Object and Applicability of the Act

Object and Applicability of the Act

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Object and Purpose

The Hindu Marriage Act, 1955 is a landmark legislation enacted by the Parliament of India with the primary objective of reforming and codifying the law relating to marriage among Hindus and other related communities. Before this Act, the law governing Hindu marriages was primarily based on traditional Shastric texts, commentaries, and customs, which varied significantly across regions and communities. This led to a lack of uniformity and often perpetuated practices that were considered discriminatory or outdated in a modern, independent India.

The main purposes behind the enactment of the Act were:

1. To Codify the Law: To bring together the various rules scattered in ancient texts and customs into a single, systematic piece of legislation.

2. To Reform the Law: To introduce modern concepts and principles into Hindu marriage law. Key reforms included:

• Mandatory monogamy for all Hindus, effectively prohibiting polygamy/polyandry.
• Fixing minimum ages for marriage for boys and girls.
• Providing for the dissolution of marriage through divorce on specific grounds, moving away from the traditional concept of indissolubility.
• Recognising different forms of marital relief like judicial separation and nullity of marriage.
• Granting equal rights to both spouses in matters of marriage and divorce, aimed at improving the status of women.

3. To Bring Uniformity: To establish a uniform law of marriage applicable to all persons legally defined as Hindu across the entire country, overriding conflicting rules of different schools and customs unless specifically saved by the Act.

In essence, the Act aimed to harmonise traditional practices with modern legal principles, ensuring gender equality and providing clear legal remedies in marital relationships for Hindus.

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Applicability Overview

The Hindu Marriage Act, 1955, governs the marriage and divorce of individuals who fall within its scope. It primarily applies to persons who are considered "Hindu" under the Act. This applicability is both personal (based on who a person is) and territorial (based on where the Act is in force).

The Act defines who is a Hindu for its purposes, ensuring that it applies not just to religious Hindus in a narrow sense but also includes related communities that were historically governed by similar personal laws. It also covers individuals who convert or re-convert to these religions.

The provisions of the Act cover various aspects of marriage, including the conditions required for a valid marriage, the ceremonies necessary for solemnisation, registration of marriages, rights and obligations of spouses, and grounds and procedures for matrimonial reliefs like restitution of conjugal rights, judicial separation, nullity, and divorce.

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Definition of "Hindu" under the Act

Section 2 of the Hindu Marriage Act, 1955 provides the definition of "Hindu" for the purpose of the Act. It states that the Act applies to:

1. Any person who is a Hindu, Buddhist, Jain or Sikh by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

2. Any person who is born of parents both of whom are Hindus, Buddhists, Jains or Sikhs by religion.

3. Any person who is born of parents one of whom is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.

4. Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.

Additionally, the Act includes a residual clause (Section 2(1)(d)), stating that it applies to "any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein but for the passing of this Act." This broadens the scope to include individuals who might not strictly adhere to the religion but were historically subject to Hindu Law or custom.

The Act also clarifies in Section 2(2) that it applies to Hindus domiciled in the territories to which the Act extends who are outside the said territories. This ensures that Indian Hindus living abroad remain governed by the Act in matters of marriage and divorce, provided they retain their Indian domicile.

The definition of "Hindu" in Section 2 is wide and includes Sikhs, Jains, and Buddhists, aligning with the treatment of these communities for the purpose of social reform under Article 25 of the Constitution (Explanation II).

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Territorial Extent

Section 1(2) of The Hindu Marriage Act, 1955 states that the Act extends to the whole of India.

Historically, the State of Jammu and Kashmir was an exception, and the Central Act did not automatically apply there. Marriage and divorce for Hindus in Jammu and Kashmir were governed by specific state legislation (like the Jammu and Kashmir Hindu Marriage Act, 1955, and the Jammu and Kashmir Hindu Divorce Act, 1960) which contained similar but not identical provisions to the Central Act.

