Marriages in India have assumed a sacred character since the Vedic ages. It is evident from the earlier records that inheritance depends on marriage. Marriage is a basis that gives rise to legal rights and obligations. Under Hindu law marriage is treated as a samskara.
It is a basic requirement of marriage that the spouses should be living together. The right to society only exists in a matrimonial relationship.
Meaning of Conjugal: The term ‘conjugal’ relates to the relationship that exists between a married couple. A matrimonial relationship.
It signifies 1. The right to marital intercourse; and 2. The right to have each other’s society.
The laws on the restitution of conjugal rights in India are borrowed from the English principles. It was in the case of Monshee Bazloor v. Shamsoonaissa Begum when this principle was applied by the Privy Council for the first time in India.
Restitution of Conjugal Rights
Restitution of conjugal rights means the restoration of matrimonial rights. Conjugal rights are available to both of the spouses, and either party can sue the other for restitution of conjugal rights.
The legal provisions regarding restitution of conjugal rights are available under various Personal Laws. The Hindu Marriages Act, 1955, cover restitution of conjugal rights under Section 9. The Indian Divorce Act, 1869, states about the restitution of conjugal rights under Section 32. The Special Marriages Act, 1954, and the Parsi Marriage and Divorce Act, 1936, talk about the same under Section 22 and Section 36 of the Acts respectively.
In general words, these provisions under various Personal laws provide that if either of the spouses has abandoned or withdrawn from the society of the other, without any reasonable excuse, then the aggrieved party has the right to approach the Court for the restitution of conjugal rights.
Restitution of conjugal rights in the only constructive remedy available, rest others contribute in weakening the marriage.
Jurisdiction: The Civil Courts have the authority to try cases of restitution of conjugal rights from their jurisdiction. Appeals from the decisions of civil courts can be taken to the district courts.
Pre-requisites: For a decree to be obtained for the restitution of conjugal rights the petitioner has to prove that the respondent has withdrawn from the society, without there being any reasonable excuse. If the court is satisfied that the statements made by the petitioner are true and there exists no ground for refusal to grant the application then it may direct the respondent accordingly. In the case of Shanti Devi v. Balbir Singh the court has admitted to all the pre-requisites for a decree of restitution of conjugal rights.
Withdrawal: Withdrawal includes refusing to stay together, to give each other comfort, to have marital intercourse or even to discharge obligations.
If the decree of restitution of conjugal rights is passed by the Court then it is binding on the responding party to resume staying with the plaintiff and failure to cohabitate can frame ground for divorce for the plaintiff.
Onus: It is on the petitioner, primarily, to prove that the respondent has withdrawn for no reasonable excuse. When proved so, the burden of proof then shifts to the respondent to show that there has been a reasonable ground for the withdrawal.
Withdrawal justified: There are certain circumstances pertaining to which the wife’s withdrawal is justified. It is when the husband remarries, or when his conduct compels the wife to withdraw, or if there is a reasonable economic cause for such withdrawal.
Except for in the cases of Muslims, all other Personal laws declare bigamy as void. Therefore, if a man remarries, while his first marriage is subsisting, he then loses his right to file for restitution of conjugal rights. Even under Muslim law, remarriage doesn’t mean to abandon his existing wife or wives, the man has to equally maintain all of his wives. If he fails to maintain them equally, the wife has a reasonable cause to withdraw.
If a woman moves out for the reasons of her occupation, her job, then it is justified in light of economic considerations. But in a matter relating economic necessity, it was laid down in the case of Smt. Kailash Wati v. Ayodhya Prakash that if the wife takes up employment against the wish of her husband, then it amounts to unreasonable cause for withdrawal.
Maintenance: Either of the spouses, be it husband or wife, are entitled to claim for maintenance in case they are not able to maintain themselves or if are not independent financially to earn a living.
The provision of restitution of conjugal rights has a two-fold view. It is firstly a positive remedy to strengthen the marriage providing opportunity to sort differences, but at the same time, it forces two people unwilling to live together to cohabitate, which can certainly give rise to many other issues.
It is often noticed that the decree is misused by one of the parties to threaten the other or harm and humiliate the other party. And eventually, it kills the ultimate motive behind the grant of such a decree, Therefore, there are different dimensions that are to be considered while granting of this remedy to ensure that it is not misused by any of the parties.
 (1867) 11 MIA 551
 AIR 1971
This Article is Authored by Yukta Darvekar, 3rd Year, B.A.LL.B Student at RTM Nagpur University.
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