DELHI HIGH COURT

                                      Harvinder Kaur.

                                              Vs.

                                Harmander Singh, (Delhi)

                                 F. A. O. No. 181 of 1981.

                                (Avadh Behari Rohatgi, J.)

                                          15.11.1983

                                        JUDGMENT

Avadh Behari Rohatgi, J.

1. This appeal raises an issue of great importance to the well-being of the
nation, as it goes to the very root of the marriage relationship. The husband
petitioned for restitution of conjugal rights. The wife opposed. The Additional
District Judge granted a decree of restitution of conjugal rights to the husband.
From that decree the wife appeals to this Court.

2. On appeal counsel for the wife attacked the constitutional validity of Section
9 of the Hindu Marriage Act. I issued notice to Attorney-General. He appeared
and argued the case. This part of the judgment deals with the constitutional
question. The rest is concerned with the facts of the case.

3. In the forefront of his arguments, counsel referred me to T. Sareetha v. T.
Venkata Subbaiah, 1 In that case P.A. Chaudhary J. held that Section 9 of the
Hindu Marriage Act, 1955, (the Act) offends Articles 14 and 21 of the
Constitution and therefore declared it null and void. It was a simple case in
which the husband had filed an application against the wife for restitution of
conjugal rights under Section 9 of the Act. The wife raised an objection to the
jurisdiction of the Court. The subordinate Judge held that Cuddapah Court had
jurisdiction to try the petition. The wife went in revision to the High Court
Chauudhary J., in agreement with the subordinate Judge, held that Cuddapah
Court had jurisdiction to try the petition.

4. But the case is not important on this point. The chief point decided was about
the constitutional validity of Section 9 of the Act. The learned Judge held that
the remedy of restitution of conjugal rights was "barbarous", "uncivilized" and
"an engine Oppression". The main reason for holding that Section 9 offended
Article 21 of the Constitution was that a decree for restitution of conjugal rights
was an order "to coerce through judicial process, the unwilling party to have sex
against that person's consent and freewill with the decree-holder." This, he held,
was "degrading to human dignity and monstrous to human spirit". The learned
Judge took the view that the British Indian Courts "thoughtlessly imported that
rule into our country and blind enforced it among the Hindus and the Muslims.
The origin of this uncivilized remedy in our ancient country is only recent and
is wholly illegitimate. Section 9 had merely aped the British and mechanically
re- enacted that legal provision of the British ecclesiastical origin."

Restitution of Conjugal Rights:

5. In my opinion this view is based on a misconception of the true nature of the
remedy of restitution of conjugal rights. Section 9 reads as under:

"Restitution of conjugal rights.-

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
excuse for withdrawal from the society, the burden of proving reasonable excuse
shall be on the person who has withdrawn from the society."

6. Chaudhary J. thought that Section 9 imposes "sexual cohabitation between
unwilling, opposite sexual partners." He called it "forced sex", "coerced sex"
and "forcible marital intercourse'. He went on to hold that the state interference
destroyed the "sexual autonomy" and "reproductive autonomy" of the
individual. "A wife who is keeping away from her husband, because of
permanent or temporary arrangement, cannot be forced, without violating her
right to privacy, to bear a child by her husband", ha said. A large number of
English and American decisions have been cited in support of this view.

7. This decision is the first of its kind to take this view. I respectfully dissent.
The decree for restitution does nothing of the kind. Under Section 9 the Court
has power to make a decree of restitution of conjugal rights which is the remedy
available to enforce the return of a spouse who has withdrawn from
cohabitation. The decree, if granted, orders the respondent to return within a
period of one year to the aggrieved party. This period is specified in Section 13
(1-A) (ii) of the Act. This remedy is aimed at preserving the marriage and not at
disrupting it as in the case of divorce or judicial separation". As Tolstoy says in
his Law and Practice of Divorce (6th Edition) P. 99:

"The Court cannot enforce sexual inter course, but only cohabitation, and
restitution of conjugal rights cannot be ordered where the respondent refuses
sexual inter course but continues to cohabit with the petitioner."

(See Jackson v. Jackson, 2

8. In Halsbury's Laws of England (3rd Edition) Volume 12 page 284 it is said:

"It (cohabitation) does not necessarily mean sexual intercourse, which the Court
cannot enforce, so that refusal of sexual intercourse by itself does not constitute
refusal to cohabit."

9. In support of this proposition the high authority of Lord Stowell in Forster v.
Forster, 3 Orme v. Orme, 4 and Rowe v. Rowe, 5 have been cited.

10. One thing is clear from Lord Stowell's decision in Forster v. Forster and
Halsbury's statement of law that the Court does not and cannot enforce sexual
intercourse. I accept it as true that sexual relations constitute a most important
attribute of the conception of marriage. But it is also true that they do not
constitute its whole content, nor can the remaining aspects of the matrimonial
consortium be said to be of wholly unsubstantial or trivial character. Marriage
has been described in these words:

"Besides the procreation and education of children, marriage has for its object
the mutual society, help and comfort, that the one ought to have of the other
both in prosperity and adversity. Marriage is the most solemn engagement
which one human being can contract with another. It is contract formed with a
view not only to the benefit of the parties themselves, but to the benefit of third
parties; to the benefit of their common offspring, and to the moral order of
civilized society."
(Shelford on Marriage and Divorce, (1841) p. 3 quoted in Weatherley v.
Weatherley,). 6

Cohabitation : Its meaning :

11. The object of the restitution decree is to bring about cohabitation between
the estranged parties so that they can live together in the matrimonial home in
amity. That is the primary purpose. Cohabitation has been defined in these
words: "Cohabitation does not necessarily depend upon whether there is sexual
intercourse between the husband and the wife. 'Cohabitation' means living
together as husband and wife; and as I endeavourer to point out in Evans v.
Evans, 7 cohabitation consists in the husband acting as a husband towards the
wife and the wife acting as a wife towards the husband, the wife rendering
house-wifely duties to the husband and the husband cherishing and supporting
his wife as a husband should. Of course, sexual intercourse usually takes place
between parties of moderate age if they are cohabiting, and if there is sexual
intercourse it is very strong evidence - in fact it may be conclusive evidence -
that they are cohabiting; but it does not follow that because they do not have
sexual intercourse they are not 'cohabiting'. Cohabiting, as I have said, means
the husband and wife living together as husband and wife."

(Thomas v. Thomas, 8 per Lord Goddard C. J. at p. 297).

"The cohabitation of two people as husband and wife means that they are living
together as husband and wife, the wife rendering wifely services to her
husband; the husband rendering husband like service to his wife. They must
live together not merely as two people living in one house, but as husband and
wife."

(Wheatley v. Wheatley, 9 per Lord Goddard CJ at p. 43).

12. This is the true office of a restitution decree. Not that it compels sexual
intercourse by "force of arms", as Chaudhary J. thought. Where either the
husband or the wife has withdrawn from the society of the other party without
just cause, the Court orders the withdrawing party to return to the conjugal fold.
So that the consortium is not broken.

Consortium: Its meaning:

13. Consortium means "companionship, love, affection, comfort, mutual
services, sexual intercourse. All these belong to the married state. Taken
together they make up consortium." Consortium has been defined as "a
partnership or association; but in the matrimonial sense it implies much more
than these rather cold words suggest. It involves a sharing of two lives, a
sharing of joys and sorrows of each party, of their successes and
disappointments. In its fullest sense it implies a companionship between each of
them, entertainment of mutual friends, sexual intercourse - all those elements
which, when combined, justify the old common law dictum that a man and his
wife are one person" (Crabtree v. Crabtree, (No. 2, 10 per Selby, J. at p. 821)

Refusal of Sexual Intercourse:

14. From the definitions of cohabitation and consortium it appears that sexual
intercourse is one of the elements that goes to make up the marriage. But it is
not the summum bonus. Sex is the refrain of T. Sareetha's case AIR 1983
Andhra Pradesh 356. As if marriage consists of nothing else except sex
Chaudhary, J.'s overemphasis on sex is the fundamental fallacy in his reasoning.
He seems to suggest test restitution decree has only am purpose, that is, to
compel unwilling wife to "have sex with the husband". This view was discarded
long ago. As early as 1924 Sir Henry Duke President in Jackson v. Jackson, 11
(supra) at pages 23, 24 said:

"Wanton refusal of one or other of the parties to a marriage to have sexual inter
course is no doubt a wrong thing. It is the intentional breach of one of the ties of
marriage, but it does not produce either separation or living apart. Reflection
upon the manifold duties of the married state must, I think, convince any
reasonable mind that this refusal of itself by one of the parties while the parties
remain living together and discharging the other duties of the married state,
cannot be said to amount to desertion. It is not abandonment; it is not living
apart. If it is a refusal of a duty it does not purport to conclude the matrimonial
relationship."

