SMT. SAROJ RANIversusSUDARSHAN KUMAR CHADHA

                               SMT. SAROJ RANI                                        1A
                                            v.
                      SUDARSHAN KUMAR CHADHA

                                  August 8, 1984
                                                                                      B
          [S. MURTAZA FAZAL ALI AND SABYASACHI MUKHARJI, JJ.J

          Constitution of India 1950, Articles 13, 14 and 21 .
•
         Remedy of restitlltion of conjugal rights-Sectlon 9, Hindu Marrlage Act
    1955-Whether vio!ates human dignity 1 right to privacy and per~;,,al liberty-     C
    And whether valid and constitutional.

          Hindu Marriage Act 1955, Sectlpns 9, 13 and 23(1) (a).

           PetUion by wife for restltutz'on of conjugal rights-Hu~band consenting
    to the passing of a decree-Decree passed-Hi~sband after one year filing petf..    D
    tion under section 13 for divorce-Husband whether entitled to a decree of
    divorce.

           Code o.f Civil Procedure 1908, Order 21, Rule 32-Decree for restitu ..
    tlon of conjugal rights-Execution of.
                                                                                      E'
           The wife·appetlant filed a suit against the husband-respondent under
    Section 9 of the Hindu Marriage Act 1955, for restitution of conjugal
    rights. Though the respondent contested the petition contending that he
    had neither lurned the appellant out from his house nor withdrawn from
    her !'ociety, later as he made a statement in the Court that the application
    under Section 9 be granted; a consent decree was passed by the Sub.Judge           F
    for the restitution of conjugal rights between the parties.

          After a lapse of a year, the respondent-husband filed a petition under
•   Section 13 of the Act against the appellant for divorce on the ground that
     though one ye"l.r had lapsed, from the date of passing the decree for restitu-
    tion of conjugal rights, no actual co-habitation had taken place between          G
    the parties. The appellant filed her reply contending that she was taken
    to the house of the husband by her parents one month after the decree
    :'>nd that the hu~band kept her in the house for two days and then she was
    agai, 1urned out. It was further al.leged that an application unc!er Section
    28A Qle~ in the Subordina le Court was pending.                                   H
           304                    SUPREME COURT REPORTS                  (1985] 1 s.c.R.
     A            The District Judge after considering the evidence of the civil and
            criminal Proceedings pending between the parties, came to the conclusion
            that there had been no resumption of cohabitation between the parties
            and that in view of the provisions of Section 23 and in view of the fact
            that the previous decree was a consent decree 'and that at the time of the
            ;assing of the said decree, as there was no provision like Section 13B i.e.
     B
             divorce by mutual consent'; held that as the decree for restitution of
            conjugal rights was passed by the consent of the parties, the husband was
            not entitled to a decree for divorce.


                  The respondent filed an appeal. A Single Judge of the High Court
     c     fo11owing the decision of this Court in Dharmendra Kumar v. Usha Kumari
           [1978] l SCR 315, held that it could not be said that the husband was
           taking advantage of his 'wrongs1 , but however expressed the view that the
           decree for restitution of conjugal rights could not be passed with the
           consent of the parties, and therefore being a coUusive one disentitled
           the husband to a decree for divorce, and referred the matter to the Chief
 D         Justice for constitution of a Division Bench for consideration of the
           question.

                 The Division Bench held following Joginder Singh v. Smt. PuJhpa,
           AIR 1969 Punjab 1and Haryana page 397 that a consent decree could
           not be termed to be a collusive decree so as to disentitle the petitioner
 E         to a decree tor restitution of conjugal rights, and that in view of the
           language of Section 23 if the Court had tried to make conciliation bet.ween
           the parties and conciliation had been ordered, the husband was not
           disentitledl to get a decree. The appea1 was allowed, and the husband
           granted a decree of divorce.
 F
                 Jn the appeal to this Court it was contended on behalf of the wife-
          appel1ant that: (a) in view of the expression 'wrong' in Section 23(1) (a)
          of the Act, the husband was disentitled to get a decree for divorce, and
          (b) Section 9 of the Act was arbitrary and void as offending Article 14 of
          the Constitution.
G
                 Dismissing the Appeal,


