(3) IN the forefront of his arguments, counsel referred me to T. Sareetha v. T. Venkata Subbaiah, AIR 1983 Andhra Pradesh. 356. In that case Hon'ble Mr. Justice P. A. Chaudhary Judge. held that section 9 of the Hindu Marriage Act, 1955, (the Act) offends Articles 14 (= Equality before law) and 21 (= due process of law) of the Constitution of India and therefore declared it null and; void. It was a simple case in which the husband had filed an application against the wife for restitution of conjugal rights under section 9 of the Act. The wife raised an objection to the jurisdiction of the court. The subordinate judge held that Cuddapah Court had jurisdiction to try the petition. The wife went. in revision to the High Court. Chaudhary J., in agreemeat with; the subordinate judge, held that Cuddapah Court had jurisdiction to try the petition.
(4) BUT the case is not important On this point. Ths Chief point decided was about the constitutional validity of section 9 of the Act. The learned judge held that the remedy of restitution of conjugal rights was "barbarous', "uncivilised" and "an engine of oppression". The main reason for holding that section 9 offended Article 21 of the Constitution was that a decree for restitution of conjugal rights was an order "to coerce through: judicial process, the unwilling party to have sex against that person's consent and freewill with the decree-holder". This, he held, was "degrading to human dignity and monstrous to human spirit". The learned judge took the view that the British Indian courts "thoughtlessly imported that rule into our country and blindly enforced it among the Hindus and the Muslims. The origin of this uncivilized remedy in our ancient country is only recent and is wholly illegitimate. Section 9 had merely aped the British and mechanically re-enacted that legal provision of the British ecclesiastical origin. Restitution of Conjugal Rights.
(5) IN my opinion this view is based on a misconception of the true nature of the remedy of restitution of conjugal rights. Section 9 reads as under :
"RESTITUTION of conjugal rights. When either the husband or the wife has, without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by petition to the District Court for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
EXPLANATION Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society."
(6) CHAUDHARY J. thought that section 9 imposes "sexual cohabitation between unwilling, opposite sexual partners." He called it "forced sex", "coerced sex" and "forcible marital intercourse". He went on to hold that the state interference destroyed the "sexual autonomy" and "reproductive autonomy" of the individual. "A wife who is keeping away from her husband, because of permanent or temporary arrangement, cannot be forced, without violating her right to privacy, to bear a child by her husband" he said. A large number of English and American decisions have been cited in support of this view.
(7) THIS decision is the first of its kind to take this view. I respectfully dissent. The decree for restitution does nothing of the kind. Under section 9 the court has power to make a decree of restitution of conjugal rights which is the remedy available to enforce the return of a spouse who has withdrawn from cohabitation. The decree, if granted, orders the respondent to return within a period of one year to the aggrieved party. This period is specified in section 13(l-A)(ii) of the Act. "This remedy is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation". As Tolstoy says in his Law and Practice of Divorce (6th Edition) p. 99 :
"THE court cannot enforce sexual intercourse, but only cohabitation, and restitution of conjugal rights can not be ordered where the respondent refuses sexual intercourse but continues to cohabit with the petitioner."
(See Jackson v. Jackson (1924) Probate 19.
IN Halsbury's Laws of England (3rd Edition) Volume 12 page 284 it is said : (cohabitation) does not nceessarily mean serial intercourse, which the court cannot enforce, so that refusal of sexual intercourse by itself does not constitute refusal to cohabit."
IN support of this proposition the high authority of Lord Stowell in Forster v. Forster, (1790) I Hag. Con. 144: Orme (, v. Orme, (1924) 2 Addf 382-162 E.R. 335; and Rowev. Rowe, (1865) 34 L.J.P. M&A 111 have been cited.
(8) ONE thing is clear from Lord Stowell's decision in Forster v. Forster and Halsbury's statement of law that the Court does not and cannot enforce sexual intercourse. I accept it as true that sexual relations constitute almost important attribute of the conception of marriage. But it is also true that they do not constitute its whole content, nor can the remaining aspects of the A matrimonial consortium be said to be of wholly unsubstantial or trivial character. Marriage has been described in these words : "resides (sic. besides ?) the procreation and education of children, marriage has for its object the mutual society, help and comfort, that the one ought to have of the other both in prosperity and adversity. Marriage is the most solemn engagement which one human being can contract with another. It is contract formed with a view not only to the benefit of the parties themselves, but to the benefit of third parties; to the benefit of their common offspring, and to the moral order of civilised society." (Shelford on Marriage and Divorce (184.1), p. 3 quoted in Weatherley v. Wentherley, (1946) 2 All E. R. I (II).
