FILM REVIEW SAROJ RANI v. SUDARSHAN KUMAR THE JUDICIAL DISCOURSE OF OVERRULING T.SAREETHA v.

VENKATA SUBAAIH

Subject Law and Literature Submitted to Manav Kapur Assistant Professor, Law and Literature

Submitted by Surya Karan Sambyal Second Year, Semester IV Roll No. 2012-64

NALSAR University Of Law, Hyderabad

Contents
INTRODUCTION ....................................................................................................................................... 3 SAROJ RANI v. SUDARSHAN KUMAR ....................................................................................................... 4 Facts of the Case ................................................................................................................................. 4 Procedural History: ............................................................................................................................. 4 Judgement: ......................................................................................................................................... 5 T.SAREETHA v. VENKATA SUBBAIH ..................................................................................................... 5 RESTITUTION OF CONJUGAL RIGHTS DISSECTION OF LEGAL DISCOURSE ........................................... 6

INTRODUCTION Neither by sale not by repudiation is a wife released from her husband such we know the law to be, which the lord of creatures made of old. To be mothers were woman created, and to be fathers men. - Manusmriti

SAROJ RANI v. SUDARSHAN KUMAR1 Facts of the Case: The appellant and the defendant got married according to Hindu rites and rituals on January 24th 1975. Two daughters were born out of their marriage, Meneka and Guddi. It was alleged by the wife that on May 16, 1977, the defendant turned her out of his house and withdrew himself from her society. Consequently, a suit was filed by the wife against the husband under Section 9, Hindu Marriage Act, 1955 for restitution of conjugal rights. The case revolved around husbands entitlement to a decree of divorce under Section 13 (1-A)(ii), Hindu Marriage Act, 1955 upon the non-fulfilment of a decree under Section 9, HMA, 1955 i.e. resumption of cohabitation between the couple within a year of passing of decree. Procedural History: The Lower Courts dismissed the case of the husband seeking for a divorce for the non-performance of consent decree under Section 9 HMA, 1955 for restitution of conjugal rights. An appeal was therefore referred to Division bench in Punjab and Haryana High Court by the Respondent husband. It was contended on behalf of the wife that: (a) in view of the expression 'wrong' i.e. the husband couldnt take an advantage of his own wrongdoing, 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 it violated Article 14 of the Constitution. The Division Bench basing their opinion on Dharmendar Kumar v. Usha Rani2 decided in favour of the husband reiterating that the consent decree didnt disentitle him to decree of divorce and incidentally a divorce was granted in favour of the husband. The appellant (wife) appealed to the apex court on the above-stated proposition of law under HMA, 1955 and Constitution of India and held that Section 9, HMA 1955 was not in violation to Section 4 of the Constitution as the conjugal rights in India are merely not a creation of the statute and is inherent in the very institution of marriage. The Court approving the Harvinder Kaur v. Harminder Singh, held that Section 9 is in concurrence with Article 21 and Article 14 of Constitution of India and it didnt violate the spirit of Part III of the Indian Constitution as spirit underlying the constitution of Section 9,
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1978 (1) SCR 375.

HMA, 1955 intended to preserve the institution of marriage and sexual intercourse wasnt the summum bonum of cohabitation and consortium but only one essential of it. Judgement: The apex court dismissed the appeal of the appellant and upheld the decree of divorce as awarded by Punjab and Haryana High Court in Harvinder Kaur v. Harminder Singh. In fact Justice Rotagi in the aforesaid case recognised that, the legislature has created restitution of conjugal rights as an additional ground for divorce. T.SAREETHA v. VENKATA SUBBAIH The facts of the case are that the husband filed a petition under Section 9 of HMA, 1955. The petition was challenged by the wife on the ground that Section 9, HMA, 1955 is ultra vires to Part III of the Constitution i.e. Article 143, Article 194 and Article 215. The counsel for the plaintiff argued that Section 9, HMA, 1955 was a tool for the husbands to discriminate and harass their wives in the hands of judicial cobwebs as her right to personal privacy could be disseminated if she could established a justifiable reason for her withdrawn from her husbands society. It was further argued that the right to privacy confers upon a woman a freedom of choice in relation to her decisions on cohabitation and procreation and Section 9 prima facie violated her right to privacy. It can be argued that if restitution of conjugal rights provides judiciary a last resort to save the institution of marriage in which inherently the husband and wife are placed at an unequal footing (in Indian society the wife is always held to be subservient to her husband) and regarding section 9 as an equitable right is a faade for the patriarchal status quo. This has been reiterated by J. Hannen in Russell v. Russell, where he stated that if any law forces any person to live with another is contrary to the value of the society. The remedy that operates is in violation to the fundamental rights and therefore ultra vires to the constitution andthusvoid.