                 HELD : (!) In India conjugal riqhts i.e. right of the husband or
          the wife to the society of the other spouse is not merely creature of the
          statute. Such a right is inherent in the very institution of marriage itself.
          There are sufficient safeguards in Section 9 of the Hindi;1 Marria~e Act tQ
ff       prevent it from bein~ a tyranny. [314 D-EJ
                  SAROJ RANi v. s. K. CHADHA (Mukharjl. J.)                   305

          2. Section 9 is only a codification of pre-existing law. Rule 32 of        A
    Order 21 of the Code of Civil Procedure deals with decree for specific
    performance for restitution of conjugal rights or for an injunction. [314 H]

           3. Section 9 of the Act is not violative of Article 14 or Article
    21 of the Con~titution if the purpose of the decree for restitution of conju-
    gal rights in the said Act is understood in its proper perspective and if the    B
    method of execution in cases of disobedience is kept in view. (315 G]

          T. Sareetha v. Venkata Subbaiah, A.I.R. 1983 Andhra Pradesh page
    3S6, over-ruled.

          Smt. Harvinder Kaur      v. Hormander Singh Choudhry, A.I.R. 1984
                                                                                     c
    Delhi, page 66, approved.

           4. It is significant that unlike a decree of specific perfOrmance of
    contract; a decree for restitution of conjugal rights, where the disobedience
    to such a decree is wilful i.e. is deliberate, might be enforced by attach-
                                                                                     D
    ment of property. Where tbe disobedience follows as a result of a wilful
    conduct i.e. where conditions are there for a wife or a husband to obey the
    decree for restitution of conjugal righ~s but disobeys the same in spite of
    such conditions, then only the properties have to be attached, is provided
    for. This is so to enable the Court in approPriate cases when the Court
    has decreed restitution for conjugal rights to offer inducement for the
                                                                                     E
    husband or wife to live together and to settle up the matter amicably. It
    serves a social purposeJ as an aid to the prevention of break-up of marriage.


-   [31S C-F]

           5. (i) Even after the final decree of divorce the husband would
    continue to pay maintenance to the wife until she remarries and would
    maintain the one living daughter of the marriage. Separate maintenance
                                                                                     F
    should be paid for the wife and the living daughter. Wife would be
    entitled to such maintenance only until she remarries and the daughter to
    her maintenance until she is' married. (316 c; E]

            (ii) Until altered by appropriate order on application or proper mate·
                                                                                     G
    rials, such maintenance should be Rs. 200 per month for the wife, and
    Rs. 300 per month for the daughter. (316 D]

          CIVIL APPPLLATa JURISDICTION : Civil Appeal No. 187of1983.

          From the Judgment and Order <laced the 17th August, 1982
    of the Punjab and Haryana High Court in First Appeal From Order
    No. 199-M of 1979.                                                               H
    306                  SUPREME COURT REPORTS                [1985] l S.C.R

A         R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the
    appellant.

            E.C. Agarwala, Mrs. H. Wahiand Rajiv Sharma for the respon-
    dent.

B           The Judgment of the Court was delivered by

          SABYASACHI MUKHARJi, J. The parties herein were married at
    Jullundur City according to Hindu Vedic rites on or about 24th
    January, 1975. The first daughter of the marriage Menka was born
c   on 4th January, 1976. On 28th Fcbrnary, 1977 second daughter
    Guddi was born. It is alleged that 16th May, 1977 was the last
    day of cohabitation by the parties. It is further alleged that on 16th
    May, 1977, the respondent-husband turned the appellant out of his
    house and withdrew himself from her society. The second daughter
    unfortunately expired in the house of the respondent/father on 6th
0   August, 1977. On 17th October, 1977, the wife-appellant filed a
    suit against the husband/respondent herein under Section 9 of the
    Hindu Marriage Act, 1955 hereinafter referred to as the said Act
    for restitution of conjugal rights.

