T. Sareetha v. T. Venkata Subbaiah

A film actress, married at about sixteen and living apart from her husband for over five years, was sued by him for restitution of conjugal rights (a court order to resume married life). She objected to the court's jurisdiction and attacked Section 9 of the Hindu Marriage Act, 1955 as unconstitutional. The Andhra Pradesh High Court upheld jurisdiction but declared Section 9 void under Articles 21 and 14.

Quick Revision

Parties

• T. Sareetha — petitioner in the civil revision petition; the wife. She is described as a well-known film actress of the south Indian screen.
• T. Venkata Subbaiah — respondent; the husband. He comes from Cuddapah and filed the Section 9 petition against her.

Procedural History

1. Subordinate Judge's Court (sub-court), Cuddapah: the husband filed O.P. No. 1 of 1981 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights (paras 1-2).
2. Sub-court, Cuddapah: the wife objected that the court had no jurisdiction. The Subordinate Judge overruled the objection. The judgment does not give the date of that order (paras 1-2, 5).
3. Sub-court, Cuddapah: he found as a fact that the wife had not denied the six-month stay at Cuddapah. He held that the Madras stay did not displace the Cuddapah residence (para 5).
4. The wife's petition dated 31-8-1981 raised the constitutional validity of Section 9 for the first time. Notice of it was given to and served on the Attorney General of India, New Delhi (para 17).
5. Andhra Pradesh High Court: the wife filed this civil revision petition against the order overruling her objection. The single judge decided it on 1 July 1983 (paras 1, 6).

Facts

1. The wife was studying in high school and living with her parents at Madras. She was hardly sixteen (paras 2, 4).
2. She was alleged to have been given in marriage to the husband at Tirupathi on 13-12-1975 (para 2).
3. The husband comes from Cuddapah, where he owns a house and agricultural lands (para 3).
4. The husband stated in his petition that, after the marriage, the couple went to Cuddapah and lived there together for six months (para 3).
5. He stated that they then went to Madras and stayed for some time with the wife's parents (paras 3-4).
6. The wife was then trying to gain access to the south Indian cinema field. She is now one of its most talented top actresses (para 4).
7. According to the husband's allegations, her attempts led to misunderstanding between him and her, and between him and her parents. This forced him to return to Cuddapah, leaving her at Madras (para 4).
8. The couple parted soon after the marriage. They never met again and lived apart continuously for five years and more (paras 2, 4).
9. The husband then filed O.P. No. 1 of 1981 in the sub-court at Cuddapah under Section 9 (para 2).
10. The wife took a preliminary objection. Her petition said the husband admitted that the marriage took place at Tirupathi and that they last resided together at Madras. She said that, under Section 19, only the courts at Tirupathi or Madras had jurisdiction (paras 2, 5).
11. In the same petition, dated 31-8-1981, the wife claimed that Section 9 is liable to be struck down as violating Articles 14, 19 and 21 (para 17).

Issues Raised

1. Did the parties live together at Cuddapah immediately after their marriage (para 5)?
2. If they did, did their residence at Madras supersede the Cuddapah residence, so that Cuddapah was not the place where they last resided together under Section 19(iii) (paras 5, 8)?
3. Is Section 9 of the Hindu Marriage Act, 1955 void because it violates Articles 14, 19 and 21 of the Constitution (paras 17, 22)?
4. Does the right to privacy under Article 21 cover the intimacies of marriage, and does a decree of restitution of conjugal rights violate it (paras 22-29)?
5. Does Section 9 offend the equal protection of laws in Article 14, by the classification test or the test of minimum rationality (paras 37-39)?

Arguments Contended

The judgment does not set out separate arguments of counsel on the merits. It records the pleadings of each side. It also records that counsel for the wife cited several decisions on residence (para 11).

For the petitioner (the wife)

• The husband's own petition shows that the parties last resided together at Madras. So the Cuddapah court has no jurisdiction under Section 19. Only the courts at Tirupathi (marriage) or Madras (last residence) have it (paras 2-3, 5).
• Her pleading did not specifically deny that the parties lived at Cuddapah after the marriage. The Subordinate Judge read it to mean that the Madras residence superseded the Cuddapah residence (para 5).
• In this petition she assails the Subordinate Judge's findings (para 6).
• Her counsel cited several decisions of High Courts and the Supreme Court on where spouses last resided together. The judge said they turned on the facts of each case (para 11).
• Section 9 is liable to be struck down as violating Articles 14, 19 and 21. The relief offends the guarantee of life, personal liberty and human dignity and decency (paras 17, 22).

For the respondent (the husband)

• The parties lived together at his house in Cuddapah for six months immediately after the marriage. That was the place where they last resided together under Section 19. The later stay at Madras should not be treated as that place (para 3).
• The judgment records no argument by or for the husband on the validity of Section 9.

Court's Reasoning

Opinion of the single judge

The judgment is in two parts. Part I deals with jurisdiction. Part II deals with the constitutional validity of Section 9.