15. The remedy of restitution aims at cohabitation and consortium and not
merely at sexual intercourse. To say that restitution decree "subjects a person by
the long arm of the law to a positive sex act" is to take the grossest view of the
marriage institution. The restitution decree does not enforce sexual intercourse.
This can be proved by a simple illustration. A husband and a wife are living
under the same roof. But the wife does not allow the husband sexual intercourse
with her because she thinks that it is a horrid and beastly thing. Will the Court
pass a restitution decree? The answer is 'No'. Since they are living together as
one household, as one unit and not as two, the law cannot go further and compel
them to have sexual intercourse. The Court has neither the means nor the
capacity to enforce its decree in the marriage bed. It is most undesirable, save
where we are clearly enjoined by statute see to do, to seek to discover or reveal
the secret intimacies of the marriage bed. If a question arises whether the
marriage has been consummated, no doubt this may be necessary. It is not, I
think, right that we should do so in a case such as the present. All that the Court
in a husband's petition under Section 9 does is to seek to enquire whether there
is a "reasonable excuse" for the withdrawal by the wife from the society of the
husband. It is a fallacy to think that the restitution of conjugal rights constitutes
"the starkest form of governmental invasion" of "marital privacy", as
Chaudhary, J. seems to think. The burden of proving reasonable excuse lies on
the wife. A spouse is entitled to the others society and if the law enforces this
conjugal duty there is nothing wrong.

16. The leading idea of Section 9, to my mind, is to preserve the marriage. The
outstanding fact is that the husband and wife are living apart and leading their
own separate lives. The Court seeks to enquire into this separation. The inquiry
into the affairs of the matrimonial life is to be confined to this one fart - "Is
there a just cause for the respondent to live apart and separate from the
petitioning spouse?" Further delving into their matrimonial life is not necessary.
If there is no rupture of marital relations and the parties are living together in
the ordinary way of man and wife there is no need to resort to Section 9 of the
Act. Section 9 is a means of saving the marriage. It can be that the erring
spouse comes on the right path and a broken home is rebuilt, Section 9 in a
sense is an extension of sub-section dons (2) and (3) of Section 23 of the Act
which encourages reconciliation by the Court. The Court is enjoined to make
every Endeavour, to bring about reconciliation between the parties Section 9 is a
concrete illustration of this. What the Court seeks to do is to enquire into the
causes which have led to the rupture of the marital relations and a refusal to
share the matrimonial life. If there is no reasonable excuse for living apart the
court orders the withdrawing party to live together. It is the policy of the Act
that the parties should live together. Living apart is the very antithesis of living
together as society is the antithesis of separation. The policy of the Act is to
assist in the maintenance of marriages other than those reduced to a mere shell.
Where there is a complete cessation of cohabitation and the parties are living
apart Section 9 can properly be invoked. This state of affairs is normally
brought about by one spouse leaving the matrimonial home, so that they are no
longer living under the same roof. They are living in a state of separation. They
are livid as two units rather than one. Two separate households are created. So
they are treated as living apart unless they are living with each other in the same
matrimonial home.

17. A difficult situation arises. The matrimonial relationship has been
terminated sough marriage is subsisting. The marriage is in name only and not
in substance, in law and not in fact. The policy underlying the legislation is that
it is not conducive to the public interest that men and women should remain
bound together in permanence by the bonds of a marriage the duties of which
have long ceased to be observed by either party and the purposes of which have
irremediably failed. Such a condition of marriage in law which is no marriage in
fact leads only to immorality and unhappiness. Germ of the Breakdown Theory:

18. The germ of the breakdown theory is to be found in a New Zealand case
reported in 1921. Salmond, J. in a passage which has now become classic
enunciated the breakdown principle in these words:

"The legislature must, I think, be taken have intended that separation for three
years is to be accepted by this Court, as prima facie a good ground for divorce.
When the matrimonial relation has for that period ceased to exist de facto, it
should, unless there are special reasons to the contrary, cease to exist de jure
also. In general, it is not in the interests of the parties or in the interest of the
public that a man and woman should remain bound together as husband and
wife in law when for a lengthy period they have ceased to be such in fact. In the
case of such a separation the essential purposes of marriage have been
frustrated, and its further continuance is in general not merely useless but
mischievous" (Lodder v. Lodder12 quoted in Seventy-first Report of Law
Commission of India, pp. 11, 12).

19. The marriage has ceased to be a real union in the true sense because the
spouses are withdrawn from each other. They are living apart. There is no
cohabitation. Living apart and cohabitation are mutually exclusive opposites.

20. Where do we go from here? The marriage is on the rocks. If the rift between
husband and wife is no more than the ordinary wear and tear of married life
there should be no great difficulty in the parties coming together and living as
ordinary husband and wife. A restitution decree should be able to achieve this
in some cases if not all. But if the differences art deep-seated and there is no
resumption of cohabitation in spite of the decree of restitution the only course
open to the legislature is to end the marriage because it cannot be mended. This
is done by dissolving it by a decree of divorce. If the decree of restitution is not
obeyed for the space of one year and the parties continue to live separately it is
undoubtedly the best evidence of breakdown of marriage, and the passing of
time, most reliable evidence that the marriage is finished. Section 13 (1-A) is a
legislative recognition of this principle which was enunciated by Salmond, J. as
early as 1921 in Lodder v. Lodder (1921 New Zealand LR 876) (supra).

Concept of Breakdown in Section 13 (1-A):

21. Section 13 (1-A) (ii) says that if the withdrawing spouse is disobedient to
the decree of restitution of conjugal rights and the husband and wife continue to
live separately as before, each of them is entitled to a dissolution of marriage
which has been a marriage in name only but in fact an empty legal shell. This
law is based on the theory of irretrievable breakdown of marriage. The Indian
Legislature introduced this theory, although in part only, as early as 1964 when
it inserted sub-section (1-A) by the Amending Act 44 of 1964 in the parent Act.
In England this theory found favour with the Parliament in the Divorce Law
Reforms Act, 1969. In the Matrimonial Act of 1973 the provision based on
breakdown theory has been reenacted. The Law Commission of India has
recommended its adoption in its Seventy-first Report of 1978. But a foresighted
legislature thought as early as in 1964 that the decree of restitution of conjugal
rights will serve a useful purpose because it will give to the parties a cooling-off
time of one year which was not only desirable but essential. If the marriage
cannot be saved even after passing the decree of restitution it must be dissolved.
A factual separation gives an easily justiciable indication of breakdown. "Living
apart" by itself spells breakdown. The breakdown is so patent.

22. The decree of restitution of conjugal rights acts as an index of connubial
felicity. It is a sort of litmus paper. It shows a change of heart if the restitution
decree is obeyed. If the decree is disobeyed it is as indicia that the parties have
reached a stage of no return. The Act's professed object is to facilitate
reconciliation in matrimonial cases. This it does by asking the withdrawing
spouse to burn to the matrimonial home and gives one year's time to do so. If
the restitution decree is not obeyed the Court dissolves the marriage on proof of
non-compliance of the restitution decree.

23. There is no warrant in authority extending over 150 years in England from
where we have borrowed this matrimonial remedy, nor any in India before or
after the passing of the Act, for assigning to this remedy of conjugal rights the
meaning given by Chaudhary, J. He has interpreted Section 9 in a sense clearly
inconsistent with the law as expounded in England and India in a stream of
authorities. As long ago as 1866 the Privy Council in Moonshee Buzloor
Rubeem v. Shumsoonaissa Begum, 13 applied to this country the English remedy
of restitution. The Indian Legislature in 1955 codified this remedy.

24. The dictum of Chaudhary, J. that the restitution decree enforces "sexual
cohabitation with an unwilling party" and "constitutes the grossest form of
violation of individual's right to privacy" and "offends the inviolability of the
body and the mind subjected the decree and offends the integrity of which a
person and invades the marital privacy and domestic intimacies of such a
person" is the high water mark of this judicial pronouncement. With respect to
the learned Judge I cannot agree that this is what the restitution decree does.
The cases referred to by him do not prove his proposition Jackson v. Jackson, 14
which was approved by the House of Lords in Weatherlea v. Weatherley, 15
clearly shows that the object of the restitution decree is not to enforce sexual
intercourse as the learned Judge thought. The Court simply cannot enforce it. In
the nature of things it is an impossible task.

