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PETITIONER: SMT. SAROJ RANI

       Vs.

RESPONDENT: SUDARSHAN KUMAR CHADHA

DATE OF JUDGMENT08/08/1984

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) FAZALALI, SYED MURTAZA

CITATION:  1984 AIR 1562            1985 SCR  (1) 303  1984 SCC  (4)  90        1984 SCALE  (2)118

ACT:      Constitution of India 1950, Articles 13,14 and 21.      Remedy of  resitution  of  conjugal  rights-Section  9, Hindu Marriage  Act  1955-Whether  violates  human  dignity, right to privacy and personal liberty- And whether valid and constitutional.      Hindu Marriage Act 1955, Sections 9, 13 and 23(1) (a).      Petition by  wife for  restitution of  conjugal rights- Husband consenting to the passing of a decree-Decree passed- Husband after one year filing petition  under section 13 for divorce-Husband whether entitled to a decree of divorce.      Code of  Civil Procedure 1908, Order 21, Rule 32-Decree for restitution of conjugal rights-Execution of.

HEADNOTE:      The wife-appellant  filed a  suit against  the husband- respondent under  Section 9  of the Hindu Marriage Act 1955, for restitution  of conjugal  rights. Though  the respondent contested the petition contending that he had neither turned the appellant  out from  his house  nor withdrawn  from  her society later  as he  made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by  the Sub-Judge  for the  restitution  of  conjugal rights between the parties.      After a lapse of a year, the respondent-husband filed a petition under  Section 13  of the Act against the appellant for divorce  on the  ground that  though one year had lapsed from the  date of  passing the  decree  for  restitution  of conjugal rights  no actual  co-habitation  had  taken  place between  the   parties.  The   appellant  filed   her  reply contending that she was taken to the house of the husband by her parents  one month after the decree and that the husband kept her  in the  house for  two days and then she was again turned out. It was further alleged that an application under Section 28A filed in the Subordinate Court was pending. 304      The District  Judge after  considering the  evidence of the civil  and  criminal  proceedings  pending  between  the parties, came  to the  conclusion that  there  had  been  no resumption of  cohabitation between  the parties and that in view of the provisions of Section 23 and in view of the fact that the  previous decree  was a  consent decree and that at

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the time  of the passing of the said decree, as there was no provision like  Section 13B i.e. divorce by mutual consent’; held that  as the  decree for restitution of conjugal rights was passed  by the  consent of  the parties, the husband was not entitled to a decree for divorce.      The respondent  filed an  appeal. A Single Judge of the High  Court   following  the   decision  of  this  Court  in Dharmendra Kumar  v. Usha Kumari [1978] 1 SCR 315, held that it could  not be  said that the husband was taking advantage of his  ’wrongs’, but  however expressed  the view  that the decree for  restitution of  conjugal  rights  could  not  be passed with  the consent of the parties, and therefore being a collusive  one disentitled  the husband  to a  decree  for divorce, and  referred the  matter to  the Chief Justice for constitution of  a Division  Bench for  consideration of the question.      The Division  Bench held  following Joginder  Singh  v. Smt. Pushpa,  AIR 1969  Punjab and  Haryana page  397 that a consent decree could not be termed to be a collusive, decree so  as   to  disentitle  the  petitioner  to  a  decree  for restitution of  conjugal rights,  and that  in view  of  the language of  Section 23  if the  Court  had  tried  to  make conciliation between  the parties  and conciliation had been ordered, the  husband was  not disentitled  to get a decree. The appeal  was allowed, and the husband granted a decree of divorce.      In the  appeal to this Court it was contended on behalf of the  wife appellant  that : (a) in view of the expression ’wrong’ in  section 23(1)  (a) of  the Act,  the husband was disentitled to  get a  decree for divorce, and (b) Section 9 of the Act was arbitrary and void as offending Article 14 of the Constitution.      Dismissing the Appeal, ^      HELD: (1)  In India  conjugal rights  i.e. right of the husband or  the wife  to the  society of the other spouse is not merely creature of the statute. Such a right is inherent in the  very  institution  of  marriage  itself.  There  are sufficient safeguards in Section 9 of the Hindu Marriage Act to prevent it from being a tyranny. [314 D-E] 305      2. Section  9 is  only a  codification of  pre-existing law. Rule  32 of  Order 21  of the  Code of  Civil Procedure deals with  decree for  specific performance for restitution of conjugal rights or for an injunction. [314 H]      3. Section  9 of the Act is not violative of Article 14 or Article  21 of  the Constitution  if the  purpose of  the decree for restitution of conjugal rights in the said Act is understood in  its proper  perspective and  if the method of execution in cases of disobedience is kept in view. [315 G]      T. Sareetha  v. Venkata  Subbaiah, A.I.R.  1983  Andhra Pradesh page 356, over-ruled.      Smt. Harvinder kaur v. Harmander Singh Choudhry, A.I.R. 1984 Delhi, page 66, approved.      4. It  is significant  that unlike a decree of specific performance  of   contract;  a  decree  for  restitution  of conjugal rights,  where the disobedience to such a decree is willful i.e.  is deliberate, might be enforced by attachment of property. Where the disobedience follows as a result of a willful conduct  i.e. where  conditions are there for a wife or a  husband to obey the decree for restitution of conjugal rights but  disobeys the  same in  spite of such conditions, then only  the properties  have to  be attached, is provided for. This  is so  to enable  the Court  in appropriate cases when the  Court has  decreed restitution for conjugal rights