          In view of the argument now sought to be advanced, it is
E   necessary to refer to the said petition. In the said petition, the wife
    had set out the history of the marriage as hereinbefore briefly
    mentioned and alleged several mal-treatments both by the husband
    as well as by her in-laws and thereaftar claimed decree for restitution
    of conjugal rights. On 21st March, I 978, the learned Sub-Judge
    Ist Class passed an order granting Rs. 185 per month as maintenance
F   pendente lite and Rs. 300 as the litigation expenses. On 28th
    March, 1978, a consent decree was passed by the learned Sub-Judge
    Jst Class for restitution of conjugal rights. It may he mentioned
    that on the petition of the wife for restitution of conjugal rights, the
    husband-respondent appeared and filed his written statement admitt-
    ing therein the factum of marriage between the parties but denied
G
    the fact that the respondent had ever made any demand from the
    petitioner as alleged or had ever disliked her or had withdrawn from
    her society or turned her out from his house as alleged by the wife-
    petitioner in her petition for restitution of conjugal rights. The
    respondent thereafter made a statement in the court that the appli-
    cation of the petitioner under Section 9 of the said Act be granted
    and decree thereof be passed. Accordingly the learned Sub:Judge
    Ist Class on 28th March, 1978 passed the decree for the restitutio'l
                      SARO! RANi v. s. k. CHADHA (Mukharji, J.)             307

        of conjugal rights between the parties. It was alleged by the              A
        petitioner-wife that the appellant had gone to the house of the
        respondent and lived with him for two days as husband and wife.
        This fact has been disbelieved by all the courts. The courts have
        come to the conclusion and that conclusion is not challenged before
        us that there has been no cohabitation after the pa!sing of the
        decree for restitution of conjugal rights.                                 B


               On 19th April, 1979, the respondent/husband filed a petition
        under Section 13 of the said Act against the appellant for divorce
        on the ground that one year had passed from the date of the decree
        for restitution of confugal rights, but no actual cohabitation had         c
    •   taken place between the parties. The appellant filed her reply to
        the said petition. The categorical case in reply of the appellant was
        that it was incorrect that after passing of the decree, there had been
        no restitution of conjugal rights between the parties, positive case
        of the appellant was that after passing of the decree, the wife was
        taken to the house of the husband by the parents of the wife after         D
        one month of the decree and that the husband kept the wife in his
        house for two days and she was again turned out. It was further
        alleged that the wife had filed an application under Section 28A of
        the said Act in the court of Sub-Judge, Ist Class, Ju!lundur on 22nd
        January, 1979 with the request that the husband should be dtrected
        to comply with the decree passed against him under Section 9 of            E
        the said Act and the application was pending at the time when the
        reply was filed by !he wife to the petition for divorce.

-
•               The learned District Judge on 15th October, 1979 dismissed
          the petition of the husband for divorc·. The learned Judge framed        F
          two issues, one was whether there has been no restitution of con-
         jugal rights dter the passing of the decree for the restitution of
         conjugal rights, and secondly to will.I relief was the husband entitled
         to ? After cqnsidering the evidence of civil and criminal proceed-
         ings pending between the parties, the learned Judge came to the
         conclusion that there has been no resumption of cohabitation              G
         between the parties after 28th March, 1978 and decided the issue in
         favour of the husband but on the question of relief the learned
        Judge was of the view that in view of the provisions of Section 23
        of the said Ac, and in view of the fact that the previous decree was
        a consent_ decree and at that time there was no provision like pro-
        vision of Section 13B of the said Act i.e. 'divorce by mutual consent',    H
        the learned Judge was of the view that as the decree for restitution
        :los                  SUPREME COURT REPORTS                 (1985) 1 S.C.R.
A
         of conjugal rights was passed by the consent of the parties, the hus-
         band was not entitled to a decree, for divorce.

