- Introduction
Many believe that marriage is already predetermined in heaven. Hindu marriages are considered sacraments, Muslim marriages are agreements, and Christian marriages are sacred covenants; where does a paradox exist in the marriage? Marriage creates a unique tapestry of relationships that are the complexity of human experience by tying together love and obligation, commitment, and freedom. Every culture gives its customs around marriage unique meanings, but they all have one thing in common: they bring people together meaningfully. In addition to being the joining of two lives, these unions form the basis of families and communities, influencing social norms and expectations. Suppose the couples have any conflict between them, the Indian laws have a remedy in their married life. When the couple has not reconciled or if anyone is separating their family, anyone may seek divorce, judicial separation, and restitution of conjugal rights. Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954, section 32 of the Indian Divorce Act, 1989, and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908 (CPC) provide the legal remedies for the restitution of conjugal rights. The constitutional validity of the restitution of conjugal rights has been questioned for many years. The researcher analyzed the court’s decrees on the validity and lifetime of the restitution of conjugal.
2. The Marriage of Paradox:
“We did not choose each other by chance. We meet only those who are already present in our subconscious.”- Sigmund Freud[2]
Manu said, “He is only the perfect man who consists of his wife, himself, and offspring.”[3] The Bible says, “The Lord God said, ‘It is not good for the man to be alone.
I will make a suitable partner for him.”[4] The Quran said, “It is He who created you from one soul and created from it its mate that he might dwell in comfort with her.”[5] All the religions encourage marriage. Many religions promote marriage to uphold social stability, moral values, and spiritual development. Each faith has unique teachings and traditions that influence its views, which should be understood within the broader religious and cultural context.
Two stories are about marriage. One young man prayed to the angel that he wanted a good pair and to live a long life with the pair. The angel gave a boon, and she gave some instructions about that. Go to the rose garden and pick one rose that you like. After you go away, walk along the visible path and leave the way when the exit gate opens; do not pick any other rose. The young man heard the instructions and entered the rose garden covered with gorgeous roses. Each rose was unique and beautiful in its style. The young man was confused about which one to pick. He finally picked one rose he liked. He chose the rose held in his hand and moved to more beautiful roses in the garden. His mind and heart are perplexed. When he picked another rose, he was thrown away from the garden, and the rose disappeared. The angel said to the young man, you have not followed dignity. So you were thrown away from the garden, and your rose also disappeared. This story is generally compared to married life without any gender bias. This story is also applicable to women. It also did not trigger any specific ground. It put many grounds for the separation.
The couple’s separation is justified depending on their cases. Because every couple’s life is unique. A couple’s particular situation has a big impact on their decision to split up. Given the unique characteristics of each relationship, it’s critical to realize that separation isn’t always an indication of failure. It can frequently be a courageous and essential move toward personal healing and self-defense.
3. Law and Love:
Law and love seek to protect them without discrimination. The law is dynamic and changes as society does. The law changes to safeguard the rights of every person better as our knowledge of justice and equality grows. Its dynamic character guarantees that it will continue to be applicable and successful in tackling contemporary world problems.
In personal laws, respectively, the Hindu marriage law, Indian divorce law, and Muslim personal laws are protected and loved by their people. The abolition of Sati in 1829, the Child Marriage Restraint Act of 1929, and the Hindu Women’s Right to Property Act of 1937 were pivotal in challenging traditional practices and recognizing women’s rights—gender equality.
The marriage case is not ordinarily a civil dispute or criminal case. It is the life of parties. So long delayed proceedings affect their life because they relate to their age and time.[6] Whether the courts have solved the pending marriage cases, as mentioned in the statute.[7] Whether Indian courts have arranged any basic facilities and amenities such as sitting chair, drinking water, etc. for the appearing parties, but within the same legal system, there are notable differences in the efficiency of judicial enforcement in marriage proceedings between jurisdictions. Marriage regulations frequently outline precise steps, but putting them into practice might be difficult for several reasons, these courts are intended to offer a more humane and comprehensive approach to justice and are focused on resolving family-related conflicts. They seek to advance mediation, reconciliation, and the protection of weaker family members, especially children.
