In introduction to 59th law commission of india report, former chief justice of india mr. Conjugal rights under hindu marriage act, 1955 our legal world. Constitutional validity and ethicalness of restitution of conjugal rights in. The grounds inter alia include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, virulent and incurable form. Restitution of conjugal rights, procedure and constitutionality.
Short title and extent 1 this act may be called the hindu marriage act. The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. Hindu marriage act section 9 judgments legalcrystal. The fundamental discussion of the research is to discern whether or not restitution as a remedy, is ethical and whether or not this practice is constitutionally valid. Restitution of conjugal right indian national bar association.
Sc notice to centre in challenge to restitution of. Certain courts have also held section 9 as unconstitutional and that article 21 of the constitution is violated by it but the supreme court has eventually put an end to the controversy through various judgments. The petition assails the 1984 judgment of the supreme court in the case of saroj rani v. Hindu law valid, void and voidable marriages under hindu. Constitutional validity of section 497 in yusuf abdul aziz vs the state of bombay and husseinbhoy laljee, 1954 scr 0930. Harmander singh, hindu marriage act, landmark judgment of.
Venkata subbaiah filed for restitution of conjugal rights under section 9 of the hindu marriage act, 1955 hereinafter the act at the subcourt, cuddapah. It is significant to note that in 19831984, the constitutional validity of section 9 of hindu marriage act 1955 became a subject matter of debate as a result of these case laws the constitutional validity of the provision for restitution of conjugal challenged before the andhra pradesh high court in sareetha v. It has been discussed in three landmarks and most important cases. The constitutional validity of section 9 of the hindu marriage act,1955 has always been a matter of debate. Ii1998dmc454 think that it is unnecessary to go to other details in this caseas we observe that since one of the parties to the marriage is not hindu, theprovisions in hindu marriage act cannot be invoked and no relief of conjugal rights. Conjigal rights is available under section 9 of the hindu marriage act, 1955.
Breifly outline the requisites necessary for the christian marriage. Air 1954 sc 0321, the constitutional validity of section 497 was challenged before apex court under article 14 of constitution of india on the grounds that it makes an arbitrary discrimination based on sex. It states that if one of the spouses abandons the other without any reasonable cause, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. Xxv of 1955 an act to amend and codify the law relating to marriage among hindus be it enacted by parliament in the sixth year of the republic of india as follows. The constitutional validity of the above section was challenged in the case of gita hariharan v.
According to section 29 of the hindu marriage act, dissolution of a hindu marriage can also be obtained through a valid custom. In the classical hindu law, karta was the unquestioned custodian and guardian of the dependants. Compelling wife to cohabit with husband violates fundamental. Constitutional validity of section 9 was also denied as it failed the traditional classification test and the test of minimum rationality required of any state law. 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. Act where as hindu minority and guardianship act, 1956 is an act especially for hindus. It was the contention of sareetha that the subcourt, cuddapah had no jurisdiction over the matter, as the marriage took place at tirrupathi and the couple last resided together at madras. Conjugal rights under hindu marriage act, 1955 our legal. Sc notice to centre in challenge to restitution of conjugal. State of up 9 has held right to privacy is an essential ingredient of personal liberty. Two gnlu students challenge the constitutional validity of.
After 67 months because of personal disputes, both the family decide for a. Constitutionality of remedy of restitution of conjugal rights provided under sec 9 of the act. When either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply, by a petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made. In hindu religion, bigamy is not allowed hence according to the section 20 of hindu marriage act 2016 such person shall be punished according to sections 494 and 495 of pakistan penal code. Sudarshan kumar chadha that upheld section 9 of the hindu marriage act, which provides for restitution of. By 1976 amendment, explanation was added and sec 92 was deleted. Supreme court issues notice to attorney general on a plea.
It is significant to note that in 19831984, the constitutional validity of section 9 of hindu marriage act 1955 became a subject matter of debate as a result of these case laws. Restitution of conjugal rights in hindu marriage act. All decrees made by the court in any proceeding under this act shall, subject to the provisions of subsection 3, be appealable as decrees of the court made in the exercise of its original civil jurisdiction. Virtual legal assistant, query alert service and an adfree experience. 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. Restitution of conjugal rights and judicial separation 9. November 30, 2014 if your spouse has left you without giving any reasonable ground, the hindu marriage act 1955 gives you remedy in the form of section 9 under the restitution of conjugal rights. Download beautiful, colourful hindu marriage act pdf. Constitutional validity of the section 9 of the hindu. Hindu marriage act 2016 empowers the existing family courts in country to deal with the matters according to this act. The above contradictions about the constitutional validity of sec 9 were set at rest. Discuss the constitutional validity of restitution of conjugal right with the help of leading case law. Sudharshan gave a judgment which was in line with the delhi high court views and upheld the constitutional validity of the section 9 of the hindu marriage act, 1955 and overruled the decision given in t.