However, with the reorganisation of Jammu and Kashmir in 2019 (effective from October 31, 2019), the Jammu and Kashmir Reorganisation Act, 2019 made the Hindu Marriage Act, 1955 (along with many other Central laws) applicable to the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. Consequently, the Hindu Marriage Act, 1955 now has effect throughout the entire geographical territory of India.

This territorial applicability means that any marriage solemnised in India where the parties are Hindus (as defined by the Act) will be governed by the Act, and any legal proceedings concerning such marriages (like divorce, nullity) will be conducted under the provisions of this Act in the appropriate courts in India.

Conditions for a Valid Hindu Marriage (Section 5)

Conditions for a Valid Hindu Marriage (Section 5)

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Section 5 of the Hindu Marriage Act, 1955 lays down the essential conditions for a marriage to be validly solemnised between two Hindus. If any of these conditions are not met, the marriage may be rendered void or voidable, depending on the specific condition violated.

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Monogamy (Section 5(i))

Section 5(i) states that neither party should have a spouse living at the time of the marriage. This condition enforces monogamy as the mandatory rule for Hindu marriages under the Act. It prohibits bigamy (marrying a second time while the first spouse is still alive and the marriage is legally subsisting) and polyandry.

If a person marries while their earlier marriage is still legally valid and their spouse is living, the second marriage is void. This means it is invalid from the very beginning and does not create any legal marital status. Furthermore, entering into such a marriage is a criminal offence punishable under Sections 494 and 495 of the Indian Penal Code, 1860, which are specifically referenced by Section 17 of the Hindu Marriage Act, 1955.

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Sound Mind and Capacity to Consent (Section 5(ii))

Section 5(ii) lays down conditions regarding the mental capacity of the parties to the marriage. It states that at the time of the marriage, neither party:

(a) is incapable of giving a valid consent to the marriage in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy.

These conditions ensure that both parties have the mental capacity required to understand the nature and implications of marriage and fulfil marital obligations. A marriage in contravention of Section 5(ii) is generally not void from the outset, but is voidable under Section 12(1)(b) of the Act. This means the marriage is valid until a court annuls it on a petition by the other party.

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Age of Marriage (Section 5(iii))

Section 5(iii) prescribes the minimum age for marriage. It states that the bridegroom must have completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage.

This condition aims to prevent child marriages and ensure that parties are mature enough to enter into marital life. Importantly, a marriage solemnised in contravention of this condition is neither void nor voidable under the Hindu Marriage Act, 1955. The marriage remains legally valid. However, the person who procures such a marriage, or the adult party to a child marriage, is liable for punishment under Section 18 of the Hindu Marriage Act, 1955, and also under the Prohibition of Child Marriage Act, 2006, which is the primary legislation dealing with child marriage and prescribes stricter penalties.

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Prohibited Degrees of Relationship (Section 5(iv))

Section 5(iv) prohibits marriage between parties who are within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two. Section 3(g) of the Act defines "degrees of prohibited relationship" by listing various relationships (e.g., parent and child, grandparent and grandchild, siblings, uncle and niece, aunt and nephew, etc.). This prohibition is based on close consanguinity (blood relationship) or affinity (relationship through marriage).

Marriage between persons within the degrees of prohibited relationship (as defined in Section 3(g)) is void and does not create a legal marital relationship, unless a valid custom is proven to permit such a marriage.

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Customary Degrees of Relationship (Section 5(v))

Section 5(v) prohibits marriage between parties who are Sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Section 3(f) of the Act defines "Sapinda relationship" uniformly for the purpose of the Act (up to three degrees through the mother and five degrees through the father, tracing descent from a common ancestor).

Marriage between persons who are Sapindas of each other (as defined in Section 3(f)) is also void and does not create a legal marital relationship, unless a valid custom or usage is proven to permit such a marriage. This provision recognises that certain communities or groups within Hinduism may have long-standing customs permitting marriages between persons who would otherwise be considered Sapindas.

The burden of proving such a valid custom lies on the party asserting it. A valid custom must be ancient, certain, reasonable, and not contrary to public policy or specific statutory provisions.

