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T. Sareetha vs T. Venkata Subbaiah on 1 July, 1983
Showing the contexts in which section 9 of hindu marriage act appears in the document
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The   question  which  is the place  where   the husband   and  wife   last  resided  together is, in my opinion   not being    capable  of being   treated  as a question of law, I  consider the matter from an overall view  of the facts.

 

16.    In  this   case, the  finding of  fact is that the  parties  had lived  for six months at cuddapah  immediately  after  their  marriage  at Tirupathi.  The place of the permanent  residence  of venkata  subbaiah  is  cuddapah, Venkata  subbaiah  has agricultural   lands  there.  Presumably   he  conducts   agricultural  operations   from there which would  require   his constant  presence and attention  Unless  sareetha  suceeds in showing that she never lived with venkata  subbaiah at  cuddapah, the claim of cuddapah to be the  place of last residence in this case, cannot be rejected.  It is true  that sareetha say that she  never lived with venkata  subbaiah at cuddapah,  but this  point    was never  made  good  by her.  She never   argued  this  point  before  the Court below    nor is  that plea  proved  to its  satisfaction.  The  question  whether  she  lived   with venkata   subbaiah  at cuddapah or  not is a pure   question  of fact.  The finding   of the lower   Court on such a  question   of fact  cannot  be distribed  by  a  revisional Court. I am thus left with no option except  to accept  that finding Accepting the finding   of  the ocurt below  that sareetha and venkata  subbaiah  lived  together   at  cuddapah  for about a period   of six months after their  marriage  at Tirupathi  I hold  that cuddapah was the place where the parties had  last resided together    and the Madras   residence  is ineffectual  to displace  that cuddapah  residence and that accordingly the  Court of  the subordinate Judge.  Cuddapah, has  jurisdiction  to try the petition filed  by venkata  subbaiah  for   restitution of conjugal rights.

 

PART  II.

 

17.  This    leads me to the consideration of the other half of this case which raises an important  constitutional  question. Sareetha in her petition dated 31-8-1981  of which notice from this  Court had been duly   given  to and  served  upon  the Attorney   General  Of India,New Delhi raised for the  first  time a question of constitutional validity of section 9 of  the Hindu Marriage Act.  Through  that  petition, sareetha  claimed that section 9 of the Act, "is liable to be struck  down as violative of the fundamental  rights in part III  of  the Constitution of India, more  particularly  articles 14, 19 and 21 inasmuch as the  statutory  relief  under  the said provision, namely restitution of conjugal  rights  offends  the guarantee to life,  personal  liberty and human dignity and decency'.  As  the  above  contention of sareetha  involves the question of constitutional validity of section 9 of the Act,  authorising  grant of curial relief  of  restitution of  conjugal rights to a Hindu suitor, I read section 9 of the Act in full and the  relevant  parts of its allied procedural provisions  contained in order 21 Rules 32 and 33 of the civil  procedure code.

 

Section 9: 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  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". 

 

Order 21 Rule 32 of C.P.c.  Decree for specific  performance for  restitution   of conjugal  rights,or for an injunction:

   

  "Of  all decisions a person makes  about   his or her  body the most profound  and intimate relates   to two sets  of questions   first, whether   when  and  how one's body  is to  become  the vehicle    for  another   human  beings  cration". 

 

25.Applying   these definitional aids  to our discussion it cannot but be admitted that a decree  for restitution of conjugal  rights  constitutes  the grossest  from of violation  of an individual's  right  to  privacy  applying  Prof.  Tribe's  definition of right to privacy, it   must  be  said that the decree  for restitution of  conjugal  rights    denies  the woman her free  choice  whether   when and  how her  body is to become  the vehicle  for the  procreation  of another  human   being  applying  parker's  defintion, it  must be said  that a decree for  restitution of conjugal  rights    deprives  a woman   of control  over  her choice as to when  and by whom the various  parts  of her body  should be allowed to be sensed.  Applying  the tests  of gaiety and Bostwick,  it  must  be said,  that the  woman loses   her control  over her most intimate decisions clearly, therefore, the right  to privacy  guaranteed by Art. 21  of our  Constitution is flagrantly  violated  by  a decree of restitution of  conjugal  rights.

