(This post was written by Madhav Chandan from Gujarat National Law University, Gandhinagar)
Smt. Saroj Rani v/s Sudarshan Kumar Chadha was decided on 8th August 1984. It is considered landmark because it challenged the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 wherein the two-judge bench of the Honourable Supreme Court of India upheld the validity of Restitution of Conjugal Rights enshrined under the Act.
This judgment thus concerns itself with the following Act/Sections:
(1) Hindu Marriage Act, 1955- Section 9
(2) Constitution of India- Article 13, Article 14 and Article 21
Brief Facts: Petition was filed by the wife for a restitution of conjugal rights under Section 9 of the Hindu Marriage Act,1955. Her husband consenting to the passing of a decree for the same was passed. After a period of 1-year husband filed a petition under Section 13 of the Hindu Marriage Act,1955 against the appellant for divorce on the ground that though one year had elapsed from the date of passing the decree for restitution of conjugal rights as no actual cohabitation had taken place between the parties.
While the period of cohabitation wife was taken to the house of the husband by her parents one month after the decree and that the husband kept her in the house for two days and then she was again turned out. Considering this District Court as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce. The appeal was filed by Respondent to High Court for decree of divorce. On appeal, case came before Division Bench of High Court that a that a consent decree could not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for restitution of conjugal rights, and that in view of the language of Section 23 if the Court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree. The appeal was allowed, and the husband was granted a decree of divorce. The appeal for the same is here.
Issues before the Hon’ble court:
1.Husband whether entitled to a decree of divorce or not?
2.Constitutionality of Section 9 of Hindu Marriage Act, 1955.
- Other Party could not take advantage of his ‘wrong’ because of having refused cohabitation in the execution of the decree. (Main contention)
- It was submitted that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby he misled the wife and the Court and thereafter refused to cohabitate with the wife and now, it was submitted, cannot be allowed to take advantage of his ‘wrong’.
- Assail the factual finding of the Trial Court that there was no cohabitation after the decree for restitution of conjugal rights
- The decree for restitution of conjugal rights was in a sense collusive decree
- Challenged the constitutionality of Section 9 0f Hindu Marriage Act, 1955 relying on the case of Sareetha v. Venkata Subbaiah, A.I.R.1983 Andhra Pradesh, which was Overruled by this court.
- Restitution of Conjugal rights is constitutional under Smt. Harvinder Kaur v. Harmander Singh Choudhry, A.I.R.1984 Delhi, Approved by the court.
Findings of Court:
- From the facts on record, it appeared to the court that there was no collusion between The wife petitioned against the husband on certain allegations, the husband denied these allegations. He stated that he was willing to take the wife back. A decree on that basis was passed.
- Before the Division Bench of behalf of the appellant-wife, counsel did not assail the factual finding of the Trial Court that there was no cohabitation after the decree for restitution of conjugal rights nor did counsel press the ground of defence namely that the appellant could not take advantage of his ‘wrong’ because of having refused cohabitation in execution of the decree.
- There is, however, no whisper of these allegations as provided under Appellant’s Contention no.2 in the pleading. As usual, on this being pointed out, the counsel prayed that he should be given an opportunity of amending his pleadings and, the parties, with the usual plea, should not suffer for the mistake of the lawyers.
- On Respondent’s contention no.2 : Firstly there was no pleading, secondly this ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial court and before the Division Bench were contrary to the facts now sought to be urged in support of her appeal.
- There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission-71st Report on the Hindu Marriage Act, 1955- “Irretrievable Breakdown of Marriage as a Ground of Divorce”.
- Therefore quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings. Therefore NO AMENDMENTS TO PLEADINGS.
- Further, Court said – We reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife if such is the situation it is better to close the chapter.
- This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break-up of the marriage. It cannot be viewed in the manner the learned single judge of Andhra Pradesh High Court has viewed it and we are therefore unable to accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.
- The Section 9 of the Hindu Marriage Act, 1955 is constitutional.
- Even after the final decree of divorce, the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage. Wife would be entitled to such maintenance only until she remarries and the daughter Menka to her maintenance until she is married. Respondent would pay costs of this appeal to appellant assessed at Rs. 1500.
- Appeal dismissed.