• Manmohit Bhalla

Restitution of conjugal rights a comparative analysis among different Personal laws in India.

Legal interpretation:

The concept of conjugal rights was never in India it was brought in through English law and then later it got into the personal laws of various religions. The term "Restitution' means “an act of restoring or an act of being restored”; and the term conjugal right means “the rights, especially to sexual relations, regarded as an exercise in law by each partner in a marriage.” So now combining both of them the term Restitution of Conjugal rights means when either the husband or the wife unreasonably or without any reasonable cause withdraws itself from the society of the other partner can appeal in a district court/lower court for the restitution of conjugal rights and the court on being satisfied that there is no legal ground to not regard the application it may grant a decree for the restitution of conjugal rights.

The restitution of conjugal rights is a matrimonial remedy but keep aside the positive side it has been on the ground of serious criticism and even been questioned on the constitutionality of the very remedy itself.

In this paper, we shall conclude the concept of restitution of conjugal rights and even its effect with respect to personal laws in India.

The main issue which will be raised in this paper is to analyze the core issues related to the restitution of conjugal rights concerning different personal laws applicable in India.

Therefore, in this paper, the core issue which shall be dealt with is regarding the constitutionality of restitution of conjugal rights under the personal laws and also regarding Art. 14 and 21 of the constitution of India.

Introduction:

Marriage in a general sense means imposing a spouse on the other it brings with it certain rights as well as certain liabilities, and one of the most important duty or one can say a feature is that the partners are to “stay together” by this it means to be in each other's society and also the right to cohabit. So after the solemnization of the marriage if any one of the spouses withdraws for the society of the other without a good cause the other spouse can reach the court and get a decree for the restitution of conjugal rights.

The decree of restitution of marriage is the only decree for a deserted spouse that he/she can impose on the other. A decree of restitution means that the guilty party is to live with the aggrieved party, in case the guilty party even after the decree refrains and does not live with the aggrieved party can move in a petition of divorce one year later to the decree of restitution and the court will let it in his favor.

However, the court can impose the right of restitution of conjugal rights and ask the spouses to live together but cannot in any way have it specific performance by any law, as it cannot force the spouses to consummate the marriage. A decree of restitution of conjugal rights can be passed on a valid marriage only.


History & Origin:

According to Paras Diwan, there was no mention or provision of such a decree in dharamshastra, be it either Hindu or Muslim law.

This provision of such a decree was borrowed from feudal England as at that time it was where the marriage was considered a property deal and wife was considered the property of the husband just like the other chattel. The concept of restitution of conjugal right was taken into account in India from the landmark case of Monshee Buzloor Ruheem vs Shumsoonissa Begum[1] from the high court of judicature at Calcutta.

Specific provisions:

The provisions dealing with restitution of conjugal rights in the various personal laws, the remedy is available under

1. Section 9 of the Hindu Marriage Act, 1955.

2. for Muslims under general laws

3. Section 32 and section 33 of the Indian Divorce Act, 1860, for Christians

4. section 36 of the Parsi Marriage & Divorce Act. 1936

5. section 22 of the Special Marriage Act, 1954, in case of inter-caste marriages

To get a decree for the restitution of conjugal rights the aggrieved/deserted party has to approach the court under the above-mentioned provisions and then after the decree is obtained the parties don't need to cohabit. The provision in section 22 of the special marriage act, 1954 is identical to the provision in section 9 of the Hindu marriage act, 1955.

To conclude, under all personal laws to obtain a decree of restitution of conjugal right:

· The respondent has to withdraw from the society of the petitioner

· The withdrawal should not be on any good cause or backed by a reasonable cause or valid legal grounds

· There must be no other legal aspect to relief

· The court should be satisfied by the facts of truth in the petition


Application of the provision in different religions:

The decree for restitution of conjugal rights is one of the only relief for a deserted spouse as stated above already, apart from the various matrimonial legislation passed, then the court has on various occasions ruled out the decree in cases for various communities.