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RESTITUTION OF CONJUGAL RIGHTS DISSECTION OF JUDICIAL DISCOURSE J.Sachs in his piece Every judgement I write is a lie, identifies 3 parts of a judgement that makes it coherent to legal discourse i.e. Logic of Discovery, Logic of Justification and Logic of Persuasion. In Harvinder Kaur v. Harminder Singh, Justice Rohatgi forms an inherent opinion on restitution of conjugal rights and its interpretation under section 9, HMA, 1955 as ultra vires to constitution by J. Chaudhary as a misconception.6 In para 8 of the judgement, he believes that sexual intercourse constitute an important attribute of marriage but not its totality. Thus sexual intercourse becomes a conclusive evidence of cohabitation but doesnt necessarily form the stratum of cohabitation. He also recognises the trend in law that restitution is a stepping stone to the more serious step of divorce, a passage to divorce. J. Rohatgis judgement is logical and coherent to the legal discourse upholding the dominant view. Analysing the judgement from the perspective of logic of discovery, the researcher could deduce that J. Rostagi accepted the fallacy in law and its prima facie motive but his aboriginal standpoint towards restitution of conjugal rights is disseminated on two grounds. One, the stratum of T.Sareetha case on the basis of forceful sexual intercourse as sole basis for cohabitation was absurd. Second, the spirit underlining the incorporation of Section 9 to preserve the institution of marriage as in consonance to the Vedic texts and dominant patriarchal view appeared to be more justifiable. He then moves on to his logic of justification as he counters the principle cornerstone of T.Sreetha ratio decendendi i.e. equating of sexual intercourse to cohabitation. He then moves on to the spirit behind the enactment of Section 9 of the constitution of India stating that it is the last resort for saving the institution of marriage providing a scope for reconciliation and quotes various authorities in common law and case laws to substitute his opinion with logical legal arguments. He then uses the logic of persuasion by referring to Vedic texts and Hindu jurisprudence in a lucid manner using rhetoric of the institution of marriage as a sacrament to persuade the readers and analysers of the judgement.

Para 5 of the Judgement in my opinion this view is based on a misconception of the true nature of the remedy of restitution of conjugal rights.

In concurrence to the judgement in Harvinder Kaur v. Harminder Singh, the Apex Court applied the rhetoric of classical jurisprudence to uphold the constitutional validity of Section 9 of HMA,1955 it merely being codification of pre-existing law.7 There appears to be objective legal reasoning supplemented by the rhetoric of institution of marriage used by the Judge of the Apex Court to substantiate his judgement wherein comparative analysis of the two judgements leaves no scope for subjective interpretation in analysing the quantum of the judgement. When a judgement appears to be more coherent to legal reasoning and established principles of law it becomes more appealing and persuasive and so did the judgement of the apex court. The above Judgement by the Supreme Court of India, impacts the lives of the people not only in present but also in future as it acts as a precedent and thus the form and substance of the judgment attains supreme importance. The most imperative aspect of the judgement is that it is prima facie most logical and objective and precisely articulates the form being the comparative analysis of T.Sareetha Case and Harvinder Kaur Case to substantiate the substance of the judgement from an objective vantage point. The rhetoric of law, articulation of the substance and form of the judgement and its coherence to established legal principles makes it exponentially persuasive.