This article explains the concept of restitution of marital rights under Section 9 of the Hindu Marriage Act (HMA).
Marriage among Hindus is seen as a sacred and sacrosanct union. It is a religious sacrament that holds a man and a woman together in a lasting relationship.
The sociologist RNSharma (i) defines marriage as a relationship in which a man and woman are linked for the physical, social, and spiritual purposes of Dharma, procreation, and sexual pleasure.
In the Tekait Mon Mohini Jemadai v Basant Kumar Singh (ii) case, the court ruled that under Hindu law marriage is a sacrament, an indissoluble union of flesh with flesh, bone with bone, which should continue into the next world.
The codification of Hindu laws has changed the nature of marriage a lot. The Hindu Marriage Act of 1955 (iii) added provisions on divorce, widow remarriage, etc. that were previously frowned upon. But it would be an overarching remark to say that Hindu marriage is just a contract.
Section 7 of the law emphasizes marriage according to religious rites and ceremonies, essential elements of a valid contract are missing. While consent and of legal age are required to enter into marriage, a child marriage or marriage to someone with mentally ill health is not invalid per se.
Be that as it may, the once solemn marriage, whether contractual or sacramental, leads to a bundle of rights. It changes the couple’s status to a legally married husband and a legally married wife. Legitimacy is given to children resulting from this marriage. Marriage thus marks the beginning of a family.
Importance of the return of marital rights
Refund means – restoration
Marriage rights are rights that arise from a conjugal bond.
Collectively, these rights are known as conjugal rights and form the essence of a conjugal association. Returning marriage rights means the right to stay together.
It is an accepted norm that each spouse is entitled to each other’s company and comfort. If a spouse leaves a spouse without good cause, the spouse can ask the court for a decree restoring marital rights.
Returning marriage rights is a positive remedy given to a spouse to protect their marriage, make it easier for couples to coexist, and save the sanctity of marriage.
§ 9 | Basics
Section 9 (iv) of the 1955 Hindu Marriage Act provides an appeal against the return of marriage rights.
The main requirements of Section 9- are listed below.
1. There must be a marriage between the parties, ie the parties should be legally married, husband and wife.
2. One spouse must withdraw from the company of the other spouse.
3. This revocation should be made without a valid reason.
4. In such a situation, the person concerned can apply for the restitution of marriage rights.
5. There should be no other legal ground for refusing relief.
6. The court should be satisfied with the accuracy of the statement made in the petition
7. Accordingly, the court can issue a decree in favor of the person concerned.
8. If the suit is successful, the couple must stay together.
Importance of withdrawal from society
In its 71st report, entitled “Irrecoverable Breakdown of Marriage as Grounds for Divorce” in paragraph 6.5, it says: “The essence of marriage is sharing life together, sharing all the happiness that life has to offer, and all The misery that this has to offer has to be faced in life. Coexistence is a symbol of such sharing. Life apart is a symbol of the denial of such sharing. “(V)
The Legal Commission makes it clear that living together is an essential prerequisite for marriage. Coexistence means living together as a husband and wife, wife doing wiveship for her husband; the husband renders a service as a service to his wife. You need to live together not just as two people living in the same house, but as husband and wife. (Vi) The aim of the Restitution Decree is to bring about coexistence between the alienated parties so that they can live together in marital marriage (vii)
In addition to physical separation, withdrawal also involves a mental process. It is a process that leads to a physical separation in which the parties intentionally avoid conjugal commitments.
Burden of proof
A statement was added to the section in 1976 giving the burden of providing a reasonable apology to the spouse who has withdrawn from society.
The petitioner would firstly prove that the other spouse withdrew from their company for no good reason. The burden would then shift to the other spouse to defend a reasonable apology.
What constitutes a reasonable apology or a just cause is left to the subjective decision of each court. No straitjacket formula has been established as such. What a reasonable excuse would be depends on the facts of the case. The reason must be serious and compelling.
In Smt. Sumanbai v Anandrao Onkar Panpatil, 1976 (viii) – the court ruled that there could be no more offensive harm to the woman than to her own husband who questions her chastity. And such a remark would be a reasonable excuse for the woman to withdraw from her husband’s company.
Iqbal Kaur v Pritam Singh (ix), a judgment from Punjab HC – the court ruled that the charge of unchastity is sufficient to imply cruelty and appropriate apology under Section 9 of the Hindu Marriage Act.
R.Natarjan v Sujatha Vasudevan 2011 (x) the court ruled that a wife asking to live apart from the husband’s elderly parents was not an adequate excuse to withdraw and the wife should be given a decree restitution of the marriage can rights.
Sushila Bai against Prem Narayan (xi), the husband left his wife and didn’t react to her afterwards. It was decided by the court that such behavior was sufficient to show that he had withdrawn from his wife’s society and therefore the woman’s application for the restitution of marital rights was granted.
Constitutional validity of Section 9
Andhra Pradesh HC – T. Sareetha v T. Venkata Subbaiah (xii), Section 9 of the Hindu Marriage Act of 1955, was found to be unconstitutional as this decree deprives women of privacy by forcing them to be with her husband against their will to live.
Delhi HC at Harvinder Kaur against Harmander Singh (xiii) held Section 9 of the Hindu Marriage Act to be valid. Justice Krishna Iyer remarked, “The introduction of constitutional law in the home is highly inappropriate, it is like introducing a cop into a china shop.”
This view was upheld by the Supreme Court of India in the Saroj Rani v SK Chadha (xiv) case. The Supervisory Committee considered that Article 21 or Article 14 had no place in the privacy of domestic and married life.
Since the Supreme Court declares the right to privacy as a fundamental right in KS Puttaswamy (xv) and Joseph Shine (xvi), it is made clear that privacy depends on the exercise of autonomy by individuals and the right to privacy cannot be violated if the Family structure is viewed as private space The debate about the constitutional validity of this section is ripe again.
Section 9 of the HMA enables a spouse to apply for a decree on the restitution of marriage rights against the other spouse who has left his company without good reason. It is a positive agent and a marriage salvage clause.
Marriage among Hindus is a sacrament, a relationship beyond birth and death, and Section 9 facilitates the protection of such a marriage. But times have changed and so have people.
Section 9 has proven to be a mandatory clause that forces two adults to live together against their will. It is an anomaly that, on the one hand, we advocate the freedom and personal freedom of an individual and, on the other hand, there is a provision like Section 9 that from time to time compels spouses to live together even when there is no longer any affection or care .
The law, which was adopted from England, was banned by England as early as 1970. But we are stuck with our colonial roots.