Part I. Jurisdiction (paras 1-16)

1. Noted: the wife is a film actress. She filed the civil revision petition against the order overruling her objection to the husband's Section 9 application (para 1).
2. Noted: the husband filed O.P. No. 1 of 1981 in the sub-court at Cuddapah. The wife objected to the jurisdiction because the husband's own petition said they last resided together at Madras (para 2).
3. Noted: the husband said the six-month stay at Cuddapah was the place they last resided together. He said the Madras stay should not count. The wife said Madras was the place on his own statement (para 3).
4. Noted: the wife's objection raised two questions. First, did the parties live at Cuddapah immediately after the marriage? Second, if so, did the Madras residence supersede it (para 5)?
5. Noted: the wife's petition did not specifically deny the Cuddapah stay. The Subordinate Judge treated it as no denial. He found that the Madras stay was not enough to displace the Cuddapah residence (para 5).
6. Held: the Subordinate Judge was right to believe the husband that the parties lived at his house in Cuddapah. The wife failed to deny it specifically (para 7).
7. Why: it is not easy to believe that a newly married couple first went to the wife's parents. That is not common among agricultural communities. The wife's own plea that Madras was the last place implies that they lived at another place earlier, which could only be Cuddapah (para 7).
8. Noted: the next question is whether Cuddapah or Madras counts as the place they last lived together under Section 19. It depends on the meaning of the section (para 8).
9. Noted: Section 19 requires a petition to be presented to the district court within whose local limits one of four things is true. The marriage was solemnized there. Or the respondent resides there at the time of the petition. Or the parties to the marriage last resided together there. Or the petitioner resides there when the respondent lives outside the territories to which the Act extends or has not been heard of for seven years (para 9).
10. Noted: only clause (iii), last resided together, is in issue. The Act does not define resided. In the dictionary sense, to reside means to dwell permanently or for a length of time (para 9).
11. Held: the residence in clause (iii) is the joint residence. It is a place of permanent dwelling that the couple took up jointly for their matrimonial purposes. Clause (iii) refers to the matrimonial home of the parties (para 9).
12. Why: it is the place chosen jointly for fulfilling the matrimonial vows of Dharma, Artha, Kama and Moksha. A temporary place of stay or a casual stopover is excluded (para 9).
13. Noted: Ridley J. described a person's residence as the place where he eats, drinks and sleeps, in Stoke-on-Trent Borough Council v. Cheshire County Council, (1913) 3 KB 699. Lord Merriman in Lowry v. Lowry, (1952) 2 All ER 61 equated the last place of cohabitation with the matrimonial home (para 10).
14. Held: places where the couple stops on short sojourns, such as visiting a friend or temple, are not a residence under clause (iii). Treating them as one would make the clause dysfunctional (para 10).
15. Noted, as an exception: if the couple have no permanent dwelling and move about like gypsies, even a temporary stay may count as the last residence, out of necessity. More depends on the facts of each case than on the meaning of words (para 10).
16. Held: Cuddapah alone is the matrimonial home and place of residence in this case. The husband has a permanent house there and carries on agriculture there. The couple chose it after the marriage and lived there for six months (para 10).
17. Held: the Madras stay was temporary and casual. It was a visit to the wife's parents, so it cannot displace the permanent dwelling at Cuddapah. The Cuddapah court has jurisdiction under Section 19(iii) (para 10).
18. Noted: counsel cited several decisions of High Courts and the Supreme Court. It was not necessary to discuss them because they turned on the facts of each case (para 11).
19. Noted: in R. v. Barnet London Borough Council, (1981) 2 WLR 86, the Divisional Court said ordinary residence includes time, intention and continuity. Each may carry a different weight depending on the statute and purpose (para 12).
20. Held: no general principle fixes the relative weight of time, intention and continuity. Where spouses last resided together is decided on an evaluation of the facts, not on a mechanical rule of thumb. The cited decisions lay down at best propositions of good sense, not of law (para 13).
21. Noted: in Qualcast (Wolverhampton) Ltd. v. Haynes, (1959) AC 743, Lord Denning criticised a county court for treating House of Lords decisions on negligence as binding rules of law (paras 14-15).
22. Noted: in that case an experienced moulder injured himself. The county court found he was not wearing protective spats that the employer had supplied. It held the employer negligent, thinking it was bound by authority. The House of Lords reversed. What reasonable care required was a question of fact (para 15).
23. Noted: Lord Denning gave other examples of propositions of good sense wrongly treated as law. They were Baker v. E. Longhurst and Sons Ltd. (1933) 2 KB 461, corrected in Tidy v. Battman and Morris v. Luton Corporation. His own remark in Clifford v. Charles H. Challen and Son Ltd. was corrected in Woods v. Durable Suites Ltd. Lord Atkin's warning in Harris v. Associated Portland Cement Manufacturers Ltd. was also quoted (para 15).
24. Held: the place where husband and wife last resided together is not a question of law. The judge considered it from an overall view of the facts (para 15).
25. Held: the finding of fact is that the parties lived for six months at Cuddapah after the marriage at Tirupathi. The wife never made good her claim that she did not live there. She did not argue it in the court below (para 16).
26. Held: the lower court's finding on this pure question of fact cannot be disturbed by a revisional court. Cuddapah was the place where the parties last resided together. The Madras residence cannot displace it. The Subordinate Judge's court has jurisdiction (para 16).