 

26.  A  few   decided  American  cases  have also taken  the same view  of the constitutional right  to privacy  in that country.

 

  27.  The observations of Justice Mc  reynolds in Meyer v. Nebraska,  (1923)  67 L Ed  1042 highlight   certain    facets  of  this  right  to privacy.  There the  learned  Judge  observed:

  "Without  doubt, it denotes  not merely  freedom  from   bodily   restraint  but  also  the right   of any individual  to contract, to engage  in any of the common  occupations of life, to acquire useful  knowledge to marry establish   a home and bring  up children to worship   God   according  to the dictates of  his own  conscience, and  generally  to enjoy  those privileges   long recognised at common  law  as   essential  to the orderly  pursuit of  happiness  by free  men.............  ..............  ..............   The established   doctrine   is  that  this  liberty  may not  be interfered  with   under   the guise   of protecting   the public  interest, by  legislative    action   which is  arbitrary or  without   reasonable  relation  to some  purpose  within the competency  of the  state to effect". 

 

In  Griswold v. Connecticut, (1965)  14  L Ed 2d  510  Mr.  Justice  Douglas, while   invalidating  a connecticut  statute  which made the use of contraceptives a criminal    offence, wrote  for  the Court that  "this   law,  however   operates  directly   on an intimate relation  of husband  and  wife and  their  physician's  role  in one aspect ot that relation......",  implying   that the right  to privacy   encompasses  within  itself    intimate relationships    such as those  between husband  and wife about  the use of  contraceptives.  Of   course, the question  from where  this  right  to privacy   should  be derived  gave  rise to different  answers  in that case.  Mr. Justice  Douglas in Griswold  v. Connecticut,   (1965-14 L ed  2d 510)  has found  penumbral  areas  of specific  guarantees  in the bill  of Rights  as  providing   the basis  for the  right   of  privacy  .  But  Mr.  Justice  Goldberg  wrote, in that case  highlighting in the process the theoretical  confusions in the stitution that the right  of marital privacy   falls   within the category  right  to privacy  Griswold's   case is in   authority for  the   proposition     that the   reproductive choice  to beget  and bear  a child  does not  belong   to the state   and that belongs   to an individual.  In  jane  Roe.  V.  Henry   wade,  (1973)  35 L Ed  2d  147  Mr.  Justice   Blackmun  for hte Court   observed   that the earlier   decisions of the american  Supreme Court held that only  personal  rights   that can be  deemed  fundamental"   or implicit  in the concept  of  ordered liberty"......... are   included  in this guarantee of personal  privacy   they  also  make  it clear that  the right has some extension   to activities  relating to marriage.........procreation,  contraception,  family  relationships, and  child  rearing   and education........."

  "Yet   the marital  couple  is not an independent  entity  with a mind    and heart   of its    own but an  association of two  inviduduals each with  a  separate intellectual  and emotional   make up.  If  the   right of privacy   means  anything, it is   the right  of the INDIVIDUAL , married    or single,  to be free  from unwanted   Government  intructing    a person as the  decision  whether   to bear  or beget  a  child". 

 