Cohabitation : Its meaning.
(9) THE object of the restitution decree is to bring about cohabitation between the estranged parties. So that they can live together in the matrimonial home in amity. That is the primary purpose. Cohabitation has been defined in these words : Cohabitation does not necessary (sic. necessarily) depend upon whether there is sexual intercourse between the husband and the wife. 'Cohabitation' means living together as husband and wife; and as I endeavoured to point out in Evans v. Evans, (1948) I K.B. 175, cohabitation consists in the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, the wife rendering house-wifely duties to the husband and the husband cherishing and supporting his wife as a husband should. Of course sexual intercourse usually takes place between parties of moderate age if they are cohabiting, and if there is sexual intercourse it is very, strong evidence- in fact it may be conclusive evidence that they are cohabiting; but it does not follow that because they do not have sexual intercourse they are not 'cohabiting'. Cohabiting, as I have said, means the husband and wife living together as husband and wife. (Thomas v. Thomas, (1948) 2 K.B, 294, per Lord Goddard CJ. at p. 297.]
"THE cohabitation of two people as husband and wife means that they are living together as husband and wife, the wife rendering wifely services to her husband; the husband rendering husband like service to his wife. They must live together not merely as two people living in one house, but as husband and wife."
(Wheatley v. Wheatley, 1950) I K.B. 39 per Lord Goddar CJ. at p. 43.]
THIS is the true office of a restitution decree. Not that it compels sexual intercourse by "force of arms", as Chaudhary J. thought. Where either the husband or the wife has withdrawn from the society of the other party without just cause, the court orders the withdrawing party to return to the conjugal fold. So that the consortium is not broken.
Consortium; Its meaning:
(10) CONSORTIUM means "companionship, love, affection, comfort, mutual services, sexual intercourse. All these belong to the married state. Taken together they make up consortium." Consortium has been defined as "a partnership or association; but in the matrimonial sense it implies much more than these rather cold words surest. It involves a sharing of two lives, a sharing of joys and sorrows of each party, of their successes and disappointments. In its' fullest sense it implies a comparionship between each of them, entertainment of mutual friends, sexual intercourse all those elements which, when combind. justify the old common law dictum that a man and his wife are one person" Crabtree v. Crabtree, (No. 2) (1964) Australian Law Reports 820, per Selby J. at p. 821].
Refusal of Sexual Intercourse.
(11) FROM the definitions of cohabitation and consortium It appears that sexual intercourse is one of the elements that goes to make up the marriage. But it is not the summum bonum. Sex is the refrain of T. Sareetha's case. As if marriage consists of nothing else except sex. Chaudhary, J.'s over-emphasis on sex is the fundamental fallacy in his reasoning. He seems to suggest that restitution decree has only one purpose, that is, to compel the unwilling wife to "have sex with the husband". This view was discarded long ago. As early as 1924 Sir Henry Duke President in Jackson v. Jackson (supra) at pages 23, 24 said :
"Wanton refusal of one or other of the parties to a marriage to have sexual intercourse is no doubt a wrong thing. It is the intentional breach of one of the tics of marriage, but it does not produce either separation or living apart.......... ... .Reflection upon the manifold duties of the married state must, I think, convince any reasonable mind that this refusal of itself by one of the parties, while the parties remain living together and discharging the other duties of the married state, cannot be said to amount to desertion. It is not abandonment; it is not living apart. It it is a refusal of a duty it does not purport to conclude the matrimonial relationship."