Vijay sardana marriage is the voluntary union of one man with one woman to the exclusion of all others, satisfied by the solemnisation of the marriage. Restitution of conjugal rightsmarriage is just not only a ceremony, it also includes various marital duties and legal rights associated with it. Supreme court must reconsider the constitutional validity of section 9 of the hindu marriage act, which empowers courts in india to effectively. Marriage laws amendment bill2010 is constitutionally valid and it is in the true spirit of constitution of india and satisfies the ground of reasonableness. Although the supreme court is its judgement of kharak singh vs. It was held that the remedy of restitution of conjugal rights is violation of articles 14, 19 and 21 of the constitution of india. One such anomaly is the remedy of restitution of conjugal rights, as over the years the original intent of this remedy has faded away and is now a tool for abuse and exploitation. The petitioners have sought for section 9 of the hindu marriage act and section 22 of the special marriage act to be struck down. Section 9 of the hindu marriage act, 1955 provides that when the husband or the. India today referred a challenge to the constitutional validity of the provisions relating to restitution of conjugal rights to a larger bench. Marriage act, 1954 and the hindu marriage act, 1955, there were heated debates in the parliament for and against it. There has been a lot controversy regarding the constitutional validity of section 9 of the act. Our services provides you a simple and easy way to obtain divorce and settlements quickly and easily.
In any proceeding under this act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition. 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. The question of constitutional validity of section 9 of hindu marriage act, 1955, for the first time arose in this case. Article 21, conjugal rights, constitutional validity of section 9 of hindu marriage act, execution of decree of restitution of conjugal rights, harvinder kaur v. Venkatta subbaiah 8, observed that the decree of restitution of conjugal rights is uncivilized, barbarous, an engine of. Additionally, the enforcement of restitution of conjugal rights as provided for under order xxi rule 32 and 33 of the code of. Section 9 of hindu marriage act, 1955 hma provides for restitution of conjugal rights rcr. Constitutional validity of marriage laws amendment bill2010. Hindu marriage act, restitution of conjugal right, indian personal laws. If your spouse has left you without giving any reasonable ground, the hindu marriage act 1955 gives you remedy in the form of section 9 under the restitution of conjugal rights. Section 9 of the hindu marriage act, 1955 1 states, 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. Jan 03, 2018 restitution of conjugal rights is a barbarous and savage remedy, violating the right to privacy and human dignity guaranteed by article 21. Be it enacted by parliament in the sixth year of the republic of india as follows. An act to amend and codify the law relating to marriage among hindus.
Prior to the enactment of the hindu succession amendment act, 2005 four states had amended the hindu succession act and had introduced unmarried daughters as coparceners. Family laws hindu law, muslim laws, special marriage act. Dec 07, 2014 also under section 1a of the hindu marriage act, if the spouse fails to return to his home after such a decree, it can amount to a condition of divorce. Section 9 hindu marriage act, 1955 bare act, bare act. There are a number of cases that challenged the validity of section 9 of the hindu marriage act. Dear sirs, i got married in june 2010, my wife was from indore, mp, i am basically from rajasthan. Short title and extent 1 this act may be called the hindu marriage act, 1955. This has birthed several anomalies in the system of hindu personal laws. Marriage, sacrament, hindu marriage act, 1955, restitution of conjugal right, constitutional validity. Pdf the dissolution of a hindu marriage by divorce. Apr 27, 20 sudharshan gave a judgment which was in line with the delhi high court views and upheld the constitutional validity of the section 9 of the hindu marriage act, 1955 and overruled the decision given in t. Sudharshan kumar gave a judgment which was in line with the delhi high court views and upheld the constitutional validity of the section 9 of the hindu marriage act, 1955 and overruled the decision given in t. Additionally, the enforcement of restitution of conjugal rights as provided for under order xxi rule 32 and 33 of the code of civil procedure is also sought to be struck down.
