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year B.A.llb.

Sunder Bhai v. Shri Narayana, AIR 1908 Bom. 81.
Miss Prema Kargaokar v. Mustak Ahmed, AIR 1987 Guj. 106.
Gopal Krishna v. Mithlesh Kumari AIR 1979 ALL 316 at 323.
Syal v. Syal AIR 1968 P & H 489.
Jogindar Kaur v. Shivcharan Singh AIR 1965 J & K 95.
Gurbux Singh v. Smt. Beera 1979 H.L.R. 185
Gurudayal Kaur v. Karnal Singh 1977 H.L.R 416 (P & H).
Jagir Kaur v. Bula Singh 1977 H.L.R. 392.
Pranjivan Avichal v. Deeraj Bai 1977 H.L.R. 398.
Mirchumal v. Devi Bai 1977 H.L.R. 426.

Avinash Kaur v. Avtar Singh 1977 H.L.R. 406.

Rajkumari v. Harish Chandra 1985 H.L.R. 74.
T.Sareetha v. T.Venkata Subbaih, AIR 1983 AP 356.

Marriage laws (Amendment) Act, 1976
Hindu Marriage Act, 1955
Hindu Widow Remarriage Act, 1856
Hindu Marriage Disabilities Removal Act, 1946
Hindu Adoption and Maintenance Act, 1956















Marriage is the basic institution in all progressive societies which has been ordained for the
protection of the society from foul and immoral acts on the one hand and continuance of the
chain of the society itself on the other. Fundamentally, marital relations regulate human
behaviour between persons of opposite sex. Norms set up for regulating the marital behaviour is
different from place to place and from society to society. So far as the Hindu society is
concerned, it once was closely connected with religious ordinances and hence the impact of
religious element had more effect than any other element. Even in the pre-legislation stage,
amongst the Hindus, marriage was considered to be holy union and the purpose behind this union
was to attain spiritual benefits. For that reason the marriage was a religious necessity. The
Bombay High Court thus observed that the Hindu Marriage was a sacrament and not contract 1, as
it is today.2
The aim of my project is to bring into limelight the Marital Rights of women in the Pre
legislation and Post legislation era and how women have been the victims of ultimate loss due to
the social arrangements in various communities (be it Hindus or Muslims).
I have laid special focus on the restitution of conjugal rights of parties and how this right can be
used to reconcile the marriage by either of the spouses.
For this, I have followed doctrinal research methodology where I referred various books
concerned to family law in the college library.

1 Sunder Bhai v. Shri Narayana, AIR 1908 Bom. 81.

2 Miss Prema Kargaokar v. Mustak Ahmed, AIR 1987 Guj. 106.


Pre legislation:
So far as the law of contract is concerned, the age of majority or capacity is regarded as the
essential qualification for the purpose of entering into contract; but so far as the marital relations
are concerned Hindu law and Mohammedan Law have followed different patterns and recognize
different values. The marriage under Hindu Law is not invalid merely on the ground that the
parties to the marriage were minors. The traditional Hindu law regarded marriage of a minor
valid, yet the consent of the bride was treated as an essential element and in the absence of the
same, the marriage could be declared invalid. Similarly, in case of bridegroom, the norm relating
to his incapacity was considered.
Even after the Marriage laws (Amendment) Act, 1976 the Allahabad High Court in Gopal
Krishna v. Mithlesh Kumari,3 observed that marriage amongst Hindus was sacrament and holy
union of man and woman while the marriage under Muslim Law was a civil contract and all
duties and rights between the husband and the wife arise from the said contract.
The fundamental principle that the Hindu Marriage is a holy union remained the cornerstone of
matrimonial relations till 1955 i.e., till the passing of Hindu Marriage Act, 1955. Thus, on the
ground of incapacity or fraud, marriages under Hindu law could be declared voidable. But at that
time, the social behaviour was not upto the degree of consciousness or awareness so as to
challenge marriages in the Court of law.
In view of this, the ultimate loss was to the female sex because in accordance with social
arrangements, a Hindu female was required to live-behind bamboo curtains and she was not
expected to come out so as to go to the court and challenge the fraud or incapacity of her
husband and if in abnormal cases some courageous ladies came before the court, the Judges
however used to apply the law while deciding the cases but the society in general condemned the
act of the wives. This refers to the social apathy towards reforms of any kind in the religion
based Hindu society. There was no restriction for a Hindu male relating to number of wives. A
Hindu male could marry any number of wives. Polygamy was allowed but polyandry rarely
existed. Remarriage of widow was also condemned and it was because of this trend of the
society that Satipratha was directly or indirectly supported and encouraged by the people. The
occasions are not found lacking even today. An attempt for immolation on the funeral pyre of
husband by a 47 year old Banda woman Kesaria is a glaring example in this connection. 4 So far
3 AIR 1979 ALL 316 at 323.
4 The Pioneer (Lucknow) dated 9.7.1992, p.1.