(12) THE remedy of restitution aims at cohabitation and consortium and not merely at sexual intercourse. To say that restitution decree "subject a person by the long arm of the law to do a positive sex act" is to take the grossest view of the marriage institution. The restitution decree does not enforce sexual intercourse. This can be proved by a simple illustration. A husband and a wife are living under the same roof. But the wife does not allow the husband sexual intercourse with her because she thinks that it is a horrid and beastly thing. Will the court pass a restitution decree ? The answer is 'No'. Since they are living together as one household, as one unit and not as two, the law cannot go further and compel them to have sexual intercourse. The court has neither the means nor the capacity to enforce its decree in the marriage bed. It is most undesirable, save where we are clearly enjoined by statute so to do, to seek to discover or reveal the secret intimacies of the marriage bed. If a question arises whether the marriage has been consummated, no doubt this may be necessary. It is not, I think, right that we should do so in a case such as the present. All that the court in a husband's petition under section 9 does is to seek to enquire whether there is a "reasonable excuse" for the withdrawal by the wife from the society of the husband. It is a fallacy to think that the restitution of conjugal rights constitutes "the starkest form of governmental invasion" of "marital privacy", as Chaudhary J. seems to think. The burden of proving reasonable excuse lies on the wife. A spouse is entitled to the other's society and if the law enforces this conjugal duty there is nothing wrong.
(13) THE leading idea of section 9, to my mind, is to preserve the marriage. The outstanding fact is that the husband and wife are living apart and leading their own separate lives. The court seeks to enquire into this separation. The inquiry into the affairs of the matrimonial life is to be confined to this one fact "Is there a just cause for the respondent to live apart and separate from the petitioning spouse?" Further delving into their matrimonial life is not necessary. If there is no rupture of marital relations and the parties are living together in the ordinary way of man and wife there is no need to resort to section 9 of the Act. Section 9 is a means of saving the marriage. It can be that the erring spouse comes on the right path and a broken home is rebuilt. Section 9 in a sense is an extension of sub-sections (2) and (3) of section 23 of the Act which encourage reconciliation by the court. The court is enjoined to make every endeavour to bring about a reconciliation between the parties. A Section 9 is a concrete illustration of this. What the court seeks to do is to enquire into the causes which have led to the rupture of the marital relations and a refusal to share the matrimonial life. If there is no reasonable excuse for living apart the court orders the withdrawing party to live together. It is the policy of the Act that the parties should live together. Living apart is the very antithesis of living together as society is the antithesis of separation. The policy of the Act is to assist in the maintenance of marriages other than those reduced to a mere shell. Where there is a complete cessation of cohabitation and the parties are living apart section 9 can properly be invoked. This state of affairs is normally brought about by one spouse leaving the matrimonial home, so that they are no longer living under the same roof. They are living in a state of separation. They are living as two units rather than one. Two separate households are created. So they are treated as living apart unless they are living with each other in the same matrimonial home.
(14) A difficult situation arises. The matrimonial relationship has been terminated though marriage is subsisting. The marriage is in name only and not in substance. In law and not in fact. The policy underlying the legislation is that it is not conducive to the public interest that men and women should remain bound together in permanence by the bonds of marriage the duties of which have long ceased to be observed by either party and the purposes of which have irremediably failed. Such a condition of marriage in law which is no marriage in fact leads only to immorality and unhappiness.
Germ of the Breakdown theory :
(15) THE germ of the breakdown theory is to be found in a New Zealand case reported in 1921. Salmond J. in a passage which has now become classic enunciated the breakdown principle in these words :
"THE legislature must, I think be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated. and its further continuance is in general not merely useless but mischievous" (Lodder v. Lodder, (1921) New Zealand Law Reports 876 (II), at p. 877 quoted in Seventy-First Report of Law Commission of India, p. II).
THE marriage has ceased to be a real union in the true sense because the spouses are withdrawn from each other. They are living apart. There is no cohabitation. Living apart and cohabitation are mutually exclusive opposites.
WHERE do we go from here ? The marriage is on the rock's. If the rift between husband and wife is no more than the ordinary wear and tear of married life there should be no great difficulty in the parties coming together and living as ordinary husband and wife. A restitution decree should be able to achieve this in some cases if not all. But if the differences are deep-seated and there is no resumption of cohabitation in spite of the decree of restitution the only course open to the legislature is to end the marriage because it cannot be mended. This is done by dissolving it by a decree of divorce. If the decree of restitution is not obeyed for the space of one year and the parties continue to live separately it is undoubtedly the best evidence of breakdown of marriage, and the passing of time, most reliable evidence that the marriage is finished. Section 13(1-A) is a legislative recognition of this principle which was enunciated by Salmond J. as early as 1921 in Lodder v. Lodder (supra).
