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That there was no other legal ground for the refusal of relief. School of Law, SASTRA University. Thus the marriage remains a valid marriage; a decree for restitution of conjugal rights cannot be refused.While in Muslim law under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 when the marriage has been avoided in the exercise of option of puberty the suit for restitution of conjugal rights fails. CONSTITUTIONAL VALIDITY. The Supreme Court on Tuesday sought assistance of Attorney General KK Venugopal on a PIL against the law that gives power to courts to force a separated couple to stay together through decree for Restitution of Conjugal Rights.A three-judge bench of The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. Restitution of Conjugal rights is a debatable topic which gives rise to questions like being involved in the institution of marriage, isn't restitution of conjugal rights violation of the right to life[1]. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Hon'ble High Court held that the impugned section was unconstitutional. RESTITUTION OF CONJUGAL RIGHTS SUBMITTED BY :- SHRISTI KUMARI C-73 BBA LLB (2ND YEAR) 2. The issue of the constitutional validity of Section 9 was first raised in T Sareeta v Venkatasubbiah, [3] in which the Andhra Pradesh High Court held Section 9 of the Hindu Marriage Act to be violative of the Constitution and the impugned section was unconstitutional. Essential Elements of Restitution of Conjugal Rights. if the reason is deemed valid for withdrawal from the society, it acts as a defense to the restitution petition. [Dadaji Bhikaji v Rukhmabai (1886) 10 I.L.R. The Supreme Court, in 1984 in Saroj Rani v Sudarshan Kumar Chadha, had upheld the constitutional validity of provisions pertaining to the restitution of conjugal rights. The petition has said that the personal autonomy & dignity that are guaranteed under the Constitution can't be sacrificed at the altar of family life. Constitutional Validity of Restitution of Conjugal Rights. Over the years, the courts have tried to uphold the validity of Section 9 of the Act. Constitutional Validity of Section 9 of the Act: The restitution of Conjugal Right violates the following rights: Right of privacy. The present appeal was filed under Section 19 of the Family Courts Act, 1984 by the original defendant-wife questioning the legality and validity of the order passed by the Family Court on suit instituted by respondent-husband for restitution of conjugal rights whereby the family court allowed the suit instituted by the husband directed the . In case of Christian couple, both the husband and wife have the right to apply for restitution of conjugal rights and the Court shall also pass the decree unless, for the following reasons-. The concept of Muslim marriage is closely related to the concept of contract because some terms and conditions should be fulfilled for a valid/ Salih marriage like a valid contract. The case primarily raised 3 issues: 1. The high held" A decree for restitution of conjugal rights is the grossest form of violation of an individual's right to privacy, . INTRODUCTION Family and marriage are the basic institutions of any society. 2. Right to practice any profession - 19 (1) (g) Restitution of conjugal rights 1. 4. Conjugal Rights basically means Right to stay together. 12 This phrase again has been borrowed from the judgement of the Privy Council (ibid.) Every society has certain norms and rules which have led to the development of key concepts such as usage and custom. The essentials constituting the provision of restitution of conjugal rights are as follows: 1. Apart from legislation relating to matrimonial law, courts in India in case of all communities have passed decrees for restitution of conjugal rights. By enforcement of a decree for Restitution of Conjugal Rights, one spouse may be compelled to provide . Then, the court may issue a decree of restitution of conjugal right accordingly. ISSN: 2581-8465. Maintaining that validity of a law has to be tested according to the changing times, two law students from Gujarat have challenged the constitutional validity of law on restitution of conjugal rights. However, this has been done without paying heed to the multiple practical and patriarchal problems in India. The application of the concept dates back to the year 1886 [2] by Privy Council in India. Cruelty is done by either of spouses i.e. The restitution of conjugal rights is a positive remedy that is given to a spouse to protect their marriage, to facilitate cohabitation among couples, and to save the sanctity of marriage. Read more about SC seeks AG's assistance on plea against constitutional validity of restitution of conjugal rights on Business Standard. constitutional validity of restitution of conjugal rights The introduction of restitution of conjugal rights under Hindu Marriage Act, 1955 and Special Marriage Act, 1954 was quite exhausting as there were tempestuous debates in the parliament at the time of introduction of the provision of restitution of matrimonial rights under Hindu Marriage . The essential elements