Saroj Rani v. Sudarshan Kumar (1984)

Unit 1 asks whether the law treats women as equals and whether it respects their dignity and liberty. The sharpest test of that question inside matrimonial law is s. 9: a decree that orders a spouse who has withdrawn from the other's society without reasonable excuse to return to it. A High Court had held the section unconstitutional as an invasion of a woman's privacy and dignity under Art. 21, and arbitrary under Art. 14, reasoning that the remedy in practice bears on the wife and takes from her the choice over her own body. Another High Court had held the opposite.

Saroj Rani settled the conflict and upheld s. 9. It is therefore the authority a student must be able to state — and to criticise — when asked whether matrimonial remedies are consistent with women's constitutional rights.

The parties married at Jullundur according to Hindu Vedic rites on 24 January 1975. A daughter, Menka, was born on 4 January 1976, and a second daughter on 28 February 1977; the second child died in her father's house in August 1977. The wife's case was that 16 May 1977 was the last day of cohabitation, and that on that day the husband turned her out of his house and withdrew from her society.

On 17 October 1977 the wife sued for restitution of conjugal rights under s. 9. The husband admitted the marriage but denied the ill-treatment, and then stated in court that the petition be granted; a consent decree for restitution followed on 28 March 1978. The courts found that there was no cohabitation after that decree.

On 19 April 1979 the husband petitioned for divorce on the ground that a year had passed since the decree without cohabitation. The District Judge dismissed the petition, holding that as the restitution decree had been passed by consent, and as divorce by mutual consent did not then exist in the Act, s. 23 stood in his way. The High Court reversed that view, relying on an earlier decision of the Supreme Court that mere non-compliance with a restitution decree is not a wrong within s. 23(1)(a): the conduct must be something more than a disinclination to agree to an offer of reunion, and must be misconduct serious enough to justify denial of relief. Before the Supreme Court the wife raised, as a pure question of law, the constitutionality of s. 9 itself.

1. Section 9 is not violative of Art. 14 or Art. 21, if the purpose of a decree for restitution of conjugal rights is understood in its proper perspective and the method of its execution in cases of disobedience is kept in view. The contrary view of the Andhra Pradesh High Court was not accepted; the view of the Delhi High Court, upholding the section, was preferred.

1. The husband's appeal succeeded on the divorce point, non-compliance with the consent decree not being a wrong disentitling him to relief. But the Court accepted counsel's submission that in the social reality of Indian society a divorced wife would be materially at a great disadvantage, and directed that even after the final decree of divorce the husband continue to pay maintenance to the wife until she remarries and maintain the surviving daughter, fixing separate sums for each, with liberty to apply for variation.

1. Identify what the decree actually commands. Conjugal rights are the right of husband and wife to each other's society and marital intercourse; the object of a restitution decree is to bring estranged parties to cohabitation and consortium, not to enforce sexual intercourse, which courts do not and cannot enforce. The leading idea of the section is the preservation of the marriage.

1. Look at the sanction, not the rhetoric. A restitution decree is enforceable only under Order 21 Rule 32 of the Code of Civil Procedure. Where disobedience is wilful — deliberate, despite opportunity and in the absence of impediments — the decree may be enforced by attachment of property, and by nothing else. The sanction is financial and conditional, offered as an inducement to the parties to live together and settle matters amicably.

1. Read the purpose as a social one. So understood, the section serves a social purpose as an aid to the prevention of the break-up of marriage, and cannot be described as the starkest form of governmental invasion of marital privacy.

It opens the question whether matrimonial law is consistent with Arts. 14 and 21, and it is the case to cite for the current constitutional position of s. 9. It is equally the case to cite for the criticism: set out the privacy and dignity argument as the Andhra Pradesh High Court put it — that such a decree denies a woman the choice over her own body and over her most intimate decisions — and then state that the Supreme Court rejected it on the ground that the decree aims at consortium and is enforced only by attachment of property. An answer that can state both sides, and say which prevailed, is a strong one.

It disposes of the argument that a spouse who fails to comply with a restitution decree is thereby taking advantage of his own wrong when he later seeks divorce on that very failure.

It does not decide that the remedy is desirable, and it contains its own acknowledgement that a divorced wife is at a serious disadvantage in Indian social conditions — which is why the Court secured her maintenance until remarriage. Note also, for use elsewhere on this paper, that cruelty and desertion are grounds of divorce under ss. 13(1)(ia) and 13(1)(ib), and that divorce by mutual consent, which did not exist when the decree in this case was passed, is now s. 13B.