This is a clear recognition   of the legal  position that  right  to privacy  belongs  to a person   as an individual    and is not lost by marital  association.  In  planned   parenthood   of Missouri v. Danforth,   (1976-49  L ed 2d  788)  the Court reiterated  the position    taken   by  the  American   Supreme Court  in Eisenstadt v. Barid   (1972)  405 US   438)  (supra) that  the  right    to privacy   belongs to each one of the  married   couple    separately   and is not lost by reason of their    marriage.  The    Court   observed,  invalidating a statutory   condition, that the husband's  consent is  necessary  for termination  of pregnancy,  "We  cannot  hold  that  the  state   has  constitutional   authority to give   a spouse    unilaterally  the ability   to prohibit  a wife from   terminating her pregnancy'.  The Court  further   observed  that "Inasmuch  as it is the woman  who physically  bears  the child   and   who is  the  more  directly  and immediately    affected  by the  pregnancy,  as between the two, the  balance weight in her  favour".  Earlier in skinner v. Oklahoma, (1941-86  L  Ed  1655)  the American Supreme Court characterised the right  to reproduce  as one of the  basic  civil   rights  of man.  In  the same  case Justice  Jakson  spoke  of the state interference with reproductive   decisions   as  involving  dignity  and personality.  See aslo  the decisions in Loving  v. Virginia, (1967-18 L Ed  2d 1010) and Zablocki v. Redhall, (1978) 54 L ed 2d  618).

 

28.  The above cases of the American Supreme Court clearly establish  the  proposition that  the reproductive  choice  is fundamental to an individual's   right  to privacy.  They  uphold   the individual's  reproductive    autonomy  against the state   intrusion  and forbid  the  state from   usurping  that right  without  overwhelming  social   justification.  That this   right belongs even to a married woman  is  clear from justice  Brennan's  opinion  quoted  above.  A wife  who is  keeping  away  from her husband, because   of permanent or even temporary   estrangement   cannot be forced,  without  violating her right  to privacy to bear   a child  by her  husband.  During   a time  when she is probably   contemplating an action for divorce, the  use and enforcement of section 9 of the Act against the estranged  wife can irretrievably  alter  her position   by  bringing about  forcible  conception   permanently  ruining   her mind   body  and life and everything   connected with it.  During  a moment's  duration  the  entire  life-style   would be altered  and  would even  be destroyed  without  her    consent.  If that  situation made possible   by this    matrimonial remedy  is not to be a violation of individual   dignity and right to privacy guaranteed by our Constitution and more  particularly Art 21,  it is not conceivable  what else  could be a violation of Article 21 of our  Constitution.

 

29.  Examining the validity of S. 9 of the Act in  the light  of the above  discussion, it should be held, that a Court decree  enforcing  restitution of conjugal  right  constitutes  the  starkest  form  of Government  invasion  of personal  identity  and individual's  zone  of  intimate  decisions.  The  victim is stripped of its  control  over the various   parts of its  body    subjected  to the humiliating sexual   molestation accompanied by a  forcible loss of the precious  right  to decide    when if at all  her  body  should be allowed  to be used to give  birth  to another   human  being.  Clearly the victim  loses  its  autonomy  of control  over  intimacies  of personal  identity.  Above  all,  the  decree for restitution of conjugal   rights  makes  the unwilling victim's  body a  soulless and a  joyless vehicle  for bringing into  existence another  human being.  In other  words,  pregnancy  would  be foisted on her   by  the  state and  against her will.  There can therefore  be little  doubt  that  such  a law  violates  the right to privacy  and human  dignity  guaranteed by and contained  in Article   21  of our  Constitution.  It is of constitutional significance  to note  that the ancient Hindu  society  and its culture   never approved such a  forcible marital  intercourse.  Our  ancient law-givers refused  to recognize   any state interests  in forcing unwilling sexual   cohabitationbetween  the husband  and wife  although they  held   the duty of the  wife to  surrender to the  husband almost absolute.  Recently  the British  law commission  headed by Mr.  Justice  scarman also found  no superior state interests  implicated in retaining this  remedy   on the British   statute  Book.  It is  wholly  with out any  social  purpose.  State coercion  of  this   nature   can neither  prolong nor preserve the voluntary  union  of husband and wife  in matrimony.   Neither  state coercion cna soften  the  ruffled  fellings  nor clear the misunderstandings    between the  parties.   Force can only bebet  force as action  can only produce   counter-actions   the  only usefulness  in  obtaining a decree  for restitution  of conjugal  rights   consists   in providing  evidence for subsequent    action  for divorce. But   this  usefulness of the remedy  which can be  obtained only at enormous   expense to human   dignity cannot be  counted as outweighing the interests in upholding  the  right to privacy   It is  only after   considering   the various   factors   that hte  scarman  commission  recommended  for the  abolition   of this     matrimonial  remedy    in england   and the British  parliament  enacted a law  abolishing it.  It is  therefore legitimate  to conclude  that there are no  overwhelming   state  interests  that  would  justify  the sacrificing of the individual's  precious  constitutional right  to privacy.