as the guardianship in marriage was concerned primarily it used to go to the father, then to
paternal grandfather, then to brother and then to paternal relations of the girl and lastly to the
mother. This arrangement of guardianship obviously restricted the normal field of activities of a
Hindu girl and this did not denote the adequate standard or status to be enjoyed by a Hindu
woman so far as her own marital position in the family was concerned.
As regards remarriage, it has observed that remarriage of a Hindu widow was discouraged, but
later in 1856, the Hindu Widow Remarriage Act was enacted which provides certain relief to the
Hindu widows. But at the same time, the element of consent of the guardian in case of a minor
Hindu widow restricted the right given by the said Act, because the guardian, as indicated above,
were obviously affected by the traditional behaviour of the society and ultimately, they were
responsible to the society and ultimately, they were responsible to the society if they encouraged
re-marriage of their widowed daughter or ward, as the case may be. In case of major or fully
aged Hindu widow, there was no question of consent of her guardian. But keeping in mind the
social and other circumstances prevailing in the society, only a few Hindu widows came out for
the purpose of remarriage. The marital relations under traditional Hindu law were also restricted
on the basis of caste and sub-division of the caste. Normally marriage between persons
belonging to different sub-division of the caste was not encouraged by the people, but legally
speaking, it was held valid by the courts. This is because of the fact that the ancient treatises on
Hindu law prohibited pratiloma marriages. Marriage outside the kith and kinship circle was
prohibited. The modern trend is to reduce the circle and however, later on, the Privy Council
made a successful attempt in discouraging this practice and supported the pratiloma marriage.
But the most important restriction in that area was relating to degrees of relationship. However,
some relief was granted by the Hindu Marriage Disabilities Removal Act, 1946. Then the
degrees of Sapinda which was upto 7 and 5 were required to be maintained and hence there was
a limitation. So far as the marriage ceremonies are concerned, basically two requirements were
there: the first was invocation before the sacred fire and the second was saptapadi before the
sacred fire. However, this was not an absolute rule because in different sections belonging to the
Hindus different customs were prevalent and normally rites were performed according with such
Post legislation:
The present enactment relating to the Hindu Marriage has upto some extent accepted the
traditional theory of matrimonial relations but at the same time it has brought about certain
revolutionary changes which have provided substantial rights to woman. Marriage under Hindu
Law, it is said, still contain some sacramental character and hence it is not fully treated a
contractual relationship thought the rights and duties are regulated by law for the time being in
force now. A comparative study between the law enacted by parliament and the traditional Hindu
law relating to marriage clearly disclosed the fact that the legislation was urgently needed to
improve the conditions of females of Hindu society. So far as divorce is concerned under old
Hindu law dissolution of marriage was an alien concept, a thing unknown to Hindu society. This

