This article is trying to critically analyse the concept of Restitution of Conjugal Rights, a matrimonial remedy available in the Hindu marriage act 1955. The author elucidate upon the same by discussing the object scope extent of applicability of section 9 of the Hindu marriage act 1955 with the help of various judicial pronouncements.

Introduction:
"We do not give way to marriage from scratch.
Instead, in the elegant language of the marriage ceremony, we enter into the holy estate of matrimony."

Marriage, also known as 'wedlock' or 'nuptials' is a legally acknowledge unification or social contract between two partners i.e., the husband and the wife. This union implies certain legal rights and application to each other throughout their whole life or until they decide to divorce.

Individuals may ties nuptials for various reasons such as emotional, legal, social and religious purposes. These rights and obligations also creates "conjugal rights". The term conjugal rights are the rights created by marriage i.e., right of the husband or the wife to the society of the other spouse.

The foundation of Right to bring the suit for Restitution of Conjugal Rights is a fundamental rule for matrimonial rule that one spouse is entitled to society and comfort of the other spouse i.e., Consortium of the other spouse and where either spouse has abandoned the other spouse without any reasonable excuse or just cause.

In such a situation, the aggrieved party can knock the doors of the court to enforce the right or to seek justice. Section-9 of the Hindu marriage act provides remedy for the same and it is the only matrimonial remedies available for Restitution of Conjugal Rights.

Section 9 - The Hindu Marriage Act, 1955

Restitution of conjugal provides that where either the husband or the wife has without reasonable cause withdrawn from the society of other, the aggrieved party may apply to the District Court by filing a petition for Restitution of Conjugal Right.

Therefore, it can be seen that the decree of Restitution of Conjugal Right to be granted, three conditions must be fulfilled:

1. The respondent has withdrawn from the society of other without reasonable cause.
2. The court is satisfied about the statement made in such petition, and
3. There is no legal ground why the relief should not be granted.

Constitutional Validity of section 9:

It is to be noted that the Restitution of Conjugal Rights amounts to the coercive part of the state which violates one's sexual and decisional autonomy and thereby, infringes / violated right to privacy under Article 21 of the Constitution of India.

In Gobind vs State of M.P., the SC arrives at a judgement that right to privacy is not explicitly provided under the Constitution of India but can be implied from Article 21 of the Indian Constitution.

In T. Sareetha vs T. Venkata Subbaiah, the Court Section 9 is unconstitutional as it violates Article 21 of the Constitution i.e., Right to privacy and human dignity. The Court observed that the Restitution of Conjugal Rights is a matter between husband and wife. Moreover, the State should not interfere in such an intimate matter between husband and wife. The Court also said that the decree of Restitution of Conjugal Right clearly snatches the privacy of wife or compels sexual cohabitation with her husband against her wish which would be of great consequences for women.

But, in the case of Harvinder Kaur vs Harmander Singh Choudhry, the Court held that Section 9 of the Hindu Marriage Act, 1955 is completely valid. The same approach was upheld in the case of Saroj Rani vs SK Chadha. In this case, the SC overruled the judgment of T. Sareetha and held that the object of Restitution of Conjugal Rights is to bring cohabitation between the strange parties i.e., the parties can live together in their matrimonial home amicably. The Court observed that Section 9 of the Hindu Marriage Act serves a social purpose as an aid to prevent the breakup of marriage. Hence, it is constitutionally valid.

Suggestions for Improvement:
Restitution of Conjugal Rights is a highly debatable and a controversial issue. Some people feel that it serves a social purpose to prevent the breaking up of nuptials ties. While some say that there is no sense in forcing one party to have cohabitation with the other unwillingly and against their valuation. This remedy of Restitution of Conjugal Rights also violates a person's extremely basic essence i.e., by dictating their decision on who to reside with.

So, the willingness to stay together should be the main criteria that should be taken into consideration and the party should not be forced by the court's order to stay together because marriage is believed to be something which is pure and sacred and when the marriage between the parties is only in name and beyond repair it is better not to force them to live together unwillingly.

Conclusion:
When a person is separated emotionally from another then the marriage become totally unworkable, emotionally dead and beyond salvage and it is very difficult to unite them. Thus, the Section 9 of the Hindu Marriage Act should declared as unconstitutional because in India where the women have generally the status of chattel of their husband and abandoned by their families after marriage then the remedy of Restitution of Conjugal Rights forces women to cohabit with their husband unwillingly or against their wish.

In Justice K.S. Puttaswamy vs Union of India, a 9 Judge Bench of the SC delivered that Right to privacy is recognised as a fundamental right under Article 21 of the Indian Constitution.

Thus, now it is a high time to abolish this provision from the Hindu marriage Act as it violated the Right to privacy which is the most important fundamental right of our Constitution, as it results in unnecessary harassment and penal liability and also misuse of prohibition against her wife. So, it should be declared as unconstitutional because "A horse can be brought to the water pond but cannot be compelled to drink."

Award Winning Article Is Written By: Ms.Mehwish Khalil

Authentication No: FB305272651113-23-0223