The Supreme Court of India has once again decided to take up the issue of the constitutionality of a much-debated provision i.e. section 9 of the Hindu Marriage Act, 1955 (hereinafter as HMA). The apex court has sought a response from the government on the matter. This is, however, not the first time that this issue has been agitated before the Supreme Court of India. The current plea apparently argues that the no personal law sanctifies the ‘coercive act’ on the part of the state to interfere in matters of an individual’s privacy and dignity and sexual autonomy within a marriage relationship.
Codified Hindu Law and Imprint of Common Law Precepts
The opening statement of Section 9 of the HMA reads as, “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements 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.”
In order to understand the question of the constitutionality of Section 9 of the HMA, it is relevant to understand the context and background in which the whole of the Hindu Marriage Act, 1955 was passed by the parliament through a legally ordained process of reformation and modernization of Hindu law. The Hindu Code Bill famously dealt a death blow to the entrenched patriarchal biases of Hindu society. To start with, the codified Hindu law of marriage in the form of HMA is a sort of hybrid text which attempts to combine selected few Shastric injunctions and English notions of justice most conspicuously visible in the common law system. It is difficult to dismiss the precepts of common law in our legal system as these hinges on aspects of equality between sexes and permeate our laws in more than one way. Now marriage is understood as a sacrosanct relationship under Hindu law. Hindu marriage law was codified with the passage of the HMA and this event in itself marked a watershed moment in the Hindu society as the essence of the common law precepts of justice, equity, and good conscience were introduced into the Hindu marriage laws.
The HMA in one stroke outlawed several of the regressive customs and practices prevalent in the Hindu society. By introducing monogamy as a norm, the HMA forbade a person to have more than one spouse. In view of the prevalent societal reality of the time in an indirect way, the HMA discouraged a Man to keep a woman as a mistress while remaining married to another woman at the same time. Polygamous unions were now illegitimate. The newly promulgated law in this way attempted to demolish the widely perceived debauch tradition of keeping a woman as a mistress in society. As a logical consequence, the new law reposed faith in monogamy and vested both man and woman in a marriage with the same set of rights and responsibilities towards each other. Therefore, conjugality or the idea of living together and sharing intimate space with one another entailed a process of mutual give and take ensconced within the institution of marriage.
Interestingly, the Hindu marriage law now also came to include the legal remedy of ‘divorce’ which in itself was at odds with the Shastric totem of marriage being an ‘indissoluble union’ till eternity. The HMA provided several grounds on which either party could seek a ‘judicial separation’ or ‘divorce’. While divorce implies severing of all ties between a husband and wife, judicial separation signifies a state where both the spouses are separated through a court order awaiting final legal severance of the marital bond. Desertion of one spouse by another, infliction of physical and mental cruelty by one spouse over another, and remarrying during the lifetime of a spouse are some of the grounds which serve as ‘just cause of action’ for one party to seek judicial separation or divorce from a court of law. Section 9 was included in the HMA as a unique ‘go between’ legal remedy between the extremes of ‘divorce’. This was a step to achieve uniformity in Hindu marriage customs and integrate the disparate Hindu society. The law of ‘restitution of conjugal rights’ was conceptualized within the grand object of the HMA to not only codify Hindu laws but also to reform and modernize Hindu laws. It needs to be appreciated that the moment the Hindu marriage law was codified, the state invariably became the arbiter for marriage disputes, and courts of justice were empowered to adjudicate on matters of conjugal rights of parties.
Personal Law, Jurisdiction of State and Free Choice
Notably, on the question of a state having a say in matters of personal law, during a debate on Uniform Civil Code in the Constituent Assembly, Dr. BR Ambedkar, the chief architect of the Constitution and the Hindu Code Bill had observed that “I personally do not understand why religion should be given this vast expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations, and other things, which conflict with our fundamental rights. It is, therefore, quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State.”