Breakdown theory in Section 13 (iii):

25. The theory of irretrievable breakdown is also the basis of sub-section (iii) of
Section 13. That sub-section says:

"(iii) That in a suit under Section 18 of the Hindu Adoptions and Maintenance
Act, 1956, or in a proceeding under Section 125 of the Criminal Procedure
Code, 1973 (or under the corresponding Section 488 of the Criminal Procedure
Code, 1898), a decree or order, as the case may be, has been passed against the
husband awarding maintenance to the wife notwithstanding that she was living
apart and that since the passing of such decree or order, cohabitation between
the parties has not been resumed for one year or upwards."

26. This, sub-section was inserted by Act No. 68 of 1976.
27. This provision is akin to the provision of Section 13 (1-A) (i) which
provides a ground for divorce on the basis of non-resumption of cohabitation for
a period of one year or more after the decree for judicial separation. That
ground is available to both, the husband and the wife, because the decree of
judicial separation can be passed in favor of the husband also under Section 10
of the Act. But the provision in Section 13 (iii) is made only in favor of the wife
who has been awarded maintenance against the husband either under Section 18
of the Hindu Adoptions and Maintenance Act, 1956, or Section 125 of the Cr. P.
C., 1973, or Section 488, Cr. P. C., 1898. This is another indicia of the
breakdown of the marriage because living apart and an award of maintenance
are strong indications that marriage has broken down beyond repair and there is
no hope of the wife ever returning to cohabitation with the husband.

28. More and more the legislature is moving towards the breakdown theory. But
it has not completely broken away with the guilt theory which has dominated
the law of divorce for 150 years. Section 13 (1-A) is based on the breakdown
theory. Section 9 is based on fault theory. After having found fault with the
withdrawing spouse and after giving her time of one year for reparation, the
legislature proceeds to dissolve the marriage because it has utterly broken
down. The truth is that the legislature has not accepted the breakdown theory in
its modern form as has been accepted in England and has now been
recommended for adoption in India by the Law Commission in its Seventy-first
Report of 1978. In England Parliament has decreed: "If the marriage has broken
down irretrievably, let there be a divorce". It carries no stigma, but only
sympathy. It is a misfortune which befalls both. No longer is one guilty and the
other innocent. No longer are there long contested divorce suits. Nearly every
case goes uncontested. The parties come to an agreement, if they can, on the
things that matter so much to them.

29. This is in consonance with the modern trend not to insist on the
maintenance of a union which has utterly broken down after several years of
continuous separation; it may fairly be surmised that the matrimonial life is
beyond repair. The only alternative is the legal dissolution of marriage and not a
restoration of the marriage bond. It has now been sufficiently realized at all
hands that the maintenance of the fiction of a marriage by a legal tie will only
drive one or the other or both spouses to sexual and other relations with
outsiders clandestinely or under a social stigma rather than openly. Such a
marriage serves no purpose except that it increases adultery, fornication and
personal bitterness. (Friedmann - Law in a Changing Society, 2nd Ed. (1959), p.
233).

30. The truth is that the fault theory has utterly failed and has provided no
solution marriages which are on the rocks. In the guilt theory "Judges and
Lawyers are sometimes reduced to the role of scavengers. The lawyers have to
look for and expose, and the Judges are confronted with, the worst obscenities
within a married life" (71st Report, p. 14). In the breakdown theory Judges
certify the death of marriage and lawyers attest this fact. The breakdown theory
is recognition of the defects and demerits of the guilt theory. The remedy of
restitution of conjugal rights provided by Section 9 of the Act is based on the
assumption that the spouses have a reciprocal right to the society, company or
companionship of each other. If the assumption proves wrong, divorce is the
only "escape route out of a difficult situation."

Origin of the Remedy:

31. The remedy had its origin in ecclesiastical law of England. In the
ecclesiastical Courts before 1813 the sanction for enforcing restitution of
conjugal rights was excommunication. In that year 6 months' imprisonment was
substituted by the English Parliament. In 1884 payments took the place of
imprisonment, but at the same time failure to comply was, by Section 5 of the
Act of 1884, deemed to be a desertion. The matrimonial Causes Act, 1965
altered the law. Disobedience to a decree of restitution enabled the petitioning
spouse-

(1) to obtain a decree of judicial separation;

(2) to obtain an order for permanent alimony or periodical payments or, if the
husband is a petitioner, a settlement of the wife's property.

32. In 1970 restitution was abolished.

33. In India the Civil Procedure Code (O.21, Rules 32 and 33) has abolished
imprisonment but was has retained attachment of property. But Rule 33 confers
a discretion on the Court to refuse execution by attachment and to order
periodical payments to be made by the judgment-debtor to the decree-holder. So
in the end there is only a financial sanction behind the restitution decree. Even
if the Court is bound to make a decree for restitution in a fit case it is no longer
bound to enforce it as before by imprisonment or attachment.

34. There may be cases where though the parties are living under the same roof
yet the marriage has completely broken down. In these days of housing shortage
the spouses may be compelled to live under the same roof though they have no
love for each other. The practical test applied in cases where the parties are still
living under the same roof is usually whether one party continues to provide
matrimonial services for the other, and whether there is sharing of domestic life.
If there is family or communal life there is evidence of resumption of
cohabitation. If there is estrangement including a refusal to have sexual
intercourse this may be evidence of consortium having come to an end.
Whether cohabitation or marital relationship has or has not been resumed is a
question of fact and degree to be determined according to common sense
principles. Some acts may be eloquent enough to serve as an indication of
resumption of cohabitation and some of utter breakdown.

The Test of Resumption of Cohabitation:

35. It is true that there is a general outcry against this remedy in modern times.
It has been variously described as "archaic", "primitive" or "a rehearsal before
the main drama of divorce". But in the scheme of the Act the restitution decree
is a stepping stone to the more serious step of divorce. It is a passage or
passport to divorce. The Indian Legislature believes that there should not be a
sudden break of the marriage tie. It believes in reconciliation. It believes that
cooling-off period is not only desirable but essential. This is why it allows
husband and wife time to come together to the conjugal fold. In the case of
restitution decree it orders the withdrawing spouse to return to cohabitation. In
the case of judicial separation it sees whether there has been resumption of
cohabitation within a period of one year or not. Because in a decree for judicial
separation it ceases to be obligatory for the parties to cohabit. But the
underlying principle is the same. Section 9 is a provision designers to encourage
reconciliation. The Act's professed object is to facilitate reconciliation in
matrimonial causes. "Living apart by itself spells breakdown". That this is the
theory of the Indian Legislature is clear from Section 13 (iii) of the Act. That
sub-section provides for divorce by the wife on the ground that she is living
apart and that since the passing of the order of maintenance in her favor there
has been no resumption of cohabitation between the parties for one year or
upwards. Whether it is judicial separation or restitution or a maintenance order
the legislature employs one single test: Has there been resumption of
cohabitation between the parties during the space of one year? If not the answer
is dissolution of marriage.

36. In short, cohabitation is the highest common factor in the material
provisions. It is the essence of married life. Take away cohabitation and you
take the bottom out of marriage. Resumption of cohabitation means restitution
of conjugal rights. Non-resumption means the death of marriage. This is the
legislative policy. This Court neither approves nor condemns any legislative
policy.

37. According to the Indian legislature the marriage has not to be ended at once.
The breakdown of marriage does not take place in one day. It is a process in
which the spouses drift apart. First there is apathy, then indifference, and then
positive aversion. The consortium of husband and wife, the kind of association
which is only possible between husband and wife, ultimately comes to an end.

Divorce Structure:

38. The divorce structure contemplated in Section 13 (1-A) is based on Section
9 proceedings. If Section 9 is unconstitutional as Chaudhary, J. has held, it must
necessarily follow that Section 13 (1-A) (ii) is also constitutionally void. By a
single stroke the learned Judge has demolished this essential part of the divorce
structure. Not only has he held Section 9 to be bad he has also, though
indirectly, held that henceforth there will be no decree of restitution and no
divorce under Section 13 (1-A) (ii). The function of the Courts is to interpret
and apply the law as enacted by the legislature. "Courts are concerned only with
power to enact statutes, not with their wisdom". (Stone, J. in U.S.v. Butler, ). 16

A Plea for Abolition :

39. I am aware that there is a body of opinion which favors the abolition of this
remedy. The main argument of the abolitionists is that you can take the horse to
water but you cannot make it drink. The withdrawing spouse cannot be
compelled to cohabit even though a decree is passed against him or her. Some
academics have strongly argued for its abolition. (See Article on Restitution of
Conjugal Rights under Hindu Law: A Plea for the Abolition of the Remedy, by
R.K. Aggarwal, 1970 Journal of the Indian Law institute, page 257). But that is
to be done by the legislature and not by the Courts. Others have argued for an
improvement upon Sections 9 and 13 (1-A). It has been suggested that after the
passing of the decree of restitution and passing of a prescribed period of time
within which cohabitation may be resumed, there should be an automatic
dissolution of marriage if there is no return by the withdrawing spouse to
cohabitation. It is suggested that there should be no need for fresh divorce
proceedings. (See Civil Marriage Law; Perspective and Prospects - Indian Law
Institute Publication of 1978).