               Being aggrieved by the said decision, there was an appeal
         before the High Court of Punjab and Haryana. So far as last
         mentione4 ground was concerned, the High Court held that in view
B        of the decision of this Court in the case of Dharmendra Kumar v.
         Usha Kumari, (1 ) this contention was not open to the wife. The
         court was of the opmion that in view of the said decision of this
         Court, it could not be said that the husband was taking advantage
         of his 'wrongs'. In the said decision this Court noted that it would
         not be reasonable to hold that the relief which was available to the
c        spouse against whom a decree for restitution of conjugal rights had
         been passed ~hould be denied to the one who does not comply with
         the decree passed against him or her. The expression "in order to
          be a 'wrong" within the meaning of Section 23 \!) (a) the conduct
         alleged has to be something more than mere disinclination to agree
         to an offer of reunion, it must be misconduct serious enough to
o·       justify denial of the relief to which the husband or the wife is
         otherwise entitled to. So, therefore, Section 23 ll) (a) provides as
         follows:-
                      "23. (1) In any proceeding under this Act, whether
                  defended or not, if the Court is satisfied that-
E
                       (a) any of the grounds for granting relief exists and
                  the petitioner except in cases where the relief is sought by
                  him on the ground specified in sub-clause (a), sub-clause (b)
                  or sub-clause (c) of clause (ii) of section 5 is not in any way
                  taking advantage of his or her own wrong or disability for
F                 the purpose of such relief and").
                 In that view of the matter, the High Court rejected the con-
          tention. So far as the other aspect was concerned, the learned
          Judge expressed the view that the decree for restitution of conjugal
          rights could not be passed with the consent of the parties and
G         therefore being a collusive one disentitled the. husband to a decree
          for divorce. This view was taken by the learned trial judge relying
           on a previous decision of the High Court. Mr. Justice Goyal of
          the High Court felt that this view required reconsideration and he
           therefore referred the matter to the Chief Justice for constitution of
          a Division Be11ch of the High Court for the consideration of this
           question.

    H          (I) [1978] l S.C.R. 315.
               SAROI RANi v. s. ic CHADHA (Mukhar}i.    i.)              3o9
       The matter thereafter came up before a Division Bench of                A
 Punjab and Haryana High Court and Chief Justice Sandhawalia for
 the sa'd court on consideration of different authorities came to the
conclusion that a consent decree could not be termed to be a collu-
sive decree so as to disentitle the petitioner to decree for restitution
of conjugal rights. It may be mentioned that before the Division
Bench on behalf of the appellant-wife, counsel did not assail the
factual finding of the Trial Court that there was no co-habitation
after the decree for restitution of conjugal rights nor did he press
the first ground of defence namely that the appellant could not take
advantage of his 'wrong' because of having refused cohabitation in
execution of the decree. However, the ground that the decree for
restitution of conjugal rights was in a sense collu,ive decree was             c
pressed before the Division Bench. In view of the Full Bench deci-
sion of the Punjab aud Haryana High Court in the case of Joginder
Singh v. Smt. Pushpa(') wherein the m1jority of the Judges of the
Full Bench held that a consent decree in all cases could not be said to
be a collusive decree and where the parties had agreed to passing of
                                                                               D
a decree after attempts had been made to settle the matter, in view of
the language of Section 23 if the court had tried to !]lake conciliation
between the parties and conciliation had been ordered, the husband
was not disentitled to get a decree.

      Section 23 sub-section (2) provides as follows :-
                                                                               E
           "(2)-Before proceeding to grant any relief under this
      Act, it shall be the duty of the court in the first instance, in
      every case where it is possible so to do consistently with the
      natnre and circumstances of the case, to make every endea-
      vour to bring about a reconciliation between the parties :
                                                                               F
           Provided that nothing contained in this sub-section
      shall apply to any proceeding wherein relief is sought on
      any of the grounds specified in clause (ii), clause (iii),
      clause (iv), clause (v), clause (vi) or clause (vii) of sub-
      section (I) of section 13."
                                                                               G
      In this case from the facts on record it appears that there was
no collusion between the parties. The wife petitioned against the
husband on certain allegations, the husband denied these allegations.
He stated that he was willing to take the wife back. A decree on
that basis was passed. It is difficult to find any collusion as such in

     (I)   A.l.R. 1969 Punjab and Haryaoa 397,                                 H
     310              SUPREME COURT REPORTS                   [1985J 1 s.c.ll..

