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Restitution of Conjugal Rights

Restitution of Conjugal Rights and its Constitutional Validity

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Marriage is the creation of a union or bond between a husband and wife. Parties uniting in this bond of marriage commit to performing their marital duties for their lifetime. Marriage implies consortium, i.e., husband and wife are entitled to each other’s company and comfort. Marriage imposes the obligation on them to cohabit with each other and provide each other with the comforts of marital life including sexual pleasures, etc. But, what happens when a spouse refuses to cohabit with another spouse and spare him the marital rights and obligations, here comes, the concept of restitution of conjugal rights.

Meaning-

‘Conjugal rights’ refers to rights related to sexual relations, pleasures and comforts of life exercisable in an institution of marriage between two parties, i.e, husband and wife.

‘Restitution of conjugal rights’ implies that the guilty party, one who has refused to live with the other without any reasonable cause or excuse can be made bound to live with the aggrieved party on the execution of the decree from the court and provide it with marital comforts and pleasures.

Origin of the Concept-

The concept of restitution of conjugal rights in India has been adopted from English common law, which has been firstly adopted from Jewish law.

Initially, in ancient times, the concept of marriage was based on the proprietary rights of the husband, i.e, the wife was considered to be the property of her husband and was supposed to live with him at all the times and was required to look after him and his family.

In India, it was applied first in 1866 by the privy council and further, through judicial and legislative actions in the Hindu Marriage Act, 1955, Special Marriage Act, 1954, Parsi Marriage and Divorce act, 1988, the Divorce act, 1869, and the Muslim personal laws.

Provision under Hindu marriage act, 1955

According to section 9 of the Hindu marriage act,1955, restitution of conjugal rights implies-

“9. Restitution of conjugal rights.—[** *]

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 with 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 accordingly. 

[Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from society.]”

Essentials-

For decree of restitution of conjugal rights to be satisfied or be passed in favor of the petitioner, following three essential conditions are to be fulfilled-

  1. The respondent should have withdrawn from the society of the petitioner
  2. Withdrawal must be without reasonable cause or excuse
  3. The court should be satisfied with the truth given in the statement of the petition
  4. There should be no legal ground that why relief should not be granted

The Constitutional validity of Restitution of conjugal rights

Constitutional validity implies checking whether a particular law, procedure, act, etc. violates constitutional provisions or not.

There are three most important and landmark cases based on this question of the constitutional validity of section 9 of the Hindu marriage act, 1955, i.e, restitution of conjugal rights. 

The question of the constitutional validity of a provision of restitution of conjugal rights arises as it may be violative of fundamental rights of persons such as the Right to equality2(Article 14), Right to freedom to reside and settle in any part of the territory of India3 (Article 19(e)), Right to privacy4 (Article 21), etc. 

This question first arose before the High Court of Andhra Pradesh in 1983 in T. Sareetha v. Venkata Subbaiah5. In the given case, Justice P.A. Chaudhary observed that 

  • The petitioner in the given case was the husband and his petition was opposed by the wife, who was a famous cinema star and left from his society to give particular attention to her career and work.
  • It was argued that section 9 violates Article 21 (Right to privacy under the right to life and personal liberty) as “It denies the woman her free choice whether, when, and how her body is to become the vehicle for procreation of another human being.” 
  • It was also contended that section 9 is also violative of Article 14 (Right to equality) as it treats that both married men and women as equals, however, men and women are inherently and practically always unequal. 

Therefore, by ‘treating unequal’s as equals’ is violative of Article 14 as it is forbidden in this given provision.

  • It was also held “Section 9 promotes no legitimate purpose based on any conception of the general good. It does not sub-serve any social good.” 
  • forceful cohabitation of two spouses unwilling to reside with each other would lead to forced sexual intercourse against the wife.
  • Held section 9 as  “barbarous’, “uncivilized” and “an engine of oppression”.
  • Justice Choudhary had ruled Sec. 9 to be unconstitutional as its provisions were the antithesis to the fundamental rights guaranteed under Articles 14 & 21 of the Constitution.

However, it could be concluded that the above-learned judge has viewed the whole situation from the point of the husband but, he has completely overlooked the fact that it can be claimed by the wife too.

Therefore, another instance arose questioning the constitutionality of section 9 in the case of Harvinder Kaur v. Harmander singh6 in Delhi high court. In this case, Justice Rohtagi-

  • Strongly dissented the observed decision of Justice Chaudhary in T. Sareetha v. Venkata Subbaiah of section 9 being unconstitutional and violative of Articles 14 and 21 of the constitution of India.
  • The petitioner was the husband and the wife was the one opposing the petition.
  • Held that decree for restitution of conjugal rights is aimed at preserving the marriage and not disrupting it.
  • Held that sexual intercourse is surely an important aspect of married life but it does not constitute the whole concept.
  • It was observed, “Object of restitution decree is to bring about cohabitation between estranged parties so that they can live in their matrimonial home in amity.”
  • Held that Cohabitation in marriage implies living together as husband and wife completing their marital rights and obligations and it does not merely depend upon sexual intercourse between the parties.
  • Held, Consortium means “companionship, love, affection, comfort, mutual services, sexual intercourse. All these belong to the married state. Taken together they make up a consortium.”