of section 9 of the Hindu Marriage Act, 1955 (restitution of conjugal rights) are as follows: There must be a valid marriage that exists between the parties. Conjugal rights give you the right to seek the help of the law to bring your spouse back to you, to live with you, and favor your sexual needs, even if the significant other does not want to do it willingly. It states that restitution of conjugal rights is a relief given to the married person in case of withdrawal from society of other either by the husband or the wife without any just and reasonable ground. A 2-Judge Bench in 1984 upheld these provision while considering the scheme for restitution of conjugal rights "as an aid to the prevention of break-up of marriage". Hindu marriage act, 1955 under section 9 it is mentioned that either the wife or the husband, without any reasonable excuses, withdraws from the society of the other, in that case the aggrieved party may approach the court for restitution of conjugal rights. The term restitution, etymologically, means restoration. Sudarshan Kumar AIR 1984 SC562, upheld the constitutional validity of this provision on the ground that it is a benevolent provision which would facilitate reconciliation and save the marriage. Validity of restitution of conjugal rights: an analysis Jus Corpus Law Journal December 19, 2021 Through this article, I critically analyse the constitutional validity of restitution of conjugal rights. 9 Restitution of conjugal rights. CONJUGAL RIGHTS AND ITS CONSTITUTIONAL VALIDITY. Fundamental rights are the cherished gift that Constitution has bestowed upon the people of India. The students of Gujarat National Law University (GNLU), Gandhinagar have filed a public interest litigation challenging various restitution of conjugal rights provisions under codified family laws. The concept of restitution of conjugal rights has been define in section 9 of the Hindu Marriage Act, 1955. In this case 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, specifically Article . The constitutional validity of the provisions for restitution of conjugal rights has been a contentious issue that has reached the courts on several occasions. Constitutional Validity of . 1. The term 'reasonable excuse' was inserted in the amendment act of 1976 where it stated that the burden of proving reasonable excuse is purely on the spouse who has withdrawn from the marriage and society. Christian -. The withdrawal shall be without any reasonable cause or any sufficient ground. • Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its . Interested in learning more? Over time, questions regarding its validity in the Indian society and consonance with the constitution . In the past, as in the cases challenging homosexuality under Section 377, governments have preferred continuity and showed reluctance in doing away with such provisions. . 15 It was held by the Court that there was a . . If this essence was not protected then it would lead to the irretrievable breakdown . The constitutional validity of the . If restitution of Conjugal Rights is passed by the court in favor of the petitioner and still the parties do not come together and continue cohabitation for a period of one year or more after such a decree, either party can obtain a divorce on this ground itself under section 13 of the Hindu marriage act, 1955. The remedy of restitution of conjugal rights is a positive . 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 of the truth of the statements made in such petition and that there . It was held that Section 9 is void as it violates the privacy and human dignity . Barring a few exceptions, the fundamental rights secured to the individual are limitations on the state action. Constitutional Validity of Restitution of Conjugal Rights. It was asserted that the provision violated the Right to Equality as mentioned under Article 14 of the Constitution of India. The aim of the restitution of conjugal rights and degree was only to encourage . 11 1856 IA (Privy Council) 265. Restitution of conjugal rights, thus, means the restoration of cohabitation and conjugal relations between the husband and wife by way of legal interference. Namskar Dosto Swagat Hai aap sabhi Ka Learnspire par.Constituitonal Validity of Restitution of Conjugal Rights (sec 9) is a topic of family law which student. . The court is satisfied regarding the truth of the claim made in the petition. The remedy of restitution of conjugal rights is given, then the spouse living separately has to compulsorily come and reside with the other spouse. Specifically, Art 21 or the right to privacy wherein the court took into account the fact that . One of the fundamental purposes of marriage is that the spouses live together and one spouse is entitled to the society and comfort. Balabavithra M [1] Prawin Subash K [2]. CITATION. • however in smt. It is an accepted norm that each spouse is entitled to the society and comfort of the other and if any spouse, without any reasonable cause leaves any spouse, the latter can move the court for a decree of restitution of conjugal rights. The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. Section 