40. Professor Duncan Derrett has argued for retention of the remedy. He says:

"The practical utility of the remedy is little in contemporary England, but in
India, where spouses separate at times due' to misunderstandings, failure of
mutual communication, or the intrigues of relatives, the remedy of restitution is
still of considerable value."

(Introduction to Modern Hindu Law (1963), p. 197.)

41. The Law Commission in their Fifty-ninth Report have not recommended its
abolition. Nor in their Seventy-first Report of 1978. The Commission was aware
that it had been abolished in England by Section 20 of the Matrimonial
Proceedings Act, 1970. (See Foot-note 7 at page 55 of the 59th Report.)

42. A recent writer has suggested that "the opinion of Derrett is mere realistic
and that the Hindu society is not mature enough to do away with the remedy. Its
abolition would be like throwing away the baby with the bath- water." (R.C.
Nagpal - Modern Hindu Law (1983) Edition, page 110). I agree with the view
of Derrett.

43. Section 9 is the only positive relief under the Act aiming at the preservation
of the marriage. The mental make-up of the Anglo-Saxons is different from
ours. The truth is that if it is requisite that our marriage laws should conform to
a logical coherence that is a matter which the legislature must declare and
provide. Time has come to recognize that matrimonial offences are in many
cases merely symptomatic of the breakdown of the marriage and that there
should also be a provision for divorce in cases where, quite apart from the
commission of such offences, the marriage has broken down completely. Courts
should be relieved of the difficult task of assigning where fault lay, an issue in
matrimony of times too subtle for the average man to determine. (Rayden on
Divorce, Vol. I (14th Edition) (1983), p. 311). But the remedy lies with the
legislature. On this part of the case my conclusion is this. Dicta of eminent
Judges, notably Lord Stowell, are all against the view that restitution decree
compels the wife "to have sex" with an "unwilling party". No case has ever said
anything of the sort. None of the cases relied upon says anything of the sort.

Section 9 and Article 14:

44. There remains the second argument that Section 9 offends Article 14 of the
Constitution which found favor with the learned Judge. He held that in the
remedy of restitution there is inequality because "a suit for restitution by the
wife is rare. A passage in Gupte's Hindu Law in British India', p.99, 2nd Edition
attests to this fact." I have consulted Gupte's book. It is an old book of 1947
with a supplement of 1955. At page 929 (not p. 99 as the learned Judge says)
the author says : "A suit for restitution by the wife is rare." This was true before
the Hindu Marriage Act was enacted in 1955. Gupte was referring to old Hindu
Law and not to the Act because the Act had not been passed by then. Previously
under Act the decree-holder alone was entitled to sue for divorce. By the
Amending Act 44 of 1964 "either party to a marriage" is allowed to present a
petition on the ground given in Section 13 (1-A) (ii)."The theory that one cannot
take advantage one's wrong has not been adhered to in the Hindu Marriage
Act". (71st Report, p.16). There is complete equality of the sexes here and
equal protection of the laws. I do not see how Section 9 can be struck down
violative of Article 14 of the Constitution.

Constitutional Law and Family Laws :

45. One general observation must be made. Introduction of Constitutional Law
in the home is most inappropriate. It is like introducing a bull in a china shop. It
will prove to be a ruthless destroyer of the marriage institution and all that it
stands for. In the privacy of the home and the married life neither Article 21 nor
Article 14 have any place. In a sensitive sphere which is at once most intimate
and delicate the introduction of the cold principles of Constitutional Law will
have the effect of weakening the marriage bond. That the restitution remedy
was abolished is England in 1970 by Section 20 of the Matrimonial Proceedings
and Properties Act, 1970 on the recommendation of the Law Commission
headed by Justice Scarmann is no ground to hold that it is unconstitutional in
the Indian set-up.

46. In the home the consideration that really obtains is the natural love and
affection which counts for so little in these cold Courts. Constitutional Law
principles find no place in the domestic code. Atkin, L. J., in a famous
judgment, said :

"The parties themselves are Advocates, Judges, Courts, Sheriff's Officer and
Reporter. In respect of these promises each house is a domain into which the
king's writ does not seek to run, and to which his officers do not seek to be
admitted."

(Balfour v. Balfour, 17

47. This illustrates that the house of everyone is to him his castle and fortress.
The spouses can claim a kind of sacred protection behind the door of the family
home which, generally speaking, the civil authority may not penetrate. The
introduction of Constitutional Law into the ordinary domestic relationship of
husband and wife will strike at the very root of that relationship and will be a
fruitful source of dissension, and quarrelling. It will open the door to'' unlimited
litigation in a relationship which should be obviously as far as possible
protected from possibilities of that kind. The "domestic community" does not
rest on contracts sealed with seals and sealing wax. Nor on Constitutional Law.
It rests on that kind of moral cement which unites and produces "two-in-
oneship".

48. The learned Judge has quoted men of letters like Havelock Ellis and
Bertrand Russell. It is well known that Bertrand Russell had iconoclastic views
on marriage and morals. For instance he advocated that "adultery in itself
should not, to my mind, be a ground for divorce. Unless people are restrained
by inhibitions or strong moral scruples, it is very unlikely that they will go
through life without occasionally having strong impulses to adultery. But such
impulses do not by any means necessarily imply that the marriage no longer
serves its purpose". (Marriage and Morals (1967), p. 116). The Indian
legislature has not followed Russell's views in this or in other respects. The fact
is that the law of the land cannot be coextensive with the law of morals, nor can
the civil consequences of marriage be identical with its religious consequences.

49. The learned Judge has called restitution a "barbarous remedy". He has
quoted Lord Herschell in Russell v. Russell18 But Lord Herschell was not saying
this. What he was saying at pp. 455-56 was that reasonable excuse was not
confined only to the grounds of divorce. It can as well be "something short of
legal cruelty" which might constitute a reasonable excuse for refusing
restitution. This is precisely what happened in India as the history of the Act
would show. Section 9(2) as originally enacted provided that "Nothing shall be
pleaded in answer to a petition for nullity of marriage or for divorce." This
created considerable difficulty. The Law Commission in its Fifty-ninth Report
recommended its deletion. It is now possible for the party to plead a reasonable
excuse which may not necessarily be a ground either for judicial separation or
nullity or divorce. So the Act was amended and by Act No. 68 of 1976 Section
9 (2) was deleted. This brought the law in conformity with the opinion of Lord
Herschell. It will, therefore, appear that Lord Herschell's expression "barbarous"
was used in a different context. One single sentence from his judgment does not
empower the Court to strike down Section 9 on the ground that it is "barbarous."

The Defense of the Attorney General:

50. The learned Attorney General criticized the judgment in Sareetha AIR 1983
Andhra Pradesh 356 on a variety of grounds. In the first place he said that
marriage, according to Hindu Law, is a samkara or a sacrament and a holy
union for the performance of religious duties. Divorce and dissolution of
marriage are concepts which were alien to Hindu Law before the statute stepped
in to modify the traditional law. He referred to Swarajya Lakshmi v. Dr. G.G.
Padma Rao, 19 and Devulapalli Kameswara Sastri v. Polavarapu, 20

51. Under the Act marriage is both a contract and samskara. It is a contract
between parties who are sui juris. The man must have completed the age of 21
years and the woman the age of 18 years at the time of marriage (Section 5
(iii)). It is a samskara because saptapadi (taking of seven steps before the sacred
fire) is retained by the Act as an essential legal ingredient where the customary
rites of the parties include the ceremony of saptapadi. (Section 7). The Act is a
compromise of customs and manners of marriage in different communities is
different parts of the country. It Code, a half way house between the personal
law and a civil Code. Marriage under the Act has a religious, spiritual and
secular significance.