Part II. Constitutional validity of Section 9 (paras 17-40)

1. Noted: this is the other half of the case and raises an important constitutional question. The wife's petition dated 31-8-1981 raised it for the first time, and notice went to the Attorney General of India. She claimed that Section 9 violates Articles 14, 19 and 21 by offending life, personal liberty and human dignity and decency (para 17).
2. Noted: Section 9 allows the aggrieved spouse to petition the district court when the other has withdrawn from the society without reasonable excuse. The court may decree restitution if satisfied of the truth of the statements and that there is no legal ground to refuse. The Explanation puts the burden of proving reasonable excuse on the spouse who withdrew (para 17).
3. Noted: Order 21 Rule 32 of the Code of Civil Procedure covers decrees for specific performance, restitution of conjugal rights or injunction. If the party had an opportunity to obey and wilfully failed, a restitution decree may be enforced by attachment of property. Rule 32(3) and (4) deal with sale of property attached for six months and with when the attachment ceases (para 17).
4. Noted: Order 21 Rule 33 lets the court direct, in a decree against a husband, periodical payments to the wife if the decree is not obeyed. The court may vary or suspend those payments. The money is recoverable as under a money decree (para 17).
5. Held: read together, these provisions show that a Section 9 decree is meant to be enforced by financial sanctions under Order 21 Rules 32 and 33. A court can also enforce its decree through contempt powers (para 17).
6. Noted: the Privy Council in Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551, held that a Muslim husband's suit for restitution was rightly filed as a suit for specific performance. Order 21 Rule 32 follows the same lines (para 17).
7. Noted: conjugal rights mean the right of husband and wife to each other's society and marital intercourse (Earl Jowitt's Dictionary of English Law). In Wily v. Wily, (1918) P. 1, an offer to live under the same roof, each party free from molestation, was held not an offer of matrimonial cohabitation (para 17).
8. Held: "sexual cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights." So the decree extends to marital intercourse and not only to company (para 17).
9. Held: enforcement transfers to the State the individual's choice to have marital intercourse or not. It also surrenders to the State the choice whether one's body is used as a vehicle for another human being's creation (para 17).
10. Held: the purpose of the decree has always been to coerce the unwilling party through judicial process to have sex against that person's consent. It offends the inviolability of the body and mind and invades marital privacy and domestic intimacies (para 17).
11. Noted: Anna Saheb v. Tara Bai shows the tragedy. The Madhya Pradesh High Court decreed restitution and said a petition cannot be dismissed merely because the wife does not like her husband. What happened to Tara Bai is left to the reader's imagination (paras 17, 21).
12. Noted: sexual autonomy, the choice of one's partner to a sexual act, is of primary importance in human existence. No relationship rests more on mutual consent and free will. Lord Penzance's definition of marriage in Hyde v. Hyde, (1866) LR 1 P and D 130, as a voluntary union highlights free association (para 18).
13. Noted: the judge quoted Havelock Ellis and Bertrand Russell on the joy of freely chosen love. He cited the Telugu poet Sri Sri, who called restitution by force of arms Rakshasa Rathi (para 18).
14. Held: no positive sex act can be forced on an unwilling person. Nothing is more degrading to human dignity than to subject a person by the long arm of the law to a positive sex act (para 18).
15. Why: the sex act needs the participation of the mind. Modern psychology has ended the separation of body and mind, as Dr George Solomon's research shows. Compelled cohabitation is therefore a great constraint and torture on the unwilling party's mind (para 18).
16. Noted: in Russel v. Russel, (1897) AC 395, Lord Herschell noted that the law of restitution sometimes led to results he could only call barbarous (para 18).
17. Noted: the implications are graver for the wife. Forced sex can produce pregnancy as consensual sex does. The wife should never be excluded from the choice of when, where and how to beget and bear a child (para 19).
18. Held: a decree of restitution totally excludes her from a matter that intimately concerns her body and is vital to her life (para 19).
19. Noted: the remedy does not come from British common law. It comes from the medieval ecclesiastical law of England. The Law Commission under Scarman J. recommended abolition on 9-7-1969 (para 20).