9 of the Hindu Marriage Act, 1955- the Restitution of Conjugal Rights has always remained a bone of contention in the said enactment. The remedy of restitution of conjugal rights was not recognised by any of the personal law systems of India, the PIL said, adding that its origin is in feudal English law, and that the UK itself has abolished restitution of . Discuss the constitutional validity of Section 9 of the Hindu Marriage Act, 1955. (500-520 words) Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), provides for the decree of restitution of conjugal rights, wherein, […] Constitutionality of the restitution of conjugal rights in India. Constitutional validity: In Forster vs. Forster, the court held that the purpose of the restitution of conjugal rights is to compel the unwilling wife to have sexual intercourse with her husband. Justice Sabyasachi Mukharji. This concept comes into place when one of the spouses denies any of the marital rights to the other spouse. Constitutional Validity of Section 9. [quote]The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. Section 9 of the Hindu Marriage Act encompasses the provision for the restitution of conjugal rights, according to which, if either of the spouses withdraws themselves from the society of the other, without reasonable excuse, the other party which is aggrieved has a legal right of filing a petition demanding for the restitution of conjugal rights. Such withdrawal is without any reasonable cause or excuse. New Delhi, March 5 (IANS) A three judge bench of the Supreme Court will hear a petition challenging the constitutional validity of various legal provisions permitting the restitution of conjugal . Restitution of conjugal rights means the right to stay together. and refers to that Christian faith, which had official support of the Crown then. 13 In Gurdev Kaur v. Sarwan Singh 14, the wife's appeal against a decree of restitution of conjugal rights was given in favor of the husband. ABSTRACT. It places a disproportionate burden on women and is therefore violative of Articles 14 and 15(1) of the constitution. . Saroj Rani v Sudarshan Kumar case deals with the constitutional validity of Section 9 of Hindu Marriage Act, 1955, which deals with restitution of conjugal rights. Section 9 of the Hindu Marriage Act, 1955 provide the followings elements that must be fulfilled to claim the restitution of conjugal rights: Withdrawal from the community of the spouse. The concept of Restitution of Conjugal Rights is a legal remedy that cannot be found in the Dharmashastra or any personal law. That the withdrawal neither has a reasonable reason nor is legal. Even as the Hindu Marriage Act, 1955 was being enacted in the Parliament, there were voices of scepticism regarding the efficacy of the remedy. In the year 1983-1984 the constitutional validity of the section 9 of the Hindu marriage act, 1955 became a matter of debate. This right was for the very first time was implemented by the Privy Council in India, in the case of Moonshee Bazloor v. Shamsoonaissa Begum. The constitutional validity of Section 9, Hindu Marriage Act, 1955 was challenged for the first time in the case of T. Sareetha v. T. Venkata Subbaiah, on the ground of being in violation of rights guaranteed under Article 14, 19 and 21 of the Indian Constitution. Determination of husband entitlement to divorce when petition of restitution of conjugal rights was filed by wife. 2. - since a spouse is not barred by Sec 23(a) from claiming relief under . [dropcap]A[/dropcap] two-judge bench of the Supreme Court of India comprising Chief Justice of India (CJI) Ranjan Gogoi and Justice Sanjiv Khanna today referred to a three-judge bench, a petition challenging the constitutional validity of the restitution of conjugal rights as provided in Sections 9 and 22 of the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 respectively. 'restitution of conjugal rights' reveals that even though the decree of restitution of conjugal rights has been asked for by the husband against * Paper presented at the National Seminar on Personal Laws jointly organized by Indian Law Institute, Delhi and Dr. Ambedkar Government Law College, Pondicherry on 10-1 1 March 2002 at Pondicherry. 7 [***] 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 of the truth of the statements made in such petition and that there is no legal ground why the application . Sudarshan Kumar Chadha, which was presented with the constitutional validity of Section 9 upheld the view of the Delhi High Court and held that, conjugal rights is not a mere creation of a statute but the right of a husband or wife to the society of each other. Drop by our website: https://lawsikho.com/Constitutional Validity of Restitution of Conjugal RightsFind free law-related article. RELEVANT PROVISIONS. Essential Elements of Conjugal Rights. The Restitution of conjugal rights offends the guarantee of life and personal liberty and human dignity and decency. The main ground for the challenge has been that it is a violation of the fundamental right to privacy, individual autonomy and dignity of individuals protected under Article 21 of the . husband or