CASES

T Sareetha v T Venkatasubbaiah

Harvinder Kaur v. Harminder Singh

Saroj Rani v Sudarshan kumar

Maneka Gandhi v Union Of India

Moonshee Buzloor Ruheem v. Shumsoonnissa Begum

Balfour v Balfour

Joginder singh v Srimati Pushpa

 SUMMARY OF ARGUMENTS

1. WHETHER THE APPEAL FILED BY THE PETITIONER IS MAINTAINABLE

UNDER ARTICLE 32 OF THE CONSTITUTION OF JENDIA AS OF SECTION 9 OF
THE HINDU MARRIAGE ACT, 1955 BEING VIOLATIVE OF THE
FUNDAMENGTAL RIGHTS AS ENSHRINED UNDER THE CONSTITUTION OF
JENDIA
It is humbly submitted before this Hon’ble court that in this instant case the appeal filed
by the petitioner is not maintainable under article 32 of the constitution of Jendia as their
is no violation of any fundamental right as enshrined under the constitution of Jendia and
the petitioner has not exhausted alternative remedies.

ARGUMENTS ADVANCED

1. THAT THE APPEAL FILED BY THE PETITIONER IS NOT MAINTAINABLE

UNDER ARTICLE 32 OF THE CONSTITUTION OF JENDIA AS SECTION 9 OF
THE HINDU MARRIAGE ACT ,1955 DOES NOT VIOLATE THE
FUNDAMENGTAL RIGHTS AS ENSHRINED UNDER THE CONSTITUTION OF
JENDIA
It is humbly submitted before this Hon’ble court that in this instant case the appeal filed
by the petitioner is not maintainable under article 32 of the constitution of Jendia as their
is no violation of any fundamental right as enshrined under the constitution of Jendia and
the petitioner has not exhausted alternative remedies.

1.1 THAT THE PETITIONER HAS NOT EXHAUSTED ALTERNATIVE REMEDIES

The power to grant writs under Article 32 is a discretionary power vested in the hands
on this Hon'ble Court1. It is a well settled proposition of law that existence of an
alternative adequate remedy is a factor taken into consideration in a writ petition 2.
The same has been upheld in a plethora of judgments rendered by this Hon'ble Court.

1
K. D. Sharma v SAIL, 12 SCC 481(2008)
2
Rashid Ahmed v Municipal Board,Kairana,AIR 1950 SC 163.
 In the instant case, the Petitioner has approached the Hon’ble Apex Court directly
under an Article 32 petition in spite of having an alternative remedy available in
Article 226 of the Constitution. It is pertinent to point out that Article 226 has a non-
obstante clause with respect to Article 32. Furthermore, the Article 226 empowers the
High Courts of relevant jurisdictions to entertain writs as and when requires.

It was held by the Hon'ble Court in the case of Confederation of A1l Nagaland State
Services Employees' Assn. v. State of Nagaland 3, that the petitions should be agitated
at the first instance before the High Court of Judicature exercise of its power under
Article 226 of the Constitution. In the instant case, the petitioner has directly
approached the Supreme Court, whereas following the due procedure, the petitioner
should have moved to the High Court under Article 226.

It is most humbly submitted that applying the legal maxim "sublato fundamento cadit
opus", which means in case a foundation is removed, the superstructure fall this
Hon’ble Apex Court is pleased to declare the present appeal non- maintainable.
However, the respondent still believes that the instant case would also have not been
maintainable in respect of fundamental rights in the Hon’ble High Court as well as
their is no violation of fundamental rights of the petitioner.

1.2 SECTION 9 OF THE HINDU MARRIAGE ACT , 1955 DOES NOT VIOLATE
ANY OF THE THE FUNDAMENTAL RIGHTS AS ENSHRINED IN THE
CONSTITUTION OF JENDIA
This is humbly submitted before the Hon’ble court that in the instant case their is no
violation of fundamental Right to Privacy(Article 21)as well as Right to
Equality(Article 14) as well as any other fundamental right as enshrined in the
constitution of Jendia and therefore the appeal is not maintainable before the Hon’ble
court.

