• Balabavithra M

Marriages with no living together

Updated: Jan 11



This Article is written by Balabavithra M. (Senior editor at Law Dexter)

“Criminal lawyers see bad people at their Best and Divorce lawyers see good people at their worst!”


A week ago while I was listening to a podcast, the podcaster proudly said that she had a divorce last year and that was one of the best decisions of her life. In fact, she began telling the story about a man who added Divorce as part of his resume stating all skills he acquired due to that failed relationship. While we debate about the pros and cons of divorce on our heads right this moment, someone somewhere out in this country is crying in a kitchen/office thinking about all the things they go through, just for the sake of their children or the commitment they hold for their family.

Well! Marital rape is another big hairpin bend on this big mountain of “why a lot of divorces happen in a very ethical country like India”. Divorce is one big process. While we ponder over the abortion rights, and a woman’s rights over her body, there is one law that has been an On and Off throughout the history – Section 9 of the Hindu Marriage Act,1955- Restitution of Conjugal rights.

What are Conjugal rights and what does the statute say?


Conjugal rights give you the right to seek the help of the law to bring your spouse back to you to live with you and favor your sexual needs, even if the significant other does not want to do it willingly. Sounds pleasing and simple now, Perhaps this will be a nightmare if the other person has taken this right at hand.

Before we take a stand on the righteousness of this right, let’s know a few details about this section.

“Sec 9 of the HMA says that :

  • When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 with 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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from society.”[1]

i.e., The husband/wife can invoke their conjugal rights ( right to stay together ) when the significant other leaves them without a valid reason.

The major aim of this section was to protect the institution of marriage and at once on the occasion of the succession of such a suit the husband and the wife have to follow the decision of the appropriate court and consider this their happily-ever-after and continue to cohabitate.


When is a petition allowed under Section 9?

  • When Valid marriage between the parties

  • The spouses should not be staying together.

  • When withdrawal of the respondent without any reasonable cause/excuse

  • When The court is satisfied by the credibility of the petitioner’s statement

(or ) there is no reasonable legal ground to withhold the relief from being granted.

For a better analysis of this section let’s break this down :

  • In this section “Withdrawl from the society” means the refusal to live together / the refusal to have marital intercourse / the refusal to give comfort and company.

  • And for the matter at the instance, the burden of proof lies on the respondent to produce a reasonable excuse/cause for his/ her withdrawal in the first place.

  • Reasonable excuse/cause means the matrimonial misconduct on the part of the spouse (eg. The violence on the part of the husband, husband having a secret concubine or any baseless allegations of unchastity on either part )


Now, why has sec. 9 been on and off throughout history?


1866 – The remedy of “Restitution of Conjugal rights” was first used in Moonshee Bazloor v. Shamsoonaisaa Begum[2] adopting it from England by the Privy council.

1970- The remedy was abolished in England

1983 – In Sareetha v. Venkata subbaiah[3] was held to be inconsistent with the constitution stating that :

  • the section forced the petitioner (Sareetha, a famous cinema star ) to have marital intercourse with her husband

  • the section deprived against her fundamental right to carry on business guaranteed under Art.19

  • the section also lacked to provide the right to privacy for the petitioner (Art.21)

  • Moreover, the section treated the petitioner unreasonably discriminating her based on her sex as a female. (Art.14)

The section forced Sareetha to go and live with her husband together and provide the company. By staunchly following this section Sareetha realized that she will lose her right over her own body and filed the petition.


Thus, when the GOLDEN TRIANGLE of Art. 14, 19, and 21 were affected in T.Sareetha v. Venkata Subbaiah AIR 1983 AP 356 the Hon’ble SC then, struck down Sec. 9 of the HMA.

The judgments that followed started quoting Sareetha’s case. In cases like

  • Selva Madhavan v. Sulochana

  • Reba rani v. Ashit

  • Harivinder Kaur v. Harmander Singh


1984 – The Delhi HC gave the judgment that rescinded the judgment in Sareetha’s case.

  • The supreme court affirmed the former Delhi HC’s judgment and declared that Sec. 9 is constitutional in Saroj Rani v. Sudharshan Kumar AIR 1984 SC 1562

Why does the state of Family Law change post-2020?


The recent Justice puttaswamy case has provided the right to privacy a different scope, allowing an individual’s privacy is protected in a private space. Which means, the law does not enter into the personal space.

If I could predict the future, I would definitely say that on some corner of this country there is a case getting ready to be filed right after this Mass Lockdown stating that Home is a private space and the law does not have the right to force Him/her to have a marital relationship / marital intercourse with the spouse.

Ever since the day Marital rape, domestic violence, and ill-treatment mentally, physically, and emotionally started happening under the name of the marriage, they were only whispered and were ready to be voiced out. Now that many have taken pride and aren’t feeling ashamed to say things out even on an open platform or a courtroom, it is highly expected to be struck down any time soon.

Here, I am not inclining towards any gender. There are women who rape and there are men who force women to quit jobs for the sake of their marital relationships. But the state should not force anyone to live with the other just to protect the institution of marriage in its country. Marriage isn’t marriage without the element of love involved. If at all any two people choose to live together, they should live together with love.

Here is another prediction from my side, a lot of things have changed since the very beginning of 2020. So there is a large possibility of a major portion of the Indian population to skip the process of marriage and directly start living together. Because, why wouldn’t they ? when the state itself allows you to draw maintenance from the partner after providing substantial evidence for living together.


References

[1] Section 9, The Hindu Marriage Act,1955 [2] 1866-67(11) MIA 551 [3] AIR 1983 AP 356

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