Restitution of Conjugal Rights and Judicial Separation

How a decree is enforced, and why that is the whole answer

A decree under section 9 is not enforced by physically returning the spouse. Execution is governed by Order XXI Rule 32 of the Code of Civil Procedure 1908, and that rule treats a restitution decree differently from every other decree it covers.

Rule 32(1) provides that where the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for an injunction has been passed has had an opportunity of obeying it and has wilfully failed to do so, the decree may be enforced, in the case of a decree for restitution of conjugal rights by the attachment of his property, and in the case of specific performance or an injunction by detention in the civil prison, or by attachment, or by both.

Read those two limbs against each other. For specific performance and injunctions, civil imprisonment is available. For restitution of conjugal rights it is not: attachment of property is the only route. Rule 32(3) then provides that where an attachment has remained in force for six months and the judgment debtor has still not obeyed, the decree holder may apply to have the attached property sold, and out of the proceeds the court may award such compensation as it thinks fit.

So the sanction is financial, not personal. That single fact carries most of the constitutional argument, and it is what the Supreme Court relied on when it said the method of execution must be kept in view.

The constitutional debate on section 9

This is the sequence MU asks for.

First, T. Sareetha v. T. Venkata Subbaiah, AIR 1983 Andhra Pradesh 356.

Facts. Not set out here. This book has not read that judgment in the original, and says so rather than inventing a summary of it.

Held. The Andhra Pradesh High Court held section 9 of the Hindu Marriage Act to be unconstitutional.

Second, Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66.

Facts. Again not set out here, and for the same reason.

Held. The Delhi High Court took the contrary view and upheld section 9.

Why both are stated so briefly. The reason is recorded openly in authorities/cases.json. Neither judgment has been read in the original; what is stated above about each is what the Supreme Court's own report in Saroj Rani says about it, which is enough to establish the outcome of each and no more. Do not attribute reasoning to either judgment on the strength of this chapter. What matters for the examination is the sequence and the result, and both are safe.

Third, and decisively, Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562, decided on 8 August 1984.

Facts. The wife sued under section 9 for restitution of conjugal rights. The husband consented to a decree being passed. A year later he petitioned for divorce under section 13(1A) on the footing that there had been no restitution of conjugal rights after the decree. The wife resisted on two grounds: that the husband was disentitled by his own wrong under section 23(1)(a), and that section 9 was itself arbitrary and void as offending Article 14.

Held. The appeal was dismissed. The Court held:

1. In India, conjugal rights, meaning the right of a husband or wife to the society of the other, are not merely the creature of the statute. Such a right is inherent in the very institution of marriage itself. There are sufficient safeguards in section 9 to prevent it from becoming a tyranny.
2. Section 9 is only a codification of pre-existing law. Order XXI Rule 32 of the Code of Civil Procedure deals with the execution of such a decree.
3. Section 9 is not violative of Article 14 or Article 21 of the Constitution, if the purpose of the decree for restitution of conjugal rights is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.
4. T. Sareetha was overruled. Harvinder Kaur was approved.

Why it matters here. It is the settled answer on the constitutionality of section 9, and the case that decides the conflict between the two High Courts. The end of the judgment is worth knowing and is almost always left out of answers: having granted the husband his decree because the law gave him one, the Court directed that he continue to pay maintenance to the wife until she remarried, and maintain the daughter until she married, fixing figures and giving liberty to apply for variation. The Court did equity inside a statutory result it could not avoid.

Section 10: judicial separation

Section 10(1), as substituted by the 1976 amendment, provides that either party to a marriage, whether solemnised before or after the commencement of the Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in section 13(1), and in the case of a wife also on any of the grounds specified in section 13(2), as grounds on which a petition for divorce might have been presented.

Section 10(2) provides that where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent; but the court may, on the petition of either party and on being satisfied of the truth of the statements made, rescind the decree if it considers it just and reasonable to do so.

What the 1976 amendment changed

Before 1976 section 10 had its own separate list of grounds, shorter than the grounds of divorce and differently worded. The amendment abolished that list and simply pointed at section 13. The result is that every ground of divorce is now a ground of judicial separation, and the wife's four additional grounds in section 13(2) are available to her for separation too.

That is a point worth making in an answer, because it means the choice between the two remedies is a choice of relief, not of grounds. A petitioner with a good ground may ask for either.

The effects of a decree

• The petitioner is no longer obliged to cohabit with the respondent. The marriage subsists; the duty to live together does not.
• The marriage is not dissolved. Neither party may remarry. Rights of inheritance between the spouses are unaffected by the decree itself.
• The decree may be rescinded under section 10(2) if the court thinks it just and reasonable, which usually means the parties have reconciled.
• After one year without resumption of cohabitation, the decree becomes a ground of divorce under section 13(1A)(i).