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to offer inducement for the husband or wife to live together and to  settle up  the matter  amicably. It  serves a social purpose,  as  an  aid  to  the  prevention  of  break-up  of marriage.[315 C-F]      5. (i)  Even after  the final  decree  of  divorce  the husband would  continue to pay maintenance to the wife until she remarries  and would maintain the one living daughter of the marriage.  Separate maintenance  should be  paid for the wife and the living daughter. Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married. [316 C; E]      (ii) Until  altered by appropriate order on application or proper materials,  such maintenance should be Rs. 200 per month for  the wife, and Rs. 300 per month for the daughter. [316 D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 187 of 1983.      From the Judgment and Order dated the 17th August, 1982 of the  Punjab and  Haryana High  Court in First Appeal From Order No. 199-M of 1979. 306      R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the appellant.      E.C. Agarwala,  Mrs. H.  Wahi and  Rajiv Sharma for the respondent.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. The parties herein were married at Jullundur City according to Hindu Vedic rites on or about 24th January, 1975. The first daughter of the marriage Menka was born on 4th January, 1976. On 28th February, 1977 second daughter Guddi  was born.  It is alleged that 16th May, 1977 was the  last day  of cohabitation  by the  parties.  It  is further alleged  that on  16th May,  1977,  the  respondent- husband turned  the appellant  out of his house and withdrew himself from  her society. The second daughter unfortunately expired in the house of the respondent/father on 6th August, 1977. On 17th October, 1977, the wife-appellant filed a suit against the husband/respondent herein under Section 9 of the Hindu Marriage Act, 1955 hereinafter referred to as the said Act for restitution of conjugal rights.      In view  of the  argument now sought to be advanced, it is necessary  to refer  to the  said petition.  In the  said petition, the  wife had  set out the history of the marriage as  hereinbefore   briefly  mentioned  and  alleged  several maltreatments both  by the husband as well as by her in-laws and thereafter  claimed decree  for restitution  of conjugal rights. On 21st March, 1978, the learned Sub-Judge Ist Class passed an  order granting  Rs. 185  per month as maintenance pendente lite  and Rs.  300 as  the litigation  expenses. On 28th March, 1978, a consent decree was passed by the learned Sub-Judge Ist  Class for  restitution of conjugal rights. It may be  mentioned that  on the  petition  of  the  wife  for restitution  of   conjugal  rights,  the  husband-respondent appeared and  filed his  written statement admitting therein the factum  of marriage  between the  parties but denied the fact that  the respondent  had ever made any demand from the petitioner as  alleged or  had  ever  disliked  her  or  had withdrawn from  her society or turned her out from his house as alleged  by the  wife  petitioner  in  her  petition  for restitution of  conjugal rights.  The respondent  thereafter made a  statement in  the court  that the application of the