 

30.  Duncan Derrett in his  "modern  Hindu Law"  para  306  however, while   approving the abolition of  this  remedy  in England  advocated for  somewhat  strange  reasons  the continuance  of this  remedy  in India.  He  wrote  that"...............  The  practical   utility  of the remedy  is   little  in contemporary  England".  He  however says,  that:

  "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 of considerable value  especially  when coupled  with the right under section 491  of hte criminal  procedure  code  to  recover    (under certain circumstances0  custody  of  a  minor   bride,  and in the  light   of the rule  that where restitution  has been ordered a decree for separate maintenance cannot  without   proof  of new facts, issue  in favour of  the  respondent". 

 

With respect I am  unable  to agree with this recommendation  Firstly  Derrett  did not  examine  the matter  from the constitutional point  of view  of   right  to  privacy   guaranteed  by Art.  21  of  the  Constitution.  Restitution   of conjugal  rights  is  an  instance of punishing  a criminal without  a victim.  Secondly   his  remedy  of restitution  of conjugal    rights  is not  only   execussive  but is  also  inappropriate.  As  Telugu   proverb says, it is  like   setting   fire  to a house  to burn   it so  is not the appropriate   way to  bring  about  reconciliation  between the estranged wife and  husband .  the  observations   of Justice  Blackmun  in the  above  planned  parenthood's   case, (1976-49  L Ed  2d  788)  are  worthy  of  note  in this  connection.  He  observed:
   

"But  it is   difficult to   believe  that the goal  of  fostering mutuality  and trust  in a marriage  and of strengthening  the  marital  relationship  and the marriage    institution, will be acheived by giving  the husband a veto  power   exercisable  for  any reason   whatsoever or for no reason at all.  Even  if the  state had the  ability  to delegate to the husband  a power   it itself   could not exercise,  it is  not at all   likely   could not exercise, it is  not at all  likely    that such action   would  further as the district  Court majority   phrased  it the  interest of the state in  protecting   the mutuality   of decisions vital  to the   marriage  reltionship.

 

I  therfore  hold  that  there are no  overwhelming   state  interests to justify  the  subordination  of the valuable  right  to privacy  to any  state interests. 

 

31.  On the  basis of my  findings  that section 9 of the Hindu Marriage Act  providing for the  remedy   of  restitution  of conjugal   rights  violates   the right  to  privacy  guaranteed   by art. 21  of the  Constitution, I wil   have  to hold  that section 9 of the Hindu Marriage Act is constitutionally  void.  Any  statutory  provision  that abridges  any  of the rights   guaranteed by part  III  of the contitution will  have  to  be dec;ared  void  in terms  of Article 13  of the  Constitution.   But the  earlier   decisions  of the Supreme Court,    particularly  the earliest in Gopalan's  case  , had  narrowly  interpreted  the language  of Article  21  of  the Constitution as merely  requiring a statutory  procedure  to be provided  or established  .  if  the validity  of section 9 of the Act  were to be  considered on  that  basis, I would  have  been left   no  option   except  to   uphold    its  validity.

