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SMT. SAROJ

RANI 1A

v.

SUDARSHAN KUMAR CHADHA

August 8, 1984

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[S. MURTAZA FAZAL ALI AND SABYASACHI MUKHARJI, JJ.J

Constitution of India 1950, Articles 13, 14 and 21 .

Remedy

of

restitlltion of conjugal rights-Sectlon 9, Hindu Marrlage Act

1955-Whether vio!ates human dignity

1 right to privacy and per~;,,al liberty-C

And whether valid and constitutional.

Hindu Marriage Act 1955, Sectlpns 9, 13 and 23(1) (a).

PetUion by wife for restltutz'on of conjugal rights-Hu~band consenting

to the passing of a decree-Decree passed-Hi~sband after one year filing petf.. D

tion under section 13 for divorce-Husband whether entitled to a decree of

divorce.

Code o.f Civil Procedure 1908, Order 21, Rule 32-Decree for restitu ..

tlon of conjugal rights-Execution of.

The wife·appetlant filed a suit against the husband-respondent under

Section 9

of the Hindu Marriage Act

1955, for restitution of conjugal

rights. Though the respondent contested the petition contending that he

had neither lurned the appellant out from his house nor withdrawn from

her !'ociety, later as he made a statement in the Court that the application

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under Section 9 be granted; a consent decree was passed by the Sub.Judge F

for the restitution

of conjugal rights between the parties.

After a lapse

of a year, the respondent-husband filed a petition under

Section 13

of the Act against the appellant for divorce on the ground that

though one

ye"l.r had lapsed, from the date of passing the decree for restitu­

tion of conjugal rights, no actual co-habitation had taken place between

the parties. The appellant filed

her reply

contending that she was taken

to the house

of the husband by her parents one month after the decree :'>nd that the hu~band kept her in the house for two days and then she was

agai, 1urned out. It was further al.leged that an application unc!er Section

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28A Qle~ in the Subordina le Court was pending. H

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SUPREME COURT REPORTS (1985] 1 s.c.R.

The District Judge after considering the evidence of the civil and

criminal Proceedings pending between the parties, came to the conclusion

that there had been no resumption of cohabitation between the parties

and that in view of the provisions of Section 23 and in view of the fact

that the previous decree was a consent decree 'and that at the time of the

;assing of the said decree, as there was no provision like Section 13B i.e.

divorce by mutual consent'; held that as the decree for restitution of

conjugal rights was passed by the consent of the parties, the husband was

not entitled

to a decree for divorce.

The respondent filed an appeal. A

Single Judge of the High Court

fo11owing the decision of this Court in Dharmendra Kumar v. Usha Kumari

[1978] l SCR 315, held that it could not be said that the husband was

taking advantage

of his

'wrongs

1

, but however expressed the view that the

decree for restitution

of conjugal rights could not be passed with the

consent of the parties, and therefore being a coUusive one disentitled

the husband to

a decree for divorce, and referred the matter to the Chief

Justice for constitution

of a Division Bench for consideration of the

question.

The Division Bench held following

Joginder

Singh v. Smt. PuJhpa,

AIR 1969 Punjab

1

and Haryana page 397 that a consent decree could

not be termed

to be a collusive decree so as to disentitle the petitioner

to a decree

tor restitution of conjugal rights, and that in view of the

language

of Section 23 if the Court had tried to make conciliation bet.ween

the parties

and conciliation had been ordered, the husband was not

disentitledl to get a decree. The appea1 was allowed, and the husband

granted a decree of divorce.

Jn the appeal

to this Court it was contended on behalf of the

wife­

appel1ant that: (a) in view of the expression 'wrong' in Section 23(1) (a)

of the Act, the husband was disentitled to get a decree for divorce, and

(b) Section 9

of the Act was arbitrary and void as offending Article 14 of

the Constitution.

Dismissing the Appeal,

HELD :

(!) In India conjugal riqhts i.e. right of the husband or

the wife to the society of the other spouse is not merely creature of the

statute. Such a right is inherent in the very institution of marriage itself.

There are sufficient safeguards in Section 9

of the

Hindi;1 Marria~e Act tQ

ff prevent it from bein~ a tyranny. [314 D-EJ

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SAROJ RANi v. s. K. CHADHA (Mukharjl. J.) 305

2. Section 9 is only a codification of pre-existing law. Rule 32 of A

Order 21 of the Code of Civil Procedure deals with decree for specific

performance for restitution of conjugal rights

or for an injunction. [314 H]

3. Section 9

of the Act is not violative of Article 14 or Article

21 of the

Con~titution if the purpose of the decree for restitution of conju-

gal rights in the said Act is understood in its proper perspective and if the B

method of execution

in cases of disobedience is kept in view. (315 G]

T.