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Cognizable and Non-cognizable Offences

Cognizable and Non-cognizable Offences

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While the Hindu Marriage Act, 1955 primarily deals with the civil aspects of marriage and divorce, it also contains provisions that make the contravention of certain conditions an offence punishable under the law. These offences fall under the purview of criminal procedure, distinguishing between cognizable and non-cognizable offences.

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Offences under the Hindu Marriage Act, 1955 (Section 18)

Section 18 of the Hindu Marriage Act, 1955 provides for punishment for contravention of certain conditions specified in Section 5. These are:

1. Punishment for Child Marriage: Section 18(a) states that any person who procures a marriage of himself or herself or facilitates a marriage in contravention of the condition specified in clause (iii) of Section 5 (regarding minimum age of marriage) shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both.

2. Punishment for Marriage within Prohibited Degrees or Sapinda Relationship: Section 18(b) states that any person who procures or facilitates a marriage in contravention of the condition specified in clause (iv) or clause (v) of Section 5 (prohibited degrees or Sapinda relationship without valid custom) shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

3. Punishment for Bigamy: Section 17 of the Hindu Marriage Act, 1955 makes a Hindu marriage solemnised between two Hindus void if, at the date of such marriage, either party had a spouse living and the earlier marriage was subsisting. It states that the provisions of Sections 494 and 495 of the Indian Penal Code, 1860 shall apply as if the second marriage had been solemnised under the Indian Penal Code. This means that the offence of bigamy in Hindu marriages is punishable under the Indian Penal Code, not directly under Section 18 of the HMA.

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Classification as Cognizable or Non-cognizable

The classification of an offence as cognizable or non-cognizable determines the powers of the police regarding arrest and investigation without a warrant.

• Cognizable Offence: An offence in which a police officer may, in accordance with the First Schedule of the Code of Criminal Procedure, 1973 (CrPC), or under any other law for the time being in force, arrest without warrant. Police can also start investigation without the permission of the Magistrate. These are generally more serious offences.
• Non-Cognizable Offence: An offence in which a police officer has no authority to arrest without a warrant. Police cannot investigate such offences without the order of a Magistrate having power to try the case or commit the case for trial. These are generally less serious offences.

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Offences under HMA and their Classification

Let's classify the offences related to Hindu marriages:

1. Bigamy (under IPC, applied via HMA Section 17): Offences under Sections 494 and 495 of the Indian Penal Code, 1860 are classified as Cognizable offences. Police can arrest the accused without a warrant and investigate the matter.

2. Child Marriage (under HMA Section 18(a) and PCMA, 2006): While Section 18(a) of HMA makes it punishable, the primary law dealing with child marriage offences is the Prohibition of Child Marriage Act, 2006. Section 15 of the PCMA, 2006 declares offences under that Act to be Cognizable and non-bailable. Thus, contravention of the minimum age condition (Section 5(iii) HMA), as it constitutes an offence under PCMA, is a cognizable offence.

3. Marriage within Prohibited Degrees or Sapinda Relationship (under HMA Section 18(b)): The punishment prescribed under Section 18(b) is simple imprisonment up to one month or fine up to ₹1,000, or both. According to the general classification in the First Schedule of the CrPC, offences punishable with imprisonment up to 3 years are generally non-cognizable. Therefore, the offence under Section 18(b) of the Hindu Marriage Act, 1955 is typically considered a Non-Cognizable offence. Police would require a warrant from a Magistrate to arrest and permission from a Magistrate to investigate.