The competent courts solve the maintenance cases within the time frame. Pendency Of Maintenance Petitions Affects Fundamental Rights of Minor Children; Courts Must Show Sensitivity: Madras High Court Observing that the delay in disposal of the maintenance petitions infringes the fundamental rights of minor children, the Madras High Court has said that the family courts dealing with matrimonial matters must ensure that the interest of minor children is taken care of. Their livelihood is protected by all possible means. “Given the large number of maintenance petitions,[8]
Most probably, many husbands use the restitution of conjugal rights provision as a shield for maintenance payments to their wives. However, recent jurisprudence robustly underscores that decrees for Restitution of Conjugal Rights cannot be an absolute shield against a wife’s claim to maintenance. The Supreme Court has clarified that proceedings under Section 9 of the Hindu Marriage Act and Section 125 of the Criminal Procedure Code operate independently, requiring courts to examine maintenance claims on their own merits—even in the face of non‑compliance with restitution of conjugal rights orders.[9]
Maintenance case execution processes may be a long and demanding process, especially for women and children who rely on financial assistance for survival. Even after obtaining a favorable court ruling, enforcing it is frequently tricky. Many people confront purposeful noncompliance by the accountable party, which results in lengthy legal battles and financial suffering. This battle may be stressful for women, especially those without financial means. Many people have financial difficulties due to their failure to get timely support, which often causes them to compromise or drop their claims. More substantial enforcement procedures, higher fines for noncompliance, and fast-track courts might address these issues. Ensuring that maintenance orders are carried out effectively is critical to preserving justice and respecting the rights of people in need.
4. Is the Restitution of Conjugal Rights a matter of liberty or freedom?
Liberty and freedom are used interchangeably; it may highlight autonomy, but it blends two similar ideas. Though rooted in law, the concept of restitution of conjugal rights is controversial. It raises ethical concerns about how marital duties intersect with personal choice. Today, many legal systems prioritize mutual consent in marriage, making forced restitution feel outdated and inconsistent with modern values of individual freedom.
Marriage is an institution of law that imposes a duty on each spouse to perform their marital obligations. This duty emanates from the rights of other spouses, as is evident from the famous principle of jurisprudence, which states that rights and responsibilities are co-related.[10]
This concept gives rise to the law of conjugal rights. The relief of restitution of conjugal rights is an alternative to divorce. The Law does not come in the way of filing a petition for restitution of conjugal rights and, in the alternative, for divorce on the grounds of desertion.[11]
In the Hindu Marriage Act, section 9, the constitutional validity for restitution of conjugal rights was determined by the Andhra Pradesh High Court by Actress Saritha. The court held that the pledge of equal protection of laws is thus inherently incapable of being fulfilled by this matrimonial remedy in our Hindu society. As a result, this remedy works in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife. By treating the wife and the husband who are inherently unequal as equals, section 9 of the Act offends the rule of equal protection of laws. Therefore, the formal equality that section 9 of the Act ensures cannot be accepted as constitutional. Section 9 of the Act should be struck down as violative of Article 14 of the Constitution.[12]
However, in a contrary decision by the Delhi High Court, it was held that section 9 of the Hindu Marriage Act, 1955, is constitutionally valid.[13]
When the court has decreed restitution for conjugal rights, the court can only decree if there is no just reason for not passing a decree for restitution of conjugal rights to offer inducement for the husband or wife to live together to allow them to settle up the matter amicably. It serves a social purpose as an aid to preventing the break-up of marriage. It cannot be viewed as the learned single judge of the Andhra Pradesh High Court has viewed it. We are therefore unable to accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is in its proper perspective and if the method of its execution in cases of disobedience kept in view.[14]
Restitution of marital rights frequently conflicts with the right to privacy. This legal provision empowers a judge to force a spouse to return to the marriage relationship, possibly interfering with personal autonomy and the ability to make intimate decisions. Critics claim that forcing a spouse to cohabitate violates the right to privacy, as established in key cases such as K.S. Puttaswamy v. Union of India (2017), in which the Supreme Court confirmed privacy as a fundamental right. As a result, many current legal systems see forcible reparation as obsolete and incompatible with changing concepts of consent, dignity, and individual liberty.
