symbolises that sharing. Living apart for a long period indicates irretrievable breakdown (a marriage that cannot be repaired).
18. Held: Section 9 is only a codification of pre-existing law.
19. Noted: Order 21 Rule 32(1) of the Code of Civil Procedure covers decrees for specific performance, restitution of conjugal rights and injunction. If the judgment-debtor had an opportunity to obey and wilfully failed, a restitution decree may be enforced by attachment of property.
20. Held: unlike a decree for specific performance, a restitution decree is enforced only where disobedience is wilful, meaning deliberate and without impediment. The only sanction is attachment of property, and only if the party has property.
21. Why: this works as an inducement to the spouses to live together and settle the matter amicably. It can be ordered only if there is no just reason to refuse the decree. The Court said "It serves a social purpose as an aid to the prevention of break-up of marriage."
22. Held: the remedy cannot be viewed as the Andhra Pradesh judge viewed it. Section 9 is not violative of Article 14 or Article 21. This holds if the purpose of the decree is understood in its proper perspective. It also holds if the method of execution on disobedience is kept in view.

D. Maintenance after divorce

1. Noted: counsel argued that in Indian social reality, a divorced wife is at a great disadvantage materially. The Court agreed that he was right.
2. Held: in view of the position in law, the Court directed that maintenance continue after the final decree of divorce (see Judgement).

Provisions discussed

• Section 9, Hindu Marriage Act, 1955: the provision for restitution of conjugal rights. The Court held it valid.
• Section 13: the divorce petition filed by the husband on 19 April 1979. The Court also refers to Section 13(1A) in Geeta Laxmi.
• Section 13B: divorce by mutual consent. It was not in force when the consent decree was passed.
• Section 23(1)(a): relief is refused if the petitioner takes advantage of his or her own wrong or disability. The Court quoted it in full.
• Section 23(2): the court's duty to try for reconciliation before granting relief. The Court quoted it with its proviso.
• Section 5(ii)(a), (b), (c): grounds excluded from the own-wrong bar, as the quoted clause shows.
• Section 28A: the wife's application of 22 January 1979, which asked that the husband comply with the decree.
• Order 21 Rule 32, Code of Civil Procedure, 1908: enforcement of decrees for specific performance, restitution of conjugal rights and injunction. A restitution decree is enforced by attachment of property after wilful disobedience.
• Article 13: laws that abridge Part III rights are void. The Andhra Pradesh judge used it to void Section 9.
• Article 14: the Court held Section 9 does not violate it.
• Article 21: the Court held Section 9 does not violate it.
• Matrimonial Causes Act, 1950 (England), sections 15 and 22: English restitution and periodical payments, as stated in Jowitt's Dictionary.

Authorities

• Dharmendra Kumar v. Usha Kumari, [1978] 1 SCR 315: followed by the High Court single judge. It held that a wrong under Section 23(1)(a) must be serious misconduct.
• Joginder Singh v. Smt. Pushpa, AIR 1969 Punjab and Haryana 397 (Full Bench): followed by the Division Bench. This Court accepted the majority view that consent decrees are not all collusive.
• T. Sareetha v. Venkata Subbaiah, AIR 1983 Andhra Pradesh 356: not accepted. Over-ruled on the validity of Section 9.
• Smt. Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66: approved. The Court accepted its view that Section 9 is valid.
• Murthy Match Works, Etc. Etc. v. The Assistant Collector of Central Excise Etc.: relied on by the Andhra Pradesh judge for the equality point. No citation given in the judgment.
• Geeta Laxmi v. G.V.R.K. Sarveswara Rao (Andhra Pradesh High Court Bench): drawn to the Court's attention. Distinguished on its facts.
• R. v. Jackson, [1891] 1 Q.B. 671: quoted in Jowitt's Dictionary. A husband cannot seize and detain his wife by force.
• Other sources: Shorter Oxford English Dictionary (3rd edn, vol. I, p. 371); Jowitt, Dictionary of English Law (1959, p. 453); Mulla's Hindu Law (15th edn, p. 567); Law Commission of India, 71st Report, item 6.5; the Scarman Commission's report as recorded from T. Sareetha; American law as noticed by the Andhra Pradesh judge.
• Also cited in footnotes: none. The judgment has no footnotes.

