Non Maintainability

According to the husband, the wife left her matrimonial home to live with her parents within
a year to live with her parents, amongst others, the following pleas:-

 .that the wife has deserted the husband without any reasonable cause and no fault lies on
the part of husband.
 the petition for restitution is maintainable as the period of two years has not been
completed the wife had left the house in the 2017 and petition for restitution was filed in
July 2019.
 The petition is malafied and the wife is taking advantage of her own wrong for the
purpose of the relief which she has prayed in the petition
 The wife withdrew from matrimonial obligations and deserted the husband
 Under Section 125 CrPC wife is no entitled to receive any maintenance from the husband
If she refuses to live with husband without any sufficient reason.

A. Whether Sec 9, 13(1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32
and 33 of the Code of Civil Procedure, 1908 is an ex facie arbitrary and violates the
fundamental rights under Article 14, 19(1) (d) and 21 of the Constitution of India?
[1].Is not a violation on the Basic structure doctrine of the Indian Constitution?
(i) It is a humble submission of the petitioner before the Hon’ble Court that the present issue
encompassing the provisions for restitution of conjugal rights that are under Section 9 and
Sec 13(1-A)(ii) of the Hindu Marriage Act,1955 does not violate to the concept of
fundamental rights guaranteed under Article 14,19(1)(d) and 21 of the Constitution of India.
[1.1Not Violative of Article 14 of the Constitution of India

 Section 9 and Section 13(1-A) cannot be said to be in violation of Article 14 of the

Constitution as there is no provision in the Act whatsoever that gives either party
more advantage in the provision. Both the to a marriage can approach the court for
any kind of relief under Section 13(1-A) and Section 9 of The Hindu Marriage Act.
Either party to marriage is allowed to present a petition for divorce on grounds
mentioned in 13(1-A).The theory that one party cannot take advantage of one’s wrong
has not been adhered to in the Act. There is complete equalities of sexes here and
equal protection of the laws. Hence Section 9 cannot be struck down as violative of
Article 14 of the Constitution.1
 The sole purpose the restitution decree is to try and unite the family and according to
the breakdown theory of the Hindu law any party who is a part of the marriage can
obtain divorce by proving two points (a) If it is shown that that the decree of for
restitution of conjugal right has not been complied for a minimum of 1 year or more
(b) if it is shown that cohabitation has not been resumed for a period of one or more
year after passing the decree for judicial separations. Section 13(1-A),Hence is not
violative of fundamental right.

1
Hindu Marriage Act 71st Report P.16
  The objective of a good divorce law are twofold. Firstly, to aim at the stability of
marriage. This is achieved by section 9.Secondly,when the marriage has irretrievably
broken down , to enable the empty legal shell to be destroyed with the maximum
fairness and the minimum bitterness, distress and humiliation. The second object is
achieved by section13(1-A) (ii).If Section 9 is unconstitutional it must necessarily
follow that section 13(1-A) is also constitutionally void as it states the grounds to seek
divorce. The Indian legislature is of the view that there should not be a sudden break
of their marriage tie.2
 In today’s time marriage not only a sacrosanct sacrosanct union of wife but also a
contract in which two parties who sui juris agree to come in a relation in which the
husband performs and obligation of a husband and wife performs an obligation of a
wife .Likewise when either of the party wats to leave a marriage it can if there is
sufficient reason but if not a court has every right to enforce the contract and there is
not wrong with that3. Also one can opt out of it with sufficient reasoning one cannot
become a party to a contract or choose to stop being a party of a contract as one
pleases as the marriage is not only for the benefit of the society but for third parties as
well. Most importantly to maintain the order of the civil society. Hence, obligation on
the parties in no way violates Article 14 or any other part of constitution as it poses
same obligation on both the parties.
 The remedy of conjugal rights in no way violates any personal rights it only gives a
the parties a cooling off period which is very essential to give people time to think
about the consequences of divorce which is not only limited to personal choices but
implication on family and children. The court grants restitution when there is
evidence that the person who withdrew from the appellant is entitled to decree of
restitution of conjugal right.4
 “Conjugal rights” which means right of the husband or the wife to the society of the
other spouse is not merely a creature of the statute. Such a right is inherent in the
institution of marriage itself. When a decree is passed under Order 21 Rule 32 CPC is
attachment of property against disobedience of the decree where the disobedience
follows as a result of a wilful conduct i.e. where the decree is disobeyed in spite of the
opportunities and there are no other impediments. There is sufficient safeguard in
Section 9 to prevent it from being tyranny. It serves a social purpose as an aid to
prevent the breakup of marriage. Having regard to the purpose of the decree for
restitution of conjugal rights in it’s proper perspective and the method of it’s
execution in cases of disobedience, Section 9 cannot be said to be violative of Article
14 and 21.5

