Restitution of Conjugal Rights: Criticism Revisited
Section 1 of the Hindu Marriage Act, 1955 embodies the concept of
Restitution of Conjugal Rights under which after solemnization of
marriage if one of the spouses abandons the other, the aggrieved party
has a legal right to file a petition in the matrimonial court for
restitution of conjugal rights. This right can be granted to any of the
This section is identical to section 22 of the Special Marriage Act, 1954. The provision is in slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws.
The constitutional validity of the provision has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court where the Hon'ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh, though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan, gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the section 9 and over-ruled the decision given in
T. Sareetha v. T. Venkatasubbaiah.
It is a sad commentary that despite various courts including the
Apex Court of the Country upholding the validity of section 9.
Many jurists still have doubts with respect to the soundness of
this section and demand its abolishment.
The abolitionists argue that it is a remedy
that was unknown to Hindu law till the British
introduced it in the name of social reforms. Even when
the Hindu Marriage Act, 1955 was being passed in the
Parliament, there were voices of scepticism regarding
the efficacy of this remedy. Sir J. Hannen in Russell
v. Russell also vehemently opposed the remedy.
Further, they are of the view any law that forces any
person to live with another person is contrary to the
value of the society.
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