Sareetha v. Venkata Subbaiah, A.I.R. 1983 Andhra Pradesh page

3S6, over-ruled.

Smt. Harvinder Kaur v. Hormander Singh Choudhry, A.I.R. 1984

Delhi, page 66, approved.

4. It is significant that unlike a decree of specific perfOrmance of

contract; a decree for restitution of conjugal rights, where the disobedience

to such a decree

is wilful i.e. is deliberate, might be enforced by

attach­

ment of property. Where tbe disobedience follows as a result of a wilful

conduct i.e. where conditions are there for a wife or a husband to obey the

decree for restitution

of conjugal

righ~s but disobeys the same in spite of

such conditions, then only the properties have to be attached, is provided

for. This

is so to enable the Court in

approPriate cases when the Court

has decreed restitution for conjugal rights to offer inducement for the

husband or wife to live together and to settle up the matter amicably. It

serves a social purposeJ as an aid to the prevention of break-up of marriage.

[31S C-F]

5. (i) Even after the final decree of divorce the husband would

continue to pay maintenance

to the wife until she remarries and would

maintain the one living daughter

of the marriage.

Separate maintenance

should be paid for the wife and the living daughter. Wife would be

entitled

to such maintenance only until she remarries and the daughter to

her maintenance until she

is' married. (316 c; E]

(ii)

Until altered by appropriate order on application or proper mate·

rials, such maintenance should be Rs. 200 per month for the wife, and

Rs. 300 per month for the daughter. (316 D]

CIVIL APPPLLATa JURISDICTION : Civil Appeal No. 187of1983.

From the Judgment and Order <laced the 17th August, 1982

of the Punjab and Haryana High Court in First Appeal From Order

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No. 199-M of 1979. H

306 SUPREME COURT REPORTS [1985] l S.C.R

A R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the

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appellant.

E.C. Agarwala, Mrs. H. Wahiand Rajiv Sharma for the respon­

dent.

The Judgment

of the

Court was delivered by

SABYASACHI MUKHARJi, J. The parties herein were married at

Jullundur City according to Hindu Vedic rites on or about 24th

January,

1975. The first daughter of the marriage Menka was born

on 4th January,

1976.

On 28th Fcbrnary, 1977 second daughter

Guddi

was born. It is alleged that 16th May, 1977 was the last

day

of cohabitation by the parties. It is further alleged that on 16th

May,

1977, the respondent-husband turned the appellant out of his

house and withdrew himself from her society. The second daughter

unfortunately expired

in the house of the respondent/father on 6th

August,

1977.

On 17th October, 1977, the wife-appellant filed a

suit against the husband/respondent herein under Section 9

of the

Hindu Marriage Act,

1955 hereinafter referred to as the said Act

for restitution of conjugal rights.

In

view of the argument now sought to be advanced, it is

necessary to refer to the said petition. In the said petition, the wife

had set out the history of the marriage

as hereinbefore briefly

mentioned and alleged several mal-treatments both

by the husband

as well as by her in-laws and thereaftar claimed decree for restitution

of conjugal rights.

On 21st March, I 978, the learned Sub-Judge

Ist Class passed

an order granting Rs. 185 per month as maintenance

pendente lite and Rs.

300 as the litigation expenses. On 28th

March,

1978, a consent decree was passed by the learned Sub-Judge

Jst

Class for restitution of conjugal rights. It may he mentioned

that on the petition of the

wife for restitution of conjugal rights, the

husband-respondent appeared and

filed his written statement

admitt­

ing therein the factum of marriage between the parties but denied

the fact that the respondent had ever made any demand from the

petitioner

as alleged or had ever disliked her or had withdrawn from

her society or turned her out from

his house as alleged by the wife­

petitioner in her petition for restitution of conjugal rights. The

respondent thereafter made a statement in the court that

the

appli­

cation of the petitioner under Section 9 of the said Act be granted

and decree thereof

be passed. Accordingly the learned

Sub:Judge

Ist Class on 28th March, 1978 passed the decree for the restitutio'l

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SARO! RANi v. s. k. CHADHA (Mukharji, J.) 307

of conjugal rights between the parties. It was alleged by the

petitioner-wife that the appellant had gone to the house of the

respondent and lived with

him for two days as husband and wife.