52. Some regarded marriage as a sacrament. To others it was a contract. The
Parliament in 1955 was a battle ground for these two views of marriage. In the
Act it is a mixture of both. "The institution of marriage has long been on a
slippery slope. What was once a holy estate enduring for the joint lives of the
spouses is steadily assuming the characteristics of a contract for a tenancy at
will". (Fender v. St. John Mildmay, 21 per Lord Russel of Killowen.)

53. Secondly he submitted that the social implications of the judgment were far-
reaching and if the view taken in Sareetha AIR 1983 Andhra Pradesh 356 is
allowed to prevail it will undermine the foundations of our social organization.
The consequences of the judgment, he argued, are so grave as to destroy the
very foundation of conjugal life. He pointed out that the Press praised the
judgment but the praise was based on an insufficient understanding of our law.
He entered a vigorous protest against the opinion that a mere commerce
between the sexes is itself marriage. One great defect of Andhra judgment, it
appears to me, is that it regards marriage as a legalised means of sexual self-
satisfaction and not primarily as a partnership for life. Marriage does not exist
solely for sexual congress. The reciprocal duties and obligations of the husband
and wife under the Hindu Law will be found exhaustively discussed by
Mahmood, J. in Binda v. Kauslia, 22 Samskara is not sex. Nor sex the be-all and
end-all of marriage. Marriage is not the mere gratification of animal appetite.
Nor a sheer self-indulgence into the lusts of the flesh. It creates mutual rights
and obligations as all contracts do, and beyond that it confers a status.

54. A marriage is not every casual commerce. A mere casual commerce,
without the intention of cohabitation, and bringing up of children, would not
constitute marriage. But when two parties agree to have that commerce for the
procreation and bringing up of the children, and for such lasting cohabitation -
that would be a marriage in the sight of God and man. Cohabitation continues to
the end of life. It is not mere temporary or casual commerce, but a contract of a
permanent nature, in the intention of the parties. Marriage is a contract of the
greatest importance in civil institutions, and it is charged with a vast variety of
rights and obligations. Rights of property are attached to it. The essence of
matrimony is consent. (Lindo v. Belisario, 23 per Sir William Scott at pp. 230-
232).

55. Marriage is the very foundation of civil society. The relation once formed,
the law steps in and holds the parties to various obligations and liabilities. It is
an institution in the maintenance of which the public is deeply interested, for it
is the foundation of the family and of society without which there would be
neither civilization nor progress. (Meganatha v. Smt. Susheela, 24 Whether it is
English law or the Indian Act marriage is a voluntary union for life of one man
and one woman to the exclusion of all others. (Hyde v. Hyde, 25 per Lord
Penance).

56. Thirdly, he argued, that marriage being voluntary and consensual in
character the Court will compel the parties to live together again if they are
living apart without any sufficient reason. If there is withdrawal or
"subtraction", as Blackstone called it, and one party lives separate from the
other without any sufficient reason, they will be compelled to come together
again. This is what the parties had themselves contracted. Cohabitation is an
essential term of the contract, the very soul of marriage. If the Court enforces
the contract there is nothing wrong. The parties had voluntarily stipulated this at
the time of entering into the marriage bond. In a sense there is no compulsion
now because restitution decree is a stepping stone to divorce. In 1875 in Gatha
Ram Mistree v. Mohita Kochin Atteah, 26 Markby, J. expressed the opinion that
a decree for restitution is a mere declaration of rights. It was argued in 1886
before the Bombay High Court that a suit for restitution is a discredited remedy.
But the argument was rejected. (See Dadaji Bhikaji v. Rukmabai,) 27

57. Fourthly, he said that Section 9 is based upon reason and not brute force.
The husband cannot shut up the wife in one room or take her by force. There
may be good grounds for refusing to the husband the assistance of the Court in
a restitution proceeding. There may be cases in which the Court in the exercise
of its discretion may justly refuse a decree for restitution of conjugal rights.
(Jivi Bai v. Nar Singh Lalbhai 28 It has repeatedly been held that the Court will
not compel the wife to submit to the embraces of the husband if it finds that it is
iniquitous to do so. When Court's intervention is asked for it may be refused if it
is not just and equitable in the circumstances of the case. If the petitioner is
insincere and his petition is not bona fide the Court will refuse restitution. The
Courts are in the matter of granting restitution decree governed by principles of
equity, justice, and good conscience. (Kondal v. Ranganayaki,). 29

58. Fifthly, the Attorney General argued, that the constitutionality of Section 9
has to be adjudged "by the generality of cases it covers, and not by the freaks
and exceptions it martyrs." That a few freak instances of hardship may arise on
either side cannot be a ground to invalidate the legislation. This, he said, was
established by the Supreme Court decision in R.S. Joshi v. Ajit Mills, AIR 30 per
Krishna Iyer. J. in Tamil Nadu Education Deptt. v. State of Tamil Nadu 31
59. Sixthly, he argued that Section 9 is constitutionally valid. Applying the
standard that law has to be just, fair and reasonable as enunciated in Maneka
Gandhi, AIR 1978 Supreme Court 597, Section 9, he said, tries to bring the
parties together. Whether to grant restitution decree would be just, fair and
reasonable in the facts and circumstances of a given case is left to the Court to
be decided in its judicial discretion. What better guarantee can the law afford
for the "inviolability of the body and mind' of the wife and her marital privacy"
so-called. The matrimonial home must be preserved. Section 9 is a provision for
reconciliation in the true spirit of the Act. It is in the interests of the state that
family life should be maintained and that homes should not be broken up by the
dissolution of the marriage of parents. Even in the absence of children, it is in
the interest of the state that if possible the marriage tie should remain stable and
be maintained. That in the vast number of cases there is no reconciliation is not
a ground for striking down the law. We must bear in mind all classes of cases.
Taking consortium in the widest sense of the companionship of the wife it is in
public interest that the martial life must be restored unless one spouse has
adopted a course of conduct calculated to break the sprit of the sufferer, or a
course of conduct which is a kind of tyranny to the other spouse.

60. The wisdom of the legislation the Courts cannot question. It is the duty of
the Judges to give effect, as best as they can, to the laws as Parliament enacts
them, whatever be their private opinions - or in some cases their religious
beliefs. In my opinion the criticism of the Attorney General is valid. The
judgment in Sareetha AIR 1983 Andhra Pradesh 356 is based on a
misconception of the true end of marriage. A disproportionate emphasis on sex,
almost bordering on obsession, has colored the view of the learned Judge. This
is the crux of the issue. With the greatest respect to the learned Judge I entirely
disagree with him and with those who share his views.

61. The Act combines the old and the new. It is both traditional and modern in
its outlook. Marriage is a civil contract and a religious ceremony. The essential
features of the Act are these : equality of sexes, consent, religious rites and
ceremonies, cohabitation and ideal of partnership in life, monogamy, divorce,
financial provisions, a statutory right to maintenance, and reconciliation. The
two things, the multiplicity of divorces and the emancipated status of women,
have gone necessarily hand in hand. The one could not have happened without
the other: both may be said to have raced helter skelter and side by side.
62. Restitution remedy may appear to be a survival of the concept of martial
unity. Today it may appear outdated because law is fast changing in response to
the changing needs and ideals of society. But we have to see it with the Hindu
eyes of 1955. Section 9 is representative of a wise conservatism of the law, as
divorce was the product of liberalism. It is the province of the Judge to expound
the law only and not to speculate upon what is best, in his opinion, for the
advantage of the community. The Judges are bound by the law. They are not
authorized to establish as law everything which they may think for the public
good, and prohibit everything which they think otherwise (Continental Tyre and
Rubber Co. v. Daimler Co., per Lord Reading). 31

63. On marriage husband and wife became for many purposes one person in
law, a doctrine of common law of great antiquity. The very being of the woman
was suspended during marriage or at least was incorporated and consolidated
into that of her husband. (Blackstone) In the words of a late XIX century
lawyer. "The Creator took from Adam a rib and made it Eve : the common law
of England endeavored to reverse the process, to replace the rib and remerge the
personalities." (A Century of Family Law - Graveson and Crane p.2). This
community of interest between husband and wife is reflected in Section 120 of
the Indian Evidence Act. In many fields this doctrine was abolished in England,
when the women's epoch began. The shackles of servitude fell from the limbs of
married women.

64. In the scheme of the Act the restitution decree is the high road to divorce.
There is only a waiting period of one year before the marriage is dissolved.
There is no quarrelling. There is lull. Spouses live during the period under a
type of legal armistice. For the non-compliance of the restitution decree the
Court pronounces divorce at the end of one year. So heat has been taken out of
divorce. This is a great merit.