 

32.    The  protection to life  and  personal liberty contained in Art. 21 of our Constitution is confined  by Gopalan's    interpretation  only to  the  executive  action   taken    without  the  backing  of  a supporting    statutory   law  providing   for   procedure.  In other   words    the  efficacy  of that Article  as a fundamental  right is    almost  denuded  becaus e  taking   of  life  or personal  liberty  according    to  the  procedure  established by a  legislative  enactment   is rendered by  that interpretation    constitutionally  unobjection-able under  that   Article.    Thus   interpreted, Article 21  offers no protection against  legislative  action.   The  cook  of  Bishop  of Rochester could still  be boiled to death, because  the parliament  ordained  that Given  that meaning, Article  21  would have been left  with no  constitutional  mission  to subserve,  because    a constitutional limitation   imposed  in the  form of a fundamental is needed  not  against the  arbitrary   exercise   of  legislative   power.   Under  our  system of  jurisprudence, where   the executive   would   be ineffective to  deprive     any person    of  his life    or personal  liberty  except   under the authority   of legislative   sanction   even  in  the   absence   of a fundamental right.  A fundamental right which  mainly    operates  against  an executive  action  would be purposeless. Yet  this is clearly  the interpretation of Art. 21  that commended  itself   to Gopalan's  case .  Added to  that is  the rule  laid  down   by Gopalan's    case  to the effect    that  each  fundamental right  in Part  III of  the Constitution is a constitutional island  to itself.  According  to  this  interpretation,  the state action, in order to be  valid,  need  not  pass the test  of cumulative  prohibition  contained in the relevant  fundamental rights.

 

33.  In both  these  aspects  the rule in Gopalan's  case  was found  to be  unsatisfactory  almost  from its inception.  These  rules  are  therefore  considerably  modified  by  the  later   decisions of hte Supreme Court in  such as those rendered   in the Banks   Nationalisation case,    and maneka   Gandhi's   case,  .  In  sunil  Batra  v.   Delhi  Administration,   while dealing  with the  question as to whether  a person awaiting  death   sentence  can be kept   in solitary  confinement, Krishna Iyer J.,  said:

  "That  though our  Constitution  did not  have  a "due  process"  clause as in the American Constitution, the same consequence  ensued    after  the decisions in the Bank nationalisation  case and  Maneka   Gandhi   case.  For  what is  punitively  outrageous,  Scandalizingly  unusual  or cruel  and  rehabilitatively  counter-productive  is unarguably  unsual  or cruel  and rehabilitatively  counter-productive, is  unarguably  unreasonable and arbitrary  and is  shot  down by articles 14 and 19 and if  inflicted with procedural unfairness, falls  foul  of Article  21." 

 

In the same case Desai J.,  observed  that:

 

The  word  'law  in the  expression  procedure  established by law' in Article 21  has been  interpreted  to mean  in  maneka  Gandhi's   case  that  the  law must  be right   just and fair  and not arbitrary  fanciful  or oppressive   otherwise,  it would  be no procedure  at all and the  requirement  of Article 21  would  not be  satisfied.  If   it  is  arbitrary,   it would  be violative    of Article 14".

 

The above   quotations are taken  from Mithu v. State of Punjab   which   referred  to those  observations with  approval.

 

34.  In Mithu  v. State   of Punjab  (supra)  the Supreme Court  went   even farthest  where  it  struck  down  S. 303  I.P.c.  on the ground  that  that section   violated not  only  Article  14  but  even  Article  21.  The Supreme Court while   approvingly  referring   to the  above     quotations  observed  in  Mithu's  case  that:

  "These  decisions have  expanded the  scope  of Article  21  in a significant way   and  it is now  too late in the day  to  contend  that  it is  for   the legislature  to  prescribe    the procedure  and for the  legislature to provide  the punishment and for the  courts to impose it". 

 

Explaining   the scope  of expansion  which  Article  21  has undergone  by reason of Bank  Nationalisation   case   and Maneka  Gandhis  case   the  Supreme Court  in Mithu's  case  declared:

  "If  a law were  to provide  that the offence of theft   will be  punishable with the penalty of  the  cutting of  hands,  the   law  will be bad as violating   Article  21.  A savage  sentence is anathema  tothe civilized  jurisprudence  of Article  21". 