This fact has been disbelieved by all the courts. The courts have

come to the conclusion and that conclusion

is not challenged before

us that there has been no cohabitation after the

pa!sing of the

decree for restitution

of conjugal rights.

On 19th April, 1979, the respondent/husband filed a petition

under Section

13 of the said Act against the appellant for divorce

on the ground that one year had passed from the date

of the decree

for restitution

of confugal rights, but no actual cohabitation had

taken place between the parties. The appellant filed her reply to

the said petition. The categorical

case in reply of the appellant was

that it was incorrect that after passing of the decree, there had been

no restitution of conjugal rights between the parties, positive case

of the appellant

was that after passing of the decree, the wife was

taken to the house of the husband by the parents of the wife after

one month of the decree and that the husband kept the

wife in his

house for two days and she

was again turned out. It was further

alleged that

the wife had filed an application under

Section 28A of

the said Act in the court of Sub-Judge, Ist Class, Ju!lundur on 22nd

January,

1979 with the request that the husband should be dtrected

to comply with the decree passed against him under

Section 9 of

the said Act and the application

was pending at the time when the

reply

was filed by

!he wife to the petition for divorce.

The learned District Judge on 15th October,

1979 dismissed

the petition

of the husband for

divorc·. The learned Judge framed

two issues, one

was whether there has been no restitution of

con­

jugal rights dter the passing of the decree for the restitution of

conjugal rights, and secondly to will.I relief was the husband entitled

to ? After cqnsidering the evidence of civil and criminal proceed­

ings pending between the parties, the learned Judge came to the

conclusion that there has been no resumption of cohabitation

between the parties after 28th March,

1978 and decided the issue in

favour

of the husband but on the question of relief the learned

Judge

was of the view that in view of the provisions of Section 23

of the said

Ac, and in view of the fact that the previous decree was

a consent_ decree and at that time there was no provision like pro­

vision of Section 13B of the said Act i.e. 'divorce by mutual consent',

the learned Judge

was of the view that as the decree for restitution

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SUPREME COURT REPORTS

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of conjugal rights was passed by the consent of the parties, the hus­

band was not entitled to a decree, for divorce.

Being aggrieved

by the said decision, there was an appeal

before the High Court

of

Punjab and Haryana. So far as last

mentione4 ground was concerned, the High Court held that in view

of the decision of this Court in the case of Dharmendra Kumar v.

Usha Kumari, (

1

) this contention was not open to the wife. The

court

was of the opmion that in view of the said decision of this

Court, it could not be said that the husband

was taking advantage

of his 'wrongs'. In the said decision this Court noted that it would

not

be reasonable to hold that the relief which was available to the

spouse against whom a decree for restitution

of conjugal rights had

been passed

~hould be denied to the one who does not comply with

the decree passed against him or her. The expression "in order to

be a 'wrong" within the meaning of Section 23 \!) (a) the conduct

alleged has to be something more than mere disinclination to agree

to an offer of reunion, it must be misconduct serious enough to

justify denial

of the relief to which the husband or the wife is

otherwise entitled to.

So, therefore, Section 23 ll) (a) provides as

follows:-

"23. (1) In any proceeding under this Act, whether

defended

or not, if the Court is satisfied that-

(a) any of the grounds for granting relief exists and

the petitioner except in cases where the relief is sought by

him on the ground specified

in sub-clause (a), sub-clause (b)

or sub-clause (c) of clause (ii)

of section 5 is not in any way

taking advantage of

his or her own wrong or disability for

the purpose of such relief

and").

In that view of the matter, the High Court rejected the con­

tention. So far as the other aspect was concerned, the learned

Judge expressed the view that the decree for restitution of conjugal

rights could not be passed with the consent

of the parties and

therefore being a collusive one disentitled the. husband to a decree

for divorce. This view

was taken by the learned trial judge relying

on a previous decision of the High Court. Mr. Justice Goyal of

the High Court felt that this view required reconsideration and he

therefore referred the matter to the Chief Justice for constitution

of

a Division

Be11ch of the High Court for the consideration of this

question.

(I) [1978] l S.C.R. 315.

