Introduction:
This was one of its kind judgement in the history of section 9 of Hindu Marriage Act, 1955. In 1983, the Andhra Pradesh high court held that section 9 which aims at restitution of conjugal rights is unconstitutional. It was so because it violates the fundamental rights enshrined in our constitution. The lordship in the instant case held that this concerned section violates the right to privacy enshrined in article 21 and also violates article 14 of the Indian constitution. The court held that forcing an unwilling person to live with his/her spouse violates the right to privacy and bodily integrity.
However, when the issue of the constitutionality of section 9 came up before Delhi High Court in case of Harmander Kaur Vs. Harvinder Singh Choudhary the court took up an exactly opposite view that section9 does not violates any fundamental rights rather it is aimed at establishing consortium and to fulfil the basic purpose of marriage i.e. husband and wife should live together and fulfil the vows of marriage. The view of Delhi HC was accepted by the Supreme Court of India in the case of Saroj Rani Vs. Sudarshan Kumar Chadha. So the current position of section 9 is that it is constitutionally valid.
Facts
T. Sareetha, the petitioner, is a well-known film-actress of South Indian screen. VenkataSubbaiah, the respondent, hails from Cuddapah where he owns a house and agricultural land. Both the petitioner and respondent are wife and husband respectively. Their marriage was solemnized under the Hindu Marriage Act, 1955. Their marriage was held on 13/12/1975 at Tirupati when Sareetha was hardly aged 16 years of age and was studying in a high school at Madras and staying with her parents at the same place. For 6 months after being married they stayed at Cuddapah, and after that, they went to Madras and they stayed with petitioners parents for some time. It was immediately, thereafter, that they went in separation with each other and for more than five years, they were continuously living apart at distinct places.
So, VenkataSubbaiah filed a petition under section 9 of Hindu Marriage Act, 1955 for the restitution of conjugal rights in the sub court of Cuddapah. The lower court was of the view that it has the jurisdiction to try the instant civil suit. This view of the lower court has been challenged by T, Sareetha in the instant civil revision petition before the hon’ble A.P. high court. Also, she challenges the constitutional validity of section 9 of the act.
Issues
1.What is their ‘last residence’ in the instant case?
2. Whether section 9 of the HMA is constitutionally valid?
Holdings of the Court
With respect to the first issue, the court held that their last place of residence is at Cuddapah and not at Madras, as contended by the petitioner. This issue was concerned with the interpretation of the word ‘resided’ in section 19(iii). The court was of the firm view that by the word residence it is implied their permanent place of dwelling and not that place where they resided for short sojourns.
As far as the second issue is concerned, the decision of the court was two-fold; firstly it termed this matrimonial remedy as savage and barbarous violating the right to privacy and human dignity as enshrined by the constitution of India in article 21.
Secondly, it regarded it as the violation of article 14 of the Indian constitution because it fails the test of traditional classification and test of minimum rationality.
Rationale (reasoning of the court)
The court for the purpose of determining their last place of residence analysed section 19(iii) of Hindu Marriage act. In this context, the court relied on the literal meaning of the term i.e. “to dwell permanently or for the length of time.” In addition to this definition, the court also relied on the meaning given to the term by Ridley j. in Stoke-on-Trent Borough Council Vs. Cheshire County Council[1]. On the basis of above definitions, the court held that the term resided merely does not mean any temporary stay, rather it means the place where they permanently dwell or in other words, the nature and duration of stay should be permanent in nature and not temporary.
For the second issue court held that since the decree for restitution of conjugal rights extends not only to the relief of enjoying the company of spouse; it also brings with itself sexual cohabitation as its necessary ingredient. As per the court to allow this matrimonial remedy would in a way be implying that it is correct and justified for an unwilling spouse (majority in the cases wife) to have sex with the other spouse. Without an iota of doubt, it can be said that such a relief offends the inviolability of the body and the mind and it invades the integrity, material privacy and domestic intimacies of such spouse.
The court while declaring it to be violative of Article 14 of the Indian Constitution focuses on the test of traditional classification and test of minimum rationality. For the court, this section does not directly discriminate between man and woman but indirectly as this remedy, in most of the cases, is opted by husband and ultimately wife has to suffer. In the view of the court, this section discriminates indirectly and, therefore, in real life it treats both of them unequal and bare equality is not justice. In the view of the court, this section does not pass the other test of article 14 i.e. test of minimum rationality because it does not have any legislative public purpose on the basis of some public good.
Obiter Dicta (observation of the court)
As we all know that in every precedent there is some observation of the court on the basis of which the court pronounces its judgement but that is not legally authoritative. This case is no exception. In this case, the court has observed with respect to the first issue that in the case where husband and wife do not have a permanent place and they wander from one place to another, in that case, the court will have to declare even a temporary stay as a permanent place of residence. The court also gave an example of the temporary stays such as a stay in a hotel for a short period, or any stay pursuing temporary purpose such as seeking pleasure or visiting a friend amounts to temporary residence.
For violation of article 21, the court very beautifully gave an example of Anna Saheb vs. Tara Bai[2], case of Madhya Pradesh HC. In this case, the court passed a decree for restitution of conjugal rights in favour of husband stating that a petition cant solely be dismissed on the ground that wife does not like her husband and the husband is of good conduct. The A.P. HC to this case remarked that “what would have happened to tarabai can be left to the imagination of readers.” The court also referred to the British law commission reports which recommend the British Legislature to repeal this remedy and consequently the parliament repealed that section. The court observation from this act was that if the country which evolved it has repealed it and for no reason, this should be allowed to remain in our Hindu laws.
Conclusion
This case remains an important authority in the family law discussions as it is one of the rare cases in the constitutional history of India in which a court considered constitution as a transformative document and not as a static document. This decision because of its unfamiliar, bold and creative direction[3] is considered to be a path-breaking and one of its kind judgement. I found the reasoning of the court to be very influencing, especially for violation of the right to privacy. Since the Supreme Court has upheld the constitutionality of section 9 lex loci stills remains the same as it was in pre-1983. But if we consider the new emerging legal concepts like marital rape (though it is still not recognized as a legal crime) this case becomes extremely relevant as it has focused on that in 1983 itself.
References:
[1] (1913) 3 K.B. 599
[2] AIR 1970 MP 36
[3] Gautam Bhatia, T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision, Experts and Views, 13/01/2016, https://www.legallyindia.com/blogs/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-decision
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