was so because marriage was sacrament. The legislature considered the present law went through
traditions on the basis of changes in the values and found that even if marriage in Hindu law is a
sacrament, this sacrament should not bind a person who can never perform her duties or who can
never accept any right out of a legal wedlock. In view of this, the law relating to divorce or
dissolution is justified.
The report submitted by the Pau Committee was accepted by the parliament. The Hindu
Marriage Act came into force on 18th May, 1955 and it has codified the law relating to marriage
among the Hindus. The analysis of the term Hindu as defined in Section 2 of the Act, makes it
clear that this term is required to be interpreted broadly and includes Jains, Budhists, Sikhs and
other communities. It may also be noted that the Hindu Marriage Act has not been treated as a
perfect code which regulates marital relations of all Hindus. If a marriage is solemnized under
the Special Marriage Act, it is regulated by that Act and the personal law will have no
application. The primary concept of duty and right between husband and wife even if not
regulated by the traditional Hindu law as propagated by the Dharam Shastras, created the right to
have company, respect, primary requirement so as to maintain wife, requirement relating to offsprings, right to inherit the property and lastly the right to be supported.
The first and foremost right and obligation between the spouses was relating to conjugality and
consortium. Since the fundamental purpose of marriage was to unite both the parties, it was
ultimately the right of the husband as well as of the wife to have company of the other and the
concept of society included every type of conjugal obligation which was expected from a
husband to wife, and vice versa. When a marriage under present Hindu law takes place and it is
perfectly valid in accordance with Sections 5, 7 and other provisions, the husband has a right that
his wife must live with him. Similarly, the wife has a right that her husband must live with her
and the duty of both parties is to perform marital obligations for which they have been united
voluntarily and their union has been recognized by the society and by the law for the time being
in force. Living in a matrimonial home is the right and obligation of both. This is a reciprocal
arrangement. The right of one person was the obligation of the other and whenever the question
of obligation or duty arises, such obligation or duty could not be supported unless there is
justified right in the aggrieved party.


Section 9 of the Hindu Marriage Act, 1955 relates to the rights of the Hindu wife and husband to
live in the company of each other as explained below:
Section 9: Restitution of Conjugal rights- When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by
petition to the district court, for restitution of conjugal right and the court, on being satisfied of

the truth of the statement made in such petition and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation- Where a question arises whether there has been reasonable excuse for withdrawal
from the society, the burden of proving reasonable excuse shall be on the person who has
withdrawn from the society.
The examination of the language used in Section 9 points out the duty concept of the Hindu
husband as well as of the wife and this section is applicable to both the parties to the marriage.
The question of restitution of conjugal rights arises when either party to the marriage withdraws
himself or herself from the society of the other and such withdrawal is not justified. Therefore
the ingredients of the principle laid down under Section 9 are as follows:
1. The remedy under Section 9 of the Hindu Marriage Act is available to the husband as well as
the wife.
2. The applicant can go to the court on the ground that the opposite party has withdrawn from his
or her society without reasonable excuse.
3. The petition must be submitted before the District Court having jurisdiction in the case.
4. Section 9 does not provide absolute right and hence it must be decided by the court on merits
of the case whether the petitioner should be given any relief under Section 9 or not.
5. The courts satisfaction is an essential element which is based on facts and circumstances of
every case.
6. If the court is satisfied that the opposite party has withdrawn from society of the petitioner
without reasonable excuse, a decree of restitution of conjugal rights may be issued by the District
7. The relating to the burden of proof under section 9 has given a new dimension. Now, the
petitioner needs not to prove the case but it is for the opposite party to satisfy the court that there
is a reasonable excuse for his or her living separately.
Restitution of conjugal rights is a very important remedy provided under section 9 of the Hindu
Marriage Act which involves both duty concepts as well rights of the parties to the marriage. It is
a fact that the remedy was available in the Courts even before the passing of the present
legislation. The right of society of the wife or husband, as the case may be, has been recognized
in all civilized societies. So far as the extent of the application of this right is concerned, there is
no uniform policy. So far as the power of the Indian Courts in relation to issuing decree for
restitution of conjugal rights is concerned, it necessarily comes from the English law. In England
matrimonial cases were decided initially by Ecclesiastical courts that is the court of equity
applying the principle of equity and justice but later on proper legislation was enacted by the

