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Family Law I, Synopsis, Ronak

The document discusses the constitutional validity of Section 9 of the Hindu Marriage Act, which allows for restitution of conjugal rights. It has been debated whether this violates fundamental rights to privacy and bodily autonomy. The Supreme Court has recently agreed to re-examine the issue. The objective of the research is to analyze whether personal laws violate fundamental rights and discuss the views of High Courts of Andhra Pradesh and Delhi and the Supreme Court on the constitutionality of Section 9. The review of literature covers books on Hindu law and family law lectures.

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Ronak Patidar
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293 views3 pages

Family Law I, Synopsis, Ronak

The document discusses the constitutional validity of Section 9 of the Hindu Marriage Act, which allows for restitution of conjugal rights. It has been debated whether this violates fundamental rights to privacy and bodily autonomy. The Supreme Court has recently agreed to re-examine the issue. The objective of the research is to analyze whether personal laws violate fundamental rights and discuss the views of High Courts of Andhra Pradesh and Delhi and the Supreme Court on the constitutionality of Section 9. The review of literature covers books on Hindu law and family law lectures.

Uploaded by

Ronak Patidar
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© © All Rights Reserved
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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

FAMILY LAW - I

PROJECT ON

CONSTITUTIONAL VALIDITY OF SECTION 9 OF HINDU


MARRIAGE ACT

Submitted To: Submitted by:

Dr. Debashree Sarkar Ronak Patidar

Assistant Professor 2018BALLB93


INTRODUCTION
Section 9 of the Hindu Marriage Act encompasses the provision for the restitution of conjugal
rights, according to which, if either of the spouses withdraws themselves from the society of
the other, without reasonable excuse, the other party which is aggrieved has a legal right of
filing a petition demanding for the restitution of conjugal rights. The court, if satisfied that
there is no legal ground for the application to be refused, and based on the veracity of the
statements in the petition, may pass a decree for restitution of conjugal rights.
The constitutional validity of the provision has been debated time and again. The earliest
instance was the case of T Sareetha v.Venkata Subbaiah where court struck down Section 9
of the Hindu Marriage Act, declaring it to be violative of Article 14 and Article 21 of the
Constitution. Subsequently, the question was put forth before the HC of Delhi in the case of
Harvinder Kaur v. Harmander Singh, but here the court dissented from Andhra Pradesh HC
judgment. Ultimately, the SC in the judgment of Saroj Rani v. Sudarshan Kumar Chadha,
resolved the conflict between the two judgments by upholding the views put forth by the Delhi
High Court, stating that the objective of the decree was only an inducement for the spouses to
live together, and that it did not force an unwilling wife to engage in sexual relations with the
husband. The aim was only to bring about "cohabitation" between spouses, and therefore, it
was only focused on "consortium".
However, the Supreme Court has recently agreed to hear a PIL against the provision of
restitution of conjugal rights which empowers the court to effectively force a person to live
with their spouse against their will. The bench of CJI Ranjan Gogoi and Justice Sanjiv Khanna
has referred the case to a three-judge bench for hearing.

STATEMENT OF PROBLEM
In India, social structure of institution of family allows husband very well to subjugate the wife.
The divorce petition based on cruelty or a domestic violence petition based on sexual violence,
both of which don’t involve any criminal impunity. Therefore, by subjecting an unwilling wife
to forced "cohabitation" and "consortium", in effect, the decree effectively subjects the wife to
forceful sexual intercourse with the husband, and in the process, also strips her of her bodily
autonomy, dignity, and a fundamental liberty to take her own decisions related to her own life
and body. In fact, practically, in India, the remedy of restitution of conjugal rights is generally
used by husbands to strong-arm their wives into submitting themselves to their company, and
as a shield against possible cruelty and domestic violence cases by the wives. Therefore, the
paper shall examine the constitutionality considering the practical aspect and also briefly deals
with the question of personal laws and fundamental rights.

RESEARCH OBJECTIVE
 To examine whether the personal laws violates fundamental rights.
 To understand the view taken by High Courts of Andhra Pradesh and Delhi and
Supreme Court.
 To discuss the constitutionality of Section 9 of Hindu Marriage Act.

REVIEW OF LITERATURE
 Satyajeet A. Desai, Mulla Hindu Law, LexisNexis, 2011.
 J.D.M. Derrett, Introduction to Modern Hindu Law, Oxford University Press, 1963.
 Prof. Kusum, Family Law Lectures: Family Law I

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