SMT. SAROJ RANI versus SUDARSHAN KUMAR CHADHA

Citation: [1985] 1 S.C.R. 303 · Decided: 08-08-1984 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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SMT. SAROJ RANI 
1A 
v. 
SUDARSHAN KUMAR CHADHA 
August 8, 1984 
B 
[S. MURTAZA FAZAL ALI AND SABYASACHI MUKHARJI, JJ.J 
Constitution of India 1950, Articles 13, 14 and 21 . 
Remedy of restitlltion of conjugal rights-Sectlon 9, Hindu Marrlage Act 
1955-Whether vio!ates human dignity1 
right to privacy and per~;,,al liberty-
C 
And whether valid and constitutional. 
Hindu Marriage Act 1955, Sectlpns 9, 13 and 23(1) (a). 
PetUion by wife for restltutz'on of conjugal rights-Hu~band consenting 
to the passing of a decree-Decree passed-Hi~sband after one year filing petf.. 
D 
tion under section 13 for divorce-Husband whether entitled to a decree of 
divorce. 
Code o.f Civil Procedure 1908, Order 21, Rule 32-Decree for restitu .. 
tlon of conjugal rights-Execution of. 
The wife·appetlant 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had neither lurned the appellant out from his house nor withdrawn from 
her !'ociety, later as he made a statement in the Court that the application 
E' 
under Section 9 be granted; a consent decree was passed by the Sub.Judge 
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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 ye"l.r had lapsed, from the date of passing the decree for restitu-
tion 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 
:'>nd that the hu~band kept her in the house for two days and then she was 
agai, 1urned out. It was further al.leged that an application unc!er Section 
G 
28A Qle~ in the Subordina le Court was pending. 
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B 
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E 
F 
G 
304 
SUPREME COURT REPORTS 
(1985] 1 s.c.R. 
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 the time of the 
;assing 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 
fo11owing the decision of this Court in Dharmendra Kumar v. Usha Kumari 
[1978] l SCR 315, held that it could not be said that the husband was 
taking advantage of his 'wrongs
1
, 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 coUusive 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. PuJhpa, 
AIR 1969 Punjab 1and 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 tor restitution of conjugal rights, and that in view of the 
language of Section 23 if the Court had tried to make conciliation bet.ween 
the parties and conciliation had been ordered, the husband was 
not 
disentitledl to get a decree. 
The appea1 was allowed, and the husband 
granted a decree of divorce. 
Jn the appeal to this Court it was contended on behalf of the wife-
appel1ant 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 : (!) In India conjugal riqhts 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 Hindi;1 Marria~e Act tQ 
ff 
prevent it from bein~ a tyranny. [314 D-EJ 
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SAROJ RANi v. s. K. CHADHA (Mukharjl. J.) 
305 
2. 
Section 9 

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