British parliament and the power came to the Kings or Queens court. This power came to be
exercised in India and the courts in India consider the propriety of the right of the wife or
husband in the light of traditional Hindu law. No doubt the trend of the judiciary was influenced
by the ancient Hindu law principles and hence the analysis of judgments pronounced by the court
prior to the enactment of this Act discloses a tendency of favouring the petitioner, whosoever it
may be.
The present law under Hindu Marriage Act has provided a separate and independent remedy
which has to be examined in the light of present socio-economic circumstances prevailing
amongst the Hindus.
The application of Section 9 in relation to Hindu woman must be looked from the following
1. The infrastructure of the Hindu society has not undergone a revolutionary change and hence
the remedy made available under Section 9 of the Hindu Marriage Act although provides
substantial rights to a Hindu woman yet it can be available only if she comes out of her own
limitations and urges before the court for relief.
2. Human physiology and psychology has to play its own role. Normally Indian woman thinks
herself to be controlled and dominated by the husband because of her incapacity or illiteracy and
of course her undermined physical virtues. Sometimes it is very difficult to imagine that the
benefit of Section 9 is available to all Hindu women who suffer from the abnormal behaviour of
their husbands who desert them intentionally and without any reasonable excuse whatsoever.
3. The right of restitution of conjugal rights means that there is restoration or rather reestablishment or re-union of the husband and wife on being given a considerate thinking of
marital discord of the past.
4. When a decree under section 9 is granted by the court, the order of the court is indicative of
duty of the non-petitioner to resume cohabitation with the petitioner. It is perfectly within the
judicial power of the court to issue such orders but it is not within the power and control of the
court to compel a person to resume cohabitation against his or her wishes. Union of man and
woman is basically connected with mental and sentimental aspects of human life and if one is
determined not to submit himself or herself to the situation, no decree or order of any court, can
make it possible to materialize the right of the wife or husband of restitution of marital relation.
What is within the power of the court is simply to issue an order and if such order is not obeyed,
there is no question of contempt of court and no court can by force compel them to reunite.
5. The practicability of Section 9 lies in the fact that Section 9 is less effective so far as providing
of human relations are concerned but is more effective so far as a realization of legal right is
concerned. The legal right, obviously apart from human relations, includes the right to have
maintenance and the right to get the marriage dissolved by the court.

6. When a petition is submitted by the wife under Section 9, a decree of restitution of conjugal
rights may or may not be passed by the court, but the fact that the wife is living alone and
separately is established and hence she can claim maintenance from the non-petitioner husband
under the Hindu Adoption and Maintenance Act, 1956.
7. When the court issues a decree of restitution of conjugal right, the decree in its basic nature
seems to be a direction and an advice of the court that they should resume cohabitation because
Hindu marriage is a sacrament but the non-execution of the decree provides a right of dissolution
of marriage. If the non-petitioner does not fulfill his or her duty within the period of one year
from the date of passing of the decree by the court, any of the parties to the decree can apply for
divorce under Section 13 of the Hindu Marriage Act. The right is available to both the spouses.
So far as the wife is concerned, the right seems to be very important because it is not proper to
imagine that a Hindu husband will continue to exercise his authority over his wife for all times to
come in lieu of some amount paid by him as maintenance. This also discloses the fundamental
human requirements that money is not the only solution to the problems of human life because
relations sometimes play more important role and sometimes they become the foundation of
survival. The important effect of Section 9 is the remedy available to the aggrieved party under
Section 13 of the Act i.e., the wife or husband can submit a petition for divorce.
Section 9 of the Hindu Marriage Act must be read with Section 23 because the duty concept of
the court is available under Section 9 as well as Section 23 of the Act. In both these cases the
court is required to enquire itself about certain matters. These matters may be summarized as
1. It is essential for the petitioner to show that there is bona fide desire on her or his part to
resume matrimonial cohabitation and at the same time the petitioner is sincerely willing to
perform her matrimonial duties.
2. In Syal v. Syal5 and Jogindar Kaur v. Shivcharan Singh6 the issue relating to sincerity of the
petitioner came before the court. It was clearly laid down by the Honble High Courts that the
petitioner who is sincere in that sense can seek the relief under Section 9 but not otherwise.
3. The court will not issue a decree under Section 9 of the Act if the opposite party established
his or her right of living separately that is the ground justified to obtain a decree of judicial
separation or nullity of marriage or of divorce.

5 AIR 1968 P & H 489, as cited in Dr.Anjani Kant, LAW RELATING TO WOMEN AND
CHILDREN, 2nd Ed: Central Law Publications, Allahabad, Pg no. 171.
6 AIR 1965 J & K 95, as cited in Dr.Anjani Kant, LAW RELATING TO WOMEN AND
CHILDREN, 2nd Ed: Central Law Publications, Allahabad, Pg no. 171.