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petitioner under  Section 9  of the  said Act be granted and decree thereof  be passed. Accordingly the learned Sub-Judge Ist Class  on 28th  March 1978  passed the  decree  for  the restitution 307 of conjugal  rights between  the parties.  It was alleged by the petitioner-wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife.  This fact has been disbelieved by all the courts. The courts  have come  to the conclusion and that conclusion is  not   challenged  before  us  that  there  has  been  no cohabitation after the passing of the decree for restitution of conjugal rights.      On 19th  April, 1979,  the respondent/husband  filed  a petition under  Section 13  of  the  said  Act  against  the appellant for divorce on the ground that one year had passed from the  date of  the decree  for restitution  of  confugal rights, but  no actual  cohabitation had taken place between the parties.  The appellant  filed her  reply  to  the  said petition. The categorical case in reply of the appellant was that it  was incorrect  that after  passing of  the  decree, there had been no restitution of conjugal rights between the parties, positive  case of  the  appellant  was  that  after passing of  the decree,  the wife  was taken to the house of the husband  by the  parents of  the wife after one month of the decree  and that  the husband kept the wife in his house for two  days and  she was  again turned out. It was further alleged that the wife had filed an application under Section 28A of  the said  Act in  the court of Sub-Judge, 1st Class, Jullundur on  22nd January,  1979 with  the request that the husband should  be directed to comply with the decree passed against him  under  Section  9  of  the  said  Act  and  the application was pending at the time when the reply was filed by the wife to the petition for divorce.      The  learned  District  Judge  on  15th  October,  1979 dismissed the  petition of  the  husband  for  divorce.  The learned Judge  framed two  issues, one was whether there has been no  restitution of conjugal rights after the passing of the decree  for the  restitution  of  conjugal  rights,  and secondly to  what relief was the husband entitled to ? After considering the  evidence of  civil and criminal proceedings pending between  the parties,  the learned Judge came to the conclusion that there has been no resumption of cohabitation between the  parties after  28th March, 1978 and decided the issue in favour of the husband but on the question of relief the learned  Judge was  of the  view that  in  view  of  the provisions of  Section 23 of the said Act and in view of the fact that  the previous  decree was  a consent decree and at that time  there was  no provision like provision of Section 13B of  the said  Act i.e.  ’divorce by mutual consent’, the learned Judge  was of  the  view  that  as  the  decree  for restitution 308 of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.      Being aggrieved  by the  said decision,  there  was  an appeal before  the High  Court of Punjab and Haryana. So far as last  mentioned ground was concerned, the High Court held that in  view of  the decision  of this Court in the case of Dharmendra Kumar  v. Usha  Kumari, this  contention was  not open to  the wife. The court was of the opinion that in view of the  said decision  of this  Court, it  could not be said that the  husband was  taking advantage  of his ’wrongs’. In the said  decision this  Court noted  that it  would not  be reasonable to  hold that  the relief  which was available to

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the spouse against whom a decree for restitution of conjugal rights had  been passed should be denied to the one who does not comply  with the  decree passed  against him or her. The expression "in  order to  be a ’wrong’ within the meaning of Section 23  (1) (a)  the conduct alleged has to be something more than  mere disinclination  to  agree  to  an  offer  of reunion, it  must be  misconduct serious  enough to  justify denial of  the relief  to which  the husband  or the wife is otherwise entitled  to. So,  therefore, Section  23 (1)  (a) provides as follows:-           "23. (1) In any proceeding under this Act, whether      defended or not, if the Court is satisfied that-           (a) any  of the grounds for granting relief exists      and the  petitioner except in cases where the relief is      sought by  him on  the ground  specified in  sub-clause      (a), sub-clause (b) or sub-clause (c) of clause (ii) of      section 5  is not in any way taking advantage of his or      her own  wrong or  disability for  the purpose  of such      relief and").      In that view of the matter, the High Court rejected the contention. So  far as  the other  aspect was concerned, the learned  Judge  expressed  the  view  that  the  decree  for restitution of  conjugal rights could not be passed with the consent of  the parties  and therefore being a collusive one disentitled the  husband to  a decree for divorce. This view was taken  by the  learned trial judge relying on a previous decision of  the High  Court. Mr.  Justice Goyal of the High Court felt  that this  view required  reconsideration and he therefore referred  the matter  to  the  Chief  Justice  for constitution of  a Division  Bench of the High Court for the consideration of this question. 309      The matter  thereafter came  up before a Division Bench of  Punjab   and  Haryana   High  Court  and  Chief  Justice Sandhawalia for the said court on consideration of different authorities came  to the  conclusion that  a consent  decree could not  be termed  to be  a collusive  decree  so  as  to disentitle the  petitioner  to  decree  for  restitution  of conjugal  rights.  It  may  be  mentioned  that  before  the Division Bench  of behalf of the appellant-wife, counsel did not assail the factual finding of the Trial Court that there was no  co-habitation after  the decree  for restitution  of conjugal rights nor did he press the first ground of defence namely that  the appellant  could not  take advantage of his ’wrong’ because  of having refused cohabitation in execution of the  decree. However,  the ground  that  the  decree  for restitution of  conjugal rights  was in  a  sense  collusive decree was pressed before the Division Bench. In view of the Full Bench  decision of the Punjab and Haryana High Court in the case  of Joginder  Singh  v.  Smt.  Pushpa  wherein  the majority of the Judges of the Full Bench held that a consent decree in  all cases  could not  be said  to be  a collusive decree and  where the  parties had  agreed to  passing of  a decree after attempts had been made to settle the matter, in view of the language of Section 23 of the court had tried to make conciliation  between the  parties and conciliation had been ordered,  the husband  was not  disentitled  to  get  a decree.      Section 23 sub-section (2) provides as follows:-           "(2)-Before proceeding  to grant  any relief under      this Act,  it shall  be the  duty of  the court  in the      first instance,  in every  case where it is possible so      to do consistently with the nature and circumstances of      the case,  to make  every endeavor  to  bring  about  a      reconciliation between the parties:

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         Provided  that  nothing  contained  in  this  sub-      section shall apply to any proceeding wherein relief is      sought on  any of the grounds specified in clause (ii),      clause (iii),  clause (iv),  clause (v), clause (vi) or      clause (vii) of sub-section (1) of section 13."      In this  case from  the facts on record it appears that there  was  no  collusion  between  the  parties.  The  wife petitioned against  the husband  on certain allegations, the husband denied  these allegations.  He stated  that  he  was willing to  take the  wife back.  A decree on that basis was passed. It is difficult to find any collusion as such in 310 the instant  case. Apart  from that we are in agreement with the majority  of the learned judges of the Division Bench of Punjab and  Haryana High Court in the case of Joginder Singh v. Smt.  Pushpa (supra)  that all  cases of  consent decrees cannot be  said to  be collusive.  Consent decrees per se in matrimonial matters  are not  collusive. As would be evident from legislative  intent of  Section  13B  that  divorce  by mutual consent is no longer foreign to Indian law of divorce but of  course this  is a  subsequent amendment  and was not applicable at  the time  when the  decree  in  question  was passed. In  the premises  we accept the majority view of the Division Bench  of Punjab  and Haryana  High Court  on  this point.      In this  appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree  as such  was not  bad or  collusive. What he tried to  urge before  us was that in view of the expression ’wrong’ in  Section 23(1)  (a) of  the Act,  the husband was disentitled in this case to get a decree for divorce. It was sought to  be urged that from the very beginning the husband wanted  that   decree  for  divorce  should  be  passed.  He therefore  did   not  deliberately  oppose  the  decree  for restitution of  conjugal rights.  It was  submitted  on  the other  hand   that  the   respondent/husband  had  with  the intention of  ultimately having  divorce allowed  the wife a decree for  the restitution of conjugal rights knowing fully well that  this decree  he would  not honour  and thereby he misled the  wife and  the Court  and thereafter  refused  to cohabitate with  the wife  and now, it was submitted, cannot be allowed  to take  advantage of  his  ’wrong’.  There  is, however, no whisper of these allegations in the pleading. As usual, on this being pointed out, the counsel prayed that he should be  given an  opportunity of  amending his  pleadings and, the parties, with usual plea, should not suffer for the mistake of  the lawyers.  In this  case, however,  there are insurmountable difficulties.  Firstly there was no pleading, secondly this  ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the  allegations made by the wife in the trial court and before the  Division Bench  were contrary  to the  facts now sought to  be urged  in support  to her appeal. The definite case of  the wife  was that after the decree for restitution of conjugal rights, the husband and wife cohabitated for two days. The  ground now sought to be urged is that the husband wanted the  wife to have a decree for judicial separation by some kind  of a trap and then not to cohabitate with her and thereafter obtain  this decree  for divorce.  This would  be opposed to  the facts  alleged in  the defence  by the wife. Therefore 311 quite apart  from the  fact that there was no pleading which is a  serious and fatal mistake, there is no scope of giving any opportunity  of amending  the pleadings  at  this  stage

