Advantages And Disadvantages Of Section 9 Of Hindu Marriege Act

Marriage is a holy act in India. The wife and husband perform religious ceremonies and together form a union. They have many rights as a married couple like the right to maintenance, inheritance, residence or right on their children, etc. These rights collectively are called conjugal rights and these rights are the foundation of a marriage.

If a spouse has abandoned the other and stopped performing any conjugal duties, then the other spouse has the right to file a petition under Section 9 of the Hindu Marriage Act, 1955. The court can pass an order making the parties live together as a married couple.

However, many couples are not aware of the role of Section 9 of the Hindu Marriage Act, 1955. Because this topic sounds confusing but the law behind it is easy and plain. 

So, if you are interested in knowing what exactly is Section 9 of the Hindu Marriage Act then keep reading this article. In this article, we have tried to explain its concept, requirements, major cases, and much more.

Section 9 in the Hindu Marriage Act, 1955: Overview

Section 9 of the Hindu Marriage Act, 1955 governs such cases where one spouse decided to withdraw from marriage without giving any proper reason. So, if X and Y are married and Y abandons X and gives no good reason. X can ask the court to pass a decree of restitution of conjugal rights which will require Y to come back and live with X.

Before going ahead, let us understand some important terms:

Withdrawal From Society

The Act gives no definition for this term. In the general sense, it means that a partner abandons another and refuses to live together as a married couple.

Reasonable Excuse

It is nowhere defined in the Act. In the case of Jagdish Lal vs. Shyama Madan (1964), it was stated that a reasonable excuse varies as per the facts of the case and can not be reduced to a formula. If a husband falsely accuses his wife of committing adultery or either spouse commits physical or mental cruelty, conversion, etc. These are considered to be valid reasons to withdraw from marital ties.

Essential Elements For Section 9 Of Hindu Marriage Act, 1955

Section 9 requires the following elements:

1. There should be a legal marriage between the spouses. 

2. One spouse withdraws from the society of another.

3. Withdrawal is without any reasonable excuse.

4. The court should be satisfied that the spouse withdrew without any valid reasons. 

Petition For Restitution Of Conjugal Rights

This Section is not for the benefit of only the husband or wife, but both of them. The only condition is that the spouse must be abandoned as per Section 9. If this is the case, then the court, relying on the evidence before it, can pass a decree to mandate the cohabitation of spouses or even deny it if the spouse has withdrawn for a strong reason.

Essential Requirements For Section 9 Of The Hindu Marriage Act, 1955

If you want to file a petition in the court asking for restitution of conjugal rights, you need to ensure that your petition satisfies these conditions:

1. The marriage was legal but now spouses are living separately for no valid reason. 

2. The petitioner intends to live with the withdrawing spouse as a married couple.

Place And Time To File The Petition Under This Section

The petition can be filed before the family court which has jurisdiction over the area: 

1. Where the marriage ceremony between spouses was performed, 

2. Where the spouses live together after marriage,

3. Where the wife is currently residing.

Advantages Of Section 9 Of Hindu Marriage Act

The advantages are:

Promotes Reconciliation

The decree of restitution of conjugal rights encourages both parties to live together, rather than going their separate ways. This way they can resolve their differences and live together. Agreeing to live as a couple shows that they are willing to save their marriage by working on it.

 Protects Rights Of Spouses

After marriage, both parties are treated equally. If one spouse decides to abandon another, it can affect their mental and physical health. So, the court order requiring them to live together is a reminder of their duties towards each other and protecting their rights in a marriage.

Saves Marriage

It is one of the biggest advantages of Section 9. In India, marriage is considered sacred, so divorce is avoided at all costs. By allowing parties to live again as a couple protects them from applying for the divorce. 

Benefits The Children

If a marriage breaks, it's not just the couple that gets impacted but also the children. They go through a lot of challenges while watching their parents get separated. If the couple is able to resolve their issues and come back together, the children can be emotionally protected. 

Legal Remedy

A marriage is between two families. So, when there are marital differences, the families can try to help the couple. But, the petition under Section 9 is a legal remedy that our laws provide in case of marital issues. It can help resolve disputes faster under the court’s observation.

Disadvantages Of Section 9 Of Hindu Marriage Act

While we have seen that Section 9 has some merits, it has repeatedly given rise to a lot of concerns, which are as follows:

Infringes Privacy

Through Section 9, the court has the power to force a spouse into marital ties. The spouse has less say and so it impacts their right to privacy. By legally forcing them to live together and work on their marriage, the court itself infringes on their right to privacy and takes away their autonomy.

