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.