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Restitution of Conjugal Rights

Restitution of Conjugal Rights

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What is the Restitution of Conjugal Rights?

Marriage under Matrimonial laws is union imposing marital duties and rights upon the parties to the marital life. The main intention of marriage is that parties (both husband and wife) should live together. In our society, marriage plays an important role. It is considered as a social institution where the socialization process takes place. In marital life, each spouse is entitled to the comfort of the other.

After the solemnisation of marriage, if any of the parties to the marriage/ spouse leaves the other spouse without any reason then the aggrieved party has a legal right to file a petition in matrimonial court seeking the deserting spouse to live with the deserted spouse. This is stated in Section- 9 of The Hindu Marriage Act, 1955 as, “when either the husband or wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 grounds why the application should not be granted, may decree restitution of conjugal rights”[1]. 

Thus, a remedy is available for the parties to the marriage by a matrimonial court. However, the Hindu text does not provide any remedy like restitution of conjugal rights.

The order of Restitution of Conjugal Rights makes the deserting party/ spouse to resume cohabitation with the deserted spouse. If the deserting spouse violates the order of the court (restitution of conjugal rights), Cr. P.C. provides for attachment and sale of his/her property. And after the sale proceeds, the decree-holder is under obligation to compensation. Therefore, restitution of conjugal rights(remedy) is criticised as physically undesirable and morally unwanted[2].

The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the court may also punish him for his or her contempt of court[3]. The degree of restitution of conjugal rights will be possible only for valid marriages. In Ranjana Kejriwal V. Vinod Kumar Kejirwal, petitioner alleged that her husband was already married and had suppressed the fact from her. The court held the petition for restitution for conjugal is not maintainable as there is no legal marriage.

Historical Evolution of Restitution of Conjugal Right

The restitution of conjugal rights was not recognised by both the Dharmashastra and the Muslim law, it came with British Raj. This restitution of conjugal rights has its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession like other chattels[4]. In the case of Moonshee Buzloor Ruheem V. Shumsoonissa Begum, the remedy restitution of conjugal rights was introduced, where such actions were regarded as considerations for specific performance.

During the introduction of Section 9 in the Hindu Marriage Act and in the Special Marriage Act, many criticisms were made. In Shakila Banu V. Gulam Mustafa, the high court observed, the concept of restitution of conjugal rights as a relic of ancient times when slavery or quasi-slavery was regarded as natural.

Satutory Provisions :

Even though the sources of personnel laws have not recognised restitution of conjugal rights, the laws in India provide it as a remedy. This remedy is available to

  • Hindus under Section- 9 of the Hindu Marriage Act, 1954
  • Muslims under general law
  • Christians under Section- 32 and 33 of the Indian Divorce Act, 1869
  • Parsis under Section- 36 of the Parsi Marriage and Divorce Act, 1936
  • For persons married under the Special Marriage Act, Section- 22 of the Special Marriage Act, 1954.

Requisites

  1. The withdrawal by respondent from the matrimonial life
  2. The withdrawal is made without any reasons or reasonable excuse or lawful ground.
  3. There should be no other legal ground for refusal of the relief
  4. The court should be satisfied about the truth of the statement made in the petitioner.

In Sushila Bai V. Prem Narayn, the husband deserted his wife & left the matrimonial life and thereafter was totally unresponsive towards her. This behaviour was considered as the husband had withdrawn from the society of his wife and therefore the wife’s petition for restitution for conjugal rights was granted by the court[5].

This restitution of conjugal rights is a ground for divorce. Meaning thereby, if the deserting party as per court’s order has spent his/her one year life with his/her partner and still wants to dissolve the matrimonial life, shall apply for divorce. Where this restitution of conjugal rights is one of the grounds for applying divorce. However, violation of the order of the restitution of conjugal rights entitles the petitioner to claim maintenance.

Defences:

The defences to the petition for restitution of conjugal rights are,

  1. Reasonable excuse for desertion
  2. Any just cause
  3. That the petitioner is not sincere and that he does not desire bonafide resumption of cohabitation.

Almost all grounds for judicial separation and divorce under the Hindu Marriage Act can be raised as defences to the petition for restitution of conjugal rights.  The reasonable excuses refer to any cause fit and proper in the opinion of the court denying the remedy. If the court finds that the further cohabitation is impossible then the court will not provide this remedy.

Restitution of Conjugal Rights – Retain or Remove:

The question on the validity of the restitution of conjugal rights is still an unresolved one, as from time to time, the view on validity is changed by courts of law. In 1983, the Andhra Pradesh High Court held that impugned section was unconstitutional[6]. However, this provision was upheld by the Honourable Supreme court of India in Saroj Rani V. Sudharshan Kumar Chadha. In this case, the court held that it performs an important social purpose of preserving marriage over individual rights and freedoms, particularly those of the wife and held restitution of conjugal rights as valid[7].

