CONSTITUTIONALITY OF SEC.

9
(3) Saroj Rani v. Sudarshan Kumar
( AIR 1984 SC 1562)

(2) Harvender Kaur v. Harmander Singh

(AIR 1984 Delhi 66)

(1) T.Sareetha v. Venkata Subbaiah

(AIR 1983 AP 356)
 HISTORICAL BACKGROUND
Origins in the Jewish Law
The British brought the remedy to India.
It was unknown to Hindu Law.
During drafting, RCR met with heavy
opposition.
It was called barbarous and vulgar
serves no purpose.simply legalizes
Marital Rape
 Two Views Emerge
(1) Abolitionists View
Sir J. Hannen in an old case of Russell v.
Russell: I think the law of RCR as
administered in the courts did sometimes
lead to results which I can only call
barbarous.
If the law forces any person to live with
another person is contrary to the value of
society.
 Abolitionists View
The remedy openly violates the fundamental
right to life, privacy and equality and therefore
unconstitutional.
Frequent insincerity in the petitioners
intention.
The remedy is blatantly misused to achieve
ulterior purposes other than reconciliation
and the root cause being S.13 (1-A)(ii)
 Abolitionists View
Procedure for enforcement in CPC is flawed.
In India most women do not have actual
possession over the property.
Difficulty may also arise if the H also does not
have property in his name.
Such coercing ways are incorrect to change
attitude of the erring spouse.
 (2) Counter View
It is a socially benefiting relief.
Primary objective is to preserve the marriage.
Cohabitation is the soul of marriage and an
essential obligation of the spouse in the
marital contract.
If there is no reasonable excuse the court does
no wrong to ask the withdrawing party to
fulfill the marital obligations and get back.
 Counter View
It is an extension of Sec. 23 (2) and (3) which
encourage reconciliation by the court as a
matter of policy.
~~~
T.Sareetha v. Venkata Subbaiah
 T.Sareetha v. Venkata Subbaiah
For the first time raised the question of
constitutional validity of Sec.9 of HMA.
Sareetha claimed that S.9 be struck down as it
violates Arts. 14, 19 and 21 of the Part-III of
the Constitution.
The court stated that sexual cohabitation is
an inseparable aspect of RCR.
 T. Sareetha v. Venkata Subbaiah
RCR compels the unwilling party to have sex
against her consent with the decree holder.
Thus, the decree of RCR violates the
inviolability of the body and the mind
subjected to the decree and offends the
integrity of such a person.
Such acts of forced sex shall have graver
implications for the wife.
T.Sareetha v. Venkata Subbaiah
-Held-
A decree of RCR constitutes the starkest form
of Government invasion of personal identity
and individual zone of intimate decisions.
The victim is stripped of its control over the
various parts of its body and pregnancy is
foisted on her by the state against her will.
This remedy an engine of oppression by the H.
T.Sareetha v. Venkata Subbaiah
-Held-
The only advantage of a restitution decree is
that it provides a ground for divorce at a later
stage, but the price for this, according to the
court is very high, viz. human dignity.
Thereby the section was termed as savage,
barbarous and uncivilized and declared null
and void.
***
 Harvinder Kaur v. Harmandar Singh
The meaning and idea of cohabitation and
consortium, and the purpose behind
restitution decree in great detail.
The Honble Judge denounced the
introduction of constitutional law in family
as introducing a bull in a china shop.
The court not only upheld the validity of S.9
but also discussed its advantages.
 Harvinder Kaur v. Harmandar Singh
There is nothing coercive about it.
A disproportionate emphasis on sex, almost
bordering on obsession has coloured the view
of the judge in T. Sareetha.
A restitution decree acts as an index of
connubial felicity. It is a sort of litmus paper. If
the decree is disobeyed it is an indicia that the
parties have reached a stage of no-return.
Two-pronged purpose of the relief
Sec. 9

It coaxes and cajoles the spouse

to return
Facilitates dissolution of marriage
in case of no-return
Cooling-off period
 Harvinder Kaur v. Harmandar Singh
If there resumes no cohabitation in the
alternative, dissolution of marriage could be
facilitated u/s.13(1-A).
S. 9 & 13(1-A) are inseparable, as the latter
comes into existence by dint of the former.
In declaring Sec.9 ultra vires, Sec. 13(1-A)
will also have to be struck down so the good
will be thrown away with the bad.
Harvinder Kaur v. Harmandar Singh
In the privacy of home and married life
neither Art. 21 nor Art. 14 has any place.
Family sensitive sphere which is both
intimate and delicate.
.and the cold principles of constitutional
law find no place in the domestic code.

*****
Saroj Rani v. Sudarshan Kumar
 The main issue involved in this case
was:
Whether a H who obtains a restitution decree
by consent, but refuses to comply with it, can
later use the decree as a ground for obtaining
divorce.

Will it not amount to taking advantage of his

own wrong under Section S.23 HMA?
Saroj Rani v. Sudarshan Kumar
-Held-
Consent decree per se is not collusive where
parties agreed to a decree pursuant to
attempts made by reconciliation, and if that
decree remained unsatisfied, the H could not
be denied divorce on the ground that he
would amount to taking advantage of his own
wrong.
 Saroj Rani v. Sudarshan Kumar
In para. 87 the learned Judge recognizes
restitution of conjugal rights is an archaic
remedy I cannot agree that S.9 is
unconstitutional howsoever the remedy may
be outmoded or out of tunes with the times.
The restitution decree in the scheme of the
Act is a preparation for divorce if the parties
do not come together.
 Saroj Rani v. Sudarshan Kumar
Para 91 shows the true intention of the Judge
in the end I will repeat what I have said
before it is for the legislature to abolish the
remedy of restitution and not for the Courts
to strike it down in the ground that it is
unconstitutional. In my opinion S. 9 is
perfectly valid.
The discussion thereby leads us to