[1.2]Not Violative of Article 19(1)d of the Constitution of India

 Decree of restitution in no manner violates this article has the purpose of this decree is
to give time to husband and time to come on the same page and fix their relationship.
Which will have the desired effect only when they are cohabiting as a husband and a
wife should otherwise every matrimonial alliance will infringe Article 19(1)d as the
girl has to leave her house to go to a strangers house who is her husband we often

2
Harvender Kaur v.Harmander Singh AIR 1984 Del 66 (Para 15,16,20,21,23,26,28,&32,68,69& 71)
3
Sir William Blackstone a XIX century lawyer and jurist
4
Suman Singh v.Sanjay Singh,2017 4 SCC 85
5
Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90
 witness crying of the bride when she is about to leave her parents’ house. This doesn’t
necessarily mean the tradition is infringing anyone’s fundamental right. Like wise
restitution doesn’t infringe the it’s only a initiative to protect a marriage and if any of
the spouse doesn’t want to cohabit an appeal can be filed in the court with the
appropriate reason.6 If an appropriate is mentioned divorce may be granted after a
separation of 1 year with just cause after passing of the decree of restitution.
‘Cohabitation’ means living together as husband and wife.7
 Nowhere there is a mention of any provision that once a spouse under the decree of
restitution begins to live with the other spouse, one has to act according or move
according to the other spouse. The sole purpose of the decree is to give party the time
to think it through and work it out if they still can’t do it a divorce will be granted
with maintenance if there is a just cause and without maintenance if there is no
reason8.
 It is only fair to give a another chance so because in society where marriage is of great
significance and not only the party to marriage is affected by it but the families as
well. The stipulated time of one year to comply with the decree of get divorce is a
little price to pay for the benefit of everyone. As per Hindu belief one and man are
one for not one but seven lifetimes hence it isn’t fundamentally wrong to grant a
decree which might help to save marriage rather than granting frequent divorce. It
only tries to preserve the order of society.

[1.3] Not Violative of Article 21 of the Constitution of India

 Section 9 of the Hindu Marriage Act does not violate Article 21 as one only
discharges the duty of being a spouse and a husband and the duty of keeping the
morale of the society which is the obligation of every individual who is a part of this
society, in no manner an attempt to reconcile a married be said to deprive anyone of
liberty.
“the object of the restitution decree is to bring about cohabitation between the
estranged parties so that they can live together in the matrimonial home in Amity” 9
 It is believed that a cooling of period is not only desirable but essential. That is why it
allows husband and wife time to come together to the conjugal fold. Dicta of eminent
judges are against the view that restitution decree compels the wife to have forced sex
with an unwilling party. No case has ever said anything of the Sort. Section 9 of the
act is not violative of Article 21 of the Constitution.10
 The decree of restitution acts as is a very important attempt to save a marriage and
more like a litmus paper test as it shows a change of heart if restitution decree is
obeyed and if it is disobeyed it is an indication that parties have reached a point of
not return.The Act’s professed object is to facilitate reconciliation in matrimonial
cases. This it does by asking by asking the spouse to return to the matrimonial home
and gives one year time to do so. If it is not obeyed the court dissolves the marriage
on proof of non-compliance of the restitution decree. This nowhere violates the

6
Supra 6
7
Evans v. Evans,(1948) K.B. 175(7)
8
Supra 6
9
Saroj Rani v. Sudarshan 1984 SC 1562
10
Salmond J. in (Lodder v. Lodder)
Jackson v.Jackson,1924 P.19; Weatherley v.Weathereky.1947(1) All E.R 563
 Article 21 a person has fully autonomy to not obey the decree if appropriate cause is
there.
 A recent writer has suggested that “the opinion of Derrett is more realistic and that the
Hindu society is not mature enough to do away with the remedy. Its abolition would
be like throwing away the baby with the water.” 11 Section 9 is a positive relief under
the Act aiming at the preservation of the marriage. Our personal law are adopted with
the British perspective but the mental make up of the Anglo-Sexons is different from
ours and we should not try to imitate them blindly.
[2] Credibility of Order XXI Rule 32 and 33 of Code of Civil Procedure

 Order 21 Rule 32 and 33 do not violate fundamental rights as the wife after the
restitution of conjugal right was passed she has two options (i)either to challenge the
same (ii) to comply with the same. If the wife chooses neither then she cannot be
allowed to take the plea that the husband is committing domestic violence on her .If
the wife does not perform her matrimonial duties without any justifiable cause, then
she cannot be permitted to say that the husband is committing do domestic violence
on her. If restitution is granted to the husband the wife may plead justification for non
compliance of restitution order. When it is not justified it results in annulment of
marriage without maintenance.12
Hence this act is not in violation of fundamental rights as the wife has the option to
justify herself.
 There is sufficient safeguard in Section 9 to prevent it from being a tyranny. It serves
a social purpose as an aid to the prevention of breakup of marriage. The purpose of
decree of restitution of conjugal right in its proper perspective and the method of it’s
execution in cases of disobedience, Section 9 cannot be said to be violative of article
14 or 21.13

B. Whether a decree of restitution of conjugal rights violates the right to privacy,right of

mental and Physical health and right of dignity of a woman under article 21 od the
Constitution of India?