SAROI RANi v. s. ic CHADHA (Mukhar}i. i.) 3o9

The matter thereafter came up before a Division Bench of

Punjab and Haryana High Court and Chief Justice Sandhawalia for

the sa'd court

on consideration of different authorities came to the

conclusion that a

consent decree could not be termed to be a collu­

sive decree so as to disentitle the petitioner to decree for restitution

of conjugal rights.

It may be mentioned that before the Division

Bench on behalf

of the appellant-wife, counsel did not assail the

factual finding of the Trial Court that there

was no co-habitation

after the decree for restitution of conjugal rights nor did he press

the first ground of defence namely that the appellant could not take

advantage of his 'wrong' because of having refused cohabitation in

execution of the decree. However, the ground that the decree for

restitution

of conjugal rights was in a sense collu,ive decree was

pressed before the Division Bench. In view of the Full Bench

deci­

sion of the Punjab aud Haryana High Court in the case of Joginder

Singh

v.

Smt. Pushpa(') wherein the m1jority of the Judges of the

Full Bench held that a consent decree

in all cases could not be said to

be a collusive

decree and where the parties had agreed to passing of

a decree after attempts had been made to settle the matter, in view of

the language of Section 23 if the court had tried to !]lake conciliation

between the parties and conciliation had been ordered, the husband

was not disentitled to get a decree.

Section 23 sub-section (2) provides as follows :-

"(2)-Before proceeding to grant any relief under this

Act, it shall

be the duty of the court in the first instance, in

every case where it

is possible so to do consistently with the

natnre and circumstances of the case, to make every endea­

vour to bring about a reconciliation between the parties : Provided that nothing contained in this sub-section

shall apply to any proceeding wherein relief is sought on

any

of the grounds specified in clause (ii), clause (iii),

clause (iv), clause (v), clause (vi) or clause (vii)

of

sub­

section (I) of section 13."

In this case from the facts on record it appears that there was

no collusion between the parties. The wife petitioned against the

husband

on certain allegations, the husband denied these allegations.

He stated that he

was willing to take the wife back. A decree on

that basis

was passed. It is difficult to find any collusion as such in

(I) A.l.R. 1969 Punjab and Haryaoa

397,

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310 SUPREME COURT REPORTS [1985J 1 s.c.ll..

the instant case. Apart from that we are in agreement with the

majority of the learned judges

of the Division Bench of Punjab and

Haryana High Court in the case of

Joginder Singh v. Smt. Pushpa

(supra) that all cases of consent decrees cannot be said to be

collu­

sive. Consent decrees per se in matrimoniai matters arc not collusive.

As would be evident from legislative intent of Section 13B that

divorce

by mutual consent is no longer foreign to Indian law of

divorce but of course this is a sabsequent amendment and was not

applicable at the time

when the decree in question was passed. In

the premises we accept the majority view of the Division Bench of

Punjab and Haryana High Court on this point.

In this appeal before this Court, counsel for the

wife did not

challenge the finding

of the Division Bench that the consent decree

as such .was not bad or collusive. What he tried to

urge before us

was that in view of the expression 'wrong' in Section 23(1) (a) of the

Act, the husband

was disentitled in this case to get a decree for

divorce.

It was sought to be urged that from the very begining the

husband wanted that decree for

divo'rce should be passed. He

therefore did not deliberately oppose the decree for restitution

of

conjugal rights.' It was submitted on the other hand that the

res­

pondent/husband had with the intention of ultimately having divorce

allowed the

wife a decree for the restitution of conjugal rights

knowing

fully well that this decree he would not honour and thereby

he misled the

wife and the Court and thereafter refused to

cohabi­

tate with the wife and now, it was submitted, cannot be allowed to

take advantage of his 'wrong'. There

is, however, no whisper of

these allegations in the pleading. As usual, on this being pointed

out, the counsel prayed that

he should be given an opportunity of

amending

his pleadings and, the parties, with usual plea, should not

suffer for the mistake

of the. lawyers. In this case, however,

there are inmrmountable difficulties. Firstly there

was no

pleading, secondly this ground

was not

urged before any of the

courts below which

is a question of fact, thirdly the facts pleaded

and the allegations made

by the wife in the trial court and before

the Division Bench were contrary to the facts

now sought to be

urged

in support to her appeal The definite case of the wife was

that after the decree for restitution of conjugal rights, the husband

and

wife cohabitated for two days. The ground now sought to be

urged is thatthe husband wanted the wife to have a decree for judicial

separation

by some kind of a trap and then not to cohabitate with

her and thereafter obtain this decree for divorce. This would

be

opposed to the facts alleged in the defence by the wife. Therefore

I

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SAkoj RANI v. s. k. CHADHA (Mukharji, J.) 311

