T. SAREETHA v/s
VENKATA SUBBAIAH
On July 1, 1983, Justice
P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage
Act, which allowed the Court to pass an order for ‘restitution of conjugal
rights.’[1] In simple language,
if the Court was convinced that either a husband or a wife had ‘without
reasonable cause, withdrawn from the society of their spouse, then it could
decree that the defaulting spouse was required to go back to the company of
their partner – a decree that could be enforced by attaching the defaulter’s
property. Justice Choudary held that Section 9 violated the rights to equality
and privacy under the Constitution, and was accordingly void.
ISSUE:-
Whether Section 9 of the Hindu
Marriage Act runs counter to Part III of the Constitution?
JUDGMENT:-
Sareetha challenged the constitutional
validity of Section 9 of the Act in light of Articles 14, 19 and 21 of the
Indian Constitution inasmuch as the restitution of conjugal rights offends the
guarantee to life, personal liberty, human dignity and decency.
The decree for restitution of conjugal
rights to be granted under Section 9 of the Act is to enforced under Order 21
Rules 32 and 33 by applying financial sanctions against the disobeying party.
Additionally, a Court can enforce a decree through its contempt powers.
Conjugal rights connote two ideas. (a)
“The right which husband and wife have to each other’s society” and (b)
“marital intercourse.” Sexual cohabitation is an inseparable ingredient of a
decree of restitution of conjugal rights. Relief of restitution of conjugal rights
enables the decree holder to have sexual cohabitation with an unwilling party.[2]
A decree of restitution of conjugal
rights thus enforced offends the inviolability of the body and the mind
subjected to the decree and offends the integrity of such a person and invades
the marital privacy and domestic intimacies of such a person. The coercive act
of the State compelling sexual cohabitation therefore must be regarded as a
great constraint and torture imposed on the mind of the unwilling party.[3]
The question was whether Section 9
runs counter to Part III of the Constitution. The section was first examined in
light of Article 21. “Life” occurring in Article 21 has spiritual significance.
This was accepted by the Supreme Court in Kharak Singh v. State of U.P. and
Govind v. State of M.P. 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.[4]
The Court used the propositions from
the American Supreme Court to establish the proposition that reproductive
choice is fundamental to an individual’s right to privacy. During a time when
the wife is contemplating an action for divorce, the use and enforcement of
Section 9 of the Act can irretrievably alter her position by bringing about
forcible conception.[5]
The Court concluded that there are no
overwhelming State interests that would justify the sacrificing of the
individual’s constitutional right to privacy.
Restitution of conjugal rights is a
barbarous and savage remedy, violating the right to privacy and human dignity
guaranteed by Article 21. Section 9's constitutional legitimacy was also questioned
since it failed the standard categorization test as well as the minimum
reasonableness requirement that any state law must pass. Section 9 violates the
rule of equal protection of the laws by recognizing the wife and husband, who
are essentially unequal, as equals.
As a result, Section 9 is in violation
of Article 14 and held and it wasstricken
down. Section 9 advances no valid public goal based on any notion of the common
good. As a result, Section 9 is arbitrary and null as it violates Article 14.
HELD:-
The Civil Revision Petition was
allowed. Section 9 of the Hindu Marriage Act, 1955 was declared null and void.
*****
[1]https://www.legallyindia.com/views/entry/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-decision assessed 12.03.2022
[2]https://www.aapkaconsultant.com/blog/restitution-of-conjugal-rights-2//assessed 12.03.2022
[3]https://thelawblog.in/2018/09/02/restitution-of-conjugal-rights-or-deprivation-of-privacy-rights// assessed 12.03.2022
[4]https://indianlegalsolution.com/harvinder-kaur-v-harmander-singh-chowdhary-case-comment//assessed 12.03.2022
[5]https://www.aapkaconsultant.com/blog/restitution-of-conjugal-rights-2//assessed 12.03.2022
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