Judgement

1. The appeal is dismissed.
2. Even after the final decree of divorce, the husband must continue to pay maintenance to the wife until she remarries.
3. The husband must also maintain the one living daughter, Menka. Separate maintenance is to be paid for the wife and for the daughter.
4. Until altered by an appropriate order on a proper application, the maintenance is Rs. 200 per month for the wife and Rs. 300 per month for Menka.
5. The wife is entitled to maintenance only until she remarries. Menka is entitled to maintenance until she is married.
6. Either party may ask for variation of the amounts by a proper application with proper materials before the Sub-Judge Ist Class, Jullundur.
7. The husband must pay the costs of this appeal to the wife, assessed at Rs. 1,500.

Legal Principle / Ratio

Section 9 of the Hindu Marriage Act, 1955 does not violate Article 14 or Article 21. The restitution decree is enforced only by attachment of property after wilful disobedience, as an inducement to reconcile. A consent decree for restitution is not collusive per se, and an allegation of own wrong that was never pleaded cannot bar the husband.

Key holding: "Consent decrees per se in matrimonial matters are not collusive."

Subsequent Treatment

This section is based on extracts from one later judgment. The extracts give no citation, bench size or date. Only what the extracts say about this case is stated.

K.S. Puttaswamy v. Union of India

• Chandrachud J. (for himself and three other judges), para 164: the opinion says this Court upheld the validity of the restitution provision in Section 9 of the Hindu Marriage Act, 1955. It says the Court found that the provision served a social purpose of preventing the breakdown of marriages and had safeguards against arbitrary use. The opinion cites it as (1984) 4 SCC 90.
• Chelameswar J., para 40 (footnote): a footnote cites T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356. It says that case was later over-ruled by this Court in this case, AIR 1984 SC 1562.

Comparative Analysis

• This judgment records two readings of Section 9. The Andhra Pradesh judge saw it as forced sexual cohabitation that violates privacy and dignity. The Delhi judge saw it as protecting consortium, which does not enforce sexual intercourse.
• This Court preferred the Delhi reading. It stressed that attachment of property is the only sanction.
• The two Puttaswamy opinions report the result in different ways. Chandrachud J. stresses the social purpose and the safeguards. Chelameswar J. records only, in a footnote, that T. Sareetha was over-ruled.

Critical Analysis

Analysis based on the judgment text.

• The Court said the validity of Section 9 was not argued in the courts below. It still decided the point, on a legal proposition raised for the first time in this Court.
• The Court held the sanction to be only attachment of property. It did not discuss the Andhra Pradesh judge's point that the remedy was used almost exclusively by husbands.
• The Court relied on the right to conjugal society being inherent in marriage. The judgment cites Mulla's Hindu Law and the Law Commission's 71st Report on the importance of the concept.
• The Court acknowledged that a divorced wife is at a material disadvantage. It addressed this only through the maintenance directions, and it said a wider reading of own wrongs needs legislation.
• The judgment has no numbered paragraphs and no footnotes.

Significance

• It settled that Section 9 is constitutionally valid under Articles 14 and 21.
• It over-ruled T. Sareetha and approved Harvinder Kaur.
• It held that consent decrees in matrimonial matters are not collusive per se.
• It ties Section 9 to divorce: a decree not obeyed for a year opens the way to a divorce petition.
• It shows that an unpleaded allegation of own wrong was rejected, and the wife was refused leave to amend.

Exam-Important Points

• Rule: Section 9 is valid. It does not violate Article 14 or Article 21.
• Rule: the only sanction for a wilful breach of a restitution decree is attachment of property (Order 21 Rule 32).
• Rule: consent decrees per se in matrimonial matters are not collusive.
• Rule: the Court rejected the wife's new own-wrong allegation under Section 23(1)(a) because it was not pleaded. It refused leave to amend.
• Trap: T. Sareetha (Andhra Pradesh High Court, 1983) was over-ruled. Do not cite it as good law.
• Trap: the husband won the divorce, but the Court still ordered maintenance of Rs. 200 for the wife and Rs. 300 for Menka, and Rs. 1,500 costs.
• Cases to name: Harvinder Kaur (approved), Joginder Singh v. Pushpa (followed), Dharmendra Kumar (followed by the High Court), Geeta Laxmi (distinguished).

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited. The citation is printed in the report header of the judgment text, not in the judgment itself.