20. Noted: Section 20 of the Matrimonial Proceedings and Property Act, 1970 abolished the right to petition for restitution in English courts. It says no person shall after commencement be entitled to petition the High Court or any county court for restitution of conjugal rights (para 20).
21. Noted: ancient Hindu law never recognised the institution of conjugal rights. It treated the wife's duty to abide by her husband as an imperfect obligation that could not be enforced against her will (para 20).
22. Noted: in Bai Jiva v. Narsingh Lalbhai, ILR 1927 Bom 264, the Bombay High Court noticed that Hindu law laid down no compulsion by courts to force the wife to return against her will (para 20).
23. Noted: ancient law probably left such matters free of State interference. Under British occupation, British Indian courts wrongly equated the ecclesiastical rule with equity, good conscience and justice. They imported it and enforced it among Hindus and Muslims (para 21).
24. Held: the origin of this remedy in India is recent and wholly illegitimate. Section 9 merely aped the British law and mechanically re-enacted it (para 21).
25. Noted: the plain question is whether Parliament, bound by the fundamental rights, can impose sexual cohabitation on unwilling spouses during the marriage (para 21).
26. Noted: Parliament's competence to enact Section 9 under Entry 5 of List III of the Seventh Schedule is undoubted. The question is whether it violates Part III. The wife attacks it under Articles 14, 19 and 21 (para 22).
27. Noted: Article 21 guarantees life and personal liberty against State action. The word life has spiritual significance, as in the American Fifth and Fourteenth Amendments (para 22).
28. Noted: Field J., dissenting in Munn v. Illinois, (1877) 24 L Ed 17, said life means more than animal or vegetative existence. The Supreme Court accepted this first in Kharak Singh v. State of U.P. and then in Govind v. State of M.P. (para 22).
29. Noted: in Kharak Singh, Rajagopala Ayyangar J. for the majority and Subba Rao J. in the concurring minority held that life is not confined to causing death. Subba Rao J. said the right to privacy forms part of personal liberty in Article 21 (para 22).
30. Noted: Subba Rao J. also feared that psychological restraints from scientific methods may be a greater denial of liberty than crude physical restraints (para 22).
31. Noted: Mathew J. in Govind v. State of M.P. took the lead from Subba Rao J. He cited American privacy cases, Griswold v. Connecticut, (1965) 14 L Ed 2d 510 and Jane Roe v. Henry Wade, (1973) 35 L Ed 2d 147. He held that Article 21 embraces the right to privacy and human dignity (para 23).
32. Noted: Mathew J. said any right to privacy must protect the personal intimacies of the home, family, marriage, motherhood, procreation and child rearing. Courts should deny privacy-dignity claims only where a countervailing State interest of overriding importance is shown (para 23).
33. Noted: he also relied on Brandeis J.'s dissent in Olmstead v. United States of America, (1927) 277 US 438, that the makers of the Constitution conferred on the individual a sphere where he should be left alone (para 23).
34. Held: Govind firmly laid down that Article 21 protects the right to privacy and promotes the individual dignity in the Preamble. Courts should uphold it except where superior State interests require otherwise (para 23).
35. Noted: privacy is hard to define. It is multidimensional and open to enumeration more than definition. Any plausible definition takes the human body as its first reference for control over personal identity, including bodily inviolability and marital privacy (para 24).
36. Noted: the judge set out four definitions. Gaiety: autonomy or control over the intimacies of personal identity. Parker: control over when and by whom the various parts of us can be sensed. Bostwick: privacy has three components, namely repose, sanctuary and intimate decisions. Prof. Tribe: the most profound decisions are whether, when and how one's body becomes the vehicle for another human being's creation (para 24).
37. Held: applying these tests, a decree of restitution is the grossest form of violation of the right to privacy. It denies the woman her free choice whether, when and how her body becomes the vehicle for procreation. She loses control over her most intimate decisions. Article 21 is flagrantly violated (para 25).
38. Noted: American cases take the same view (para 26).
39. Noted: McReynolds J. in Meyer v. Nebraska, (1923) 67 L Ed 1042 said liberty includes the right to marry, establish a home and bring up children. It may not be interfered with by arbitrary legislation (para 27).