65. Section 9 aims at "two-in-one ship", to use a happy phrase. Under the Act it
serves a double purpose. It first finds the fault and where it lies. Secondly it
leads to the dissolution of the marriage if there is no resumption of cohabitation.
The legislature acts on the principle : "Where love cannot be, there can be left
of wedlock nothing but the empty husk" (John Milton). Section 9 combines the
fault theory and the breakdown theory in one go.

Summary and Conclusion:
66. In Forster v. Forster, 32 Lord Stowell said that "the duty of matrimonial
intercourse cannot be compelled by the Court, though matrimonial cohabitation
may." In Orme v. Orme, 33 it was said:

"The Ecclesiastic Court can only interfere, in the way of restitution, where
matrimonial cohabitation is suspended. The single duty which it can enforce by
its decree in a suit of this nature is that of married parties 'living together'. It
cannot attempt to enforce any in super-addition to this. Hence it is incompetent
to the wife, for 'restitution of conjugal rights', pending cohabitation."

67. Nearly two hundred years ago, Lord Stowell said: "The Court can decree
cohabitation; it cannot decree sexual intercourse." (Forster v. Forster). "The
parties can cohabit, without there being sexual intercourse between them;
although as a rule there is such intercourse if the parties are competent or of an
age when sexual intercourse is likely to take place, but there may be
cohabitation without sexual intercourse." (Evens v. Evans, 34 per Lord Goddard
CJ). Quoting Jowitt's Dictionary the learned Judge thought that "marital
intercourse" is synonymous with sexual intercourse. This is a misunderstanding
of a legal phrase. It means consortium. It means fellowship. It means common
lot. The Indian legislature was following Lord Stowell and not Bertrand Russell.

68. Lord Stowell (Sir William Scott) was a distinguished Judge (1745-1836).
His knowledge of matrimonial law was unrivalled. His judgments on
matrimonial and maritime law are classic. We have to go to his decisions in
order to understand the precise connotation and significance of this remedy of
restitution. This is necessary because Indian law has adopted this remedy from
English taw. This is why I have traced the history of this remedy in English law
from its ecclesiastical origin.

69. Marriage is defined in the Encyclopedia Britannica, 11th Ed. Vol. 17, p. 753
as

"a physical, legal and moral union between man and woman in complete
community of life for the establishment of a family."

The physical union takes the first place. The procreation of children is an
essential elements. On it depends the creation of the family. On the family
depends the welfare of the nation. "Marriage is rooted in the family rather than
the family in the marriage." (Westermark).
70. There is nothing wrong if the law enforces cohabitation, i.e. living together.
It does not and cannot enforce sexual intercourse. That the Court enforces
sexual intercourse is a mistaken notion. What is wrong if the Court passed the
decree of restitution in the husband's suit in Anna Saheb v. Tarabai, 35 which the
learned Judge described as an "uninhibited tragedy"? This is pure rhetoric.
"Wanton refusal of one or other of the parties to a marriage to have sexual
intercourse is a wrong thing." It is the intentional breach of one of the ties of
marriage. Tarabai was given an opportunity to attempt reconciliation and
resume cohabitation. If she then refuses, she can certainly mare use of her
statutory right under Section 13 (1-A) (ii). That is all.

71. The spouse guilty of willful refusal of sexual intercourse does his or her
partner a serious and perhaps a cruel wrong. Whether willful refusals of sexual
relations will amount to desertion I do not decide. In certain circumstances it
will amount to cruelty. In Sheldon v. Sheldon, 36 the Court of Appeal held that a
husband's persistent refusal of sexual intercourse without explanation over a
long period of time which had caused grave injury to wife's health amounted to
cruelty and justified the wife in leaving the matrimonial home.

72. In marriage sex business is not hurried and beastly. It is a biological
necessity. It is fundamental to the marriage institution in the accepted and
understood sense. The restitution decree is essentially an attempt at
reconciliation.

73. If reconciliation fails the question of maintenance will at once arise. If there
is no living together maintenance will have to be fixed for living apart. A
maintenance obligation has a different practical significance in a country such
as Sweden, where most married women are employed and there are extensive
welfare programmers, than, for example, in India.

74. Restitution decree is a peg on which to hang a divorce. It is a foothold and
handhold for Section 13 (1-A). "Unavailability of divorce leads to immorality".
So the legislature is creating a number of grounds for divorce. What is bad in it?
Restitution of conjugal rights has to be seen in the wider perspective of the Act
taken as a whole. To declare Section 9 unconstitutional without having regard to
Section 13 (1-A) is to take too narrow a view.

75. Sections 9, 13 (1-A) and 13 (iii) envisage the same pattern of living -
husband and wife living, husband behaving as husband and the wife behaving
as a wife, doing housewifely duties. Cohabitation is the common denominator
of these provisions. This is their warp and woof. Section 9 tries to bring them
together. Sections 13 (1-A) and (iii) dissolve the union when there has been no
resumption of cohabitation for the space of one year and upwards.

76. The amendment of Section 13 (1-A) in 1964 is a legislative recognition of
the principal that in the interest of society if there has been a breakdown of the
marriage there is no purpose in keeping the parties tied down to each other.
(Madhukar Bhaskar Sheorey v. Saral Madhukar Sheorey, per Nain, J.) 37 This
sub-section incorporates the breakdown theory.

77. What is this breakdown theory? Breakdown of marriage may be defined as
"such failure in the matrimonial relationship that no reasonable probability
remains of the spouses again living together as husband and wife for mutual
comfort and support." It means what cannot be mended should be ended. When
a marriage breaks down it is wrong to think in terms of guilty party and
innocent party. Divorce is not - though hitherto that has been the dominant
notion - "a reward for marital virtue on the one side and a penalty for marital
delinquency, on the other", but "a defeat for both, a failure of the marital 'two-
in-one ship' in which both the members, however unequal their responsibility,
are inevitably involved together." (Mortirner Committee of England 1964). This
theory replaces all the fault grounds of divorce and recommends irretrievable
breakdown as the sole ground of divorce. The Divorce Reforms Act 1969 in
England made the irretrievable breakdown of marriage as the sole ground for
divorce, and judicial separation. The English Act introduced a most
fundamental change in the divorce policy of Parliament. The Divorce Reforms
Act, 1969, has been repealed, and the same provisions were re-enacted in the
Matrimonial Causes Act, 1973. It is a part of a movement to remove the notion
of guilt or fault as a necessary basis for a decree of divorce. This is a drastic
reform of divorce law because it eliminates fault or guilt as the basis of divorce.
"In this object" says Rayden, the English Act "has very largely succeeded : it
has also resulted in a massive increase in the number of divorces. (Rayden on
Divorce (1983) 14th ed. p. 13).

78. It is increasingly felt that a theory based on fault, guilt, or offence, has the
effect of deepening marital wounds and renders the possibility of reconciliation
increasingly more difficult. Even if both parties are innocent they may not be
able to click. Even the most fervent and sincere hope of one spouse that there
will be reconciliation cannot create a possibility of reconciliation where the
other spouse is unreconciliable. Whatever may be the cause of breakdown, if
there is withdrawal from the matrimonial obligation with the intent of
destroying the matrimonial consortium, as well as physical separation, there is
clear proof that the marriage is at an end.

79. Mere physical separation can never constitute living apart, even if long
continued. There must also be demonstrated, on the part of one or both spouses,
a mental attitude averse to cohabitation. "A husband and wife are living
together not only when they are residing together in the same house, but also
when they are living in different places, even if they are separated by the high
seas, provided the consortium has not been determined." (R. v. Creamer,.)38

80. There are, broadly speaking, two groups: the 'fault followers' and the
'breakdown believers'. Fault theory is more and more losing ground to the
breakdown theory. The Indian Act is a curious mixture of (1) the fault theory,
(2) the breakdown theory and (3) mutual consent theory. It is a piece of mosaic
work. In 1976 the Indian Legislature introduced divorce by mutual consent by
enacting Section 13-B. In 1964 the Legislature enacted Section 13 (1-A)
permitting either party to the decree of restitution of conjugal rights or judicial
separation to claim divorce on the expiry of two years (reduced to one year in
1976) of the passing of the decree. This provision is an "undeclared adherence
to the breakdown theory". (R.K.Aggarwal - Reform of Matrimonial Law p. 96
in Studies in the Hindu Marriage and the Special Marriage Acts published by
the Indian Law Institute). Divorce by mutual consent is in truth an extension of
the breakdown theory. It will be unrealistic and inhuman to order maintenance
of a union in which the parties have agreed to cut asunder the nuptial tie.
Section 9 serves a useful purpose because in a society like ours it gives a
cooling-off period. Prof. Derrett sees practical utility in this remedy. Mr. K.C.
Srivastava of Lucknow University also takes the same view. (See his paper on
the Hindu Marriage Act p. 102 in the Studies of I. L. I.) So Section 9 is not
without its advocates.