A    the instant case. Apart from that we are in agreement with the
     majority of the learned judges of the Division Bench of Punjab and
     Haryana High Court in the case of Joginder Singh v. Smt. Pushpa
     (supra) that all cases of consent decrees cannot be said to be collu-
     sive. Consent decrees per se in matrimoniai matters arc not collusive.
     As would be evident from legislative intent of Section 13B that
B    divorce by mutual consent is no longer foreign to Indian law of
     divorce but of course this is a sabsequent amendment and was not
     applicable at the time when the decree in question was passed. In
     the premises we accept the majority view of the Division Bench of
     Punjab and Haryana High Court on this point.
c           In this appeal before this Court, counsel for the wife did not
      challenge the finding of the Division Bench that the consent decree
      as such .was not bad or collusive. What he tried to urge before us
      was that in view of the expression 'wrong' in Section 23(1) (a) of the
      Act, the husband was disentitled in this case to get a decree for
D1    divorce. It was sought to be urged that from the very begining the
      husband wanted that decree for divo'rce should be passed. He
      therefore did not deliberately oppose the decree for restitution of
      conjugal rights.' It was submitted on the other hand that the res-
      pondent/husband had with the intention of ultimately having divorce
      allowed the wife a decree for the restitution of conjugal rights
E     knowing fully well that this decree he would not honour and thereby
      he misled the wife and the Court and thereafter refused to cohabi-
     tate with the wife and now, it was submitted, cannot be allowed to
     take advantage of his 'wrong'. There is, however, no whisper of
     these allegations in the pleading. As usual, on this being pointed
     out, the counsel prayed that he should be given an opportunity of
F    amending his pleadings and, the parties, with usual plea, should not
     suffer for the mistake of the. lawyers. In this case, however,
     there are inmrmountable difficulties. Firstly there was no
     pleading, secondly this ground was not urged before any of the
     courts below which is a question of fact, thirdly the facts pleaded
     and the allegations made by the wife in the trial court and before
G    the Division Bench were contrary to the facts now sought to be
     urged in support to her appeal The definite case of the wife was
     that after the decree for restitution of conjugal rights, the husband
     and wife cohabitated for two days. The ground now sought to be
     urged is thatthe husband wanted the wife to have a decree for judicial
     separation by some kind of a trap and then not to cohabitate with
     her and thereafter obtain this decree for divorce. This would be
H    opposed to the facts alleged in the defence by the wife. Therefore
                    SAkoj RANI v. s. k. CHADHA (Mukharji, J.)             311

      quite apart from the fact that there was no pleading which is a seri-     A
      ous and fatal mistake, there is no -scope of giving any opportunity of
      amending the pleadings at this stage permitting the wife to make an
      inconsistent case. Counsel for the appellant sought to urge that
      the experession 'taking advantage of his or her own wrongs' in clause
      (a) of sub-section 23 must be construed in such a manner as would
     not make the Indian wives suffer at the hands of cunning and dis-          B
     honest husbands. Firstly even if there is any scope for accepting
     this broad argument, it has no factual application to this case and
     secondly if that is so then it requires a legislation to that effect. We
     are therefore unable to accept the contention of counsel for the
     appellant that the conduct of the husband sought to be urged against
     him could possibly come within the expression 'his own wrongs' in          c
     section 23(1) (a) of the Act so as to disentitle him to a decree for
     divorce to which he is otherwise entitled to as held by the courts
     below. Further more we reach this conclusion without any mental
     compunction because it is evident that for whatever be the reasons
     this marriage has broken down and the parties can no longer Jive
     together as husband and wife, if such is the situation it is better to     D
     close the chapter.