 

In  Mithu's  case the Supreme Court implied that imposition  of death  sentence  even under  section 302 I.P. C. Would have been  held in Bachan  singh's  case   invalid and ultra vires    of the  protection guaranteed by Article   21 if the parliament had not provided  for alternative sentences of life   imprisonment  and death sentence  but  provided  for  only a mandatory  death   sentence. A mandatory death sentence would  then have been shot  down  by  the   civilized   jurisprudence  of Article 21.  Now  savagery  of a death sentence  is more  an  attribute  of substantive  law.  In    Mithu's  case ,  Chinnappa Reddi, J.,  ascribed  the   whole  of his  concurrence  to Article  21.  The reasoning  of our Supreme Court in Mithu's  case comes  very close to the  reasoning   adopted  by  the   American   Supreme Court in cases like    Lambert  v. California  (1957)2 L Ed 2d 228  decided,  upon  the basis  of substantive   due  process  clause.  In Lambert  v.  California  (supra)  the American  Supreme Court invalidating a state   criminal    law held  that:

  "Where a person did not knwo  of the duly  to register and where there was no proof  of the  probability  of such  knowledge, he  may  not be convicted  consistently  with  due  process". 

 

After   Mithu's   case, it is not easy  to  assert  that Article  21  is  confined  any   longer   to procedural  protection only.  Procedure  and substance  of law now  comingle    and overlap  each other, to  such a  degree  rendering  that a finding  of any law  that can  competently   establish a  valid   procedure  for the enforcement of a savage  punishment impossible.

 

35.  In a imperfect  word  where  the  clash  of competing  interests is  the  only  certainly   where  issues  are therefore   inherently complex,  where  judges  are falliable, and where  man-made  institutions have  limits  solutions to problems  will inevitably   be less than  optimum (see- preface  to chase  and Ducat's   "constitutional  Interpretation"  (second  edition). In   its  search  to   recognize  the true  boundaries    between  the individual  and the community  constitutional  theory   should   therefore  be open- ended   without  its categories  being   permanently   closed.  (See paul  A.  Freund   "on  Law   and Justice"   page  163).

  "Each   new  claim  to constitutional  protection  must   be cnsidered  against  a   background  of  constitutional  purposes, as  they have  been rationally   perceived  and historically   developed.  Though  we exercise  limited and sharply restrained  Judgment  yet  thereis no "mechanical  Yardstick",  to  mechanical  answer".  The  decision  of an apparently   novel  claim  must   depend   on grounds    which  follow closely  on well-accepted  principles   and criteria.   The new decision  must take  its place in relation to what went  before and  further (cut) a channel   for   (1953)  347 US  128, 147   98  L. Ed   561  578      74  S ct  381   9dissenting   opinion)   the  matter was  well   put  in Rochin  v. California,  (1951)  342   US  165, 170 171  96 L. Ed  183,  188, 189:72   s. Ct205 :25  ALR  2d  1396". 

 

(Justice  Harlan,  in, poe v. Ullman,  (1916)  6 Led 2d p. 989 at 1020).

 

The constitutional doctrine  of privacy  is not   only  life giving   but also is lifesaving.  It gives spiritual meaning  to life which sankara   described as emanation of Brahman  and saves such a life from "inhuman  and degrading treatment"  of  forcible   sexual cohabitation.   (Art 5 of  the Universal Declaration of Human  Rights)  (see  also  the Right  to be let  alone  by  K.K.  Mathew,  ( Journal  section)  and also "torture   and the   right  to human  Dignity"  by paras diwan  , (1981)  4 SCC  p. 31 (journal  section).   Nothing   much   that is reasonable    in my  opinion  can be urged  in  support  of this   barbarous  remedy  that forces  sex at  least   upon   one of the  unwilling   parties.

 

36.  Following  the reasonaing adopted  in the above  mithu's  case, section 9 of  the  Hindu marriage Act,  should be declared as unconstitutional  for  the  reason that the  remedy  of  restitution of conjugal  rights  provided  for by  that section  is a savage   and  barbarous  remedy, violating  the  right  to  privacy   and human  dignity guaranteed by Article 21 of our  Constitution.