81. According to the Law Commission of England the objectives of a good
divorce law are:

(1) to buttress, rather than undermine, the stability of marriage, and (ii) when,
regretably, a marriage has irretrievably broken down, to enable the empty legal
shell to be destroyed with the maximum fairness and the minimum bitterness,
distress and humilitation."

(Field of Choice (Commd. 3123 Para 15) ).

82. Section 9 seeks to achieve the first objective. It aims at the stability of
marriage. It is a fundamental principle in matrimonial law that one spouse is
entitled to the society and comfort of the other, and where one abandoned the
other without just cause, the old Ecclesiastical Courts upon the petition of the
other, would grant a decree for the restitution of conjugal rights. The Court is
enforcing the matrimonial cohabitation. Though the duty of matrimonial
intercourse cannot be compelled by the Court, matrimonial cohabitation may.
(Forster v. Forster (1790-1 Hag Con 144) (supra)).

83. The second objective is achieved by Section 13 (1-A) (ii). A disobeyed
decree of restitution will enable either party to seek divorce. This is the
introduction of the breakdown theory in the Act. Section 13 (1-A) (ii) is founded
on Section 9. It presupposes a restitution decree under Section 9. That decree is
passed against the guilty party. But both parties can petition for divorce. The
Legislature is looking at the irate of the divorce market. If it finds that there is
more demand for divorce than it can meet it adds newer and newer grounds of
divorce. And the list becomes longer and longer. The Law Commission of India
in its 71st Report of 1978 has recommended the irretrievable breakdown of
marriage as an additional ground of divorce. The trend towards greater freedom
appears to assert itself increasingly. From 1955 to 1976 there has been a
remarkable liberalization of divorce law in India.

84. What is surprising is that everyone denounces the remedy of restitution but
welcomes the ground of divorce based ors it in Section 13 (1-A) (ii). The latter
provision is praised as a wholesome provision. Because it introduced the
breakdown theory in Indian law for the first time - a theory which is most
favored today in the countries of the West. Recently there has been a strong plea
for the abolition of the restitution remedy. This movement drew its inspiration
from the Matrimonial Proceedings and Property Act 1970 which by Section 20
abolished the right to claim restitution of conjugal rights in. England.

85. What is often forgotten by the abolitionists is that Sections 9 and 13 (1-A)
are of a piece. You cannot abolish Section 9 without abolishing Section 13 (1-A)
(ii). So the good will be thrown away with the bad. What has to be remembered
is that it is not given to the Judges to rewrite the statute. It is for the legislature
to amend and abrogate the law. As long as it does not change the law we must
learn to live with it.

86. In England the restitution remedy was abolished after more than 150 years,
after the Parliament introduced the irretrievable breakdown of marriage as the
sole ground for divorce. The Indian Parliament has not so far enacted this law
though it is engaging its attention.

87. In conclusion I think that the arguments which found favor with the learned
Judge in holding that Section 9 is constitutionally void are not sound. They are
a dangerous and fallacious line of argument. I cannot agree that Section 9 is
unconstitutional howsoever the remedy may be outmoded or out of tune with
the times. The restitution decree in the scheme of the Act is a preparation for
divorce if the parties do not come together. But the Legislature first believes in
coaxing and cajoling the withdrawing spouse to return to cohabitation, a value it
prizes most. Whether the wife is a top actress as was Sareetha in the case before
the learned Judge or an ordinary wife, the marriage in each case has the same
legal consequences.

88. The result of constitutional logic is an astonishing conclusion reached by a
research inspired by curiosity. The learned Judge thought that restitution
remedy achieves nothing. "Section 9 of the Act does not sub-serve any social
good", he said. In the legislative scheme it has a purpose to serve and a role to
play. It allows the parties a cooling-off period. "People should be able to marry
again when they can obtain a death certificate in respect of a marriage already
long since dead". This is a road to divorce.

89. It appears to me that restitution decree saves a legislative purpose in the
family law. As the poet has said:

"There is a soul of goodness in things evil,

Would men observantly distil it out."

90. I might add that it may be that law is not always logical, but neither is
human behavior. Law is much more concerned with human behavior than with
logic. If human behavior ceases to be logical, then the law has to keep pace with
human behavior, such as it is, and not as it would be in a logical world.
91. In the end I will repeat what I have said before. It is for the Legislature to
abolish the remedy of restitution and not for the Courts to strike down Section 9
on the ground that it is unconstitutional. In my opinion Section 9 is perfectly
valid.

The appeal: Facts:

92. Now I turn to the appeal.

93. These are the facts. The appellant, Harvinder Kaur, was married to the
respondent, Harminder Singh Chaudhary, on 10-10-1976. The wife is a working
woman. So is the husband. The wife is employed in Indian Petro Chemical
Limited. She was getting a salary of Rs. 600/- at the time of the marriage. The
husband is working as a traffic manager in Sita Travels. His present salary is
about Rs. 2000/- per month. There is a child of the marriage. A son was born to
them on 14-7-1978. According to the husband the wife left the matrimonial
home in May 1978. So he brought a petition under Section 9 of the Hindu
Marriage Act on 14-2-1979.

94. In her written statement the wife has given a catalogue of her grievances to
show that she was maltreated by the husband and his mother. Finally she said
that she was prepared to join the company of the husband if he was willing to
set up an independent residence.

95. In the catalogue of her complaints she has mentioned a number of incidents
to show that the husband and his mother were cruel to her and that she was
turned out of the house by the husband on 19-1-1978. The burden to prove that
there was sufficient cause for withdrawal from the society of the husband lay on
her. She examined a number of witnesses. To rebut the case of the wife the
husband examined himself and his parents. In a careful judgment the learned
Judge has discussed the entire evidence. He disbelieved the evidence of the
wife. He found her evidence discrepant and unreliable. On the whole he was of
the view that she and her witnesses were not trustworthy. Finding that there was
no reasonable cause, he granted a decree of restitution of conjugal rights to the
husband. From that decree the wife appeals to this Court.

96. In the category of complaints the wife has mentioned the following
incidents:

97. In the first place she says that the first day of marriage she went to a fete
with her husband, his two married sisters, his brother-in-law and younger
brother. They all persuaded her to accompany them to fete. She agreed. On her
return from the fete the wife's mother-in-law in a "stern and commanding voice"
asked her not to leave the house without her prior permission. She has described
the mother-in-law as an "absolute dictator" wig "dictatorial powers in the
home". The husband, she says, remained silent wheat the mother-in-law
rebuked her. In her evidence she has referred only to the husband and his sister
having accompanied her to the fete and none else. She goes on to say "when I
returned back my mother-in-law abused me as to why I did go with my husband
and sister". When she was cross-examined, she admitted that she went to the
fete in the presence of her mother-in-law. A little later she added that she did
not know whether mother-in-law was there or not. On this evidence the learned
Judge came to the conclusion that her evidence was unreliable and that no such
incident happened.

98. Secondly, the wife said that within 2 or 3 days of the marriage she was
asked to bring from her father's house cash memos regarding the furniture
which had been given in marriage so that this furniture could be resold and cash
may be pocketed. Her case was that this furniture was not liked by the
husband's parents as it was below their standard and they did not want to keep it
in the house. On this point them is no trustworthy evidence. It has not been
proved as to what was the furniture that was given in marriage. It has not been
established as to what furniture was sold to wife's father before marriage and
what was resold by the husband's parents. The wife's positive case is that a
dressing table was returned to its seller. Balwant Singh, a witness of repurchase,
was produced. He said that he had repurchased a dressing table from the
husband which he had originally sold to wife's father of the value of Rs. 1,070/-.
The witness has been disbelieved. He did not produce his bill book. Neither has
he proved the initial sale of furniture nor the subsequent repurchase. This
witness says that he knew the wife's father because he was meeting him in a
Gurdwara at Karol Bagh. The Judge thought that this was not possible bee the
wife's father was living in National Park and the witness was living at Malka
Ganj. Gurdwara at Karol Bagh is far away from the residence of these two
persons.

