Restitution of Conjugal Rights: Critique of the Hindu Marriage Act, 1955
DARSHAN SINGH PATIALVI - ADVOCATE GENERAL | Restitution Of Conjugal Rights: Criticism Revisited |
Introduction:-
Section 1[1] of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. This right can be granted to any of the spouse.This section is identical to section 22 of the Special Marriage Act, 1954.[2] The provision is in slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws.[3]The constitutional validity of the provision has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court[4] where the Hon 'ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh,[5] though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan,[6] gave a judgment which was in line with the Delhi High Court[7] views and upheld the constitutional validity of the section 9 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.[8]It is a sad commentary that despite various courts including the Apex Court of the Country upholding the validity of section 9. Many jurists still have
Introduction:-
Section 1[1] of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. This right can be granted to any of the spouse.This section is identical to section 22 of the Special Marriage Act, 1954.[2] The provision is in slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws.[3]The constitutional validity of the provision has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court[4] where the Hon 'ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh,[5] though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan,[6] gave a judgment which was in line with the Delhi High Court[7] views and upheld the constitutional validity of the section 9 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.[8]It is a sad commentary that despite various courts including the Apex Court of the Country upholding the validity of section 9. Many jurists still have
References: [4] T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356. [5] A.I.R. 1984 Del. 66. [6] A.I.R. 1984 S.C. 1562. [7] Harvinder Kaur v Harminder Singh, A.I.R. 1984 Del. 66. [8] A.I.R. 1983 A.P. 356. [9] Jaspal Singh, Law of Marriage and Divorce in India , (1983), p.83. [10] (1897) AC 395. [13] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66. [14] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66. [15] Linda v. Belisario (1795) 1 Hag. Con. 216(21) per Sir William Scott at pp. 30, 232. [16] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66. [17] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [18] A.I.R. 1977 S.C. 2218. [19] Dharmendra Kumar v. Usha Kumari, A.I.R. 1977 S.C. 2218. [20] T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356. [21] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [22] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [24] A reference may be made to Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [25] (1790) I Hag. Con. 144. [26] (1924) 2 Addf 382-162 E.R. 335 [27] (1865) 34 L.J.P [28] (1790) I Hag. Con. 144. [29] A.I.R. 1983 A.P. 356. [30] (1924) Probate 19 (2). [31] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [33] Mrs. Maneka Gandhi v. Union of India (UOI) and Anr, A.I.R. 1978 S.C. 597. [34] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [35] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Delhi 66. [37] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [38] R. C. Nagpal, Modern Hindu Law, (1983), p. 110. [39] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [40] Saroj Rani v. Sudharshan Kumar Chadha, A.I.R.1984 S.C. 1562. [41] (1897) A.C. 395 (16). [42] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66. [43] Saroj Rani v. Sudharshan Kumar Chadha, A.I.R.1984 S.C. 1562. | |