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Act Violated (HMA Section)	Related Offence (Act/Section)	Punishment (as per relevant Act)	Cognizable/Non-cognizable
Section 5(i) (Monogamy)	Bigamy (IPC Sec 494/495)	Imprisonment up to 7 years and/or fine (Sec 494); Imprisonment up to 10 years and/or fine (Sec 495)	Cognizable
Section 5(iii) (Age of Marriage)	Child Marriage (HMA Sec 18(a) and PCMA, 2006)	HMA Sec 18(a): Imprisonment up to 2 years or fine up to ₹1 lakh or both. PCMA, 2006: Imprisonment up to 2 years and/or fine up to ₹1 lakh.	Cognizable (as per PCMA, 2006)
Section 5(iv), 5(v) (Prohibited Degrees, Sapinda)	Contravening Sec 5(iv) or (v) (HMA Sec 18(b))	Simple imprisonment up to 1 month or fine up to ₹1,000 or both.	Non-Cognizable (generally)

Section 7: Ceremonies for a Hindu Marriage

Section 7: Ceremonies for a Hindu Marriage

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Section 7 of the Hindu Marriage Act, 1955 deals with the solemnization of a Hindu marriage. It acknowledges that Hindu marriages are traditionally solemnised through religious ceremonies and rituals. The Act does not prescribe a uniform set of ceremonies for all Hindus but recognises marriages performed according to the customs of the parties.

Section 7 states:

"(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."

This section is crucial as it links the legal validity of a Hindu marriage under the Act to the performance of specific ceremonies that are considered essential according to the customs of either the bride or the groom.

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Saptapadi (Seven Steps)

Saptapadi, the ceremony of taking seven steps jointly by the bride and groom before the sacred fire (Agni), is one of the most important and widely recognised marriage ceremonies in many Hindu traditions. Section 7(2) specifically mentions Saptapadi and gives it legal significance. It provides that where Saptapadi is part of the customary rites and ceremonies applicable to either party, the marriage is deemed to be complete and binding when the seventh step is taken. This signifies the moment when the marital ties are legally formed.

The performance of Saptapadi, where it is customary, is generally considered essential for a valid Hindu marriage under the Act. If Saptapadi is the required ceremony according to the custom of either party, and it is not performed, the marriage may not be considered validly solemnised under Section 7, even if other rituals are conducted.

However, Section 7(2) applies only "where such rites and ceremonies include the Saptapadi". This means that if the customary rites of both parties do not include Saptapadi, the marriage can be validly solemnised according to their other customary ceremonies, and the completion of those essential ceremonies (whatever they may be) will mark the binding moment of the marriage.

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Customary Ceremonies

Section 7(1) gives primacy to the customary rites and ceremonies of either party to the marriage. This acknowledges the diversity of marriage ceremonies practiced by different Hindu communities, castes, and regions in India. The Act does not impose a universal set of rituals but respects the traditions of the parties.

For a marriage to be valid under this section, it must be solemnised in accordance with the essential ceremonies traditionally required by the customs of either the bride's side or the groom's side. What constitutes the "essential" ceremonies varies by custom. It might include rituals like Kanyadan (giving away the bride), Panigrahan (taking the bride's hand), exchange of garlands (Jaimala/Varmala), tying of the Mangalsutra, or other regional-specific rituals.

Proof of these essential customary ceremonies is necessary to establish the validity of the marriage in court if disputed. Mere living together or social recognition as husband and wife is not sufficient to constitute a valid Hindu marriage under the Act if the essential customary rites were not performed.

The Act therefore maintains a link between the legal validity of marriage and traditional religious or customary practices, while providing a modern legal framework for the institution.

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Registration of Marriage (Section 8)

Registration of Marriage (Section 8)

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Section 8 of the Hindu Marriage Act, 1955 deals with the registration of Hindu marriages. While Section 7 dictates how a marriage is solemnised (performed), Section 8 deals with the official recording of the marriage.

Section 8 provides for the establishment of Marriage Registration Rules by the respective State Governments. Key aspects of Section 8 are:

1. State Government's Power: State Governments can make rules for the registration of Hindu marriages solemnised within their State.

2. Maintenance of Marriage Register: These rules typically provide for the maintenance of a public register where particulars of Hindu marriages can be entered.

3. Procedure for Registration: The rules lay down the procedure for getting a marriage registered, which usually involves submitting an application, proof of marriage solemnisation, proof of age, identity, and presence of witnesses, often within a specified time limit after the marriage.