 

37.   The constitutional validity of section 9 of hte Act when examined on the touch-stone  of equal  protection of laws  also  leads to  a conclusion  of its invldity.  This is  so because  of two  reasons.   Firstly, section 9 of the Act does not  satisfy the traditional classification test.  Secondly  it fails    to pass the test  of minimum  rationality  required  of any  state  Law.

 

38.   Of  course  section 9 of  the  Act does not in form  offend  the classification  test.  It makes  no discrimination between a husband  and  wife.  On the  other hand,  by making  the remedy  of restitution of  conjugal  rights   equally  available both  to  wife and husband, it  apparently   satisfies the equality test.  But  th requirements of equal protection of laws  contained   in  Article  14  of  the  Constitution  are not met with that apparent though  majestic   equality  at which anatole France mocked.  Our  Supreme Court declared that:

  "Bare equality of treatment regardless  of  the inequality of realities   is neither justice   nor homage  to the constitutional  principle". 

 

(See M. Match  works  v. Asst. Collector  ).

 

The  question  is  how  this remedy  works  in life  terms  In our   social reality,  this matrimonial remedy   is found  used  almost  exclusively by  the  husband   and  is rarely  resorted to by  the   wife.  A passage in Gupte's  Hindu law  in Brilish India' page 929 (second edition)  attests to this   fact.  The  learned  author   recorded   that although  the rights  and duties  which marriage  creates  may be enforced by either spouse against  the other and not  exclusively  by  the   husband  agianst the  wife; a suit  for   restitution  by   the wife  is rare".

 

The reason for  this  mainly lies in the fact of hte differences    beween  the man and the woman  .  by enforcing  a decree for restitution   of conjugal  rights   the life  pattern  of the wife is  likely  to be altered irretrievable   whereas the husband's  can remain  almost as  it was  before  this is so because it is the wife  who  has to beget  and bear a child.  This  practical  but  the inevitable  consequence of the enforcement of this remedy  cripples  the wife's   future   plans  of life  and prevents  her  from  using  that self-destructive   remedy.  Thus   the use  of remedy  of restitution   of conjugal   rights  in  reality  becomes   partial   and one-sided  and available  only to the husband.  The  pledge  of  equal  protection  of laws   is thus inherently  incapable   of being   fulfilled by this   matrimonial remedy  in our   Hindu  society.  As a result  this  remedy  words  in practice  only as an engine of oppression to be  operated by the husband for  the  benefit  of the husband against the wife.  By treating  the wife and the husband  who are  inherently  unequal  as equals, section 9 of  the Act offends the rule  of equal  protection of laws.  For  that  reason  the  formal  equality  that section 9 of  the Act  ensures  cannot be   accepted  as constitutional.  Section 9 of the Act should therefore  be struck  down  as violative  of Article 14 of the Constitution.

 

But our Supreme Court called the test as test of arbitrariness and followed it in the subsequent decisions in maneka Gandhi case and the International Air port case , and Ajay Hasia v. Khalid Mujib and Air India v. Nergesh The theory of minimum rationality test which is heavily criticised by seervai in his latest constitutional Law, 3rd Edition page 272 is described by prof. Tribe as requiring all legislation to have "a legislative public purpose or set of purposes based on some conception of general good". (See his American constitutional Law, page 995) Examined from this point of view, it is clear that whether or not section 9 of the Hindu marriage Act suffers from the vice of over-classification as suggested in the preceding paragraph it promotes no legitimate public purpose based on any conception of the general good. It has already been shown that section 9 must thereofe be held to be arbitrary and void as offending art. 14 of the consitution.

40. In the view I have taken of the constitutional validity of section 9 of the Hindu Marriage Act, I declare that section 9 is null and void. As a corollary to that declaration, I hold that O.P. No. 1 of 1981 on the file of subordinate Judge, cuddapah, filed by venkata subbaiah for the relief of restitution of conjugal rights with sareetha is legally incompetent. Accordingly, I prohibit the Court of the subordinate Judge, cuddapah from trying O.P. No. 1/81.

41. The civil Revision petition is allowed, but without costs.