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permitting the  wife to  make an  inconsistent case. Counsel for the appellant sought to urge that the expression ’taking advantage of  his or  her own  wrongs’ in clause (a) of sub- section 23  must be  construed in such a manner as would not make the  Indian wives  suffer at  the hands  of cunning and dishonest husbands.  Firstly even  if there is any scope for accepting this broad argument, it has no factual application to this  case and  secondly if that is so then it requires a legislation to  that effect.  We  are  therefore  unable  to accept the  contention of counsel for the appellant that the conduct of  the husband sought to be urged against him could possibly come  within the  expression ’his  own  wrongs’  in section 23(1)  (a) of  the Act  so as to disentitle him to a decree for  divorce to  which he is otherwise entitled to as held by  the  courts  below.  Further  more  we  reach  this conclusion without  any mental  compunction  because  it  is evident that  for whatever  be the reasons this marriage has broken down  and the  parties can no longer live together as husband and  wife, if  such is the situation it is better to close the chapter.      Our attention,  however, was  drawn to  a decision of a learned single judge of the Andhra Pradesh High Court in the case of  T.  Sareetha  v.  Venkata  Subbaiah.  In  the  said decision the  learned judge  had observed that the remedy of restitution of  conjugal rights provided for by Section 9 of the said Act was a savage and barbarous remedy violating the right to  privacy and human dignity guaranteed by Article 21 of the  Constitution. Hence, according to the learned judge, Section 9 was constitutionally void. Any statutory provision that abridged  the rights  guaranteed by  Part  III  of  the Constitution would  have to  be declared  void in  terms  of Article 13  of  the  Constitution.  According  to  the  said learned judge,  Article 21  guaranteed  right  to  life  and personal liberty  against the  State action.  Formulated  in simple negative  terms, its  range of  operation  positively forbidding the  State from  depriving any person of his life or  personal  liberty  except  according  to  the  procedure established by  law was  of far-reaching  dimensions and  of overwhelming  constitutional   significance.  Learned  judge observed that  a decree  for restitution  of conjugal rights constituted the grossest form of violation of any individual right to  privacy. According to the learned judge, it denied the woman her free choice whether, when and how her body was to 312 become the  vehicle for  the procreation  of  another  human being. A decree for restitution of conjugal rights deprived, according to  the learned judge, a woman of control over her choice as and when and by whom the various parts of her body should be  allowed to be sensed. The woman loses her control over  her   most  intimate   decisions.  The  learned  judge therefore  was  of  the  view  that  the  right  to  privacy guaranteed by Article 21 was flagrantly violated by a decree for restitution of conjugal rights. The learned judge was of the view  that a  wife who was keeping away from her husband because of  permanent or  even temporary estrangement cannot be forced,  without violating her right to privacy to bear a child by  her husband.  During a  time when she was probably contemplating an action for divorce, the use and enforcement of Section  9 of  the said  Act against  the estranged  wife could irretrievably  alter her  position by  bringing  about forcible conception  permanently ruining  her mind, body and life and everything connected with it. The learned judge was therefore clearly of the view that Section 9 of the said Act violated Article  21 of the Constitution. He referred to the