Forced Cohabitation

By the order of the court, the parties are forced to live together despite their differences. This can increase marital differences and create an unhealthy marriage. 

Biased Against Women

This Section is generally used by husbands against their wives. It can force the female to return to abusive and violent homes. If the woman is scared and is not able to explain a ‘reasonable excuse’ in court, she will be forced to live with her husband. 

Increases Crime Against Women

Again, there are cases where the wife abandoned the husband but the court orders them to return to marriage. The wife in these cases is under the threat of violence or marital rape from the husband.

Used as a Way to Push Divorce

When a spouse wishes to get a divorce, the other spouse can take the benefit of Section 9 to delay the divorce and force the parties to stay together.

Constitutional Validity of Section 9 of Hindu Marriage Act, 1955

The first case where the constitutionality of restitution of conjugal rights was challenged was that of T Sareetha vs. T Venkata Subbaiah (1983). The petition contended that Section 9 was against the Constitution as it impacted the right to life and personal liberty given under Article 21 of the Constitution. The Andhra Pradesh High Court decided that indeed Section 9 is against the Constitution as it infringes Article 21 of the Constitution. 

The bench of the Supreme Court in the case of Saroj Rani vs. Sudarshan Kumar Chandra (1984) decided on this matter. The court took into consideration the matter of Harvinder Kaur vs. Harivinder Singh and decided that Section 9 does not force anyone to have sexual relations in a marriage, it only encourages them to stay together. So, it is not unconstitutional. 

Later in the case of Ojaswa Pathak vs. Union of India (2019), Section 9 was challenged as unconstitutional on the ground that:

1. It is against the autonomy of a woman, forcing her to return to her husband against her will.

2. Infringes the right to privacy in Article 21 by forcing couples to be involved in sexual acts.

3. It imposes a burden on women and violates the right to equality under Article 14. 

This case is still pending in the Court. 

Landmark Cases Of Restitution Of Conjugal Rights

A few cases are as follows:

Saroj Rani vs. Sudarshan Kumar Chandra (1984)

This was the first case where Section 9 was challenged. Saroj Rani, the wife, filed a petition in court as her husband had abandoned her. Sudarshan then challenged the validity of Section 9. The court ordered Sudarshan to live with his wife by declaring that Section 9 is constitutional.

Sowmithri Vishnu vs Union of India (1985)

In this case, the court held that Section 9 should be interpreted while following Article 21 of the Constitution of India. The court should allow for restitution only when other legal remedies have been exhausted and there is no other option left. The same was stated again in the case of Rajesh Sharma vs  Union of India (2010). The court also added that restitution of conjugal rights cannot be claimed as a right in a marriage. 

Seema vs. Rakesh Kumar (2000)

In this case, the facts were that Rakesh withdrew from the marriage and society of Seema. The Court thus ordered him to reside with his wife and also provide maintenance to her if she needed it due to emotional stress.

Babita vs. Munna Lal (2022)

Here, Babita filed for restitution of conjugal rights under Section 9 and the court granted it in her favor. Later, she also applied for maintenance under Section 125 of the Code of Criminal Procedure. The court had to decide if passing a decree for restitution would prevent the wife from claiming maintenance from the husband. It was decided that Babita had the right to ask for maintenance as she had the right to be protected.

Conclusion

It's true that restitution of conjugal rights is a really useful tool in marriages. It seeks to protect the sacred institution of marriage. But, if the courts do not take all facts into account, they can also end up passing harmful orders. Because of such concerns, the law has been challenged time and again in court. But, as seen above, it's considered to be legally valid. It must be noted that restitution of conjugal rights is a measure of last resort and must be exercised only when courts have exhausted other remedies. By taking care of these points, we can save the marriage without taking the help of the courts.

FAQs

A few FAQs based on the Advantages and Disadvantages of Section 9 Hindu Marriage Act are:

Q1. Is the court bound to pass a decree for the restitution of conjugal rights?

No, there is no compulsion for the courts to pass any decree under Section 9. If there is a valid reason to avoid cohabitation of parties, the court can deny passing relief under Section 9.

Q2. What is the objective for the courts to allow restitution of conjugal rights?

The courts allow restitution of conjugal rights to encourage both spouses to resolve their issues and live together as a married couple. However, it in no way forces them to engage in sexual acts and live in a violent atmosphere. 

Q3. What happens if the spouse refuses to live together even after the court has mandated it?

If the spouse doesn't agree to cohabitation as ordered by the court, it can become a ground for divorce under the Hindu Marriage Act.