4. Proof of Marriage: The entry in the marriage register provides strong evidence of the fact that a marriage has been solemnised. A certified copy of the entry is admissible in evidence.

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Compulsory vs. Optional

Section 8(2) of the Hindu Marriage Act, 1955 states that "all particulars relating to a marriage shall be entered in such form and in such manner as may be prescribed". However, the Act as originally enacted did not make registration of Hindu marriages compulsory throughout India. It was left to the discretion of the State Governments to decide whether registration should be compulsory in their respective states (Section 8(4)).

This created a situation where, in many states, registration remained optional under the Hindu Marriage Act. A marriage solemnised according to the requirements of Section 7 (performance of customary rites) was legally valid even if it was not registered under Section 8. Non-registration did not invalidate the marriage.

Judicial Push for Compulsory Registration: The Supreme Court of India, in the case of Seema v. Ashwani Kumar (2006) 2 SCC 578, noting the problems caused by non-registration (like proving marriage, preventing child marriages, bigamy, and protecting women's rights), directed all States and the Central Government to make registration of marriages compulsory regardless of religion.

Following this directive, many States have amended their rules under Section 8 of the Hindu Marriage Act, 1955, or enacted separate legislation to make registration of marriages, including Hindu marriages, compulsory. The Central Government also introduced a Bill for compulsory registration, but it has not been enacted into a nationwide law yet.

Current Position: While the Hindu Marriage Act, 1955 itself does not universally mandate compulsory registration for validity (leaving it to states), the direction of the Supreme Court and subsequent state-level actions mean that in practice, registration is compulsory in most states now, although non-registration *under the Hindu Marriage Act* typically attracts a penalty (fine) but does not necessarily invalidate the marriage itself (whose validity depends on Section 5 and 7), unless a specific state law mandates invalidity for non-registration.

However, registration is highly recommended as it provides crucial legal proof of marriage, which is essential for various purposes (e.g., obtaining passports, visas, claiming maintenance, inheritance, etc.).

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Section 9 of the Hindu Marriage Act, 1955

Section 9 of the Hindu Marriage Act, 1955

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Meaning and Purpose

Restitution of Conjugal Rights is a matrimonial remedy available to a spouse when the other spouse has, without reasonable excuse, withdrawn from the society of the aggrieved spouse. Section 9 of the Hindu Marriage Act, 1955 codifies this remedy for Hindus. It is based on the principle that one of the fundamental obligations of marriage is for the spouses to live together and cohabit.

Section 9 states:

"When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights."

Explanation to Section 9 adds: "Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving a reasonable excuse shall be on the person who has withdrawn from the society."

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The meaning of restitution of conjugal rights is the resumption of cohabitation by the spouses. The court, if it grants a decree for restitution of conjugal rights, orders the respondent spouse to return to the marital home and live with the petitioner spouse.

The purpose of this remedy is primarily to keep the institution of marriage intact and facilitate reconciliation between the spouses. It provides an opportunity for the parties to resume their marital relationship before contemplating more drastic steps like judicial separation or divorce. It is a recognition of the right of each spouse to the society and comfort of the other.

It's important to note that the court cannot physically compel the respondent spouse to live with the petitioner. The decree is enforced through attachment of property if the respondent fails to comply. However, the primary effect of the decree is legal; failure to comply with a decree of restitution of conjugal rights for a period of one year or upwards after its passing becomes a ground for divorce under Section 13(1A)(ii) of the Hindu Marriage Act, 1955.

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Grounds for Refusal of Decree

Grounds for Refusal of Decree

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Section 9 itself states that the court may decree restitution of conjugal rights only if it is satisfied "that there is no legal ground why the application should not be granted". This implies that the court has discretion to refuse the decree even if the respondent has withdrawn from the petitioner's society, if the respondent can show a "reasonable excuse" for their withdrawal or if other legal grounds exist.