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Scarman Commission’s  report  in  England  recommending  its abolition. The  learned judge  was also  of  the  view  that Section 9  of the  said Act,  promoted no  legitimate public purpose based  on any conception of the general good. It did not therefore  subserve any  social good.  Section 9  of the said Act  was, therefore,  held to  be arbitrary and void as offending Article  14 of  the  Constitution.  Learned  judge further observed  that though  Section 9 of the said Act did not in  form offend  the classification test, inasmuch as it made no  discrimination between  a husband  and wife, on the other hand,  by making the remedy of restitution of conjugal rights equally  available  both  to  wife  and  husband,  it apparently satisfied the equality test. But bare equality of treatment regardless  of the  inequality  of  realities  was neither justice nor homage to the constitutional principles. He relied  on the  decision of  this Court  in the  case  of Murthy Match  Works, Etc. Etc. v. The Assistant Collector of Central Excise  Etc. The  learned judge, however, was of the opinion based  on how  this remedy  was  found  used  almost exclusively by the husband and was rarely resorted to by the wife.      The  learned   judge  noticed   and  that   is  a  very significant point  that decree  for restitution  of conjugal rights can  only be  enforced under Order 21 Rule 32 of Code of Civil Procedure. He also referred to certain trend in the American law and came to the 313 conclusion that Section 9 of the said Act was null and void. The above view of the learned single judge of Andhra Pradesh was dissented from in a decision of the learned single judge of the  Delhi High  Court in the case of Smt. Harvinder Kaur v. Harmander  Singh Choudhry.  In  the  said  decision,  the learned judge  of the  Delhi High  Court expressed  the view that Section 9 of the said Act was not violative of Articles 14 and  21 of the Constitution. The learned judge noted that the  object   of  restitution  decree  was  to  bring  about cohabitation between  the estranged  parties  so  that  they could live  together in  the matrimonial  home in amity. The leading idea of Section 9 was to preserve the marriage. From the definition  of cohabitation  and consortium, it appeared to the  learned judge that sexual intercourse was one of the elements that went to make up the marriage, but that was not the summum  bonum. The  courts do  not and  can not  enforce sexual  intercourse.   Sexual   relations   constituted   an important element  in the conception of marriage, but it was also true  that these  did not  constitute its whole content nor could the remaining aspects of matrimonial consortium be said to be wholly unsubstantial or of trivial character. The remedy of  restitution aimed  at cohabitation and consortium and not  merely at  sexual intercourse.  The  learned  judge expressed the  view that  the  restitution  decree  did  not enforce sexual  intercourse. It  was a  fallacy to hold that the restitution of conjugal rights constituted "the starkest form of governmental invasion" of "marital privacy".      This point namely validity of Section 9 of the said Act was not  canvassed in  the instant  case in the courts below counsel for  the appellant,  however, sought  to  urge  this point before  us as a legal proposition. We have allowed him to do so.      Having considered the views of the learned single judge of the  Andhra Pradesh High Court and that of learned single judge of  Delhi High  Court, we  prefer to  accept  on  this aspect namely  on the  validity of Section 9 of the said Act the views  of the  learned single  judge of  the Delhi  High Court. It  may be  mentioned that  conjugal  rights  may  be

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viewed in  its proper  perspective by  keeping in  mind  the dictionary meaning  of the  expression  "Conjugal".  Shorter Oxford English  Dictionary, 3rd  Edn. Vol.  I page 371 notes the meaning  of ’conjugal’  as "of or pertaining to marriage or to husband and wife in their relations to each other". In the Dictionary  of English  Law, 1959 Edn. at page 453, Earl Jowitt defines ’conjugal rights’ thus: 314           "The right  which husband  and wife  have to  each      other’s society  and marital  intercourse. The suit for      restitution of  conjugal rights  is a matrimonial suit,      cognizable in  the  Divorce  Court,  which  is  brought      whenever either  the husband or the wife lives separate      from the  other without any sufficient reason, in which      case the  court will  decree  restitution  of  conjugal      rights (Matrimonial  Causes Act, 1950, s. 15), but will      not enforce  it by attachment, substituting however for      attachment, if the wife be the petitioner, an order for      periodical payments by the husband to the wife (s.22).           Conjugal rights  cannot be  enforced by the act of      either party, and a husband cannot seize and detain his      wife by force (R.V. Jackson [1891] 1 Q.B. 671)".      In India  it may  be borne in mind that conjugal rights i.e. right  of the husband or the wife to the society of the other spouse  is not  merely creature of the statute. Such a right is  inherent  in  the  very  institution  of  marriage itself. See  in this  connection Mulla’s Hindu Law-15th Edn. p. 567-Para  443. There are sufficient safeguards in Section 9 to  prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission-71st Report  on the  Hindu  Marriage  Act,  1955- "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus:-           "Moreover, the essence of marriage is a sharing of      common life,  a sharing  of all the happiness that life      has to offer and all the misery that has to be faced in      life,  an   experience  of  the  joy  that  comes  from      enjoying, in  common, things  of the  matter and of the      spirit and  from showering  love and affection on one’s      offspring. Living  together is a symbol of such sharing      in all its aspects. Living apart is a symbol indicating      the negation  of such  sharing. It  is indicative  of a      disruption of  the essence  of marriage-"breakdown" and      if it  continues for  a fairly  long period,  it  would      indicate  destruction   of  the  essence  of  marriage-      "irretrievable breakdown".      Section 9  only is  a codification of pre-existing law. Rule 32  of Order  21 of  the Code  of Civil Procedure deals with decree  for specific  performance  for  restitution  of conjugal rights or for an 315 injuction. Sub-rule (1) of Rule 32 is in these terms:           "Where the  party against  whom a  decree for  the      specific performance  of a contract, or for restitution      of conjugal  rights or  for  an  injunction,  has  been      passed, has  had an  opportunity of  obeying the decree      and has  willfully failed to obey it, the decree may be      enforced in  the case  of a  decree for  restitution of      conjugal rights  by the  attachment of his property or,      in the case of a decree for the specific performance of      a contract, or for an injuction by his detention in the      civil prison,  or by the attachment of his property, or      by both."      It is  significant to  note that  unlike  a  decree  of specific  performance   of  contract,   for  restitution  of