Judicial separation and divorce compared

A worked example

Meera left her husband Rohit in January after he insisted she give up her job. Rohit petitions under section 9. Meera counter-claims under section 10 on the ground of cruelty. Two years pass and neither has moved.

What must Rohit show? Section 9: that Meera has withdrawn from his society without reasonable excuse, and that the court is satisfied of the truth of the statements and that there is no legal ground why the relief should not be granted.

Who proves the excuse? The Explanation: where the question arises whether there has been reasonable excuse for the withdrawal, the burden of proving reasonable excuse shall be on the person who has withdrawn. So it lies on Meera.

Is insisting she give up her job an excuse? It goes to whether the withdrawal was reasonable, and, if it amounts to cruelty, to her own petition under section 10.

How is a section 9 decree executed? Not against the person. Order XXI Rule 32 of the Code of Civil Procedure allows execution by attachment of property, and that is why the section survives.

Is section 9 constitutional? T. Sareetha held it was not, as a violation of privacy and human dignity. Harvinder Kaur disagreed. Saroj Rani v. Sudarshan Kumar Chadha upheld the section, overruling T. Sareetha and approving Harvinder Kaur: the remedy serves the social purpose of preventing the breakdown of marriage, and it is not enforced against the body.

What does section 10 give Meera? A decree of judicial separation on any of the grounds of divorce in section 13(1), and, for a wife, in section 13(2). It is no longer obligatory for the parties to cohabit, but the marriage subsists.

Can it be undone? Section 10(2): the court may, on the petition of either party and on being satisfied of the truth of the statements, rescind the decree if it considers it just and reasonable.

What does two years of inaction produce? Section 13(1A): either party may petition for divorce where there has been no resumption of cohabitation for one year or upwards after a decree of judicial separation, or no restitution of conjugal rights for one year or upwards after a decree under section 9.

What it does NOT mean

Restitution is not specific performance against the person. It is executed under Order XXI Rule 32 by attachment of property.

The burden is not on the petitioner. The Explanation puts the burden of proving a reasonable excuse on the spouse who withdrew.

Judicial separation is not divorce. The marriage subsists; only the duty to cohabit is suspended.

Its grounds are not narrower than divorce. They are the same grounds, in section 13(1) and, for a wife, section 13(2).

A decree of judicial separation is not final. It may be rescinded under section 10(2).

Section 13(1A) is not a fault ground. Either party may use it, including the one who disobeyed the decree.

T. Sareetha is not the law. Saroj Rani overruled it and approved Harvinder Kaur.

Quick revision

• s.9: where either spouse has withdrawn from the society of the other without reasonable excuse, the aggrieved party may petition, and the court decrees restitution if satisfied of the statements and that there is no legal ground against it. The Explanation puts the burden of proving reasonable excuse on the person who withdrew.
• Execution: Order XXI Rule 32 of the Code of Civil Procedure, by attachment of property, not against the person.
• The constitutional debate: T. Sareetha held s.9 void; Harvinder Kaur disagreed; Saroj Rani upheld the section, overruling T. Sareetha and approving Harvinder Kaur.
• s.10: judicial separation on any ground on which a divorce petition might be presented under s.13(1), and for a wife under s.13(2); thereafter it is no longer obligatory for the petitioner to cohabit, but the marriage subsists. s.10(2): the decree may be rescinded.
• Both decrees ripen: s.13(1A) gives either party divorce after one year without resumption of cohabitation or without restitution.

Test yourself

1. When can a Hindu spouse obtain a decree for restitution of conjugal rights? Where the other spouse has, without reasonable excuse, withdrawn from his or her society, and the court is satisfied of the truth of the statements made in the petition and that there is no legal ground why the application should not be granted.

2. Who bears the burden of proving reasonable excuse? The person who has withdrawn from the society of the other, by the Explanation to section 9.

3. Is section 9 constitutional? Yes. In Saroj Rani v. Sudarshan Kumar Chadha the Supreme Court upheld it, overruling T. Sareetha v. T. Venkata Subbaiah and approving Harvinder Kaur v. Harmander Singh Choudhry. The remedy serves the social purpose of preventing the breakdown of the marriage, and the decree is enforced not against the person but by attachment of property under Order XXI Rule 32 of the Code of Civil Procedure.

4. Distinguish judicial separation from divorce. Judicial separation suspends the obligation to cohabit but the marriage subsists, so neither party may remarry, and the decree may be rescinded under section 10(2). Divorce dissolves the marriage and leaves the parties free to remarry, subject to section 15. The grounds are the same, and after one year without resumption of cohabitation a decree of judicial separation itself becomes a ground of divorce under section 13(1A).