Concept of Breakdown in Section 13(1-A.)
(16) SECTION 13(l-A)(ii) says that if the withdrawing spouse is disobedient to the decree of restitution of conjugal rights and the husband and wife continue to live separately as before, each of them is entitled to a dissolution of marriage which has been a marriage in name only but in fact an empty legal shell. This law is based on the theory of irretrievable breakdown of marriage. They Indian legislature introduced this theory, although in part only, as early as 1964 when it inserted sub-section (1-A) by the Amending Act 44 of 1964 in the parent Act. In England this theory found favour with the Parliament in the Divorce Law Reforms Act 1969. In the Matrominial Act of 1973 the provision based on breakdown theory has been reenacted. The Law Commission of India has recommended its adoption in its Seventy-First Report of 1978. But a foresighted legislature thought as early as 1964 that the decree of restitution of conjugal rights will serve a useful purpose because it will give to the parties a cooling-off time of one year which was not only desirable but essential. If the marriage cannot be saved even after passing the decree of restitution it must be dissolved. A factual separation gives, an easily justiciable indication of breakdown. "Living apart" by itself spells breakdown. The breakdown is so patent.
(17) THE decree of restitution of conjugal rights acts as an index of connubial felicity. It is a sort of litmus paper. It shows a change of heart if the restitution decree is obeyed. If the decree is disobeyed it is an indicia that the parties have reached a stage of no return. The Act's professed object is to facilitate reconciliation in matrimonial cases. This it does by asking the withdrawing spouse to return to the matrimonial home and gives one year's time to do so. If the restitution decree is not obeyed the court dissolves the marriage on proof of non-compliance of the restitution decree.
(18) THERE is no warrant in authority extending over 150 years in England from where we have borrowed this matrimonial remedy, nor any in India before or after the passing of the Act, for assigning to this remedy of conjugal rights the meaning given by Chaudhary J. He has interpreted section 9 in a sense clearly inconsistent with the law as expounded in England and India in a stream of authorities. As long ago as 1866 the Privy Council in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, II M.I.A. 551 applied to this country the English remedy of restitution. In India (the) legislature in 1955 codified this remedy.
(19) THE dictum of Chaudhary J. that the restitution decree enforces "sexual cohabitation with an unwilling party" and "constitutes the grossest form. of violation of individual's right to privacy" and "offends the inviability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person" is the high water mark of his judicial pronouncement. With respect to the learned judge cannot agree that this is what the restitution decree does. The cases referred to by him do not prove his proposition. Jackson v. Jackson 1924, P-19 which was approved by the House of Lords in Weatherley v. Weatherley, 1947 (1) All E.R. 563 clearly shows that the object of the restitution decree is not to enforce sexual intercourse as the learned judge thought. The Court simply cannot enforce it. In the nature of thinks it is an impossible task.
Breakdown theory in section 13(iii):
(20) THE theory of irretrievable breakdown is also the basis of sub-section (iii) of section 13. That sub-section says :'
"(III)That in a suit under section 18 of the Hindu Adoptions and Maintenance. Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards."
This sub-section was inserted by Act No. 68 of 1976.
THIS provision is akin to the provision of section 13(l-A)(i) which provides a ground for divorce on the basis of non-resumption of cohabitation for a period of one year or more after the decree for judicial separation. That ground is available to both, the husband and the wife, because the decree of judicial separation can be passed in favour of the husband also under section 10 of the Act. But the provision in section 13(iii) is made only in favour of the wife who has been 'awarded maintenance' against the husband either under section 18 of the Hindu Adoptions and Maintenance Act, 1956. or section 125 of the Code of Criminal Proceedure, 1973, or section 488 of the Code of Criminal Procedure, 1898. This is another indicia of the breakdown of the marriage because living apart and an award of maintenance are strong indications that marriage has broken down beyond repair and there is no hope of the wife ever returning to cohabitation with the husband.
