Constitutionality of section 9 CPC

1. CONSTITUTIONALITY OF SECTION 9

2. 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…”

3. 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.

4. Abolitionists View
• The remedy openly violates the fundamental
right to life, privacy and equality and
therefore unconstitutional.
• Frequent insincerity in the petitioner’s
intention.
• The remedy is blatantly misused to achieve
ulterior purposes other than reconciliation
and the root cause being S.13 (1-A)(ii)

5. 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.

6. (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.

7. Counter View
• If there is no reasonable excuse the court
does no wrong to ask the withdrawing
party to fulfill the marital obligations and
get back.
• It is an extension of Sec. 23 (2) and (3)
which encourage reconciliation by the
court as a matter of policy.
~~~

8. T.Sareetha
v. Venkata
Subbaiah
(AIR 1983
AP 356)
Harvender
Kaur v.
Harmander
Singh
(AIR 1984
Delhi 66)
Saroj Rani v.
Sudarshan
Kumar ( AIR
1984 SC
1562)
Justice
Puttaswamy
judgment
2017 10
SCC 1 and
ahead….

9. T.Sareetha v.
Venkata Subbaiah

11. 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”.

12. 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.

13. The Court noted in the T.Sareetha case
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.

14. Further, the court stated….
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.
***

15. Harvinder Kaur v. Harmandar
Singh
• The meaning and idea of cohabitation and
consortium, and the purpose behind restitution
decree in great detail.
• The Hon’ble 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.

16. 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.

17. 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

18. 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.’

19. 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.
*****

20. Saroj Rani v. Sudarshan
Kumar

21. 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?

22. The Court stated…..
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.

23. • 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”.

24. • 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”.

25. UNDERSTANDING THE
CONTEMPORARY CONTEXT

26. Justice Puttaswamy and others v. Union of India
 Privacy postulates the reservation of a private space for the
individual, described as the right to be left alone.
 The concept is founded on the autonomy of the individual.
 The ability of an individual to make choices lies at the core of the
human personality.
 The notion of privacy enables the individual to assert and control the
human element which is inseparable from the personality of the
individual.
 The inviolable nature of the human personality is manifested in the
ability to make decisions on matters intimate to human life.

27. The Supreme Court is to now hear the constitutional
validity of Restitution of Conjugal Rights owing to
the value attached with the idea of autonomy and
‘right to be left alone’.
***
In the wake of the Supreme Courts decision in
Justice Puttaswamy v. Union of India, right to
privacy has been held to be a Fundamental Right
under Articles 14, 19 and 21.
PRIVACYAS A
FUNDAMENTAL RIGHT

28. Ojaswa Pathak v. Union of India
• The students of Gujarat National Law University
(GNLU), Gandhinagar have filed a Public Interest
Litigation challenging various restitution of conjugal
rights provisions under codified family laws.
• They specifically challenge the constitutional validity of
Section 9 of the Hindu Marriage Act, 1955 Section 22 of
the Special Marriage Act, 1954 and Order 21, Rules 32
and 33 of the CPC, 1908.

29. • The students argue that this “legislative package”
allowing restitution of conjugal rights is inherently
violative of the right to equality and life provisions.
• The petitioners argue that although the provisions are
gender neutral, it places a burden on women.

30. • Further, they note the unequal power structures in
Indian families, and how this makes it more difficult for
women to return to their husband’s home.
• The petitioners also note that the origin of laws on
restitution of conjugal rights is feudal English Law,
where women were considered chattel, or property.
• They argue that this makes the provisions violative of
Articles 14 and 15(1).
• The petitioners also argue that the provisions are in
violation of Article 21. This is because the restitution of
conjugal rights violate the respondent spouse’s right to
privacy and individual autonomy.