40. Noted: Douglas J. in Griswold v. Connecticut struck down a law that made use of contraceptives an offence. It operated on an intimate relation of husband and wife. Griswold is authority that the choice to beget and bear a child belongs to the individual and not the State (para 27).
41. Noted: in Jane Roe v. Henry Wade, Blackmun J. said the right of personal privacy extends to marriage, procreation, contraception, family relationships and child rearing (para 27).
42. Noted: Brennan J. in Eisenstadt v. Barid, (1972) 405 US 438 said the marital couple is not an independent entity but an association of two individuals. The right of privacy is the right of the individual, married or single, to be free from unwanted government intrusion on the decision whether to bear or beget a child (paras 27-28).
43. Noted: Planned Parenthood of Missouri v. Danforth, (1976) 49 L Ed 2d 788 reiterated that privacy belongs to each spouse and is not lost by marriage. The State could not give a husband an unilateral power to stop the wife ending her pregnancy. As the woman bears the child, the balance weighs in her favour (para 27).
44. Noted: Skinner v. Oklahoma, (1941) 86 L Ed 1655 called the right to reproduce a basic civil right. Jackson J. in that case spoke of State interference with reproductive decisions as involving dignity and personality. The judge also cited Loving v. Virginia, (1967) 18 L Ed 2d 1010 and Zablocki v. Redhall, (1978) 54 L Ed 2d 618 (para 27).
45. Held: reproductive choice is fundamental to the right to privacy. This right belongs even to a married woman. The State cannot take it away without overwhelming social justification (para 28).
46. Held: an estranged wife cannot be forced by her husband to bear a child without violating her privacy. Section 9 used against her can bring about forcible conception and ruin her mind, body and life. If that is no violation of Article 21, nothing is (para 28).
47. Held: a decree enforcing restitution is the most extreme form of State invasion of personal identity and of the individual's zone of intimate decisions. The victim loses control over her body and the decision when, if at all, to give birth. Pregnancy would be foisted on her by the State against her will. Section 9 violates the right to privacy and human dignity under Article 21 (para 29).
48. Why: ancient Hindu society and its lawgivers never approved forcible marital intercourse. They recognised no State interest in it. The Scarman Commission found no superior State interest in keeping the remedy (para 29).
49. Why: the remedy has no social purpose. State coercion can neither prolong nor preserve the voluntary union. It cannot soften ruffled feelings or clear misunderstandings. Force only breeds force (para 29).
50. Held: the only use of the decree is to supply evidence for a later divorce action. That use comes at enormous cost to human dignity and does not outweigh the right to privacy. There is no overwhelming State interest that would justify sacrificing the right (para 29).
51. Noted: Duncan Derrett, in Modern Hindu Law (section 306 of that book), approved the abolition in England but advised keeping the remedy in India. He said spouses in India separate through misunderstandings or relatives' intrigues. He said the remedy helps when joined with the right under Section 491 of the Criminal Procedure Code to recover a minor bride. He added that, once restitution is ordered, a decree for separate maintenance cannot issue for the respondent without proof of new facts (para 30).
52. Held: the judge could not agree with Derrett. Derrett did not examine the matter under the right to privacy in Article 21 (para 30).
53. Held: "Restitution of conjugal rights is an instance of punishing a criminal without a victim." The remedy is excessive and inappropriate. As a Telugu proverb says, it is like setting fire to a house to burn it (para 30).
54. Noted: Blackmun J. in Planned Parenthood said it is hard to believe that mutuality and trust in marriage will be achieved by giving the husband a veto for any reason or none. The judge concluded that no overwhelming State interest justifies subordinating the right to privacy (para 30).
55. Held: because Section 9 violates the right to privacy in Article 21, it is constitutionally void. A provision that abridges Part III rights is void under Article 13 (para 31).
56. Noted: on the earlier narrow reading in Gopalan's case, Article 21 required only that some statutory procedure exist. On that basis the judge would have had to uphold Section 9 (para 31).
57. Noted: Gopalan's reading left Article 21 with no protection against legislation, since executive action needs a statute anyway. The cook of Bishop of Rochester could still be boiled to death if Parliament ordained it. Gopalan also treated each fundamental right as an island to itself (para 32).
58. Noted: the Bank Nationalisation case and Maneka Gandhi's case considerably modified both rules (para 33).