Does the Hindu Marriage Act, section 13(1A) (ii), violate the scope of section 9 of this Act? What is the intention of the legislature to enact section 9 of the Hindu Marriage Act? If section 9 is a noble provision, why was section 13(1A) (ii) enacted? More probably, section 9 was used to escape from maintenance under section 125 of the criminal procedure code. If one party does not obey the decree, the remedy only attaches to the property. If the party has no property, whether the decree is fruitful.
5. Is a court‑ordered restitution of conjugal rights legally valid?
The question arises based on the fact that many years after the validity of the issues raised, students at Gujarat National Law University (GNLU) in Gandhinagar filed a public interest litigation challenging various aspects of the restitution of conjugal rights under codified family laws. They specifically question the constitutional validity of Section 9 of the Hindu Marriage Act of 1955, Section 22 of the Special Marriage Act of 1954, and Order 21, Rules 32 and 33 of the Code of Civil Procedure of 1908 (CPC)[15]. This matter is still pending before the Supreme Court. Concurrently, many petitions for the restitution of conjugal rights were adjudicated by civil courts.
The Ojaswa Pathak v Union of India case is still pending, and whether sub-judice can be invoked in all the subordinate courts.
In the case of Ojaswa Pathak v. Union of India, which remains pending, an important legal question arises: Can the doctrine of sub judice be invoked uniformly across all subordinate courts in India? Applying this principle in subordinate courts requires careful consideration of judicial hierarchy. If a similar matter is already pending before a higher court or another court, whether a subordinate court can try the same matter independently arises. The principle of sub judice, as outlined in Section 10 of the Civil Procedure Code (CPC), 1908, provides that if a suit is already pending before a competent court, another court of concurrent jurisdiction should not proceed with a trial on the same issue. Section 10 of the Civil Procedure Code (CPC), 1908, states that;
No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim to litigate under the same title where such suit is pending in the same or any other Court in India have jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court[16].
5.1 Sub-Judice in Lower Courts
The famous Gynavabi Masque case was pertinent to the proceedings pending sub judice, as Section 10 of the Civil Procedure Code permitted. The honorable Supreme Court stays the pending suits (such as those concerning Gyanvapi mosque, Mathura ShahiIdgah, Sambhal Jama Masjid, etc.), the Courts should not pass effective interim or final orders, including orders for the survey. The interim order was passed while hearing a batch of petitions challenging the Places of Worship (Special Provisions) Act, 1991, and a petition seeking the implementation of the Act .The crucial intervention of the Court came amidst rising concerns about the filing of multiple suits in the country claiming ownership of medieval mosques and dargahs. A survey order passed by a trial court against a 16th-century mosque in Sambhal (UP) triggered violence in November, killing at least four persons.[17]
A unique bench comprising Chief Justice of India Sanjiv Khanna, Justice Sanjay Kumar, and Justice KV Viswanathan passed the following order.
“As the matter is sub-judice before this Court, we deem it appropriate to direct that while suits may be filed, no suits would be registered and proceedings undertaken till further orders of this Court. We also direct that in the pending suits, the Courts would not pass any effective interim orders or final orders, including orders of survey, till the next date of hearing.”[18]
5.2 Sub Judice in Writs:
Legal procedures, particularly in writ petitions, are heavily affected by sub judice, or “under judicial consideration.” By banning several courts from hearing the same case simultaneously, the likelihood of contradicting outcomes is reduced while maintaining judicial discipline. People can file writ petitions to protect their fundamental rights under Articles 32 and 226 of the Indian Constitution. But a court of competent jurisdiction is already hearing a matter. The sub judice rule can prohibit a different court from considering a comparable petition to maintain uniformity in the legal system.