 The decree of restitution does not violate right to privacy or dignity. As the petitioner
will be denied the decree of restitution if the person who has withdrawn from the
society gives a reasonable excuse and discharge himself of the burden of properly
justifying themselves.
 Three conditions must be satisfied (Satisfied v. Gurdeep)14 for the restitution of
conjugal right to be granted (i) the respondent has withdrawn from the society of
the petitioner without any reasonable excuse (ii) the court is satisfied about the
truth of the statement made in such a petition (iii)there is no legal ground why the
relief should not be granted.

11
R.C Nagpal-Modern Hindu Law (1983) edition (page 110)
12
Anita v. State of Rajasthan (2012) 3 RLW 2245
13
Saroj Rani v. Sudarshan Kumar Chadda (1984) 4 SCC 90,100 to 102
14
Sureindher v.Gurdeep,1973 P&H 134
 In the light of the above conditions it is clear that it no way violates right to
privacy an integral part of Article 21, as the sole purpose of marriage is to cohabit
and live with it other and complete on another in a scenario where a person who
has deserted the other spouse without any just ground is against the institution of
marriage and the stability of marriage. Hence, restitution is essential provision to
give one last chance to marriage, before it is concluded that it is beyond
redemption and divorce is the only way out.
 In Anna Saheb v. Tarabari15 it has been stated that a petitioner cannot be refused
restitution, just because just because the respondent does not like him or does not
want to live with him or otherwise not a fit person to be a proper life companion.
 This provision is of significance in the Indian society as here most of the marriage
according to the Hindu tradition such as the present case are solemnised with the
consent of girl and boy and most essentially the approval of parents so it will be
unfair to refuse to cohabit with the spouse in the aforementioned grounds when
these principles have already with rectified and are true to the knowledge of both
parties. So in absence of just cause this provision under Section 9 cannot be said
to violative of the fundamental rights under article 21.
 “Cohabitation does not necessarily mean sexual intercourse, so the refusal to sexual
intercourse by itself does not constitute refusal to cohabit”. Hence, this in no way
harms the bodily integrity or degrading of dignity if an individual the only purpose of
this decree is to give an opportunity to reconcile in any way possible and discharge
their respective matrimonial duties.
 Lord Stowell in Forster v. Forster16 among other cases17 have given decision that
the Court does not and cannot enforce sexual intercourse also said in Halsbury’s
statement of law.
 On a general no introduction of constitutional law in home is most inappropriate It is
like introducing a bull in a china shop. It will prove to be a ruthless destroyer of
the marriage institution and all that it stands for. In the privacy of the home and the
married life neither Article 21 nor Article 14 have any place. In a sensitive sphere
which is atonce most intimate and delicate the introduction of the cold principles of
constitutional law will have the effect of weakening the marriage bond. That the
restitution remedy was abolished in England in 1970 by Section 20 of the
Matrimonial Proceedings and Properties Act, 1970 on the recommendation of the Law
Commission headed by Justice Scarmann is no ground to hold that it is
unconstitutional in the. Indian set-up. In the home the consideration that really obtains
is that natural love and affection which counts for so little in these cold courts.
Constitutional law principles find no place in the domestic code.
 Atkin L.J., in a famous judgment, said:
“The parties themselves are advocates, judges, courts, sheriff's officer and reporter.
In respect of these promises each house is a domain into which the king's writ does
not seek to run, and to which his officers do not seek to be admitted.”(Balfour v.
Balfour)18,

15
Anna Saheb v. Tarabari,1970 MP 36
16
Froster v.Froster,(1790) 1 Hag. Con.144(3)
17
Orme v.Orme (1924) 2 Add 382 ; Rowe v. Rowe,(1865) 34 L.J.P M&A 111(5)
18
Balfour v. Balfour, (1919) 2 K.B. 571 (15)
  In the scheme of the Act the restitution decree is the high road to divorce. There is
only a waiting period of one year before the marriage is dissolved. There is no
quarrelling. There is a lull. Spouses live during the period under a type of legal
armistice, or the non-compliance of the restitution decree the court pronounces
divorce at the end of one year. So heat has been taken out of divorce. Harvinder v.
Harmindir19
 There is a great merit hence it is very essential method and neither party has to
compromise in any manner regarding dignity, privacy or any mental and physical
aspect the legislature believes that both the parties will try to find a way to save
their marriage which concerns not only them but their family as well and more
over it reduces the rate of divorce. Moreover party to marriage are free to
challenge the decree if there is sufficient .
 Rohtagi J. in Harvinder vs Harminder20-.I might add that it may be that law is not
always logical, but neither is human behaviour. Law is much more concerned with
human behaviour than with logic. If human behaviour ceases to be logical, than the
law has to keep pace with human behaviour, such as it is, and not as it would be in a
logical world.

19
Harvender Kaur v. Harmander Kaur AIR 1984 Del 66
20
Supra 19