(21) MORE and more the legislature is moving towards the breakdown theory. But it has not completely broken away with the guilt theory which has dominated the law of divorce for 150 years. Section 13(1-A) is based on the breakdown theory. Section 9 is based on fault theory. After having found fault with the withdrawing spouse and after giving her time of one year for reparation, the legislature proceeds to dissolve the marriage because it has utterly broken down. The truth is that the legislature has not accepted the breakdown theory in its modern form as has been accepted in England and has now been, recommended for adoption in India by the Law. Commission in its Seventy-First Report of 1978. In England parliament has decreed : "If the marriage has broken down irretrievably, let there be a divorce." It carries no stigma, but only sympathy. It is a misfortune which befalls both. No longer is one guilty and the other innocent. No longer are there long contested divorce suits. Nearly every case goes uncontested. The parties come to an agreement, if they can, on the things that matter so much to them.
(22) THIS is in consonance with the modern trend not to insist on the maintenance of a union which has utterly broken down after several years of continuous separation; it may fairly be surmised that the matrimonial life is beyond repair. The only alternative is the legal dissolution of marriage and not a restoration of the marriage bond. It has now been sufficiently realised at all hands that the maintenance of the fiction of a marriage by a legal tie will only drive one or the other or both spouses to sexual and other relations with outsiders clandestinely or under a social stigma rather than openly. Such a marriage serves no purpose except that it increases adultery, fornication and personal bitterness (Friedmann - Law in A Changing Society, 2nd Ed. (1959) p. 233).
(23) THE truth is that the faulty theory has utterly failed and has provided no solution to marriages which are on the rocks In the guilt theory "judges and lawyers are sometimes reduced to the role of scavengers. The lawyers have to look for and expose, and the judges are confronted with, the worst obscenities within a married life" (71st Report p.14). In the breakdown theory judges certify the death of marriage and lawyers attest this fact. The breakdown theory is a recognition of the defects and demerits of guilt theory. The remedy of restitution of conjugal rights provided by section 9 of the Act is based on the assumption that the spouses have a reciprocal right to the society, company or companionship of each other. If the assumption proves wrong, divorce is the only "escape route out of a difficult situation."
Origin of the Remedy
(24) THE remedy had its origin in ecclesiastical law of England. In the ecclesiastical Courts before 1813 the sanction for enforcing restitution of conjugal rights was excommunication. In that year 6 months imprisonment was substituted by the English Parliament. In 1884 payments took the place of imprisonment, but at the same time failure to comply was, by section 5 of the Act of 1884, deemed to be a desertion. The Matrimonal Causes Act, 1965 altered the law. Disobedience to a decree of restitution enable the petitioning spouse (1) to obtain a decree of judicial separation; (2) obtain an order for permanent alimony or periodical payments or, if the husband is a petitioner, a settlement of the wires property.
In 1970 restitution was abolished. In India the Code of Civil Procedure (Order 21 Rules 32 and 33) has abolished imprisonment but has retained attachment of property. But Rule 33 confers a discretion on the court to refuse execution by attachment and to order periodical payments to be made by the judgment-debtor to the decree-holder. So in the end there is only a financial sanction behind the restitution decree. Even if the Court is bound to make a decree, for restitution in a fit case it is no longer bound to enforce it as before by imprisonment or attachment.
(25) THERE may be cases where though the parties are living under the same roof yet the marriage has completely broken down. In these days of housing shortage the spouses may be compelled to live under the same roof though they have no love for each other. The practical test applied in cases where the parties are still living under the same roof is usually whether one party continues to provide matrimonial services for the other, and whether there is sharing of domestic life. If there is family or communal life there is evidence of resumption of cohabitation. If there is estrangement including a refusal to have sexual intercourse this may be evidence of consortium having come to an end. Whether cohabitation or marital relationship has or has not been resumed is a question of fact and degree to be determined according to commonsense principles. Some acts may be eloquent enough to serve as an indication of resumption of cohabitation and some of utter breakdown.
The Test of Resumption of Cohabitation
(26) IT is true that there is a general outcry against this remedy in modern times. It has been variously described as "archaic", "primitive" or "a rehersal before the main drama of divorce". But in the scheme of the Act the restitution decree is a stepping stone to the more serious step of divorce, it is a passage or passport to divorce. The Indian legislature believes that there should not be a sudden break of the marriage tie. It believes in reconciliation