One example case is that the Madras High Court recently observed that a person who has converted to another religion cannot claim the benefits of his community before conversion unless the State grants it. Justice GR Swaminathan of the Madurai bench was hearing the plea of a candidate challenging the action of the Tamil Nadu Public Service Commission in not treating him as a “Backward Class (Muslim)” but considering him as a “General” category in the Combined Civil Services Examination-II (Group-II Services). The High Court further added that whether a person who has converted to another religion can benefit from community reservation was a matter pending adjudication before the Supreme Court. Thus, it was not for the High Court to decide the matter.[19]
Another relevant judgment is that the Madras High Court has set aside an order from a single judge permitting Angapradakshinam, a ritual where devotees roll over the plantain leaves on which other devotees have consumed food. The division bench of Justice R. Suresh Kumar and Justice G. Arul Murugan overturned an order issued by Justice G.R. Swaminathan in May 2024. The High Court could not determine whether such a practice violated public morality or order, as the Supreme Court had already addressed a similar issue arising from the Karnataka High Court. While permitting the ritual, the single judge noted that individuals have every right to perform Angapradakshinam, a right protected under Articles 14, 19(1)(a), 19(1)(b), 21, and 25(1) of the Constitution. The single judge also stated that the right to privacy encompasses one’s spiritual orientation and, therefore, allows a person to engage in religious practices that they deem appropriate. Additionally, the single judge pointed out that individuals have the right to fulfill the religious vow they undertook when they believed such an act would bring them spiritual benefit.[20]
Those high court cases involve sub-judice, even in the high courts. The principle of sub judice, derived from Section 10 of the Civil Procedure Code (CPC), 1908, prevents a court from proceeding with a case if the same matter is already pending before a court of competent jurisdiction. While this doctrine applied in subordinate courts, its relevance in high courts and even the Supreme Courtis a subject of legal scrutiny.
Conclusion
More than 100 years later, this provision continues to be in statute books, pending before the Supreme Court over its constitutional validity. It is doubtful that in a constitutional democracy, based on the framework of liberty and equality, a provision compelling a spouse to have “conjugal” rights can be termed valid. It is also doubtful what aim this provision serves today. The Indian legal system has a long history of taking a very paternalistic view of women’s private lives, which is a complex reality to accept. The intricate patriarchal system that women face daily has been compelled by the laws to be passively accepted. However, we must recognize that marriage is the basis upon which two willing adults connect and voluntarily decide to share their company. It is predicated on two people agreeing to share their freedom and liberty. A spouse loses control over their body and choices when conjugal rights are restored as a matrimonial remedy. There is currently a petition pending in the Supreme Court challenging the provision’s constitutional validity.
“The pending case only addresses the questions.”[21]
[2]Who was Sigmund Freud? – Freud Museum London, Freud Museum London (2024), https://www.freud.org.uk/education/resources/who-was-sigmund-freud/ (last visited Feb 25, 2025).
[3] Manusmirthi IX,45
[4]Bible, Genesis 2:16
[5]Quran 7:189
[6] Devika V Sathiyaraj (Tr. C.M.P(MD) No. 325 of 2023)
[7]Section 21B (2) of Hindu Marriage Act, 1955
[8]M Ramya v N Satish Kumar ( Tr.C.M.P.No.48 of 2022)
[9] Rina Kumari @ Rina Devi v. Dinesh Kumar Mahto (2025 INSC 55)
[10]AIR1973P&H134, AIR 1973 PUNJAB AND HARYANA 134
[11]Smt. Bhavna Adwani vs Manohar Adwani on 8 May, 1991, AIR1992MP105
[12]T. Saritha vs T. Venkata Subbaiah on 1 July, 1983AIR1983AP356
[13]Harvinder Kaur V. Harminder Singh AIR 1984 Delhi 66
[14]Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 19841984 AIR 1562
[15]Ojaswa Pathak v Union of India (WP (C) 250/2019Pending before the Supreme Court)
[16]Section 10 of Civil Procedure Code
[17]SparshUpadhyay, UP Court Orders Survey Of Sambhal’s Mosque By Advocate Commissioner On Plea Claiming It Was Built Over…, Livelaw.in (2024), https://www.livelaw.in/news-updates/up-court-survey-sambhal-chandausi-mosque-advocate-commissioner-demolished-har-hari-temple-275845 (last visited Mar 26, 2025).
[18]Ibid
[19]U Akbar Ali v The State of Tamil Nadu and another (WP (MD)No.1019 of 2022)
[20]The District Collector and Others v. P Naveen Kumar and Others (W.A.(MD). Nos.986 and 1261 of 2024)
[21] Ojaswa Pathak v Union of India (WP (C) 250/2019Pending before the Supreme Court)
