SECTION 9 OF HINDU MARRIAGE ACT, A CONTRADICTION BETWEEN TWO HIGH COURTS

SECTION 9, HINDU MARRIAGE ACT - RESTITUTION OF CONJUGAL RIGHTS. 

Section 9 of HINDU MARRIAGE ACT (HMA) talks about one of the remedy under act. It provides for the restitution of conjugal rights in cases where it feels satisfied that the respondent has unreasonably withdrawn from the society of the petitioner. The contention of the legislature which can be concluded from here is the principle that hindu marriage is the sacrament which binds the two parties into never ending bond. 

Andhra Pradesh High Court in T. Sareetha v. T. Venkatta Subbaiah, held that section 9 of HMA is violative of Article 14 i.e equality before law, and Article 21, which of includes right to privacy, of the Indian constitution. The court placed its reliance om the two landmark judgements of the supreme court namely Kharak Singh v. State of U.P. and Govind v. State of M.P.  In Govind's case the Supreme Court ruled that Article 21 encompasses right to privacy and human dignity. Both the cases held Article 21 to be to be source of protection of personal liberty and life. Thus Andhra Pradesh High Court declaring section 9 HMA void.

On the other hand, in Harvinder Kaur v. Harmander Singh Chowdhary the court give the contradictory opinion to the decision of the High Court of Andhra Pradesh in declaring the section 9 of HMA void. The Delhi High Court observed that the very purpose article 9 is to bring reconciliation between the parties and thus preserving the marriage. The court observed that object of the restitution decree is to bring together both spouses so thay they can live together in their matrimonial home in amity. 

The Judgement of the Delhi High court was criticised on the ground that it gives right to the person on the body of spouse and thus restricting it's freedom to an extent thus violating the very fundamental rights. However, the court clarifying these criticism observed that the restitution degree cannot force or cannot alow the person to make sexual relations with the spouse forcefully. This decree just provide for the cohabitation of the couple which necessarily not includes sexual intercourse, but love, affection, care etc. Thus Delhi High Court upholding the validity of Section 9 of HMA. 

The supreme court clear the stance regarding the validity of section 9 of HMA in Saroj Rani v. Sudarshan Kumar. The honourable court observed that restitution degree serves the social purpose by preventing the matrimonial break-ups. Supreme Court, while dissenting with the opinion of single judge of Andhra Pradesh High Court, agreed with the view of Delhi high court that the decree period act as a cooling periods between the parties and give them the opportunity to solve the dispute amicably. Supreme court thus concluded that the section 9 of HMA is constitutional, if the purpose of the decree under the section and consequences of disobedience are clearly observed. 

Thus the supreme court by its judgement in Saroj Rani v. Sudarshan Kumar put on the rest the ongoing conflict of opinion between Delhi High Court and Andhra Pradesh High Court. 



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