CASE COMMENT

Author: Kunwar Bir Singh, UILS, Panjab University, Chandigarh

Harvinder Kaur v. Harmander Singh Chowdhary, AIR 1984 Delhi 66

BENCH: A Rohatgi

PETITIONER/ APPELLANT:

Harvinder Kaur

RESPONDENT:

Harmander Singh Chowdhary

Date of Judgment: 15th November, 1983

Facts: The appellant, Harvinder Kaur was married to the respondent, Harmandar Singh
Choudhry on October 10th, 1976. Both the appellant and respondent had jobs of their own. A son
was born to them on July 14th, 1978. The wife and the husband started living separately, as the
appellant left the respondent’s home alleging maltreatment on part of the husband and his
mother. The husband brought a petition under Section 9 of the Hindu Marriage Act, 1955
seeking restitution of conjugal rights. The other party challenges the validity of the
constitutionality of the section 9 of the Hindu Marriage Act.

Issues Raised

Whether the remedy of Restitution of Conjugal Rights under Section 9 of the Hindu Marriage
Act is constitutionally valid?

Contention of the Petitioner

The petitioner contended that the section 9 of the Hindu Marriage Act, 1955 is violative of
Articles 14 and 21 of the Constitution of India. The side placed its reliance upon the Andhra
Pradesh High Court judgment of Sareetha v. T. Venkatta Subbaiah1 in which the HC held the
said section to be violative of the constitutional provisions. The court held that “Life” occurring
in Article 21 has spiritual significance and placed its reliance upon the two judgments of SC, one
in Kharak Singh v. State of U.P2. and another of Govind v. State of M.P3. Both judgments held
Article 21 to be the source for the protection of personal liberty and life in the elevated sense. In
Govind’s case, it was held that Article 21 encompasses the right to privacy and human dignity.
Using various definitions of “privacy”, the Court found that the right to privacy is flagrantly
violated by a decree of restitution of conjugal rights.

Judgment

This case, is in stark contrast to the Sareetha case, and J Rohatgi held that Section 9 of the
Hindu marriage Act is not unconstitutional. The Court observed that the view taken by P.A.
Chaudary J., in Sareetha case was based on a misconception of the true nature of the remedy of
restitution of conjugal rights. The Court, while dissenting from the opinion of the Andhra
Pradesh High Court observed that under Section 9 the Court has the power to make a decree of
restitution of conjugal rights to enforce the return of the spouse who has withdrawn from the
society of the husband without reasonable excuse.

However the Court observed that under a decree of restitution of conjugal rights, the court cannot
enforce sexual intercourse but only cohabitation. The object of the restitution decree is to bring
about cohabitation between the estranged parties, so that they can live together in their
matrimonial home in amity. Sexual intercourse is not a necessary condition for cohabitation.
Cohabitation means the husband and wife living together as husband and wife. The Court held
that all that the Court in a husband’s petition under Section 9 seeks to enquire is whether there is
a reasonable excuse for the withdrawal by the wife from the society of the husband. A spouse is
entitled to the other’s society and if the law enforces this conjugal duty there is nothing wrong.

The Court held that the leading idea of Section 9 is to preserve the marriage. Section 9 is an
endeavour to bring about reconciliation between the parties. The Court then moved on to discuss
the concept of breakdown of marriage as enunciated by Salmond J., in Lodder v. Lodder4. If the
decree for restitution is not obeyed for the space of one year and the parties continue to live
separately it is undoubtedly the best evidence of breakdown of marriage and the passing of time
most reliable evidence that the marriage has finished.

The decree of restitution of conjugal rights serves a useful purpose because it gives to the parties
a cooling-off time of one year which is essential.

The Court also observed that Section 13(1-A) is based on proceedings under Section 9. If Section
9 is unconstitutional, then Section 13(1-A)(ii) is also constitutionally void. Thus implying no
decrees of restitution and no divorce under Section 13(1-A)(ii). The Court held that the abolition
of Section 9 is to be done by the legislature and not the courts. As the ground for divorce under
Section 13(1-A) is available to either party to a marriage, there is complete equality of sexes and
equal protection of the laws. Hence, it is not violative of Article 14 of the Constitution. The
Court even scorned at the introduction of principles of constitutional law in the private matters of
family. The Court held that to hold Section 9 unconstitutional without regard to Section 13(1-A)
is to take too narrow a view. The Court held that though the remedy under Section 9 may be
outmoded, it is not unconstitutional. Thus, Section 9 is perfectly valid. Following this line of
reasoning, the Court shot down all the contentions of the appellant.

Comments

In the early case of Govind v State of MP, the Supreme Court held that the right to privacy
protects “the personal communions of the home, the family, marriage, motherhood, conception
and child rearing”. This definition seems to treat the home as a private space where the law could
not impede.
A different interpretation of privacy was adopted by the Andhra Pradesh High Court
in T.Sareetha v Venkata Subbaiah when it held that “the right to privacy belongs to an individual
and is not lost by marital affiliation”. The court observed that the enforcement of section 9
against an individual forced her to have sexual relations with her spouse, thus bereaving her of
control over her body. This, according to the court, was a severe aperture of the right to privacy
as it transfers “the choice of whether or not to have marital intercourse to the State from the
concerned individual”. Regrettably, the Delhi High Court, in Harvinder Kaur v Harmander
Singh Choudhry, returned back to the narrow definition of privacy given in Gobind v State of
MP and the Supreme Court ratified this view.
However, last year in K.S. Puttuswamy v Union of India5, the Supreme Court held that
individuals have a right to privacy which grants them complete sovereignty over their body. The
Court has thus adopted the egocentric definition of privacy as argued by Justice Choudary
in T.Sareetha v Venkata Subbaiah.
The Andhra Pradesh High Court had observed that the enforcement of a decree of section 9
forces a person to have sexual intercourse with her spouse, thus bereaving her of control over her
own body, but the Delhi High Court lamented this view and held that the challenged section
aimed at “union” and not at “cohabitation”. “Consortium” has been defined as “companionship,
love, affection, comfort ”. The Delhi High Court held that sexual relations are not the eventual
goal of a marriage and that restoration of conjugal rights aims only at urging the parties to a
marriage to live in the same household and does not force them to have sexual intercourse.

With the steady understanding that the law needs to intercede in family matters and protect the
rights of individuals, restitution of conjugal rights has been criticized across common law
jurisdictions, leading to its abrogation in the UK, Australia, Ireland and South Africa. It is time
that India, too, abrogates restitution of conjugal rights, taking into consideration the blatant
breach of the right to privacy it denotes.
References
1). AIR 1983 AP 356
2). 1963 AIR 1295
3). 1975 SCR (3) 946
4). 1921 New Zealand Law Reports 786
5). WRIT PETITION (CIVIL) NO. 494 OF 2012