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conjugal rights  the sanction is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite  of  the  opportunities  and  there  are  no  other impediments, might be enforced by attachment of property. So the only  sanction is  by  attachment  of  property  against disobedience of  a decree for restitution of conjugal rights where the  disobedience follows  as a  result of  a  willful conduct i.e.  where conditions  are there  for a  wife or  a husband to  obey the  decree  for  restitution  of  conjugal rights but  disobeys the  same in  spite of such conditions, then  only  financial  sanction,  provided  he  or  she  has properties to be attached, is provided for. This is so as an inducement by  the court  in appropriate case when the court has decreed  restitution for  conjugal rights  and that  the court can  only decree  if there  is no  just reason for not passing decree  for restitution  of conjugal rights to offer inducement for the husband or wife to live together in order to  give  them  an  opportunity  to  settle  up  the  matter amicably. It  serves a  social purpose  as  an  aid  to  the prevention of  break-up of  marriage. It cannot be viewed in the manner  the learned  single judge of Andhra Pradesh High Court has  viewed it  and we  are therefore unable to accept the position  that Section 9 of the said Act is violative of Article 14  or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is  understood in  its proper  perspective  and  if  the method of  its execution in cases of disobedience is kept in view.      Another decision  to which  our attention  was drawn is also a  Bench decision  of the  Andhra Pradesh High Court in the case of Geeta Laxmi v. G.V.R.K. Sarveswara Rao. There on the admitted 316 misconduct of  the husband is not only in not complying with the decree  for restitution  of  conjugal  rights  but  ill- treating the  wife and  finally driving  her away  from  the house, it  was held  that the  husband was not entitled to a decree under  Section 13(1A)  of the said Act in view of the wrong as  contemplated under  Section 23(1)  (a) of the Act. The facts  of that  case were  entirely different  from  the facts of  the instant  case before  us.  There  is  no  such allegation or  proof of  any ill-treatment by the husband or any evidence  of the  husband driving  the wife  out of  the house. In  that view  of the matter, this decision cannot be of any assistance to the appellant in the instant case.      Counsel for the appellant, however, contended before us that in the social reality of the Indian society, a divorced wife would  be materially  at a  great disadvantage.  He  is right in  this submission. In view, however, of the position in law,  we would direct that even after the final decree of divorce, the  husband would  continue to  pay maintenance to the wife  until she  remarries and  would maintain  the  one living daughter of the marriage. Separate maintenance should be paid  for the wife and the living daughter. Until altered by appropriate order on application on proper materials such maintenance should  be  Rs.  200  per  month  for  the  wife appellant and Rs. 300 per month for the daughter Menka. Wife would be  entitled to  such maintenance  only until  she re- marries and  the daughter Menka to her maintenance until she is married.  Parties will be at liberty to ask for variation of the  amounts by  proper application  on proper  materials made before  Sub-judge Ist  Class Jullunder.  The respondent would pay  costs of this appeal to appellant assessed at Rs. 1500.      The appeal is dismissed with the aforesaid directions.

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N.V.K.    Appeal dismissed. 317