quite apart from the fact that there was no pleading which is a seri­

ous and fatal mistake, there is no -scope of giving any opportunity of

amending the pleadings at this stage permitting the wife to make an

inconsistent case. Counsel for the appellant sought to urge that

the experession 'taking advantage of his or her

own wrongs' in clause

(a) of sub-section 23 must be construed in such a manner as would

not make the Indian

wives suffer at the hands of cunning and

dis­

honest husbands. Firstly even if there is any scope for accepting

this broad argument, it has no factual application to this case and

secondly if that

is so then it requires a legislation to that effect. We

are therefore unable to accept the contention of counsel for the

appellant that the conduct of the husband sought to

be urged against

him could possibly come within the expression 'his

own wrongs' in

section

23(1) (a) of the Act so as to disentitle him to a decree for

divorce to which he

is otherwise entitled to as held by the courts

below. Further more

we reach this conclusion without any mental

compunction because it is evident that for whatever be the reasons

this marriage has broken down and the parties can no longer

Jive

together as husband and wife, if such is the

situation it is better to

close the chapter.

Our attention, however, was drawn to a decision of a learned

single judge of the Andhra Pradesh High Court in the case of

·r. Sareetha v. Venkata Subbaiah.(1) In the_ said decisio;i the learned

judge has observed that the remedy

of restitution of conjugal rights

provided for

by Section 9 of the said Act was a savage and

barbar­

ous remedy violating the right to privacy and human dignity guaran­

teed by Article 21 of the Constitution. Hence, according to the

learned judge, Section 9 was constitutionally void. Any statutory

provision that abridged the rights guaranteed

by

Part III of the

Constitution would have to

be declared void in terms of Article 13

of the Constitution. According to the said learned judge, Article 21

guaranteed right to life and personal liberty against the

State action.

. Formulated in simple negative terms, its range of operation positi­

vely forbidding the State from depriving any person of his life or

personal liberty except according to the procedure established

by Jaw

was of far-reaching dismensions and of overwhelming constitutional

significance. Learned judge observed that a decree for restitution of

conjugal rights constituted the grossest form

of violation of any

indi­

vidual right to privacy. According to the learned judge, it denied

the woman her free choice whether, when and how her body

was to

(I) A.I.R. 1983 Andhra Pradesh 356.

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become the vehicle for the procreation of another human being. A

decree for restitution of conjugal rights deprived, according to the

learned judge, a woman

of control over her choice .as

and when and

by whom the various parts

of her body should

be allowed to be

sensed. The woman loses her control over her most intimate decisions.

The learned judge therefore was of the view that the right to privacy

guaranteed by Article 21 was flagrantly violated by a decree for

restitution of conjugal rights. The learned judge was

of the

view that a

wife who was keeping away from her husband because

of permanent or even temporary estrangement cannot be forced,

without violating her right to privacy to bear a child

by her husband.

During a time when she was probably contemplating

an action for

divorce, the

use and enforcement of Section 9 of the said Act against

the

e;tranged wife coilld irretrievably alter her position by bringing

about forcible conception permanently ruin;ng her mind, body and

life and everything connected with it. The learned judge was there­

fore clearly of the view that Section 9 of th<: said Act violated Arti­

cle 21 of the Constitution. He reffered to the Scarman Commission's

report in England recommending its abolition.

1he learned judge

was also

of the view that Section 9 of the said Act, promoted no

legitimate public purpose based on any conception of the general

good.

It did not therefore subserve any social good. Section 9 of

the said Act was, therefore, held to be arbitrary and void as offending

Article

14 of the Ccnstitution. Learned judge further observed that

though Section 9 of the

Sdid Act did not in form offend the classi­

fication test, inasmuch as it made no discrimination between a hus­

band and wife, on the other hand, by making the remedy of re;ti­

tution of conjugal rights equally available both to wife and husband,

it apparently satisfied the equality test. But bare equality

of

treat­

ment regardless of the inequality of realities was neither justice nor

homage to the constitutional principles. He relied on the decision

of this Court in the case of Murthy Match Works, Etc. Etc. v. The

Assistant Collector

of Central Exice Etc.(

1

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The learned judge,

how­

ever, was of the opinion based on how this remedy was found used

almost exclusively

by the husband and was rarely resorted to by the

wife.

