Report No. 59

4.3. Section 9(2) considered.-

Sub-section (2) of section 9 has created considerable difficulty, and the problem that has arisen is this. Where the respondent cannot prove, on the part of the petitioner, a matrimonial misconduct constituting a ground for judicial separation or nullity of marriage or divorce under sub-section (2), can he or she still defend the petition for restitution on the ground that he or she (i.e. the respondent) has withdrawn from the society of the petitioner because of a reasonable excuse as mentioned in sub-section (1)?

4.4. The majority1 of the High Courts answer the question in the affirmative. The Andhra Pradesh High Court, however, has taken a different view2.

1. Shanti Devi v. Bihar, AIR 1971 Del 294 (reviews cases).

2. Annapuramma v. Appa Roa, AIR 1963 AP 321.

4.5. It is plain that the majority view is inconsistent with the clear and unambiguous words used in section 9(2): As a matter of construction, it is impossible to hold that section 9(2) does not control section 9(1). If that be so, reading sections 9(1) and (2) together, it follows that no plea can be taken under section 9(1) in support of the contention that there is a legal ground why the application should not be granted unless such a plea satisfies the specific requirements of section 9(2). Why the Legislature made a general provision in section 9(1) and then proceeded to control it rigorously by section 9(2), it is difficult to understand or appreciate; but, under no rule of construction can the width of the provisions in section 9(1) resist the application of the rigorous test laid down by section 9(2).

4.6. There is, however, no doubt that the effect of reading section 9(1) and section 9(2) together is, unfair and unjust. Restitution of conjugal rights covers a very sensitive area in matrimonial relations and it seems to us that it should be permissible for the party resisting restitution of conjugal rights to satisfy the court that restitution should not be granted on grounds, which may otherwise be reasonable, though they may not satisfy the test prescribed by section 9(2). It is because courts felt that interpreting section 9(2) as over-riding section 9(1) may lead to social injustice that they felt compelled in substance to ignore the provisions of section 9(2) and treat section 9(1) as though it were independent of section 9(2). We are, therefore, inclined to recommend that section 9(2) should be deleted.

4.7. and 4.8. There is one more consideration which has weighed in our minds in coming to this conclusion. It is well-known that in proceedings under section 488 of the Code of Criminal Procedure1, where a wife, including a Hindu wife, applies for maintenance against her husband, she has almost in every case to justify her separate residence. Invariably, when a husband is confronted with a claim made by his wife for maintenance under section 488, he pleads his readiness and willingness to maintain her provided she returns to his residence and when such a plea is raised by the husband, the wife has to satisfy the court under section 488(4) that there is a sufficient and reasonable ground for her refusal to stay with her husband.

It is not disputed that when the wife is required to show a reasonable cause for insisting to stay separately from her husband, she is not confined to the pleas such as are contemplated by section 9(2) of the Hindu Marriage Act. In other words, the plea which the Hindu wife can take under section 488 in justifying her separate residence need not necessarily be a plea which would be a ground for judicial separation or for nullity of marriage or divorce.

1. Section 488 of the Code of 1898, see now, section 125 of the Code of 1974.