This case analysis is written by Alkesh Rajan BA.LLB 2nd year student at ICFAI UNIVERSITY DEHRADHUN.
Harminder Kaur v. Harminder Singh.
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Citation(s):
AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR
187
Date of Judgement 15th November,1983.
Bibliography:
JUDGEMENT Given by R Rohatagi.
Court- Supreme Court of India, New Delhi.
1.
Harminder Kaur v. HarminderSingh.
Facts:
1. The appellant, Harvinder Kaur, was
married to the respondent, Harmandar Singh Choudhry. On the 10th of
October, 1976, they married.
2. They were both self-employed and had their own jobs.
3. On July 14, 1978, they welcomed a son into the world.
4. After the appellant left the house, accusing the respondent, her husband, and his mother of malpractice and maltreatment, they both started living on their own and separately.
5. As a result of these events, the husband filed a petition under Section 9 of the Hindu Marriage Act of 1955, which seeks and exemplifies the restitution of conjugal rights.
6. The Additional District Judge ruled in the husband’s favour and issued a decree of restitution of conjugal rights.
7. The other party questions the constitutionality of section 9 of the Hindu Marriage Act, as well as its validity and significance.
8. In addition, the wife raised a question about the court’s jurisdiction.
Issue:
1.The Hindu Marriage Act’s section 9 is constitutionally valid.
2. Disagreement with Articles 14 and 21.
3. Whether the remedy of Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act is constitutionally valid?
4. The Contention of the Petitioner
5. The petitioner contended that 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. VenkattaSubbaiah[1] 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.P[2]. And another of Govind v. State of M.P[3]. 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.
JUDGEMENT:
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 endeavor to bring about reconciliation between the parties. The Court then moved on to discuss the concept of the breakdown of marriage as enunciated by Salmond J., in Lodder v. Lodder[4]. 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 the breakdown of marriage and the passing of time the most reliable evidence that the marriage has finished.
The decree of restitution of conjugal rights serves a useful purpose because it gives 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.
Conclusion:
Section 9 of the Hindu Marriage Act, 1955 (the Act) is found to be in violation of Articles 14 and 21 of the Constitution, and is thus declared null and unconstitutional. It was a straightforward matter in which the husband sought restitution of conjugal rights from the wife under section 9 of the Act.
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