Difference between a Decree of Restitution of Conjugal Rights and a Decree of Judicial Separa­tion

It is also clarified that where a question arises whether there has been reasonable excuse for withdrawal of one of the parties to a marriage from the society of the other, the burden of proving reasonable excuse is on the person who has withdrawn from the society of the other.

The Madhya Pradesh High Court has held that if a wife accepts employment (without the husband’s consent) at a place different from the husband’s home, and refuses to live with him at his place, it can be said that she has withdrawn from her husband’s society without reasonable excuse. (Gaya Prasad v. Bhagwati, A.I.R. 1966, M.P. 212)

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The practical importance of the provisions contained in S. 9 is that it enables the aggrieved spouse to apply to the Court for maintenance under S. 25, and for maintenance pendente lite under S. 24.

It is also to be noted that if a decree for restitution of conjugal rights is passed by the Court, and yet the parties do not resume cohabitation for a period of one year (or more) after such a decree, either party can obtain a divorce on that ground alone under S. 13 of the Act.

The provisions of S. 23 are also relevant in this connection. This Section imposes on the Court the duty to inquire into and satisfy itself as regards certain matters. Thus, the Petitioner must show that he (or she) has a bona fide desire to resume matrimonial cohabitation.

Further, he (or she) is not entitled to take advantage of his (or her) own wrong or disability. Also, there must not be any unnecessary or improper delay on the part of the Petitioner in approaching the Court for such relief. Whether such factors exist will naturally depend on the facts and circumstances of each case.

No relief will be granted to the Petitioner if the Respondent has any reasonable excuse or just cause for not cohabiting with the Petitioner. In England, the question whether conduct which falls short of cruelty (or any other matrimonial offence) can justify non- cohabitation has been hotly debated, and the judicial decisions on this point are unfortunately not uniform.

However, the recent trend of judicial thought is that such a “just cause” must be grave and weight or as it is sometimes called, grave and convincing. Thus, in Timmins v. Timmins (1953, 2 All E. R. 187), the Court held that although the husband was not guilty of cruelty, yet his conduct was a grave and weighty matter, which justified the wife in leaving him, and he was, therefore, not entitled to a decree for restitution of conjugal rights.

Whether S. 9 of the Act is unconstitutional:

An interesting question posed before the High Court of Andhra Pradesh was whether S. 9 of the Hindu Marriage Act can be said to be unconstitutional, on the ground that the remedy of restitution of conjugal rights violates the right to privacy guaranteed by Article 21 of the Constitution of India. The case (T. Sareetha v. T. Venkata Subhaiah, A.I.R. 1983 A.P. 356) involved a well-known South Indian film actress against whom her husband had applied for a decree under S. 9 of the Act.

Holding that S. 9 is constitutionally void, as being violative of Article 21, the Court observed:

“A decree for restitution of conjugal rights constitutes the grossest form of violation of an individual’s right to privacy. It denies the woman her free choice whether, when, and how her body is to become the vehicle for the procreation of another human being. A decree for restitution of conjugal rights deprives a woman of control over her choice as to when and by who the various parts of her body are to be sensed.”

In the above case, the Court also held that S. 9 also violated Article 14 of the Constitution (the right to equality) and that it is arbitrary and void on that ground also. The Court proceeded on the ground that although, theoretically, this remedy is available both to the husband and the wife, in practice, it is resorted to almost exclusively by the husband against the wife.

A different view was, however, taken by the Delhi High Court in a subsequent decision (Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66), where the Court expressed its dissent from the view of the Andhra Pradesh High Court, and held that S. 9 is not violative of Articles 14 and 21 of the Indian Constitution.

The above controversy was set at rest by the decision of the Supreme Court (Saroj Rani v. Sudarshan Kumar Chadha, A.I.R. 1984 S.C. 1562), where the Court expressly overruled the judgment
of the Andhra Pradesh High Court, and held that S. 9 is not violative of Article 14 and 21 of the Constitution. The Court pointed out that a decree for restitution of conjugal rights serves a social purpose as an aid to the prevention of break-up in a marriage.

Even if such an order of the Court is wilfully disobeyed, the Court cannot enforce sexual intercourse between the spouses. The only remedy of the other party would be to apply for attachment of the property of the defaulting spouse, presuming that he or she has any property.

Decree of Judicial Separation (Section 10):

A judicial (or legal) separation is one which permits the parties to a marriage to live apart. If a decree for judicial separation is passed by a competent Court, it is no longer obligatory for either party to cohabit with the other.

Such a decree does not, however, dissolve the marriage or sever the matrimonial ties between the parties. Yet, it is equally true that certain mutual rights and obligations arising from the marriage are, so to say, suspended when such a decree is passed. Under the Act, a Petition for divorce can be presented on the ground that cohabitation has not been resumed for a period of one year (or more) after the passing of a decree for judicial separation.

Formerly, S. 10 provided six grounds on which either party to a marriage could present a Petition for judicial separation. However, when S. 10 was amended in 1976, these six grounds were deleted, and it is now provided that such a Petition can be presented on any of the grounds mentioned in S. 13(1) (which are the grounds for divorce available to both the parties to a marriage), and in the case of the wife, also on any of the grounds specified in S. 13(2) (which are the grounds for divorce available only to the wife).

(A reference may be made to S. 13, where the grounds for divorce – and now, also the grounds for judicial separation – are discussed at length.)

Effect of the decree (S. 10(2)):

As stated above, when a decree for judicial separation has been passed, it is no longer obligatory for the Petitioner to cohabit with the Respondent. However, the Court has the power to rescind such a decree on an application by either party, if it considers it just and reasonable to do so.

It may be noted that the statutory relief of judicial separation is a discretionary one. The Court is not bound to grant such relief only because one of the prescribed grounds exists. Thus, if the Petitioner has connived at the adultery of the Respondent, the Court may refuse to pass a decree under S. 10. Similarly, if desertion by the Respondent is due to the Petitioner’s cruelty, such relief may be refused by the Court.

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