Court: Supreme Court of India.
Case Type: Civil Appeal.
Case No.: Appeal no. 187 of 1983.
Citation: 1984 AIR 1562.
Date of Judgement: 08/08/1984
Appellant: Saroj Rani.
Respondent: Sudarshan Kumar Chadha.
Bench:
- Justice Sabyasachi Mukharji.
- Justice Syed Murtaza Fazalali.
Statutes Referred:
- Constitution of India.
- Hindu Marriage Act, 1955. (the Act)
- Code of Civil Procedure, 1908.
Cases Referred:
- T. Sareetha v. Venkata Subbaiah, A.I.R. 1983.
- Smt. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Delhi.
- Joginder Singh v. Smt. Pushpa, AIR 1969 Punjab and Haryana.
- Geeta Laxmi v. G.V.R.K. Sarveswara Rao.
Facts:
- According to Hindu Vedic rites, the parties of this case were married on 24th January 1975 in Jullundur City. Their first daughter Menka was born on 4th January 1976, and the second daughter Guddi was born on 28th February 1977. Their second daughter passed away on 6th August 1977 in the house of the Respondent.
- Allegedly, 16th May 1977 was the last day of cohabitation between the parties.
- It was alleged that the Respondent-husband turned the Appellant-wife out of his house and withdrew himself from her society on 16th May 1977.
- On 17th October 1977, the Appellant filed a suit against the Respondent under Section 9 of the Hindu Marriage Act for the restitution of conjugal rights.
- In the petition mentioned above, the Appellant-wife had made an allegation of maltreatment by the respondent-husband and her in-laws.
- On 28th March 1978, the Respondent made a statement in the court that the Appellant’s application under Section 9 of the Act be granted, and a decree for the same must be passed. However, the Respondent denied all the allegations that the Appellant had made. Accordingly, on 28th March 1978, the Sub-Judge 1st Class passed a consent decree for the restitution of conjugal rights.
- There had been no cohabitation after the passing of the decree for the restitution of conjugal rights.
- On 19th April 1979, the Respondent-husband filed a petition against the Appellant-wife under Section 13 of the Act because though one year had passed since the decree of restitution of conjugal rights was passed, no actual cohabitation had taken place.
- The Appellant-wife filed her statement in reply to this petition mentioning that it was not true that cohabitation between the parties hadn’t happened.
- It was also alleged that the wife had filed an application under Section 28A of the Act in the court of Sub-Judge, 1st Class, Jullundur. She requested that the husband must be directed to comply with the decree of restitution of conjugal rights that was passed against him. The application was pending at the time when the wife had filed her reply to the divorce petition.
- On 15th October 1979, the learned District Judge dismissed the husband’s divorce petition. The learned Judge believed that since the decree for the restitution of conjugal rights was passed by the consent of both parties, the husband was not entitled to a decree for divorce.
- Aggrieved by this decision, the husband filed an appeal in the High Court of Punjab and Haryana.
- A single-judge bench of the High Court held that the decree of restitution of conjugal rights could not be passed with the parties’ consent. Since the decree in this case was passed with the parties’ consent, it was a collusive one, and thus, the husband was not entitled to the decree of divorce. This matter was further referred to a Division Bench.
- The Division Bench of the High Court held that a consent decree could not be termed as a collusive decree so as to disentitle the petitioner to a decree of restitution of conjugal rights. It was also held that if the Court had tried for reconciliation and ordered cohabitation, according to the language of Section 23 of the Act, the husband cannot be disentitled to a divorce decree. Thus, the husband’s appeal was allowed, and he was granted the divorce decree.
- After this, an appeal was filed in the Supreme Court.
Issues:
- Is Section 9 of the Hindu Marriage Act valid and constitutional?
- Was the Respondent-husband entitled to a decree of divorce?
The contention by the Appellant:
- The husband removed her from his home and withdrew from her society.
- The Appellant was taken to the Respondent’s house after the decree of restitution of conjugal rights was passed. However, only after two days, the Respondent-husband once again drove the Appellant-wife out of his home.
- In view of the expression ‘wrong’ in Section 23(1)(a) of the Act, the husband was disentitled to get a divorce decree.
- Section 9 of the Act was unconstitutional and invalid.
- The Respondent-husband wanted to get a divorce all along, which is why he allowed the Appellant-wife to get a decree of restitution of conjugal rights. The husband had already decided that he would not comply with the decree of restitution of conjugal rights. He misled the wife and the court.
The contention by the Respondent:
- The Respondent-husband denied the allegations made by the Appellant-wife.
- No cohabitation had taken place even after the decree for restitution of conjugal rights was passed.
- He was entitled to get a divorce.
Obiter Dicta:
- All cases of consent decree cannot be said to be collusive.
- The allegations made by the Appellant wife were not mentioned in the pleadings.
- The allegations and ground mentioned in the Supreme Court were not mentioned in any other lower courts.
- The Delhi High Court’s stance in Harvinder Kaur (supra) regarding Section 9 of the Act and the validity of the restitution of conjugal rights was correct.
- There was no proof of any ill-treatment by the husband or any evidence of the husband driving the wife out of the house.
- It could not be said that the husband was benefiting from any ‘wrong’ that he committed.
- After divorce, the husband was ordered to pay maintenance to the wife until she remarries and the daughter until she marries.
- Restitution of conjugal rights might be enforced by the attachment of property. This is if the disobedience of the decree is wilful and deliberate.
Judgement:
- The Appeal was dismissed.
- Section 9 was held to be valid and constitutional.
- The wife must be paid Rs. 200 every month, and the daughter must be paid Rs. 300 every month.
- The husband was granted the decree of divorce.
Rationale:
- The different and contrary allegations and facts mentioned by the wife in the Supreme Court created an inconsistent case.
- A divorced woman is often at a disadvantage in Indian society.
- Section 9 of the Act is a codification of the pre-existing law. Rule 32 of Order 21 of the Code of Civil Procedure deals with the decree for specific performance for restitution of conjugal rights and injunctions.
- When there are favourable conditions for a wife or a husband to follow the decree of restitution, and they still disobey deliberately and wilfully, only then can the properties be attached.
Conclusion:
- A husband and a wife give their consent to live and cohabit with each other when they get married. Though the Court cannot enforce sexual relations between a married couple, it can, however, direct them to try and fulfil the promise of cohabitation that they made to each other when they got married. Section 9 of the Hindu Marriage Act is an attempt to save marriages and prevent breakups and divorces. It serves a social purpose.
Prepared by Mihir Poojary.