             Our attention, however, was drawn to a decision of a learned
       single judge of the Andhra Pradesh High Court in the case of
      ·r. Sareetha v. Venkata Subbaiah.(1) In the_ said decisio;i the learned   E
       judge has observed that the remedy of restitution of conjugal rights
       provided for by Section 9 of the said Act was a savage and barbar-
       ous remedy violating the right to privacy and human dignity guaran-
       teed by Article 21 of the Constitution. Hence, according to the
       learned judge, Section 9 was constitutionally void. Any statutory
      provision that abridged the rights guaranteed by Part III of the
       Constitution would have to be declared void in terms of Article 13

I     of the Constitution. According to the said learned judge, Article 21
      guaranteed right to life and personal liberty against the State action.
    . Formulated in simple negative terms, its range of operation positi-


I     vely forbidding the State from depriving any person of his life or
      personal liberty except according to the procedure established by Jaw
      was of far-reaching dismensions and of overwhelming constitutional
      significance. Learned judge observed that a decree for restitution of
      conjugal rights constituted the grossest form of violation of any indi-
      vidual right to privacy. According to the learned judge, it denied
      the woman her free choice whether, when and how her body was to

          (I)   A.I.R. 1983 Andhra Pradesh 356.
    312                   SUPREME COURT REPORts             (1985] 1 s.C.R.
A   become the vehicle for the procreation of another human being. A
    decree for restitution of conjugal rights deprived, according to the
    learned judge, a woman of control over her choice .as and when and
    by whom the various parts of her body should be allowed to be
    sensed. The woman loses her control over her most intimate decisions.
    The learned judge therefore was of the view that the right to privacy
B   guaranteed by Article 21 was flagrantly violated by a decree for
    restitution of conjugal rights.       The learned judge was of the
    view that a wife who was 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 was probably contemplating an action for
c   divorce, the use and enforcement of Section 9 of the said Act against
    the e;tranged wife coilld irretrievably alter her position by bringing    •
    about forcible conception permanently ruin;ng her mind, body and
    life and everything connected with it. The learned judge was there-
    fore clearly of the view that Section 9 of th<: said Act violated Arti-
    cle 21 of the Constitution. He reffered to the Scarman Commission's
D   report in England recommending its abolition. 1he learned judge
    was also of the view that Section 9 of the said Act, promoted no
    legitimate public purpose based on any conception of the general
    good. It did not therefore subserve any social good. Section 9 of
    the said Act was, therefore, held to be arbitrary and void as offending
    Article 14 of the Ccnstitution. Learned judge further observed that
E
    though Section 9 of the Sdid Act did not in form offend the classi-
    fication test, inasmuch as it made no discrimination between a hus-
    band and wife, on the other hand, by making the remedy of re;ti-
    tution of conjugal rights equally available both to wife and husband,
    it apparently satisfied the equality test. But bare equality of treat-
F   ment regardless of the inequality of realities was neither justice nor
    homage to the constitutional principles. He relied on the decision
    of this Court in the case of Murthy Match Works, Etc. Etc. v. The
    Assistant Collector of Central Exice Etc.( 1) The learned judge, how-
    ever, was of the opinion based on how this remedy was found used
    almost exclusively by the husband and was rarely resorted to by the
G   wife.

          The learned judge noticed and that is a very significant point
    that decree for restitution of conjugal rights can only be enforced
    under Order 21 Rule 32 of Code of Civil Procedure. He also
    referred to certain trend in· the American law and came to the

H    (I) (1974}3 S.C.R. 121.
              SAROJ RANi. v. s. K. CHADllA (Mukharji, J.)          313

