24 Chapter 4 DIVORCE AND RESTITUTION UNDER HINDU LAW INTRODUCTION In the previous chapter we explored the general nature of marriage in the backdrop of statutory regulations and relevant judicial pronouncements. In this chapter we will see what happens when parties leave the company of each other or are not able to pull on as husband and wife after the marriage. Besides, we shall try to explain the concept of restitution of marital relationship between the estranged parties where due to some reason whether just or not, the marriage has become almost irreconciliable.It will be useful to understand as to why restitution of conjugal rights is granted? Or does it serve the purpose to sustain marital relationship.It shall be desirable to see the impending result of dissolution of marital relation, or the question like; when is a marriage deemed to have come to an end and with what effect? We shall try to analyze the role of courts along with the statutory position in this respect. The difference between void and voidable marriage will be given to underline their impact on such matters like, status of children, maintenance during and after dissolution of marriage etc. Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. It confers important rights and entails corresponding obligations both on the husband and on the wife. An important obligation is “consortium” which not only means living together but implies a Union of fortunes. A fundamental principle of matrimonial law is that one spouse is entitled to the society and comfort of each other. Thus where a wife, without lawful cause, refuses to live with her husband, the husband is entitled to sue for restitution of conjugal rights and similarly the wife has the right to demand the fulfillment by the husband of his marital duties. The restitution of conjugal rights, in nutshell, means the restoration of marital rights between the spouses. When the court passes a decree of restitution of conjugal rights, it implies that the guilty party is ordered to live with the aggrieved 25 party. Section 9 of the Hindu Marriage Act, 1955 deals with “Restitution of conjugal Rights”. It reads as under: (I) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 cause for withdrawal from the society the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. CONSTITUTIONAL VALIDITY OF SECTION 9 There has been a lot controversy regarding the constitutional validity of section 9 of the Act, for the reason that it gives unbridled powers to the husband as against the wife in terms of matrimonial relief, especially the right to enforce restitution of conjugal rights. The provision for restitution of conjugal rights has been provided to preserve the marriage as far as possible by enabling the court to intervene and enjoin upon the withdrawing spouse to join the other. The desirability and constitutional vires of this provision as noted above, has been a subject of debate ever since the decision of the Andhra Pradesh High Court in (T.Sareetha v.T.Venkatta Subbaiah,1) declaring section 9 of the Hindu Marriage Act, 1955 as ultra vires Articles 14&21 of the constitution. The Delhi High Court on the other hand, declaring the provision as intra vires in a subsequent case, namely, Harvinder Kaur v.Harmander Singh2. The controversy was set at rest by the Supreme Court in Smt.Saroj Rani v. Sudarshan Kumar Chaddha 3 wherein it was held that there was nothing unconstitutional about the section. The court observed: 1 AIR 1983 AP356 2 (AIR 1984 Del 66) 3 (AIR 1984 SC 1562) 26 The right of the husband or the wife to the society of the other is not merely a creature of the statute...There are sufficient safeguards in Section 9 to prevent it from being a tyranny...the object of restitution decree is to bring about cohabitation between the estranged parties i.e. so that they can live together in the matrimonial home in amity...the remedy of restitution aims cohabitation and consortium and not merely sexual intercourse. The introduction of constitutional law in home is like introduction of a bull in a china shop. The practical utility of the section, however, lays not so much in restoring the relationship after the decree-for that is rarely achieved-but the fact that its non-compliance provides a ground for seeking relief of divorce, which is popularly resorted to. An application for restitution of conjugal rights can be entertained only when the marriage between the parties is legal. When, however,a wife in her petition for restitution herself alleged that the husband has suppressed his earlier marriage which was subsisting, the court held that the petitioner’s marriage being illegal, her application for restitution of conjugal rights was not maintainable(Ranjana Kejriwal v.Vinod Kumar Kejriwal,4). Likewise in Ranveer Sharma v. Neelam Sharma5, the husband filed a suit for restitution of conjugal rights. His application for ad interim injunction restraining the defendant from marrying any other person was rejected as even the factum of the marriage was not proved. The respondent had, in response to the writ of habeas corpus filed by the husband which was dismissed, denied that there was any marriage. In these circumstances, the court observed: While it is true that stress should always be on preserving the institution of marriage...yet in a suit for restitution of conjugal rights when the factum of marriage itself is not established, even prima facie, there would be no occasion to grant any interim injunction of the nature as prayed for. In Lalit Gurubaxani v.Usha Gurubaxani6,the husband’s appeal against a decree of restitution passed in favour of the wife on the plea he was not given adequate opportunity to cross 4 AIR 1997 Bom 380 5 (AIR 1998 MP 283) 6 (AIR 1998 MP 175) 27 examine the witnesses was turned down. Though courts are by and large liberal in the matter but at the same time, they do not allow mischief or dilatory tactics to impede the course of justice as adopted by the husband. Thus, the approach of the courts vis-a-vis restitution of conjugal rights is that it must be granted unless there are legal grounds to refuse it. The importance of the relief by way of a decree of conjugal rights is that it, not only enables the aggrieved spouse to apply for maintenance but also entitles him/her to divorce under section 13(IA) which lays down: that either party to a marriage whether solemnised before or after the commencement of the Act, may obtain a decree of divorce on the ground that there has been no restitution of conjugal rights between them, for a period of two years or upwards after the passing of a decree for restitution of conjugal rights, in a proceeding to which they were parties. This remedy is not only constitutionally valid but also desirable from the point of view of public policy and public morality. It ought not, however, be misused and should not provide an opportunity or license to husbands to use coercion against their wedded wives or militate against the growing awakening of gender justice. Objective of Section 9 A careful analysis of section 9 shows that the remedy of conjugal rights is available to Hindus subject to the following statutory requirements: (a) the respondent must have withdrawn from the petitioner’s society; (b)The withdrawal must have been “without reasonable excuse”; ©The court is satisfied about the truth of the statement made by the petitioner; and (d)That there is no legal ground why the relief should not be granted It would be desirable to discuss these objectives one by one. a. WITHDRAWAL FROM SOCIETY The word ‘society’s several meanings.However, for the purpose of marital relationship, it means, ‘compares what constitutes unionship ‘and ‘consortium’. The statute does not define the term so the need for judicial interpretation has always been there. Thus, withdrawal from society does not mean only mere withdrawing from the company of the other but from 28 conjugal relationship as well. The important element of such withdrawal from the society of one another is that essentially they ought to be husband and wife and should be legally entitled to the society of one another. The right of restitution of conjugal right presupposes a valid marriage. Once a valid marriage is proved, the petition is maintainable though parties might not have co-habitude at all. b. Presumption of marriage Where the parties live together and cohabit for a long period and have children, and the relationship is recognized by friends and relatives as of husband and wife, there is presumption in favour of a valid marriage. This view was endorsed by the Madhya Pradesh High Court in Virendra Singh Pal v. Kashiba7. In another case, namely C.M.Karthiyayani Amma v.P.T.Veettil Narayanan Nair8, an interesting situation was found as here, the parties were married and divorced and subsequent to divorce, were living together and cohabiting as husband and wife. Though there was no indication of a formal remarriage ceremony between them, all other evidence like ration card stating names as husband and wife, and those of their children, were held as evidence of marriage.