By Arshya Wadhwa

Abstract

This article examines the evolution of judicial interpretations of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in India, highlighting its patriarchal roots and impact on women’s autonomy. Through cases like Swaraj Garg v. K.M. Garg, it explores shifting legal perspectives on matrimonial domestice decisions. While progressive rulings have challenged its coercive nature, the provision remains a tool of systemic control, necessitating constitutional reconsideration.

Introduction 

The first part of this article will seek to demonstrate the manner in which patriarchal customs pertaining to marriages has continued its presence through judicial decisions. Through the decisions of cases discussed in Sunil Juneja v. Sonia and Dimple@Rani v. Ashok Rawat, judiciary’s role in sustaining patriarchal ideologies has been effectively highlighted. However, the courts with time have shifted the paradigm around this discussion. The judgement of Swaraj Garg v. K.M Garg (hereinafter referred to as “Swaraj Garg”) elaborated on the fact that the role of women is not merely that of a subordinate nobody in a marriage. Moreover, the view held by the court in this case helps us in understanding the legality of the provision for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 as well. 

Swaraj Garg v Union of India: Procedural history and facts 

In Swaraj Garg, the wife, a teacher in Sunam since 1956, married her husband on July 12, 1964. The husband, who had spent years abroad without securing stable employment, eventually worked in Delhi, earning Rs. 600 per month. While the husband’s family were farmers in Lehra, the wife’s father was a petition writer in Sunam. The couple never discussed or agreed upon a permanent matrimonial home. After brief stays with her husband in Delhi between July 1964 and February 1965, the wife returned to Sunam. The husband then filed for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as “Section 9”), claiming desertion without just cause. The trial court dismissed his petition, but a learned single judge allowed it on appeal. Consequently, a Letters Patent Appeal was heard. The main issue that was ultimately raised in this case was the place of matrimonial home after the marriage when the husband and wife are employed in two different places. Other ancillary yet connected issues pertained to whether the wife in such a case was the sole responsible person for leaving her lifestyle for her husband and most importantly whether there is a valid case by the husband at all for invoking restitution of conjugal rights or not. 

The petitioner-husband argued that his wife’s estrangement was driven by her parents’ desire to depend on her income and that they  influenced her to return home. He claimed the wife was abusive, short-tempered, and unfit for married life, making her irritable and distant. Additionally, he stated that he wished to bring his elderly father to live with them, which allegedly contributed to their discord. Thereafter, the respondent-wife refuted these claims, asserting that her initial loneliness after marriage was natural and not the cause of separation. She denied objecting to her father-in-law living with them or that her parents relied on her salary. She further argued that the husband had been abusive, financially exploitative, and had already taken a substantial dowry along with her jewelry, clothing, and other valuables. She alleged that he kept all financial resources to himself while neglecting her and denying her medical care, even during childbirth. Her primary reason for refusing to live with him was his continuous mistreatment and cruelty.

The Court in this case granted a decree in the favour of the respondent wife and not the petitioner husband against the restitution of conjugal rights. The court herein mentioned that when both the parties are bread earners, there is no law to stop the wife to live separately. Moreover, the court stated that in Hindu Law, there is no provision which halts the wife’s choice of matrimonial home. It was also stated by the court that per Section 9, the party invoking the right cannot obtain restitution as the wife had a reasonable excuse to leave the house given her career opportunity. Thus, based on mutual convenience, the place of matrimonial home can be decided. 

Progressive glance and analysis through Swaraj Garg

The Swaraj Garg case presents a significant shift in judicial reasoning regarding the autonomy of women in marriage and the choice of the matrimonial home. The court dismissed the husband’s claims that the wife’s parents sought to live off her income, noting the contradiction in his argument.While accusing her parents of financial dependence, he himself had taken a substantial dowry and continued to demand money. The court recognized that initial sadness upon marriage is a natural emotional response and not indicative of an unwillingness to fulfill marital obligations. Crucially, the court emphasized that the choice of the matrimonial home should not automatically vest with the husband but must be determined by mutual agreement, considering both parties’ circumstances. This aligns with English legal principles, which reject an absolute rule allowing one spouse to dictate the location of the home and instead advocate a balance of convenience. The ruling acknowledged that while a husband traditionally bears the duty to maintain his wife, in cases where the wife is financially independent, she cannot be compelled to abandon her career to cohabit with her husband. Furthermore, the court firmly established that cruelty by the husband constitutes a reasonable excuse for a wife to withdraw from his society, reinforcing a progressive interpretation of marital rights.

A balance was struck in this case in a manner. Even though the court recognised the historical power imbalance favoring husbands in protecting their wives,, the aspect of “balance of circumstance” was thrown light upon. A potential critique of the judgment lies in its assertion that the husband should have a decisive voice on where the matrimonial home should be but here specifically the balance favoured the wife. Had the case not been so, the court could have ruled otherwise. Nonetheless,on a positive note, the court has still recognised the misuse under Section 9 and issued a decree in the favour of the wife. 

Restitution of Conjugal Rights: A Blunt Sword or A Necessary Evil? 

In Indian society, where marriage is deeply revered, the concept of restitution of conjugal rights (hereinafter referred to as “RCR”) under Section 9 remains evident of patriarchal control, thus, undermining individual autonomy. Rooted in colonial-era laws that treated wives as chattel, this provision forces an unwilling spouse to return to their marital home, often disregarding personal dignity and bodily autonomy. While intended as a neutral remedy, RCR disproportionately affects women, compelling them to endure abusive environments under the guise of preserving marriage. The Andhra Pradesh High Court in T. Sareetha recognized this infringement on privacy and autonomy, holding Section 9 unconstitutional for violating Articles 14 and 21. However, subsequent judgments, including Saroj Rani, upheld its validity, reinforcing a restricted view on privacy of married couples. In contrast, recent Supreme Court rulings in Navtej Singh Johar and K.S. Puttaswamy have reaffirmed the fundamental right to privacy and personal choice, rendering RCR an oppressive tool. Given its potential for misuse, particularly against women facing domestic abuse and dowry-related violence, RCR stands as a coercive and regressive legal provision that deserves urgent reconsideration in light of evolving constitutional values. It must be noted that in the case of Ojaswa Pathak v. Union of India the constitutionality of Section 9 was challenged wherein it was argued that while it appears to be gender-neutral in theory, it disproportionately harms women due to systemic patriarchy. 

Conclusion 

Although the agency of dharmashastras has been invoked in a multiplicity of cases by our judiciary, the same has been subsequently abhorred later on as well. Nonetheless a late realisation, the solidification of a cultural norm into a legal reality helps in paving way for more women to at least approach the correct forum for their rights to be exercised. Through the vehemency of fundamental rights in place since ages, the governance of archaic modes of marriages still continue due to the existence of problematic statutory provisions like Section 9 itself. The Swaraj Garg case is a refreshing perspective on how women are not to be unnecessarily subjected to the whims of their husbands. The important principles of Swaraj Garg reinforce progression, however, the road to marital equity for women  is still  a long way ahead. 

Author’s Bio: Arshya is a 2nd Year LL.B (Hons.) student at O.P. Jindal Global University. She is passionate about intellectual property rights, intersectional feminism, technology law and ethics and family law. Additionally, she adores reading books and is an avid supporter and enthusiast of standup comedy. She is also a very passionate yoga practitioner. 

Image source: In art: Indian Weddings and Betrothals!