3
Confederation of All Nagaland State Services Employees’ Assn. v. State of Nagaland, 1 SCC 496(2006).
In the case of T Sareetha v T Venkatasubbiah 4 which held section 9 of the Hindu Marriage
Act,1955 to be violative of the the fundamental right of privacy and fundamental right of
equality was later criticized in the case of Harvinder Kaur v. Harminder Singh and was over-
ruled in the case of Saroj Rani v Sudarshan Kumar. In the instant case, the precedent set by the
case of Saroj Rani v Sudarshan Kumar has been adhered to.

The view of the learned single judge of Andhra Pradesh was dissented from in a decision of the
learned single judge of the Delhi High Court in the case of Smt. Harvinder Kaur v. Harmander
Singh Choudhry5. In the said decision, the learned judge of the Delhi High Court expressed the
view that Section 9 of the said Act was not violative of Articles 14 and 21 of the Constitution.
The learned judge noted that the object of restitution decree was to bring about cohabitation
between the estranged parties so that they could live together in the matrimonial home in amity.
The leading idea of Section 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 summum bonum. The courts do not and
can not 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 unsubstantial 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" and the Right of
privacy of an individual is not at all infringed.

The matter then finally came before the Supreme Court in Saroj Rani v Sudarshan Kumar
Chadha6 where the Supreme Court overruled T Sareeta relying on the judgment of Justice Rotagi
in Harvinder Kaur. Justice Sabyasachi Mukarji observed that “it cannot be viewed in the manner
the learned single Judge bench of the Andhra Pradesh High Court has viewed it and we are
unable to hold that S.9 to be violative of Article 14 and Article 21 of the Constitution.”

4
T Sareetha v T Venkatasubbiah, AIR 1983 AP 356 .
5
Harvinder Kaur v Harmendar Singh ,AIR 1964 Delhi 66
6
Saroj Rani v Sudarshan , 1984 SCC (4) 90.
With regard to the violation of Article 14 of the Constitution 7, the Court ruled that there is
complete equality of both genders and equal safeguard of the laws so far as the relief is
concerned, thus, Section 9 could not be held to be in violation of Article 14 of the Constitution
because by the amending Act 44 of 1964 “either party to a marriage” is allowed to present a
petition on the ground given in Section 13 (I-A).8 

With regard to the violation of Article 21 of the Constitution9, the Court observed that the only
purpose of the remedy is ‘cohabitation’ and it is not enforcing sexual intercourse between the
unwilling spouse. The court denounced the introduction of Constitutional Law into family law
since it will prove a ruthless destructor of the institution of marriage. The court observed that
the scheme of restitution of conjugal rights acts as an aid to the prevention of breakup of
marriage. Thus, Section 9 of the Hindu marriage act, 1955 is not violative of article 21 of the
Indian constitution.

Article 19 (1) of the Indian Constitution 10 prescribes for the freedom to form associations and
reside in any area in India, the freedom to practice any profession and the freedom of free speech
and expression. But this right is not an absolute right. There are certain restrictions mentioned in
the form of Article 19(6) which are in the form of public order and morality. Thus, section 9 of
the Hindu Marriage Act,1955 cannot be said to be violative of this right as well as claimed by the
petitioner in the instant case as it does come under some reasonable restrictions as well.

In Maneka Gandhi v Union Of India 11, whether the decree on the restitution of conjugal rights
would be just, fair and reasonable and it didn’t compel the unwilling wife to live with her
husband. Then sec 9 of the Hindu Marriage Act,1955 does not violate sec 21 of the constitution .

7
 Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of
India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
8
Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of
the marriage by a decree of divorce
9
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
10
Freedom to form associations and reside in any area in India, the freedom to practice any profession and the freedom of free speech and
expression
11
Maneka Gandhi v Union Of India 1978 SCR (2) 621
In the case of Balfour v Balfour 12, it was observed that, in the home the consideration that really
obtains is that natural love and affection which counts for so little in these cold courts.
Constitutional law principles find no place in the domestic code. Atkin L. J.. in a famous
judgment, said : "THE parties themselves are advocates, judges, courts, sheriffs officer 'and
reporter. In respect of these promises each house is a domain, into which the king's writ does not
seek to run, and to which his officers do not seek to be admitted."

It can inferred from the above mentioned cases and provisions that on the grounds on which the
petitioner came before this Hon’ble court in the instant case does not stand maintainable as their
is no infringement of the fundamental rights of the petitioner and the precedent for the same has
already been set by this Hon’ble court in its earlier judgements.

12
Balfour v Balfour [1919] 2 KB 571