The learned judge noticed and that

is a very significant point

that decree for restitution

of conjugal rights can only be enforced

under

Order 21 Rule 32 of Code of Civil Procedure. He also

referred to certain trend in· the American law and came to the

H (I) (1974}3 S.C.R. 121.

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SAROJ RANi. v. s. K. CHADllA (Mukharji, J.) 313

conclusion that Section 9 of the said Act was null and void. The

above

view of the learned single judge of

Antlhra Pradesh was

dissented from in a decision of the learned single judge of the Delhi

High Court in the case of Smt.Harvfnder Kaur v. Harmander Singh

Chaudhry('). In the said decision, the learned judge of the Delhi

High Court expr"ssed the view that Section 9 of the said Act was

not violative of Articles 14 and 21 oi the Constitution. The learned

judge noted that the object of restitution decree

was to bring about

cohabitation between the estranged parties so that they could

live

together in the matrimonial home in amity. The leading idea of

Section 9 was to preserve the marriage. From the definition of

cohabitation and consortium,

'it appeared to the learned judge that

sexual intercourse

was one of the elements that went to make up

the marriage, but that

was not the summum bonum. The courts

do not and can not enforce sexual intercourse. Sexual relations

constituted

an important element in the conception of marriage,

but it

was also true that these did not constitute its whole content

nor could the remaining aspects of matrimonial consortium

be· said

to be wholly unsubstantial or of trivial character. The remedy of

restitution aimed at cohabitation and consortium and not merely at

sexual intercourse. The learned judge expressed the view that t\le

restitution decree did not enforce sexual intercourse.

It was a

fallacy to hold that the restitution of

c!:mjugal rights constituted

"the starkest form of governmental invasion" of "marital privacy''.

This point namely validity of Section

9 of the said Act was

not canvassed in

the instant case in the courts below counsel for the

appellant, however, sought to urge this point before

us as a legal

proposition.

We have allowed him to do so.

Having considered the views of the learned single judge of the

Andhra

Pradesh High Conrt and that of learned single judge of

Delhi High Court, we prefer to accept on this aspect namely on the

validity

of

Section 9 of the said Act the views of the learned single

judge of the Delhi High Court.

It

may be mentioned that conjugal

rights

may be viewed in its proper perspective by keeping in mind

the dictionary meaning

of the expression

"Conjugal". Shorter

Oxford English Dictionary, 3rd Edn. Vol. I page 371 notes the

meaning

of 'conjugal'

as "of or portaining to marriage or to husband

and

wife in their relations to each other''. In the Dictionary of

English

Law, 1959 Edn. at page 453, Earl Jowitt defines 'conjugal

rights' thus :

(I) A.l.R. 1984 Dolhi, 66.

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"The right which husband and wife have to each other's

society and marital intercourse. The suit for restitution

of

conjugal rights is a martimonial suit, cognizable in the

Divorce Court, which

is brought whenever either the

husband or t~e wife lives separate from the other without

any sufficient reason,

in which case the court will decree

restitution

of conjugal rights (Martimonial Causes Act,

1950, s. 15), but will not enforce it by attachment, substi­

tuting however

for attachment, if the wife be the petitioner,

an order for periodical payments

by the husband to the

wife (s.22).

Conjugal rights cannot

be enforced by the act of either

party, and a husband cannot seize and detain his

wife by

fo1ce (R.

V. Jackson [1891] l Q .. B. 671)".

In India it may be borne in mind that conjugal rights i.e. right

of the husband or the wife to the society of the other spouse is not

merely creature

of the statute.

Such a right is inherent in the very

institution

of marriage 'itself.

See in this connection Mulla's Hindu

Law-15th Edn. p. 567-Para 443. There are sufficient safeguards

in Section 9 to prevent it from being a tyranny. The importance

of the concept of conjugal rights can be viewed in the light of Law

Commission-7lst Report on the Hindu Marriage Act, 1955-

"Irretrievable Breakdown of Marriage as a Ground of Divorce, Para

6.5 where it is stated thus :-

"Moreover, the essence of marriage is a sharing of

common life, a sharing

of all the happiness that life has to

offer and all the misery that has to

be faced in

lifr, an

experience of the joy that comes from enjoying, in· common,

things of the matter and

of the spirit and from showering

love and affection on one's offspring. Living together is a

symbol

of such sharing in all its aspects. Living apart is

a symbol indicating the negation of such sharing. It is

indicative of a disruption of the essence of marriage­

" breakdown" and if it continues for a fairly long period,

it would indicate destruction of the essence of

marriage­"irretrievable breakdown".