59. Noted: Krishna Iyer J. in Sunil Batra v. Delhi Administration said the same consequence as a due process clause followed. What is punitively outrageous, unusual or cruel is unreasonable and arbitrary and is shot down by Articles 14 and 19. If inflicted with procedural unfairness, it falls foul of Article 21 (para 33).
60. Noted: Desai J. in the same case said the law in procedure established by law must be right, just and fair, not arbitrary, fanciful or oppressive. Otherwise it would offend Article 14. Mithu v. State of Punjab approved these observations (para 33).
61. Noted: Mithu struck down Section 303 IPC as violating Articles 14 and 21. It said it is too late to contend that the legislature alone prescribes procedure and punishment. It gave the example that a law punishing theft by cutting off hands would be bad under Article 21. A savage sentence is anathema to the civilized jurisprudence of Article 21 (para 34).
62. Noted: Mithu implied that a mandatory death sentence under Section 302 IPC, without alternative sentences, would have been invalid under Bachan Singh's case. The savagery of a sentence is an attribute of substantive law. Chinnappa Reddi J. rested his concurrence wholly on Article 21 (para 34).
63. Noted: Mithu's reasoning comes close to American substantive due process. In Lambert v. California, (1957) 2 L Ed 2d 228, a person who did not know of a duty to register could not be convicted consistently with due process (para 34).
64. Held: after Mithu, Article 21 is no longer confined to procedural protection. Procedure and substance now overlap, so no valid procedure can establish a savage punishment (para 34).
65. Noted: constitutional theory should stay open-ended in the search for the boundary between individual and community. The judge quoted Justice Harlan in Poe v. Ullman that a novel claim must be tested against settled principles and constitutional purposes. Rochin v. California, (1951) 342 US 165 was cited in the quotation (para 35).
66. Held: the constitutional doctrine of privacy saves life from the inhuman and degrading treatment of forcible cohabitation, which Article 5 of the Universal Declaration of Human Rights forbids. Nothing reasonable can be urged for this barbarous remedy (para 35).
67. Held: following Mithu, Section 9 should be declared unconstitutional. The remedy is a "savage and barbarous remedy" that violates the right to privacy and human dignity under Article 21 (para 36).
68. Noted: Section 9 also fails the equal protection test of Article 14 for two reasons. It fails the classification test, and it fails the test of minimum rationality (para 37).
69. Noted: Section 9 treats husband and wife alike on its face. The Supreme Court said that "Bare equality of treatment regardless of the inequality of realities is neither justice nor homage to the constitutional principle" (M. Match Works v. Asst. Collector). Formal equality is not enough. The judge compared it to the apparent but majestic equality at which Anatole France mocked (para 38).
70. Noted: in social reality the remedy is used almost exclusively by husbands and rarely by wives. The judge cited Gupte's Hindu Law in British India, which says a wife's suit for restitution is rare (para 38).
71. Why: enforcement irretrievably alters the wife's life pattern, because she must beget and bear the child. The husband's life remains almost as before. So the remedy is one-sided and available only to the husband (para 38).
72. Held: treating inherently unequal husband and wife as equals offends the equal protection of laws. The remedy works in practice as an engine of oppression operated by the husband against the wife. Section 9 is struck down under Article 14 (para 38).
73. Noted: Section 9 must also meet minimum rationality. The judge had earlier criticised, in A. Laxmana Murthy v. State, AIR 1980 AP 293, the classification theory alone. He said the classification theory cannot fault Hitler's classification of Jews or the classification of landlords for extermination (para 39).
74. Noted: the Supreme Court accepted minimum rationality in E.P. Royappa v. Tamil Nadu. It said equality and arbitrariness are sworn enemies. Action must rest on relevant principles applying alike to all similarly situated (para 39).
75. Noted: the Court called it the test of arbitrariness and followed it in Maneka Gandhi, the International Airport case, Ajay Hasia v. Khalid Mujib and Air India v. Nergesh. Seervai criticises it. Prof. Tribe describes it as requiring a legislative public purpose based on some conception of the general good (para 39).
76. Held: whether or not Section 9 suffers from over-classification, it promotes no legitimate public purpose based on any conception of the general good. It is arbitrary and void under Article 14 (para 39).

