Restitution Of Conjugal Rights And Its Constitutional Validity

INTRODUCTION

In India, marriage is considered as a sacramental duty of every person and every man must marry as it was firmly believed by the sages that it is the marriage which completes the man and it is the well-settled rule that with the marriage there comes some rights and obligations which usually arises between husband and wife after the solemnization of marriage. Amongst all the rights and obligations, there is a right as well as obligation on both spouses to stay together i.e. Conjugal Rights.

That is to say, the spouses after the solemnization of marriage are required to fulfill the conjugal rights. But in the present age, most couples don’t have the time to perform or fulfill their marital rights and obligations. In this particular article, we are concerned with the restitution of conjugal rights, the literal meaning of conjugal rights is to stay together and therefore, restitution of conjugal rights would mean the restoration of their cohabitation rights.

CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS

There are many rights and obligations under matrimonial laws in India and several remedies are available if those rights and obligations are not fulfilled. One of such remedy is the restitution of conjugal rights. This remedy was first recognised in feudal England and it was made available to all the communities at the time of British rule in India. So this remedy is not only part of Indian personal laws but also the part of English common law.[1]

Usually, on being satisfied with certain conditions the court passes the decree of restitution of conjugal rights which implies that the guilty spouse is ordered to live with the aggrieved spouse. The court passes the decree of restitution of conjugal rights only on the petition of either spouse for the same.[2]

As we look into the provisions, it is section 9 of the Hindu Marriage Act, 1955 and section 22 of the Special Marriage Act, 1954 which are concerned with the restitution of conjugal rights, and they both are quite incidental too. These provisions provide that if one of the spouses either husband or wife deserts the other spouse without any reasonable excuse or cause, then the aggrieved party has all the rights to move the lowest civil court by filing a petition for the restitution of conjugal rights and it is also mentioned in the provisions that the court will grant the decree for such petition only when it is satisfied that the statements made in the petition are true.[3]

If we review the textbooks in this particular context, one can easily observe that most of the writers discuss this remedy as if it is only available to the husband and not to the wife. The reason behind such an assumption of writers would be that they considered the fact that in most of the cases the petition for restitution of conjugal rights, is filed by the husband. Whereas, if we look into the Muslim law one can find another reason for such an assumption of writers and that’s the husband’s right to pronounce divorce on his wife at any time, which will definitely frustrate the wife’s petition for restitution of conjugal rights.[4]

Under all the personal laws there are certain essential conditions, the satisfaction of which is expedient and those conditions are:-

  1. The guilty spouse must have withdrawn from the society/life of the aggrieved spouse,
  2. The withdrawal must be with unreasonable cause or excuse, and
  3. There is no legal ground for not granting this legal remedy to the aggrieved spouse.[5]

When all the above-mentioned conditions are satisfied before the court, the court believes that all the statements made in the petition are true and there is no ground on which the petition can be rejected.

However, one might think what will amount to a reasonable excuse? Reasonable excuse or cause in this context would be such as matrimonial misconduct by the petitioner on the respondent, an act or omission of a spouse which makes it impossible for the other spouse to live together, or any other fault ground of divorce would be considered as the reasonable excuse or cause. The reasonable excuses or causes shall also be the ground for rejection of the petition for restitution of conjugal rights.[6]

While the Muslim law adds some more grounds for the rejection of the petition for restitution of conjugal rights and the grounds are as follows:-

  1. If the marriage is void, irregular or has been avoided on any valid ground for the same, then the petition for the restitution of conjugal rights will be rejected by the court.
  2. When the petitioner is an apostate the petition will not succeed any further.
  3. On the account of non-payment of prompt dower, the wife has the right to live separately and this will also reject the petition for restitution of conjugal rights.
  4. If there is an ulterior motive behind the filing of the petition for restitution of matrimonial rights, the petition will be rejected on the ground of not being bona fide.
  5. Any other ground which the court thinks fit for the rejection of such a petition will be considered.[7]

CONSTITUTIONAL VALIDITY OF RESTITUTION OF CONJUGAL RIGHTS

The introduction of restitution of conjugal rights under Hindu Marriage Act, 1955 and Special Marriage Act, 1954 was quite exhausting as there were tempestuous debates in the parliament at the time of introduction of the provision of restitution of matrimonial rights under Hindu Marriage Act, 1955 and Special Marriage Act, 1954.

When the provision of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 came into force its constitutional validity was challenged contending that it abridges the fundamental right guaranteed in the Constitution of India. It was also argued that the decree of the restitution of matrimonial rights deprives the spouse of his/her right of choice.

It was the case of Sareetha v. T. Venkata Subbaiah (1983)[8], when the High Court of Andhra Pradesh after observing each and every argument and facts of the case decided that the remedy of restitution of conjugal rights as given under section 9 of Hindu Marriage Act, 1955 was in violation of Right to Privacy and Human Dignity and Equality as guaranteed under Article 14 and 21 in the Constitution of India.

But in the case of Harvinder Kaur v. Harmander Singh (1984)[9], the learned Avadh Bihari Rohatgi, J. of Delhi High Court restored the constitutional validity of restitution of conjugal rights and stated that the aim of the remedy of restitution of conjugal rights is not sexual intercourse between the spouses but the objective of this remedy is to resume cohabitation and also to grow the friendly relationship between the spouses to preserve the marriage. He also stated that by the introduction of this remedy it was never intended to abridge the right of privacy of any spouse but was merely intended to preserve the marriage from being dissolved.

CONCLUSION

After considering the above-mentioned facts and information it can be concluded that conjugal rights arise as soon as the marriage is solemnized and the restitution of that right is a remedy against the spouse who deserts the other spouse without any reasonable cause. However, the decree of restitution of matrimonial rights can only order the guilty spouse to cohabit with the aggrieved spouse but that cohabitation will only be the physical one, there will be no friendly relationship between the spouses.

It is the remedy intending to preserve the marriage and not to dissolve the marriage as in the case of divorce. But if one spouse is convinced that reconciliation or restitution of conjugal rights is not possible between them then the parties have the choice either not to obey the decree of restitution of matrimonial rights and file the petition for divorce or to obey the decree of restitution of matrimonial rights.[10]

[1] Hindu law in Modern India by Dr. Paras Diwan

[2]https://www.indianbarassociation.org/restituion-of-conjugal-right-a-comparitive-study-among-inidian-personal-laws/

[3] Hindu Marriage Act, 1955 & Special Marriage Act, 1954

[4] Muslim law in Modern India by Dr. Paras Diwan

[5] Hindu law in Modern India by Dr. Paras Diwan

[6] Hindu law in Modern India by Dr. Paras Diwan

[7] Muslim law in Modern India by Dr. Paras Diwan

[8] AIR 1983 AP 356

[9] AIR 1984 Delhi 66

[10] https://blog.ipleaders.in/restitution-of-conjugal-rights-under-the-hindu-marriage-act/amp/

This Article is Authored by Sanskar Rastogi, 3rd Year B.A.LL.B IIMT College Of Law, Greater Noida.

Also Read – Restitution of Conjugal Rights in India

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