Harvinder Kaur vs Harmander Singh Choudhary

Court: Delhi High Court.

Citation: AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187.

Case Type: Civil Appeal.

Appellant: Harvinder Kaur.

Respondent: Harmender Singh Choudhary.

Bench: 

• Justice A.B. Rohatgi.

Statutes Referred:

• Hindu Marriage Act, 1955. (hereinafter referred to as ‘the Act’)

Cases Referred:

• Forster v. Forster, (1790) I Hag. Con. 144 (3).
• Evans v. Evans, (1948) I K.B. 175 (7).
• Lodder v. Lodder, (1921).

Facts:

• The parties in the appeal married each other on 10th December 1976. Both were working professionals. A child was born to them on 14th July 1978.
• According to the Respondent-husband, the Appellant-wife had left the matrimonial home in May 1978. Following this, on 14th February 1979, the husband filed a petition under Section 9 of the Hindu Marriage Act.
• The wife claimed that she was oppressed by her husband and his mother and that she was turned out of her matrimonial home by her husband on 19th January 1978.
• The burden of proof was on the wife to prove that she was mal-treated.
• Following the witness statements and the trial, the wife was unable to prove her mistreatment.
• The Additional District Judge granted the restitution of conjugal rights to the husband.
• Aggrieved by that decree, the wife appealed to Delhi High Court.

Issue:

• Is Section 9 of the Act unconstitutional?

The Contention by the Appellant:

• She was subjected to cruelty and maltreatment by her husband and his mother.
• She was willing to return to the matrimonial home provided that the husband set up an independent residence from his mother.

The Contention by the Respondent:

• The Respondent-husband denied all the allegations made by the Appellant-wife.
• The Appellant left the house of her own accord.

Obiter Dicta:

• Section 9 of the Act provides the remedy of restitution of conjugal rights in cases where one spouse has withdrawn from cohabitation.
• Cohabitation means living together as husband and wife, where the wife performs wife duties towards the husband and the husband performs husband duties towards the wife.
• The Court cannot force sexual intercourse between estranged spouses, but it can direct them to cohabit together.
• Marriage is much more than sexual intercourse between two individuals. It is cohabitation, consortium, fellowship and support. It involves sharing your lives, goals, aspirations, joys, sufferings with the other person.
• Marriage is not a casual commerce between people. Giving birth and raising children together is an essential aspect of marriage.
• The provision of restitution mentioned in the Act is an attempt to save a marriage and preserve marital relations. It aims at restoring cohabitation and consortium.
• Cohabitation was broken when the Appellant-wife left the matrimonial home.
• The person leaving the matrimonial home must have a definite and reasonable explanation for their action. The burden of proof is on them to prove the same.
• The Appellant failed to provide any evidence which backed her claims that she was oppressed at her matrimonial home and that she was forced out of the house.
• The Appellants claim that she would return to her matrimonial home once the Respondent sets up a separate residence was unreasonable.

Judgement:

• The decree of the Trial Judge was upheld.
• Section 9 of the Act was held to be constitutional.

Rationale:

• When one spouse withdraws from the society of the other without a just cause, the Courts can direct the spouse to return back to the matrimonial fold. This is done to ensure that the consortium is not broken.
• When the two individuals get married, they give their consent to living together. Therefore, the Court can then direct the individuals to do the very same thing they consented to.
• Marriage is a sacred union between people. One cannot leave such a relationship at their whims and fancies. They must have a valid reason to leave the matrimonial alliance.
• The Appellant had admitted that she had normal sexual relations with the Respondent. They also had a child. There was strong evidence of cohabitation and consortium. The same were broken when the Appellant moved out of the Respondents house.
• The wife cannot dictate the husband to set up a different residence from his family. Such a decision must be reached at amicably.

Conclusion:

• While sexual intimacy is an important aspect of a relationship, it is not the be-all and end-all of marriage. Cohabitation is the highest common factor of successful matrimonial relationships. On the other hand, living apart is a clear indication of a relationship breakdown; when that happens, the association is nothing but an empty legal shell.
• In a society like India, where, oftentimes, the cause of trouble in a marriage is societal pressures, familial pressures, communication problems, etc., the remedy of restitution of conjugal rights is quite effective. It gives both the spouses a ‘cool-down period (one year) to take a step back and think whether or not they want to continue with their union.