 conclusion that Section 9 of the said Act was null and void. The        A
above view of the learned single judge of Antlhra Pradesh was
 dissented from in a decision of the learned single judge of the Delhi
 High Court in the case of Smt.Harvfnder Kaur v. Harmander Singh
 Chaudhry('). In the said decision, the learned judge of the Delhi
High Court expr"ssed the view that Section 9 of the said Act was
not violative of Articles 14 and 21 oi the Constitution. The learned     B
judge noted that the object of restitution decree was to bring about
cohabitation between the estranged parties so that they could live
 together in the matrimonial home in amity. The leading idea of
Section 9 was to preserve the marriage. From the definition of
cohabitation and consortium, 'it appeared to the learned judge that
 sexual intercourse was one of the elements that went to make up
                                                                         c
the marriage, but that was not the summum bonum. The courts
do not and can not enforce sexual intercourse. Sexual relations
constituted an important element in the conception of marriage,
 but it was also true that these did not constitute its whole content
 nor could the remaining aspects of matrimonial consortium be· said      D
to be wholly unsubstantial or of trivial character. The remedy of
restitution aimed at cohabitation and consortium and not merely at
sexual intercourse. The learned judge expressed the view that t\le
restitution decree did not enforce sexual intercourse. It was a
fallacy to hold that the restitution of c!:mjugal rights constituted
"the starkest form of governmental invasion" of "marital privacy''.      E
      This point namely validity of Section 9 of the said Act was
not canvassed in the instant case in the courts below counsel for the
appellant, however, sought to urge this point before us as a legal
proposition. We have allowed him to do so.
       Having considered the views of the learned single judge of the    F
 Andhra Pradesh High Conrt and that of learned single judge of
Delhi High Court, we prefer to accept on this aspect namely on the
validity of Section 9 of the said Act the views of the learned single
judge of the Delhi High Court. It may be mentioned that conjugal
rights may be viewed in its proper perspective by keeping in mind
                                                                         G
the dictionary meaning of the expression "Conjugal". Shorter
Oxford English Dictionary, 3rd Edn. Vol. I page 371 notes the
meaning of 'conjugal' as "of or portaining to marriage or to husband
and wife in their relations to each other''. In the Dictionary of
English Law, 1959 Edn. at page 453, Earl Jowitt defines 'conjugal
rights' thus :
 (I) A.l.R. 1984 Dolhi, 66.
                                                                         H
                         SUPREME cotlRT REPOl\TS            [1985) 1 s.c.k.

A             "The right which husband and wife have to each other's
          society and marital intercourse. The suit for restitution of
          conjugal rights is a martimonial suit, cognizable in the
          Divorce Court, which is brought whenever either the
          husband or t~e wife lives separate from the other without
          any sufficient reason, in which case the court will decree
B         restitution of conjugal rights (Martimonial Causes Act,
          1950, s. 15), but will not enforce it by attachment, substi-
          tuting however for attachment, if the wife be the petitioner,
          an order for periodical payments by the husband to the
          wife (s.22).
c              Conjugal rights cannot be enforced by the act of either
          party, and a husband cannot seize and detain his wife by
          fo1ce (R. V. Jackson [1891] l Q .. B. 671)".

           In India it may be borne in mind that conjugal rights i.e. right
·o   of the husband or the wife to the society of the other spouse is not
     merely creature of the statute. Such a right is inherent in the very
     institution of marriage 'itself. See in this connection Mulla's Hindu
     Law-15th Edn. p. 567-Para 443. There are sufficient safeguards
     in Section 9 to prevent it from being a tyranny. The importance
     of the concept of conjugal rights can be viewed in the light of Law
E    Commission-7lst Report on the Hindu Marriage Act, 1955-
     "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para
     6.5 where it is stated thus :-

                "Moreover, the essence of marriage is a sharing of
           common life, a sharing of all the happiness that life has to
 F         offer and all the misery that has to be faced in lifr, an
           experience of the joy that comes from enjoying, in· common,
           things of the matter and of the spirit and from showering
           love and affection on one's offspring. Living together is a
           symbol of such sharing in all its aspects. Living apart is
           a symbol indicating the negation of such sharing. It is
 G         indicative of a disruption of the essence of marriage-
           " breakdown" and if it continues for a fairly long period,
           it would indicate destruction of the essence of marriage-
           "irretrievable breakdown".