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Statutory and Judicial Grounds for Refusal

The grounds upon which a court may refuse a decree for restitution of conjugal rights are not exhaustively listed in Section 9, but they can be inferred from other provisions of the Act and judicial pronouncements:

1. Any Ground for Judicial Separation or Divorce: Section 9 explicitly mentions that the court will grant the decree if there is no "legal ground" why it should not. Courts interpret this to mean that if the respondent can prove any ground against the petitioner on which they could have sought a decree for judicial separation (Section 10) or divorce (Section 13), that would constitute a "reasonable excuse" for withdrawing from the petitioner's society, and the restitution petition would be dismissed.

Examples: If the petitioner has treated the respondent with cruelty, or committed adultery, or has deserted the respondent for the statutory period, the respondent is justified in withdrawing from their society, and a decree of restitution will be refused.

2. Petitioner's Own Wrongful Conduct: Even if the conduct does not amount to a full ground for judicial separation or divorce, other grave matrimonial misconduct by the petitioner that makes it unreasonable to expect the respondent to live with them can be a reasonable excuse for withdrawal. This is assessed on the facts of each case.

3. Failure to Comply with Matrimonial Obligations: If the petitioner has failed to perform essential marital obligations, this could potentially justify the respondent's withdrawal.

4. Violation of Conditions under Section 5: If the marriage itself was void or voidable due to contravention of conditions in Section 5, a decree for restitution cannot be granted as there is no valid marriage to restore.

5. Unreasonable Demand or Condition by Petitioner: If the petitioner is imposing unreasonable conditions for cohabitation, the respondent might have a reasonable excuse for withdrawal.

The burden of proving the "reasonable excuse" lies on the spouse who has withdrawn from the society (as per the Explanation to Section 9).

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Legal challenges and interpretation

Section 9 has been one of the most controversial provisions of the Hindu Marriage Act, 1955, facing significant legal challenges regarding its constitutional validity:

1. Violation of Right to Privacy and Personal Liberty (Article 21): The main argument against Section 9 is that a decree of restitution of conjugal rights violates the fundamental right to privacy and personal liberty guaranteed under Article 21 of the Constitution. Compelling a spouse to live with the other spouse is seen by critics as an invasion of their bodily autonomy and privacy.

2. Violation of Right to Equality (Article 14): It has also been argued that the remedy could potentially be used more oppressively against women, especially in societal contexts where women have fewer alternatives or face social pressure to return to the marital home.

Judicial Views on Constitutional Validity:

• The High Court of Andhra Pradesh in T. Sareetha v. T. Venkata Subbaiah (AIR 1983 AP 356) held Section 9 unconstitutional, finding it a barbarous and uncivilised remedy violating Article 21, by requiring a wife to 'surrender her body' against her will.
• In contrast, the High Court of Delhi in Harvinder Kaur v. Harmander Singh Choudhry (AIR 1984 Delhi 66) upheld the constitutionality of Section 9, arguing that the purpose was to promote reconciliation and that the remedy was not about forcing sexual intercourse but about encouraging cohabitation.
• The matter reached the Supreme Court of India in Saroj Rani v. Sudarshan Kumar Chadha (AIR 1984 SC 1562). The Supreme Court upheld the constitutional validity of Section 9. It disagreed with the Andhra Pradesh High Court's view, stating that Section 9 served a social purpose of preventing the break-up of marriage and was not violative of Article 14 or 21. The court viewed the decree not as forcing sexual cohabitation but as an inducement for the spouse to return and that the remedy provided by Section 9 was a safeguard in married life.

Despite the Supreme Court upholding its validity, Section 9 remains a subject of debate and has seen limited use in practice compared to other matrimonial remedies. Courts generally use their discretion to ensure the decree is not granted where it would be unjust or oppressive, often considering the actual reasons for withdrawal under the umbrella of "reasonable excuse". The practical impact of the decree is less about forcing cohabitation and more about establishing a legal basis for non-compliance, which can then be used as a ground for divorce after the statutory period.

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