Smt. Saroj Rani vs Sudarshan Kumar Chadha

CASE BRIEF

PETITIONER: SMT. SAROJ RANI

RESPONDENT: SUDARSHAN KUMAR CHADHA

DECIDED ON: 08/08/1984

Equivalent citations: 1984 AIR 1562, 1985 SCR (1) 303

Bench: Justice Sabyasachi Mukharji, Justice Syed Murtaza Fazal Ali.

Statutes Referred:

1. Constitution of India 1950
2. Hindu Marriage Act, 1955

Case Referred:

1. Dharmendra Kumar v. Usha Kumari.
2. T. Sareetha v. Venkata Subbaiah.
3. Smt Harvinder kaur v. Harmander Singh Choudhry
4. Geeta Laxmi v. G.V.R.K. Sarveswara Rao.

Facts:

1. The petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 was filed by the wife
2. The respondent Sudarshan Kumar afterwards build a statement in the court that the application of the petitioner Saroj Rani be allowed thereof be passed and contends that he had neither turned the petitioner wife out from his house nor withdrawn from her society.
3. Accordingly the court passed the decree for the restitution of conjugal rights between the parties
4. Afterwards the husband filed a petition under Section13 of the Hindu Marriage Act, 1955 against the wife for divorce on the ground that one year had elapsed from the date of the decree for restitution of conjugal rights as no cohabitation taken place between the parties.
5. The district judge dismissed the divorce petition because the decree for restitution of conjugal rights was a consent decree.
6. Being aggrieved by the said decision the husband filed an appeal in the high court.
7. The appeal was allowed and the husband was granted a decree of divorce. The appeal for the same was filed before Supreme Court.

Issues:

• Whether husband entitled to the decree of Divorce or not?
• Whether Section 9 of the Hindu Marriage Act violates Article13, 14 and 21 of the Indian constitution?

Appellant’s Contentions:

The chief allegation of the appellant was that as per provision of Section 23 the further party could not grasp edge of his wrong because of having refused cohabitation in the execution of the decree.

The Appellant further argued that the Respondent always intended to divorce her, and thus did not object to the decree for restitution of conjugal rights with the view to dishonor it and ultimately be granted a divorce on those grounds therefore he cannot be allowed to grasp edge of his wrong.

The appellant challenged the constitutionality of Section 9 of Hindu Marriage Act, 1955 relying on the case of. T. Sareetha v. Venkata Subbaiah which held restitution of conjugal rights as unconstitutional as it violated the right to privacy of choice and autonomy under Article 21 of the Constitution.

Respondent’s Contention:

The respondent contends that the Restitution of Conjugal right is constitutional by referring the decision of Delhi High Court in Smt. Harvinder Kaur v. Harmander Singh Choudhry.

Judgement:

In the said decision of a learned single judge of the Andhra Pradesh High Court in the case of “T. Sareetha v. Venkata Subbaiah. The learned judge had observed that the remedy of restitution of conjugal rights provided for by Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity guaranteed 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. 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 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 conclusion that S.9 of the said Act was null and void.”

The above view of the learned single judge of Andhra Pradesh was dissented from in a decision of the learned single judge of the Delhi High Court in the case of “Smt Harvinder Kaur v. Harmander Singh Choudhry In the said decision, the learned judge of the Delhi High Court expressed the view that S.9 of the said Act was not violative of Articles 14 and 21 of 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 S.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 cannot 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 the restitution decree did not enforce sexual intercourse. It was a fallacy to hold that the restitution of conjugal rights constituted “the starkest form of governmental invasion” of “marital privacy”.

The Supreme Court considered the views of the learned single judge of the Andhra Pradesh High Court and that of learned single judge of Delhi High Court held that Section 9 of the HMA did not violate Articles 21 or 14. It considered the technical definition of conjugal “of or pertaining to marriage or to husband and wife in their relations to each other”, and thus sided with Harvinder Kaur in observing that matrimonial consortium did not necessitate sexual cohabitation.

Although the Court did not explicitly discuss the right to privacy, in overruling T. Sareetha, it suggested that enforcing Section 9 of the HMA did not constitute a breach of privacy. Further, it held that the social purpose of preserving the sanctity of marriage was enough to balance any possible constitutional assailment. The Court noted that the remedy for failure to obey a decree for restitution of conjugal rights was attachment of property, but not specific performance.

Held:

The Court thus granted the Respondent the decree for divorce and direct that 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. The appeal was dismissed with the aforementioned directions.