Section 9 only is a codification of pre-existing law. Rule 32

of Order 21 of the Code of Civil Procedure deals with decree for

H specific performance for restitution of conjugal rights or for an

•

SAROJ RANI'" s. K. CHADIJA (Muk/;arji J.)

injuction. Sub-rule (I) of Rulp 32 is in these terms:

"Where the party against whom a decree for the speci­

fic performance of a contract, or for restitution of conjugal

rights or for an injunction, has been passed, has had an

opportunity

of obeying the decree and has wilfully failed

to obey it, the decree may

be enforced in the case of a

decree for restitution

of conjugal rights by the attachment

of his property or, in the case of a decree for the specific

performance

of a contract, or for an injuction by his

deten­

tion in the civil prison, or by the attachment of his pro­

perty, or by both.''

315

It is significant to note that unlike a decree of specific perfor­

mance of contract, for restitution of conjugal rights the sanction j,

rovided by court where the disobedience to snch a decree is wilful!

f.e. is deliberate, in spite of the opportunities and there are no other

impediments, might be enforced by attachment of property. So the

only sanction

is by.

attachmen~ of property against disobedience of

a decree for restitution of conjugal rights where the disobedience

follows as a result°of a wilfull conduct i e where conditions are

there for a wife or a husband to obey the decree for restitution

of

conjugal rights but

disob~ys the same in spite of such conditions,

then only financial sanction, provided he or she has properties to

be attached, is provided for. This is so as an inducement by the

court in appropriate case when the court has decreed restitutwn for

conjugal rights and that the court can only decree

if there is no just

reason for not passing decree for restitution

of conjugal rights to

offer

induceroent for the husband} or wife to live together in order

to give th< m an opportunity to settle up the matter amicably. It

serves a social purpose as an aid to the prevention of break-up of

marriage., It cannot be viewed in the manner the learned single

judge

of Andhra Pradesh High Court has viewed it and we are

therefore unable

to accept the position that

Section 9 of the said

Act

is violative of

Artiole 14 or Article 21 of the Constitutition if

the purpose

of the decree for restitution of conjugal rights in the said

Act

is understood in its proper perspective and if the method of its

execution in cases

of disobedience is kept in view.

Another decision to which our attention

was drawn is also a

Bench decision

of the Andhra Pradesh High Court in the case of

Geeta Laxmi v.

G.V.R.K. Sarveswara Rao<

1

). There on the admitted

(l)_A.I.R. 1983 An~hra Pradesh Ill.

A

B

c

D

E

F

G

. '

ff

316

SUPREME COURT REPORTS

(1985) 1 s.c.R.

A misconduct of the husband is not only in not complying with the

decree for restitution

of conjugal rights but ill-treating the wife and

finally driving her

awey from the house, it was held that the husband

was not entitled to a decree under

Section 13(1A) of the said Act

in

view of the wrong as contemplated under

Section 23(1) (a) of the

Act.· The facts of that case were entirely different from the facts

B

of the instant case before us. There

is no such allegation or proof

of any ill-treatment by the husband or any evidence of the husband

driving the

wife out of the house. In that view of the matter, this

decision cannot

be of any assistance to the appellant in the instant

case.

c

D.

E

F

G

Counsel for the appellant, however, contended before us that

in the social reality of the Indian society,

a divorced wife would be

materially at a great disadvantage. He is right in this submission.

In view, however, of the position in law, we would direct that even

after the final decree of divorce, ~he husband would continue to pay

maintenance to the

wife until she remarries and would maintain the

one living daughter of the marriage.

Separate maintenance should

be paid for the

wife and the living daughter.

Until altered by

appropriate order

on application on proper materials

such mainte­

nance should be Rs. 200 per month for the wife appellant and

Rs. 300 per month for the daughter Menka. Wife would be

entitled to such maintenance only until she .re-marries and the

daughter Menka to her maintenance until she

is married. Parties . will· be at liberty to ask for variation of the amounts by proper

application on proper materials made before Sub-judge Ist Class

Jullunder. The respondent would pay costs of this appeal to

appellant assessed at Rs. 1500.

The appeal is dismissed with the aforesaid directions.

N.V.K. Appeal dismissed.