This remedy of restitution of conjugal rights has been laid down under section 9 of hindu marriage act, 1955. The petitioners have prayed that section 9 of the hindu marriage act and section 22 of the special marriage act be struck down. Harvinder kaur vs harmander singh choudhry on 15 november, 1983. After 67 months because of personal disputes, both the family decide for a divorce. The wife, who has been granted the decree for maintenance under section 18 of hindu adoption and maintenance act,1956 or under section 125 of cr. Constitutional validity and ethicalness of restitution of. Restitution of conjugal rights a comparative study among. A manual of hindu law on the basis of sir thomas strange.
Sec 9 of the act deals with restitution of conjugal rights. At present, various grounds for dissolution of marriage by a decree of divorce are laid down in section of the hindu marriage act, 1955. Constitutionality of restitution of conjugal rights lawlex. Three other important acts were also enacted as part of the hindu code bills during this time. It is significant to note that in 19831984, the constitutional validity of section 9 of hindu marriage act 1955 became a subject matter of debate. The desirability and constitutional vires of this provision as noted above, has been a subject of debate ever since the decision of the andhra pradesh high court in t. Constitutional validity and ethicalness of restitution.
Air1981ap362 as a suit provided that a specific provision is made in that behalf in the statute e. Feb 19, 2014 constitutional validity of section 497 ipc 1. Mar 01, 2017 the wife, who has been granted the decree for maintenance under section 18 of hindu adoption and maintenance act,1956 or under section 125 of cr. Restitution of conjugal rights under hma conditions. Hindu marriage act, 1955 bare acts law library advocatekhoj. Restitution of conjugal rights legal services india.
Since a spouse is not barred by sec 23a from claiming relief under sec 1a, the decree was passed. The judicial decisions are no different in approach and are much dependent on doctrine of factum valet that accords validity to the child marriage emphasizing more on the dictates of the hindu religious scriptures and personal law. Conjugal rights under section 9 of hindu marriage act, 1955 our legal world, t sareetha vengata, sudharshan kumar v. Sec 9 of the act deals with restitution of conjugal. The hindu marriage act is an act of the parliament of india enacted in 1955. A void marriage as par hindu marriage act is one that requires no formality to terminate, as it was invalid from the very beginning as it did not follow the strict grounds of a valid marriage as prescribed in the act. Constitutional validity of the section 9 of the hindu marriage act, 1995 article shared by by marriage the husband becomes entitled to the conjugal society of his wife and the wife to the conjugal society of her husband.
Hindu marriage act 1955 section 28 appeals from decrees. Important questions on family lawi glocal university. In 19831984, the high court of andhra pradesh in t. Home hindu law hindu marriage act, 1955 section 9 hindu marriage act, 1955. Hindu law valid, void and voidable marriages under hindu marriage act, 1955. Jun 16, 2018 hindu law in particular regards marriage as a sacramentindissoluble and eternal. Constitutional validity of section 9 it is to be noted that there arises a contention that restitution of conjugal rights clearly violates right to privacy of the wife.
However, it creates confusion by declaring some marriages void and. Section 9 of the hindu marriage act, 1955 deals with restitution of conjugal rights. It serves as a social purpose as an aid to the prevention of breakdown of marriage. If either of the spouse, without reasonable excuses, doesnot live with the other spouse, the latter aggrieved party can approach the court for re. Hindu marriage act,1955 and special marriage act, 1954. Restitution of conjugal rights under the hindu marriage act. The section 9 of the hma reads that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may. The dissolution of a hindu marriage by divorce 377. Jun 07, 2017 determination of husband entitlement to divorce when petitioning of restitution of conjugal rights was filed by the wife. The simplest way to get out of the marriage is by way of mutual consent divorce, a couple can seek mutual divorce under section b of the hindu marriage act. Hindus under section 9 of the hindu marriage act, 1955, muslims under general law, christians under section 32 and 33 of the indian divorce act, 1869, parsis under section 36 of the parsi marriage and divorce act, 1936 persons married according to the provisions of the special marriage act, section 22 of the special marriage act, 1954. Mar 16, 2019 the petitioners have prayed that section 9 of the hindu marriage act and section 22 of the special marriage act be struck down. Define the essential elements of hindu marriage under section 5 of hindu marriage act,1955.
232 979 658 975 1217 930 879 1299 348 1379 934 1370 1236 1240 746 1336 1416 588 1329 1370 373 110 1197 422 1232 449 929