99. The third complaint of the wife is that her entire salary used to be taken by
the mother-in-law and she was given a paltry sum of Rs. 50/- per month out of
which she had to spend Rs. 40/- on transport. She was left with Rs. 10/- only
and that was insufficient for her. It was admitted by the wife that the husband
took her with him on his motor cycle and left her at the office. In September,
1977 she says the husband purchased a car and took her in car to her office. She
admitted that their offices were very near and they used to have lunch together.
So the learned Judge rejected this theory that the wife was being given only Rs.
50/- for her expenses.

100. Fourthly, the wife complained that she had to prepare in the house
breakfast, lunch and dinner, and was made to do other household work
including dusting. This is cited by her as an example of ill-treatment. It was
admitted by the wife in her evidence that there was a part-time servant in the
house. If the wife is asked to do some household work and prepare food for the
family when the servant is not available there seems to me nothing wrong in
this. This was one of the most trivial excuses she could make, in my opinion.

101. Fifthly, she complained of bleeding from the vagina on three occasions
when the husband did not take care of her and did not provide medical help in
time. The first occasion was a month after the marriage. One night, she
narrated, the husband had sexual intercourse with her. Thereafter she started
bleeding. The husband went to sleep. He did not care for the wife. In the
morning her brother came and took her away and then she was given medical
treatment. The second occasion when she bled was in March, 1977. On this
occasion she started bleeding in the office. She borrowed Rs. 10/- from one Mr.
Arora, a colleague in the office, and went to her father's house straight from the
office. If there is any complaint it can be only for the first occasion and not the
second. On the second occasion she straightway went to her father's house. It
appears to me on evidence that her complaints are without substance. Dr. Sethi
(RW 10) was produced by her. From his evidence it appears that he was treating
her from 1975.

102. The third occasion of bleeding was in December, 1977. She was taken to
Mool Chand Hospital and Doctor Shiela Mehra, a Specialist, examined her at
that time. Dr. Mehra, she says, gave "hell" to the husband on the ground that
they had brought her very late and there could have been a miscarriage in the
meanwhile. The doctor advised rest. But the wife was not allowed to take rest
because she was asked to do the household work. Her evidence did not inspire
confidence in the Judge. The wife admits that she remained in the hospital for
about a week. "It is correct that my mother-in-law stayed with me in the
hospital for a day. She admits that food was coming from husband's house for
some time. She admits that she was treated by Dr. Shiela Mehra. On this
evidence it does not appear to me that the husband or his mother were callous
and indifferent to the wife's illness. The mother-in-law stayed in the hospital at
least for a day if not more. She sent food from home. She took her to the
hospital. On the evidence it does not appear that this complaint is justified.

103. Sixthly, the wife said that the husband wanted to grab her plot of land
which has been allotted to her in Kohat Co-operative Society on 9-2-1979. Her
case is that the petition for restitution of conjugal rights was filed in February,
1979 to grab the plot which had been allotted a few days before to the wife. On
this issue there is no worthwhile evidence. One Purshottam Singh RW 7 was
produced. In his oral testimony he deposed about the allotment of plot. But he
has not produced any record of the society. If there was any allotment a
registered document, whether of lease or sale, must have been executed. No
such document has been produced to prove that the plot was really allotted on
9-2-1979, as is the wife's case. On a draw of lots on 27-11-77 she became
entitled to a plot of land. No record has been produced either of the draw of lots
or of allotment or of ownership or even of the wife's membership of the society.

104. Seventhly, the wife in her evidence said that she was asked to bring old
clothes from her mother's house which she wore before marriage. This was
done, according to her, to humiliate her. But what was the real purpose of this
humiliation I have not been able to understand. The wife went to her mother.
She gave new clothes instead of old which she brought to the husband's here. I
think it is a most trivial excuse and the Judge was right in discarding it.

105. There was considerable debate before me on one other point. It is not in
dispute that the wife left the matrimonial home in 1978. But the parties are at
variance on the date of leaving. According to the wife the husband left her at
her father's house on 19-1-1978. According to the husband she went away from
the matrimonial home in May, 1978. In my opinion nothing turns on this. That
they are living apart is clear. That there is a withdrawal from the society of the
husband is evident. The only question is : Is there a reasonable excuse by the
wife for withdrawing from the husband's society? This she has signally failed in
proving.
106. Then another excuse was put forward. This was about separate residence.
In her written statement the wife pleaded that she was prepared to join the
husband if he "sets up an independent house to live happily". During the
proceedings she said on 26-11-79 1o the Judge that "she is not willing to go to
live with the petitioner where his parents are also residing". In her statement as
a witness she deposed : "I am ready and willing to live with the petitioner but
not in the same house". It appears to me that this is the real dispute. The
evidence of the mother-in-law on this point suggests that she went from the
matrimonial home of her own accord and not because of any ill- treatment. Now
she refuses to return to the matrimonial home because the concept of a separate
residence has entered her imagination.

107. Counsel for the wife referred to Bhagat Ram v. Smt. Santosh Kumari, 39 , in
support of her contention that this was a good excuse for the wife and until and
unless the husband sets up an independent house she has a sufficient cause or
not joining him. This question was raised before the Judge in the Court below.
He was of the view that the husband's parents are aged and dependent on him
and it would not be right for him to leave them because "after all the parents
have some right upon their children and children correspondingly owe some
duty to their parents. A balance has to be struck by the husband in his love
towards the parents and that towards his wife". It cannot, in my opinion, be
urged by the wife as a ground for living apart. The casting vote is not with her.
Nor with the husband. It is a matter which has got to be decided mutually and
amicably between them. By both in co-operation. There may be cases where the
husband may have to choose between his parents and his wife. But that is a
question for the husband and the wife to resolve together. The wife cannot
dictate to the husband that unless and until he sets up an independent residence
she will not join him. That will be a unilateral decision. If it is unilateral without
regard to the wishes and desires of the husband it must be termed as
'unreasonable'.

108. There is one another point in this case. The husband and wife lived
together till January, 1978, as is the wife's own case. She has admitted that there
were normal sex relations between them during this period. "It is correct that I
had normal sexual relations with my husband". There is a child of the marriage.
This is strong evidence of cohabitation. There was consortium. There was
company, assistance, affection and fellowship between the spouses. When the
wife left the matrimonial home consortium was broken.

109. After November, 1977 when the wife conceived there are only three
surviving complaints. One is bleeding on the occasion of December, 1977; the
second is that she was required to do the household work till January, 1978
when she left the matrimonial home; and the third is about the husband's
attempt to grab her plot of land. I have dealt with these complaints separately. I
find that there is no dependable evidence in support of these complaints.

110. On the whole case it appears to me that the wife deliberately broke up the
matrimonial home and brought to an end the matrimonial life, so far as she was
able to bring those results about The breaker-up of the home is the wife. She
has disrupted the matrimonial home without sufficient cause. There is
withdrawal not only from intercourse but from cohabitation without just cause.

111. For these reasons the appeal is dismissed. The decree of the trial Judge
dated 20-4-1981 is affirmed. The parties are left to bear their own costs.

Appeal dismissed.

Cases Referred.

1. AIR 1983 Andhra Pradesh 356.

2. (1924) P. 19).

3. (1790) 1 Hag Con 144;

4. (1824) 2 Add 382 : 162 ER 335

5. (1865) 34 LJP M and A 111

6. (1946) 2 All England Reporter 1 (11)

7. (1948) 1 KB 175,

8. (1948) 2 KB 294,

9. (1950) 1 KB 39

10.(1964) Australian LR 820

11. (1924 P. 19)
12. (1921) New Zealand LR 876 at 877,
13. (1866-67) 11 Moo Ind App 551,
14.(1924) p. 19
15. (1947) 1 All England Reporter 563,
16. (1936) 297 US 1
17. (1919) 2 KB 571.)
18. (1897) AC 395.
19. (1974) 1 SCC 58 (67);
20. (1911) ILR 34 Madras 422.
21. (1938) 1 AC 34, 35,
22. (1890) ILR 13 Allahabad 126.
23. (1795) 1 Hag Con 216
24. AIR 1957 Madras 423 (426).
25. (1866) LR 1 P and D 130, 133
26. (1875) 14 Beng LR 298,
27. (1886) ILR 10 Bombay 301.
28. (1927) ILR 51 Bombay 329.
29. AIR 1924 Madras 49
30. 1977 Supreme Court 2279 (2284)
31. (1915) 1 KB 893, 912
32. (1970) 1 Hag Con 144
33. (1824) 2 Add 382
34. 1948-1 KB 175, 180
35. AIR 1970 Madhya Pradesh 36
36. (1966) 2 All England Reporter 257 (CA)
37. AIR 1973 Bombay 55 (59)
38. (1919) 1 KB 564 (569)
39. (1981) 83 Pun LR 46