The leading idea of S. 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 sum-mum bonum. The courts do not and cannot 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 un-substantial 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”.
Supreme Court of India in Smt. Saroj Rani Versus Sudarshan Kumar Chadha AIR 1984 SC 1562 :
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 S. 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 off-spring. 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”.
16. Section 9 only is a codification of pre-existing law. Rule 32 of O. 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction. Sub-rule (1) of R. 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 wilfully 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 injunction by his detention in the civil prison, or by the attachment of his property, or by both”.
17. It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by court where the disobedience to such a decree is wilful i.e. is deliberate, inspite 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 dis- obedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a wilful 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 inspite 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 Andh Pradesh High Court has viewed it and we are therefore unable to accept the position that S. 9 of the said Act is violative of Art. 14 or Art. 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.
18. Another decision to which our attention was drawn is also a Bench decision of the Andhra Pradesh High Court in the case of Geeta Lakshmi v. G. V. R. K. Sarveswara Rao, AIR 1983 Andh Pra 111. There on the admitted misconduct of the husband in 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 S. 13 (1 A) of the said Act in view of the wrong as contemplated under S. 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.
19. 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 ` 200/- per month for the wife/appellant and ` 300/- per month for the daughter Menka. Wife would be entitled to such maintenance only until she remarries and the daughter Menka to her maintenance until she is married.