4. The term reasonable excuse provides discretionary power to court to decide whether there is
reasonable excuse on the part of the non-petitioner or not.
5. If it comes to the knowledge of the court that the petitioner is making an attempt to have
advantage of his or her own position, relief under Section 9 will not be provided.
6. It is essential for the court to come to the conclusion that both the parties have not entered into
an agreement ultimately to seek divorce.

7. The law provided under Section 9 is based on the principle of equity and hence unreasonable
delay on the part of the petitioner will defeat his or her right under Section 9 of the Act.


It is important to note that it is for the court to determine whether the non-applicant has avoided
the society intentionally or not and that whether there is any justification for separation.
1. In Gurbux Singh v. Smt. Beera,7 the Punjab and Haryana High court has decided that where
the counter allegations of the wife against her husband are not established and the wife is
reluctant to go to the husbands family, it is not desirable to maintain the right of the wife and
hence a decree of restitution of conjugal rights may be issued in the favor of the husband.
2. In Gurudayal Kaur v. Karnal Singh, 8 the question relating to burden of proof in cases covered
by Section 9 of Hindu Marriage Act came before the court. The Honble Court observed that the
onus normally lies on the wife non-petitioner and if the wife fails to prove her case, the decree
will be passed in favor of the husband, that is, the petitioner.
When the petitioner presents a petition under Section 9, normally it is presumed that the
complaint of the petitioner is genuine and hence there seems to be a doubt in the case of the nonpetitioner. In view of this, the non-petitioner or the opposite party has to establish the
justification for his/her living separately and not providing company to the complainant.
3. In Jagir Kaur v. Bula Singh,9 the Punjab and Haryana High Court decided that when both the
parties had laid the evidence before the court, the onus becomes immaterial and hence the matter
7 1979 H.L.R. 185, as cited in, accessed on 7/11/2012.
8 1977 H.L.R 416 (P & H), as cited in, accessed on

should be determined on the basis of facts and circumstances of the case. In this case, the petition
for restitution of conjugal rights was filed within a period of 8 months and it was argued by the
non-petitioner that the said period of 8 months was not a reasonable period to justify the claim of
the petitioner and hence no decree should be issued in his favor. Section 9 does not provide as to
within what period, a petitioner can submit his/her petition before the court. The Court
considered the circumstances and facts of the case and came to the conclusion that 8 months
period is not an unreasonable delay on the part of the petitioner, in filing the petition.
4. In Pranjivan Avichal v. Deeraj Bai, 10 the Gujarat High Court, considered the question relating
to ex parte decree under Section 9. In that case, the court held that the issue of ex parte decree in
favor of the petitioner. The Honble Court said that under Section 9 of the Hindu Marriage Act, it
could not compel the parties to live together, but if the parties had compromised and started
cohabitation, the degree on the one hand was implemented and on the other hand rendered the
cohabitation lawful.
5. In Mirchumal v. Devi Bai, 11 the Rajasthan High Court considered the issue relating to services
of the parties. In the instant case, the wife was residing at some different place and was in
service. She refused to resign from her service and live with her husband, but at the same time
she preferred to live with her husband during the vacations and also allowed the husband to come
at his convenience and stay with her. The husband filed a petition for restitution of conjugal
rights and issuing of a decree under Section 9. The honorable judges of the Rajasthan High Court
held that the wife was not intentionally avoiding the company of her husband and there was no
justification in ordering for resignation from the service because it will be deprival of wifes right
to service. The decree of restitution of conjugal rights was not issued by the Court and the
husband was advised to maintain the relation.
6. In Avinash Kaur v. Avtar Singh,12 the question relating to avoidance of the society, came
before the court. The parties were not able to patch up the differences. The wife stated that she
was beaten throughout by her husband during her stay. She also said that she was forced to live
at her matrimonial home. Later on, the wife and the husband came to a compromising stand and
9 1977 H.L.R. 392, as cited in, accessed on 6/11/2012.
10 1977 H.L.R. 398, as cited in, accessed on
11 1977 H.L.R. 426, as cited in, accessed on
12 1977 H.L.R. 406, as cited in, accessed on