wife. Constitutional Validity. even though the Constitution does not explicitly proclaim the right to privacy as a fundamental right, the said right is a quintessential element of individual freedom. "Restitution of conjugal rights has its roots in feudal England, . Conjugal rights mean or give the right to stay together. Last Updated on 1 year by Admin LB This article deals with the concept of restitution of conjugal rights under Hindu law. Hindu Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. Also, what remedies are available for the enforcement of a decree of restitution of conjugal rights? The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Hon'ble High Court held that the impugned section was unconstitutional. Restitution of Conjugal Rights. The problem was brought before the Delhi High Court and the Supreme Court of India, which claimed that the goal was to establish "coexistence" among partners and hence absorbed solely on "consortium." Harvinder kaur v. Harmander singh, AIR 1984 DelDelhi held it is not violative of Art and 21 of constitutional law in home is most inappropriate and it is like introducing a bull in china shop the privacy of home and married life neither Art 14 or 21 have any role. and therefore the wife's petition for restitution of conjugal rights was allowed. 3. That the respondent has withdrawn from the petitioner's society. The above contradictions about the constitutional validity of Sec 9 were set at rest by the Apex Court in this case. (Bom) 301.Further in the case of Saroj Rani v Sudarshan Kumar Chadha the Apex Court had upheld the constitutional validity of provisions pertaining to the restitution of conjugal rights. Justice Syed Murtaza Fazl Ali. While this right seems to be valid from the point of view that it is a remedy or a chance to protect the relationship and to save the family, the same does not seem to be so from the point that it forces one to stay with a person with whom he/she does not want to . AIR 1984 SC 1562, 1985 SCR (1) 303. . The earliest being in 1983 before the Andhra Pradesh High Court in T. Sareetha v. T. Venkatasubbaiah [3] where the Honorable High Court held that the section was unconstitutional. According to the constitutional validity of sec-9, it is to be noted that there arises an argument that restitution of conjugal rights clearly violates the right to privacy of the lady partner. 3. However, the supreme court on its judgment in Kharak Singh vs. the State of UP had held the right to privacy "is an essential ingredient of personal . In the famous case " Abdul Kadir V. Salima (1886), Court held that, "Muslim marriage is a civil contract between bride and groom. When the husband himself obstructed the execution of the decree of restitution of conjugal rights the wife was granted a decree for divorce. The constitutional validity of the provision for restitution of conjugal challenged before the Andhra Pradesh High Court in Sareetha v. T. Venkatasubbaiah [2]. Sareetha, in her petition, had raised the issue regarding the constitutional validity of sec 9 of the Hindu Marriage Act and stated that the section is violative of articles 14, 19, and 21. There have been long discussions on the Constitutionality of this provision. The only defence that is available to this is the argument of 'reasonable excuse', i.e. Article 14 Right to Equality Section 32A (1) of the Parsi Marriage and Divorce act, 1936 deals with non-resumption of co-habitation or the restitution of conjugal rights within one year in pursuance of a decree to be ground for divorce. Withdrawal from the society of the petitioner, by the respondent. SC seeks AG's assistance on plea against constitutional validity of restitution of conjugal rights. 3-4 (2003): 453-55. The authors intend to evaluate this provision by tracing its origin and viewing it from a feminist perspective while simultaneously examining its constitutional validity. 3. The first instances of the challenging validity of Section of Hindu Marriage Act were in 1983 before the High Court of Andhra Pradesh in T.Sareetha v. T. Venkatasubbaiah [3] , where the Hon'ble Court stated that the . Muslim marriage; Restitution of conjugal rights & Defences. constitutionality of section 9 • t. sareetha v. venkata subbaiah 1983, court held that the andhra pradesh high court has observed that the remedy of restitution of conjugal rights is a violation of right to privacy and human dignity guaranteed by article 21 of the constitution. The remedy finds its origin in Jewish law, which was brought into India by way of Common Law in the British Raj. An application Section 9 of the Hindu . If either of the spouse is insane or of unsound mind. However, restitution of conjugal rights is a provision in personal laws and not in penal laws and even that provision is currently under challenge before the Supreme Court. Last Updated on 2 years by Admin LB Introduction Marriage is just not only a ceremony, it also includes various marital duties and legal rights associated with it. Multiple practical and patriarchal problems in India in Case of all communities have passed decrees for of... 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