Authorities

• Stoke-on-Trent Borough Council v. Cheshire County Council, (1913) 3 KB 699 — quoted for Ridley J.'s description of residence as where one eats, drinks and sleeps (para 10).
• Lowry v. Lowry, (1952) 2 All ER 61 — Lord Merriman's equation of last place of cohabitation with the matrimonial home (para 10).
• R. v. Barnet London Borough Council, (1981) 2 WLR 86 — ordinary residence has factors of time, intention and continuity (para 12).
• Qualcast (Wolverhampton) Ltd. v. Haynes, (1959) AC 743 — House of Lords: reasonable care is a question of fact, not law (paras 14-15).
• Baker v. E. Longhurst and Sons Ltd., (1933) 2 KB 461 — a proposition of good sense wrongly treated as law (para 15).
• Tidy v. Battman, (1934) 1 KB 319 — Court of Appeal corrected that error (para 15).
• Morris v. Luton Corporation, (1946) KB 114 — cited with Tidy v. Battman (para 15).
• Clifford v. Charles H. Challen and Son Ltd., (1951) 1 KB 495 — Lord Denning's own remark wrongly treated as law (para 15).
• Woods v. Durable Suites Ltd., (1953) 1 WLR 857 — Court of Appeal corrected that error (para 15).
• Harris v. Associated Portland Cement Manufacturers Ltd., (1939) AC 71 — Lord Atkin's warning against turning fact into law (para 15).
• Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551 — restitution suit treated as one for specific performance (para 17).
• Wily v. Wily, (1918) P. 1 — bare offer to live under one roof is not an offer of cohabitation (para 17).
• Anna Saheb v. Tara Bai — Madhya Pradesh High Court decreed restitution; used as an example of the tragedy of the remedy (paras 17, 21).
• Hyde v. Hyde, (1866) LR 1 P and D 130 — marriage as a voluntary union (para 18).
• Russel v. Russel, (1897) AC 395 — Lord Herschell on the barbarity of the remedy (para 18).
• Bai Jiva v. Narsingh Lalbhai, ILR 1927 Bom 264 — Hindu law had no compulsion to force a wife to return (para 20).
• Munn v. Illinois, (1877) 24 L Ed 17 — Field J.: life is more than animal existence (para 22).
• Kharak Singh v. State of U.P. — followed; privacy as part of personal liberty (paras 22-23).
• Govind v. State of M.P. — followed; Article 21 embraces privacy and dignity (paras 22-23).
• Griswold v. Connecticut, (1965) 14 L Ed 2d 510 — marital privacy and reproductive choice (paras 23, 27).
• Jane Roe v. Henry Wade, (1973) 35 L Ed 2d 147 — privacy extends to marriage and procreation (paras 23, 27).
• Olmstead v. United States of America, (1927) 277 US 438 — Brandeis J.'s dissent on the right to be let alone (para 23).
• Meyer v. Nebraska, (1923) 67 L Ed 1042 — liberty includes marrying and establishing a home (para 27).
• Planned Parenthood of Missouri v. Danforth, (1976) 49 L Ed 2d 788 — privacy belongs to each spouse (paras 27, 30).
• Eisenstadt v. Barid, (1972) 405 US 438 — privacy belongs to the individual, married or single (para 27).
• Skinner v. Oklahoma, (1941) 86 L Ed 1655 — right to reproduce as a basic civil right (para 27).
• Loving v. Virginia, (1967) 18 L Ed 2d 1010 — cited with the reproductive-choice cases (para 27).
• Zablocki v. Redhall, (1978) 54 L Ed 2d 618 — cited with the reproductive-choice cases (para 27).
• Gopalan's case — narrow reading of Article 21 not followed; modified by later cases (paras 31-33).
• Bank Nationalisation case — modified Gopalan (para 33).
• Maneka Gandhi's case — Article 21 needs just, fair and reasonable law; test of arbitrariness (paras 33, 39).
• Sunil Batra v. Delhi Administration — Krishna Iyer J. and Desai J. quoted (para 33).
• Mithu v. State of Punjab — followed and applied by analogy; Section 303 IPC struck down (paras 33-34, 36).
• Bachan Singh's case — mentioned in Mithu's reasoning on mandatory death sentence (para 34).
• Lambert v. California, (1957) 2 L Ed 2d 228 — substantive due process analogy (para 34).
• Poe v. Ullman, 6 L Ed 2d 989, 1020 (Harlan J.) — quoted on novel constitutional claims (para 35).
• Rochin v. California, (1951) 342 US 165 — named within that quotation (para 35).
• M. Match Works v. Asst. Collector — bare equality of treatment is not justice (para 38).
• A. Laxmana Murthy v. State, AIR 1980 AP 293 — judge's own earlier view on classification (para 39).
• E.P. Royappa v. Tamil Nadu — equality and arbitrariness are sworn enemies (para 39).
• International Airport case; Ajay Hasia v. Khalid Mujib; Air India v. Nergesh — followed Royappa's test (para 39).

Also cited in footnotes: none. The judgment has no footnotes.

Provisions discussed

• Section 9, Hindu Marriage Act, 1955: restitution of conjugal rights. A spouse who has withdrawn without reasonable excuse can be ordered to resume society. Declared void (paras 17, 40).
• Section 19, Hindu Marriage Act: a petition goes to the district court where the marriage was solemnized, the respondent resides, the parties last resided together, or the petitioner resides in the stated cases (paras 9-10).
• Order 21 Rule 32, Code of Civil Procedure: a restitution decree may be enforced by attachment of property after wilful disobedience (para 17).
• Order 21 Rule 33, Code of Civil Procedure: periodical payments may be ordered against a husband who does not obey the decree (para 17).
• Article 13: a law that abridges Part III rights is void (para 31).
• Article 14: equal protection of laws. Section 9 was held arbitrary and void (paras 37-39).
• Article 19: pleaded by the wife along with Articles 14 and 21 (paras 17, 22).
• Article 21: life and personal liberty except according to procedure established by law. It includes the right to privacy and human dignity (paras 22-29).
• Article 5, Universal Declaration of Human Rights: no inhuman or degrading treatment (para 35).
• Section 20, Matrimonial Proceedings and Property Act, 1970 (England): abolished restitution of conjugal rights in English courts (para 20).
• Entry 5, List III, Seventh Schedule: Parliament's competence to enact Section 9 (para 22).
• Section 491, Criminal Procedure Code: mentioned in Derrett's passage on recovering a minor bride (para 30).
• Sections 302 and 303, Indian Penal Code: discussed through Mithu's case on mandatory death sentence (para 34).

Obiter and the general approach

• Obiter: if the couple have no permanent dwelling, even a one-night stay may count as the last residence. This was a hypothetical example (para 10).
• Noted: the judge states that constitutional theory should stay open-ended and that no mechanical yardstick settles a new claim (para 35).