In Justice K.S. Puttaswamy V. Union of India, the Honourable Supreme court of India held that the right to privacy includes the rights to individual autonomy and personal choices and also held that privacy is a fundamental right[8].

Even though in many cases the courts in India, including the apex court upheld the validity of restitution of conjugal rights, many jurists still have doubts with respect to the soundness and demands its abolishment.

Abolitionist’s view:

The abolitionist argued that Section 9 was unknown to Hindu law till the British introduced it in the name of social reforms[9]. Even when it was introduced in the marriage act, it was strongly opposed and there were voices of scepticism regarding the efficacy of this remedy[10].

This matrimonial remedy violated the fundamental rights of privacy, freedom of movement, dignity and equality guaranteed under the Indian constitution. In Russell V. Russell, Sir J. Hanner also opposed the restitution of conjugal rights[11]. Forcing a person to live with another is against the value of the society and also it violates the fundamental rights of privacy, life and equality.

This remedy has been misused, abused, exploited and also used to achieve ulterior purposes other than reconciliation. And enforcing of restitution of conjugal rights under order 21 Rule 32 of Civil Procedure Code, 1908 is also criticised on the ground that, in India, most of the woman does not have actual possession over the property, so in that case, if restitution is violated, the court is required to ascertain the share of the wife in the property of the husband. When it is not divided and arrives at her share in the property, but this involves cumbersome procedures[12]. There arises difficulty if the husband has no property in his name. And just by coercing a person that his property would be attached and sold away can change the motive of the deserting person and make him obey the decree.

Counterview:

The main objective of Section- 9 of the Hindu Marriage Act is to preserve the marriage. Marriage is a civil contract and a religious ceremony[13]. It is a contract of greatest importance in civil institutions, and is charged with a variety of rights and obligations[14]. Section 9 of Hindu Marriage Act enforces the right to cohabitation. If any party, deserted the matrimonial life without any reasonable ground, the court order for cohabitation and enforces the contract there is nothing wrong as the parties had voluntarily stipulated this at the time of entering into the marriage bond[15].

It is also criticised for being an instrument of forced sexual relation but much contrary is its purpose. The remedy of restitution aims at cohabitation and consortium and not merely at sexual intercourse[16]. In Forster V. Forster, the court held that it does not and cannot enforce sexual intercourse[17]. Section- 9 tries to bring the parties together. Whether to grant restitution of conjugal rights is held upon the decision of the court.

The main objective of this remedy is to bring about cohabitation between estranged parties so that they can live together. That is the privacy of home and married life neither Article- 21 nor Article- 14 has any place[18].

Marriage is a pure bond between two persons which makes two persons to live together. Section 9 of Hindu Marriage Act is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom[19]. This remedy is aimed at preserving the marriage rather violating the fundamental rights and privacy of a person. It tries to protect society. However, it is up to that of the parties to follow it or not.  

Endnotes

[1] http://indiankanoon.org/doc/322349

[2]http://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/

[3]http://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/

[4]http://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/

[5] Sushila Bai V. Prem Narayan, AIR 1964 MP 225

[6] AIR 1983 AP 356

[7] Smt. Saroj Rani V. Sudharshan Kumar Chandha 1984 AIR 1562, 1985 SCR (1) 303

[8] Justice K.S. Puttaswamy V. Union of India on 26th September, 2018

[9] www.legalservicesindia.com/articles/abol.htm

[10] www.legalservicesindia.com/articles/abol.htm

[11] 1897 AC 395

[12]www.legalservicesindia.com/articles/abol.htm

[13] Havinder Kaur V. Harmander Singh Choudhr, AIR 1984 Del 66

[14] Linda V. Belisario (1795) 1 Hag. Con. 216(21) per Sir William Scott at pp. 30, 232.

[15] Havinder Kaur V. Harmander Singh Choudhr, AIR 1984 Del 66

[16] Havinder Kaur V. Harmander Singh Choudhr, AIR 1984 Del 66

[17] (1790) I Hag. Con. 144

[18] http://www.latestlaws.com/articles/restitution-of-conjugal-rights-by-ekta-kumari/#_fn2

[19] http://www.latestlaws.com/articles/restitution-of-conjugal-rights-by-ekta-kumari/#_fn2

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Karthikeyan P

Student, Central Law College

Karthikeyan is a 3rd-year law student of The Central Law College. His areas of interest are IPR, contract law and constitutional law. He is an enthusiastic knowledge seeker and a hard worker. For any clarifications, suggestion and feedback you can reach him at spkarthikeyansuvi@gmail.com

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