            Section 9 only is a codification of pre-existing law. Rule 32
     of Order 21 of the Code of Civil Procedure deals with decree for
 H   specific performance for restitution of conjugal rights or for an
                   SAROJ RANI'" s. K. CHADIJA (Muk/;arji J.)                315

    injuction.   Sub-rule (I) of Rulp 32 is in these terms:
                                                                                  A
               "Where the party against whom a decree for the speci-
          fic performance of a contract, or for restitution of conjugal
          rights or for an injunction, has been passed, has had an
          opportunity of obeying the decree and has wilfully failed
          to obey it, the decree may be enforced in the case of a
                                                                                  B
          decree for restitution of conjugal rights by the attachment
          of his property or, in the case of a decree for the specific
          performance of a contract, or for an injuction by his deten-
          tion in the civil prison, or by the attachment of his pro-
          perty, or by both.''
•
             It is significant to note that unlike a decree of specific perfor-   c
      mance of contract, for restitution of conjugal rights the sanction j,
       rovided by court where the disobedience to snch a decree is wilful!
     f.e. is deliberate, in spite of the opportunities and there are no other
     impediments, might be enforced by attachment of property. So the
     only sanction is by. attachmen~ of property against disobedience of          D
     a decree for restitution of conjugal rights where the disobedience
     follows as a result°of a wilfull conduct i e where conditions are
     there for a wife or a husband to obey the decree for restitution of
     conjugal rights but disob~ys the same in spite of such conditions,
     then only financial sanction, provided he or she has properties to
     be attached, is provided for. This is so as an inducement by the             E
     court in appropriate case when the court has decreed restitutwn for
    conjugal rights and that the court can only decree if there is no just
    reason for not passing decree for restitution of conjugal rights to
    offer induceroent for the husband} or wife to live together in order
    to give th< m an opportunity to settle up the matter amicably. It
    serves a social purpose as an aid to the prevention of break-up of            F
    marriage., It cannot be viewed in the manner the learned single
    judge of Andhra Pradesh High Court has viewed it and we are
    therefore unable to accept the position that Section 9 of the said
    Act is violative of Artiole 14 or Article 21 of the Constitutition if
    the purpose of the decree for restitution of conjugal rights in the said
                                                                                  G
    Act is understood in its proper perspective and if the method of its
    execution in cases of disobedience is kept in view.                           .    '


         Another decision to which our attention was drawn is also a
    Bench decision of the Andhra Pradesh High Court in the case of
    Geeta Laxmi v. G.V.R.K. Sarveswara Rao<1 ). There on the admitted
                                                                                  ff
          (l)_A.I.R. 1983 An~hra Pradesh Ill.
      316                 SUPREME COURT REPORTS                (1985) 1 s.c.R.

A     misconduct of the husband is not only in not complying with the
      decree for restitution of conjugal rights but ill-treating the wife and
      finally driving her awey from the house, it was held that the husband
      was not entitled to a decree under Section 13(1A) of the said Act
      in view of the wrong as contemplated under Section 23(1) (a) of the
      Act.· The facts of that case were entirely different from the facts
B     of the instant case before us. There is no such allegation or proof
      of any ill-treatment by the husband or any evidence of the husband
      driving the wife out of the house. In that view of the matter, this
      decision cannot be of any assistance to the appellant in the instant
      case.

c           Counsel for the appellant, however, contended before us that
     in the social reality of the Indian society, a divorced wife would be
     materially at a great disadvantage. He is right in this submission.
     In view, however, of the position in law, we would direct that even
     after the final decree of divorce, ~he husband would continue to pay
     maintenance to the wife until she remarries and would maintain the
D.   one living daughter of the marriage. Separate maintenance should
     be paid for the wife and the living daughter. Until altered by
     appropriate order on application on proper materials such mainte-
     nance should be Rs. 200 per month for the wife appellant and
     Rs. 300 per month for the daughter Menka. Wife would be
     entitled to such maintenance only until she .re-marries and the
E    daughter Menka to her maintenance until she is married. Parties
   . will· be at liberty to ask for variation of the amounts by proper
     application on proper materials made before Sub-judge Ist Class
     Jullunder. The respondent would pay costs of this appeal to
     appellant assessed at Rs. 1500.

            The appeal is dismissed with the aforesaid directions.
F




G     N.V.K.                                               Appeal dismissed.