Section 9 of the HMA should be, therefore, be viewed through the prism of the grand reformation project of the whole of the Hindu marriage laws and not as a standalone provision that arms the state to coerce one party, a woman in most of the reported cases to join her husband’s company upon presentation of a petition in court by him. The legal remedy of restitution of conjugal rights is gender neutral and provides an opportunity for the abandoned spouse to seek the intervention of the court. The court is obviously not expected to decide on any such plea without application of mind as the provision clearly says that the court has to be ‘satisfied of the truth’ in such a petition. Judicial inquiry based on principles of natural justice is part and parcel of the adjudication process.
In the fast-changing texture of Indian society, it must not be forgotten that patriarchal assumptions are slowly melting away as more and more women have now become part of the workforce. It might be recalled that way back in the year 1978, the High Court of Delhi in the case of Swaraj Garg v. K.M.Garg took note of the emerging societal reality that since more and more women are now going out of the ‘protected realm’ of their homes to earn, therefore, they are equal decision makers and when it comes to deciding upon ‘matrimonial home’ that should not be the sole preserve of men alone as it was generally perceived. The judgment was hailed as a milestone. The contention that “restitution of conjugal rights” under Section 9 of the HMA gives a blanket right to men to have access to the body of a woman through a court order needs to be taken with a pinch of salt. This view appears to be misplaced as it needs to be remembered that the matrimonial relief under Section 9 of The Hindu Marriage Act, 1955 is available to both men and women. The case of the T. Sareetha case, decided by the Andhra Pradesh High Court held the provision to be unconstitutional. The judgment held the provision to be violative of the right to privacy guaranteed under Article 21 of the Constitution of India, 1950 as it denied a woman free choice to decide whether, when, and how her body could become a vehicle for procreation of another human being. This ruling was undone by the Supreme Court of India in the case of Saroj Rani v. Sudarshan where Justice Sabyasachi Mukherjee had poignantly observed-“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.” He further stated-“The remedy of restitution aims cohabitation and consortium and not merely sexual intercourse”. In a separate case of Harvinder Kaur v. Harminder Kaur, the Delhi High court had observed, “The object of a decree of restitution of conjugal rights is to bring about cohabitation between the two estranged parties so that they can live together in amity. It is a two in one provision. On the one hand, it enables the court to coax and cajole the parties to resume marital life and is designed to encourage reconciliation.”
The legal remedy of restitution of conjugal rights is the only specific provision in the HMA that explicitly affords an opportunity to stitch up a crumbling matrimonial house. The other remedies of a ‘judicial separation’ and ‘divorce’ are disjunctive in nature. A provision of law that aims to restore matrimonial togetherness should not be dismissed in the light of individual fundamental freedoms. Fundamental rights do not apply in the same sense to domestic space as these are claimed against the state. Consistently, in the past, the superior courts have refrained from invoking the application of fundamental rights to private space. There have been few exceptions like the MC Mehta v. Union of India case wherein the larger public interest involved the court made a private entity answerable to the breach of the fundamental right to life. In cases like the Githa Hariharan case, the court harmonized the opposing claims by reiterating that the legislature contemplates a Man and Woman like every other Hindu law legislation as equal and any specific case of apparent prejudice can be settled through purposive interpretation of the statutory provisions. In the case of ‘restitution of conjugal rights, the horizontal application of fundamental rights to the protected domestic space of a marital union is likely to open up a Pandora’s Box. No doubt, in many cases like the Consumer Education & Research Centre et al. v. Union of India & Ors the Supreme Court has held the ‘right to health’ to be preserved even against a private entity where workers were employed in hazardous work. However, applying the claim of the ‘right to privacy within the shared bond of marriage is a different scenario altogether and it may be like allowing the ‘bull in the china shop’ as the hitherto sanctity of the conjugal relationship may be destroyed forever. In the Harvinder Kaur case, the court refrained from introducing constitutional law in the sanctity of a home. It makes good sense for Section 9 of the HMA to be preserved.
About the Author:
Sunil Kumar is Assistant Professor of Law at the School of Law, Lovely Professional University (LPU) at Phagwara, Punjab(India). He tweets @kumardiaries. He can be reached at firstname.lastname@example.org