Question: What do you understand by term Restitution of conjugal rights among Hindu's? Whether the concept of restitution of conjugal rights in Hindu law violation of fundamental rights of an individual? Explain.

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Conjugal rights are rights created by marriage, i.e. right of the husband or the wife to the society of the other spouse.

Section 9 of HMA, 1955, says When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights. If court satisfied with the statements presented before it, the decree of restoration of conjugal rights can be granted.


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Judicial review of Section 9 of HMA

It is time and again argued that the concept of conjugal rights violates the fundamental rights of an individual, such as their right to privacy and right to personal liberty.

In the case of T Sareetha v T Venkatasubbaiah, 1983: The Andhra Pradesh High court struck down the section 9 of HMA and declared it as violative of, among the other things, right to privacy. The court had, most importantly, also recognized that compelling “sexual cohabitation” would be of “grave consequences for women”.

Later, in the same year, In the case of Harvinder Kaur v Harmander Singh Chaudhry: the Delhi High Court took a diametrically opposite view of the law and upheld the provision. It was decided that right to privacy is not absolute and can be restricted in the interest of the state, and here, maintaining the family life is in the interest of the state. The Court criticize the Andhra HC decision on the ground of that the marriage is not all about sexual cohabitation, it is just one aspect of marriage.


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1 year later, in 1984, in the case of Saroj Rani v Sudarshan Kumar Chadha, the SC has settled these conflicted views and upheld the reasoning given by the Delhi High Court. The court added that the provision “serves a social purpose as an aid to the prevention of break-up of marriage”.

Now, after the Justice K.S. Puttaswamy (Retd) vs Union of India judgement, in which, the right to privacy has declared a fundamental right under article 21 of our Constitution, several petitions have filed before the SC to review its previous decision regarding the validity of section 9. However, the firm decision is still awaited.


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