VIJAY KUMAR Vs. KAMLA

JUDGEMENT

(1.) ORDER :- Besides passing a decree for the restitution of conjugal rights the District Judge, Kathua directed that the respondent-wife would be entitled to receive the articles claimed by her or in the alternative a sum of Rs. 20,000/- from the petitioner-husband The decree for restitution of conjugal rights in terms of Section 9 and direction for the recovery of articles or payment of the amount in terms of Section 33 of the Hindu Marriage Act was passed against the petitioner-husband ex parte on May 25, 1984. The respondent-wife filed an application for the execution of the decree of the trial court on January 22, 1986 and prayed for the recovery of the amount objected to the execution of the decree on the amount decreed in her favour. The petitioner-husband objected to the execution of the decree on the ground that the same was a nullity and had not been passed under the provisions of law. It was further submitted that no directions under Section 33 of the Hindu Marriage Act (hereinafter called the 'Act') could be issued in a petition filed under Section 9 of the said Act for seeking the relief for the restitution of conjugal rights. The learned District Judge, Kathua vide the order impugned in this Revision Petition rejected the pleas of the petitioner-husband and held that the provisions of Section 33 regarding the disposal of the property were applicable in all proceedings under the Act. He further held that the proceedings contemplated by the aforesaid Section also include within amplitude the proceedings under Section 9 of the Act.

(2.) No one appeared for the petitioner. However I have heard the learned counsel for the respondent-wife and have also perused the record of the court below. 2A. Before deciding the scope and applicability of Section 33 in proceedings under Section 9 of the Act for the restitution of conjugal rights the concept of Hindu Marriage and the scheme of the Act has to be analysed. The concept of the Hindu Marriage in the result of the evolution of long experience, dogmas and thoughts spread over centuries. Marriage under Hindu law was never considered a contract between man and wife but a holy sacrament enjoined by religion for purifying the body and regeneration of man. Hindu marriage is a sanskar as conceived in Yjanvalkya Smriti and is distinguished from Christian or Muslim marriage. The Hindu marriage is thus "once a marriage always a marriage" Fundamental concept underlying the law of marriage amongst Hindus is that marriage is regarded as a sort of sacrament and not a matter of free contract between the parties. AIR 1969 SC 993. (sic) On the recommendation of a committee appointed by the Government of India in 1941 a report was submitted to the Central Legislative Assembly on February 21, 1947 on the basis of which Hindu Code Bill was introduced in the Assembly which was later referred to select committee and ultimately the Hindu Marriage Act was passed by the Legislative which conferred certain rights on the parties to a Hindu Marriage but the basic concept of the marriage was never changed. The scheme of the Act stressed for continuance of the relationship of marriage between the parties so far it was possible and dissolving the marriage only in a case where it was found that living of the spouse together was net possible under any circumstances.

(3.) Section 9 was incorporated in the Act with the object of forcing the parties to live together who had developed strained relations on account of ordinary wear and tear of matrimonial family relations. The term "restitution of conjugal rights" was not known to Hindu law. While Hindu law laid down the duty on the wife of implicit obedience to her husband; it did not provide any procedure such as compulsion by courts to force her to return to him against her will. It was for the first time in Dadaji Bhikaji v. Rukmabai (1886) ILR 10 Bom 301 that the Civil Court held that jurisdiction over conjugal rights amongst the Hindus. The provision of restitution of conjugal rights was made in Section 9 of the Act with the object of maintaining and continuing relationship of husband and wife between the parties to a Hindu marriage. When the provision of Section 9 of the Act was challenged on the ground that a decree for restitution of conjugal rights amounted to coerce through judicial process the unwilling party to have set against one person; consent and free will with the decree-holder which amounts to degrading the judgement-debtor to human dignity and monstrous to human spirit. It was held in AIR 1984 Del 66 that the Restitution Decree in the scheme of the Act was a preparation for divorce if the parties do not come together. The Legislature did it with the abject of coaxing and cajoling with the drawing spouse to return to cohabitation as the object of the restitution decree was to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity. From the definition of cohabitation and consortium it appears that sexual intercourse was one of the elements that goes to make up the marriage. The restitution decree did not amount to forcing a person to have sex against his or her consent but intended to rehabilitate the matrimonial ties between the parties in the marriage for the purposes for which a Hindu marriage is solemnized.