Judgement

1. The Subordinate Judge's court at Cuddapah has jurisdiction under Section 19(iii). Cuddapah is the place where the parties last resided together (para 16).
2. Section 9 of the Hindu Marriage Act is null and void (para 40).
3. O.P. No. 1 of 1981 on the file of the Subordinate Judge, Cuddapah, filed by the husband for restitution of conjugal rights, is legally incompetent (para 40).
4. The Court of the Subordinate Judge, Cuddapah is prohibited from trying O.P. No. 1 of 1981 (para 40).
5. The civil revision petition is allowed, without costs (paras 41-42).

Legal Principle / Ratio

A decree for restitution of conjugal rights compels sexual cohabitation and violates the right to privacy and human dignity in Article 21. Section 9 also fails Article 14, because the remedy works in practice only against wives and serves no legitimate public purpose. Under Section 19(iii), last resided together means the matrimonial home, which is the permanent dwelling chosen jointly.

Key holding: "starkest form of Government invasion of personal identity and individual's zone of intimate decisions" (para 29).

Subsequent Treatment

Saroj Rani v. Sudarshan Kumar Chadha

• Over-ruled on Section 9: the Supreme Court in this 1984 decision upheld Section 9 and rejected the view of the Andhra Pradesh single judge. Its headnote says T. Sareetha was over-ruled (unnumbered judgment).
• It approved the Delhi High Court's decision in Smt. Harvinder Kaur v. Harmander Singh Choudhry, which had dissented from Sareetha.
• It recorded Sareetha's reasoning: the savage and barbarous remedy, the privacy point, the Order 21 Rule 32 point and the Article 14 point.
• It held that Section 9 does not violate Article 14 or Article 21. This holds if the purpose of the decree and the method of execution on disobedience are kept in view.
• Its reasons: the decree aims at cohabitation and consortium, not only sexual intercourse. The right to the society of the spouse is inherent in marriage. Section 9 has sufficient safeguards. The only sanction is attachment of property after wilful disobedience.

K.S. Puttaswamy v. Union of India

• Chandrachud J., for himself and three other judges, records in Part Q, para 164 that Saroj Rani upheld Section 9. The Court there found that the provision served a social purpose and had safeguards against arbitrary use.
• Chelameswar J. notes in a footnote to para 40 that Sareetha was later over-ruled by the Supreme Court in Saroj Rani.

Other later cases (not summarized)

• None identified. A scan of the saved judgments and three web searches found no further case whose text could be fetched.

Comparative Analysis

This comparison uses Saroj Rani's own account of Sareetha and the Delhi High Court decision.

Critical Analysis

Analysis based on the judgment text.

• The wife pleaded Articles 14, 19 and 21. The judgment decides the matter only under Articles 21 and 14 and gives no separate finding on Article 19 (paras 17, 22, 40).
• The judgment first says a restitution decree may be enforced "even by imprisonment in a civil prison" (para 17). Order 21 Rule 32(1), as the judgment quotes it, allows only attachment of property for a restitution decree. The judgment does not reconcile the two statements.
• The Article 14 finding rests on the statement that wives rarely use the remedy. The only support given is a passage in Gupte's Hindu Law that a wife's suit is rare (para 38). The judgment cites no data on actual use.
• The judge notes that on Gopalan's narrow reading he would have had to uphold Section 9. The result therefore depends on reading Article 21 to cover substantive fairness, as the judge reads Mithu (paras 31, 34).

Significance

• It applies the right to privacy in Article 21, drawn from Kharak Singh and Govind, to marriage and the body (paras 22-29).
• It declared Section 9 void. The Supreme Court over-ruled it in Saroj Rani (8 August 1984).
• Its jurisdiction ruling on Section 19(iii) is separate. It holds that last resided together means the matrimonial home and not a casual stay (paras 9-10).
• Its reliance on Mithu to apply Article 21 to substantive law shows how the post-Maneka Gandhi cases were used (paras 33-34).

Exam-Important Points

• Rule: Section 9 was declared void by the Andhra Pradesh High Court under Articles 21 and 14. Trap: this view was over-ruled by Saroj Rani (1984). Section 9 is valid today.
• Rule: the decree makes sexual cohabitation its inseparable ingredient, and so offends privacy (para 17). Trap: Saroj Rani says the decree aims at cohabitation and consortium, not only intercourse.
• Rule: last resided together in Section 19(iii) means the matrimonial home. A temporary or casual stay does not displace it (paras 9-10).
• Rule: where spouses last resided together is a question of fact, not law. Trap: do not cite the decisions on residence as binding rules (paras 13, 15).
• Rule: a revisional court cannot disturb a finding of fact of the lower court (para 16).
• Rule: Article 14 fails here on arbitrariness (minimum rationality), following Royappa, and on the one-sided working of the remedy against wives (paras 38-39).
• Rule: the Section 303 IPC ruling in Mithu was used to say Article 21 covers substantive fairness (paras 33-36).
• The order: Section 9 null and void; O.P. No. 1 of 1981 incompetent; Cuddapah court prohibited; revision allowed without costs (paras 40-42).

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