promised to live together. In view of this evidence, the Court maintained the right of the husband
but did not protect the right of the wife.
7. In Rajkumari v. Harish Chandra, 13 the Punjab High Court considered the aspect of cruelty in
cases to be covered by Section 9 of the Act. In the instant case, the wife was harassed by the
husband for the sake of dowry and false allegations of unchastity were leveled by the husband.
The argument on part of the husband was that the wife did not like her in-laws and hence
misbehaved normally. In such a case, the court gave weightage to the statement made by the wife
relating to maltreatment by the husband and demanded clear proof of intention on the part of the
husband. In that case, the right of the wife to live separately was maintained and it was held that
the husband was not entitled to a decree of restitution of conjugal rights.

It is observed that in view of the Indian circumstances, a Hindu wife normally never prefers to go
to her parents on account of traditionalism. She would prefer to live in her matrimonial home in
spite of stresses and strains. Yet when she is thrown away by her husband or his relative, she is
compelled to live separately and the right of the husband under Section 9 could not be supported.
Thus, when it is proved that the wife is living separately because she was compelled by the
husband to do so, there is no justification to compel the wife to come together again.


The Constitution of State is its basic law. It has two kinds of provisions:

those which are mandatory, and

those which are merely directory.

In the Constitution of India, generally speaking, all provisions are binding except the Directive
Principles of State Policy and the Fundamental duties. In the juristic parlance the binding
provisions of a States Constitution constitute the grundnorm of its legal system. A rule of any
sort which goes counter to the grundnorm gets no ground to stand in the legal system. There is no
exception to it. All laws, public or private, criminal or civil, statutory or customary, local or
personal, procedural or substantive, old or new and even scriptural or human are subject to the
sovereignty of the Constitution in the courts. Fundamental rights impart dignity to the individual.

13 1985 H.L.R. 74, as cited in, accessed on 4/11/2012.


In T.Sareetha v. T.Venkata Subbaih,14 the dispute was that Sareetha was married to Venkata
Subbaih when she was hardly of sixteen years. At that time she was trying to get access to the
South India Filmdom. This gave rise to a misunderstanding between the spouses which resulted
in their alienation. By and by Sareetha became one of the most talented top actresses of South
India. Then Venkata Subbaih filed a petition under Section 9 of the Hindu Marriage Act for the
restitution of conjugal rights with her, after more than five years of separation. Mr. Justice
Chaudhary of the Andhra Pradesh High Court laid down that the remedy of the restitution of
conjugal rights was violative of the wifes fundamental rights to personal liberty and equality as
guaranteed by Article 21 and 14 of the Constitution of India respectively.
One does give injustice with the Constitution and particularly the Fundamental rights enshrined
therein by holding that their provisions are cold and they would disturb the warmth of the
conjugal relationship.

Under the present Hindu law, marriage is a contract as well as samskar. Our social values have
undergone a change, marital relations have taken different directions and the duty concept in
marital relations now stands on a different footing. In view of this, sentimentalism has come to
play a very important role. Cohabitation is an essential term of the very soul of marriage.
The foundation of Section 9 is that the marriage union is prominent and it is not a contract but a
sacrament. It is recognized as a right that the wife must have society of the husband and husband
has a right to have society of his wife.
Introduction of constitutional law in the home affairs is most appropriate. It may be legitimately
asked from those who object to the introduction of the constitutional law in home, DO they
want that the family law need not be respectful of the dignity of its members especially the
female members and more especially the wife? No body can make a negative answer.
Women must be saved from age-old discrimination and second class status in the family. They
have to be given honourable treatment. The matrimonial law has to be so effectively framed that
a wife enjoys matrimonial life as real life partner with equal status. The introduction of the
14 AIR 1983 AP 356, as cited in, accessed on

Fundamental rights and the other human rights for that matter, will not weaken the marital bond.
Matrimonial obligations are not one way traffic, it requires forbearing, adjustment and tolerance
by both the spouses. The Act is in tune with the spirit of the Constitution that men and women be
treated at par in all spheres of human activity in marital life.

BIBLIOGRAPHY, accessed on 7/11/2012., accessed on 4/11/2012.
LAW RELATING TO WOMEN AND CHILDREN, Dr. Anjani Kant, 2ed : Central law publications,