Hence, Justice Rohtagi held Section 9 perfectly valid and strongly dissented to Justice Chaudhary. Decree for restitution of conjugal rights was granted in favor of the husband as the wife was unable to prove her reasonable cause for withdrawal from the society of the husband.

Further, the question of constitutionality reached the supreme court in Saroj Rani v. Sudarshan Kumar7 in 1984. 

In this given case, Justice Sabyasachi Mukherjee-

  • The wife was the petitioner for a decree of restitution of conjugal rights and the husband opposed the decree.
  • The husband was asking for divorce decree under section 13(1A)

13. Divorce.—[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground— 

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or 

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]”

In the above-given provision, 

It is mentioned that if parties to the marriage did not resume/continue their cohabitation for a period of one year or more after passing of the decree of judicial separation or decree of restitution of conjugal rights. Then, either party (husband or wife) can file for the decree of divorce from the court.

  • Here arose the question that if section 9 is itself unconstitutional, then the petition filed under section 13(1A) should also be invalid and unconstitutional as section 13(1A) is based on section 9 only.
  • Hence, the honorable court considered both the decisions of the Andhra Pradesh high court and Delhi high court considering the constitutional validity of section 9.
  • It overruled the decision held by Justice Chaudhary in T. Sareetha v. Venkata Subbaiah of section 9 being unconstitutional and being violative of article 14 and article 21.
  • The decision held by justice Rohtagi in Harvinder Kaur v. Harmander Singh of section 9 being constitutionally valid.
  • It was held that “we are unable to accept section 9 as violative of article 14 and article 21 of the constitution.”

This is because of the fact that decree under section 9, i.e, for restitution of conjugal rights is ‘only to offer an inducement for husband and wife to live together and to settle their differences amicably.’

Also, after passing the decree of restitution of conjugal rights, it is upon their own willing choice of the parties to resume cohabitation or not. The court does not really compel anyone to live together or to have sexual intercourse.

Hence, in the given case also, the court granted a decree of divorce to the husband under section 13(1A) of the Hindu Marriage Act,1955 and held that Section 9 is constitutionally valid and dissented from the decision of Justice Chaudhary in the T. Sareetha v. Venkata Subbaiah case of Andhra Pradesh high court. 

Criticism

From the whole debate of constitutional validity of restitution of conjugal rights, it can be concluded that-

  1.  the remedy of restitution of conjugal rights attacks a person’s basic essence of being by disabling their right to choose who and who not to reside with. 
  2. Both parties in a marriage are not always at an equal standing, owing to either patriarchy or economic dependence of women, and cannot choose to dissolve the marriage entirely at their expense. 
  3. Women are still considered as properties of their husbands and abandoned by their families after marriage. Issues in such a sphere cannot be resolved with a black-and-white approach.
  4. The remedy of conjugal rights has been criticized as the most inhuman and obnoxious provision. 
  5. It has been called worse than tyranny and the worst slavery. Marriage should never be specifically enforced or imposed on someone, it should always be voluntary and a person should perform its rights and obligations only if they wish to do so.

Conclusion

The whole debate of constitutional validity of conjugal is never-ending because the question has been raised so many times and even before the supreme court, but the provision is still in force and is open to various debates and analysis.

One should not avoid the fact that despite such criticisms, it is a remedy intended to preserve marriage. It serves to help prevent marriage break-up, so it is a way to save the marriage. This remedy cannot be said to be completely unconstitutional. 

However, it is also well recognized that the notion of restitution of conjugal rights has left sufficient ambiguity as to whether it violates any of the fundamental rights guaranteed under Part III of the Constitution of India. This relies on facts and situations as they continue to change from case to case.

End-notes

  1. Hindu marriage act, 1955
  2. Article 14, Constitution of India
  3. Article 19(1)(e), Constitution of India
  4. Article 21, Constitution of India
  5. AIR 1983 AP 356,  T. Sareetha v. Venkata Subbaiah
  6. AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187, Harvinder Kaur v. Harmander Singh
  7. A.I.R 1984 SC 1652, Saroj Rani v Sudarshan Kumar Chadha
  8. Hindu marriage act, 1955
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Anshika Singla

Student, Punjabi University, Patiala

Anshika Singla is a researcher, writer and always a learner. She is from Punjab. She is immensely interested in Constitutional law and Criminal law. She believes that a perfectly written article can change perspectives of people. For any clarifications, suggestions and feedback, contact her at anshikasingla513@gmail.com

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