Hindu:

Section 9 of the Hindu marriage act,1955 deals with the provision of restitution of conjugal rights. the aggrieved party may file a petition in a district court for the restitution of conjugal rights. Another important function of S9 of the Hindu marriage act is that it has the provision of maintenance for the aggrieved party under section 25 of the Hindu marriage act, 1955. maintenance can be got even though the case is pending under section 25 of the Hindu marriage act 1955, so a husband who doesn't want judicial separation or disruption of marriage can attain maintenance from his wife without even filing a suit under the Hindu Adoption and maintenance act,1956. One more important application of this section is that it provides for a ground for divorce under section 13(1A) of the Hindu marriage act,1955 on a condition that there has been no restitution of legal right between them for 1 year or more after the passing of a decree for restitution of legal right. It also has a certain legal excuse to get relief from getting the decree, some of them are listed below :

The reason for withdrawal from society be backed by an inexpensive cause

Unnecessary or unwanted delay in instituting the petition for the decree

Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her wrong or any disability for such relief;

Muslim:

If the husband either deserts a wife or neglects to perform his marital obligations with none proper reason, then the wife can apply for restitution of legal right. Even husband can apply for restitution of legal right. But the court can refuse to grant the order of restitution of legal right for following defenses:

• Cruelty by husband or in-laws

• On the failure by the husband to perform marital obligations

• On non-payment of prompt dower by the husband

Christian:

A Christian husband and wife also can apply for an order of restitution of legal rights. The Court cannot pass the decree for the following reasons:

• Cruelty of husband or wife

• If either of the spouses is mentally unstable

• If anybody of the spouse marries again

Parsi:

Where a husband/wife shall have deserted or without lawful cause ceased to cohabit with his/her spouse, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her legal right and therefore the court is satisfied with the reality of the allegations contained within the plaint which there's no just ground why relief shouldn't be granted, may proceed to decree such restitution of legal right accordingly.

The wide perspective of reasonable excuse:

As soon as we read the above statement the next question that comes to our mind is what is a reasonable excuse? the answer to this any conduct during the married period which is grave and weighty will amount for a reasonable excuse in this case.

Any ground of relief in any marriage case of legal separation or divorce etc

Any matrimonial misconduct which is grave and weighty enough

In the reason for any act which makes it impossible for the spouses to measure together

In case of restitution of conjugal right, it's first to be proved that the marriage solemnized was a valid one, in the case of Rajendra vs Pushpa devi[ II (1999) DMC 32

] the court ruled out that in suing for maintenance and restitution the factum of a valid marriage is to be proved first.

In another case Chand Narain Singh vs Saroj [ AIR1975Raj89] the husband moved in for a petition for restitution of conjugal rights, the wife came up with a defense that she was subjected to cruelty as she was forced by him to cook non-veg and even drunk alcohol and that was against her religion, and she was even dragged by him at a public place. The court concluded that the wife was subjected to cruelty and hence did not grant the decree for restitution of conjugal rights.

The constitutional validity of the supply for restitution of legal right:

When the decree for restitution of conjugal rights was introduced in the special marriage act 1956 and the Hindu marriage act 1955 it met up with a lot of criticism as well as became a topic for debates.

In the case of Shakila Banu vs Gulam Mustafa [ A.F.A.D. No. 899 of 1969], the hon'ble high court of Bombay said:

“The concept of restitution of legal right may be a relic of the past when slavery or quasi-slavery was considered natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and ladies alike and further confers powers on the State to form special provisions for his or her protection and safeguard.”

In T.Sareetha v. T. Venkatasubbaiah[ AIR 1983 AP 356

], the Andhra Pradesh High Court ruled out section 9 of the Hindu Marriage Act to be violative of the constitution the said the judgment that the section was unconstitutional. The court indicated that:

''the consequences of such a decree are firstly to transfer the choice to have marital intercourse to the state from the concerned individual and secondly to surrender the choice of the individual to allow or not to allow one's body to be used as" a vehicle for another human being's".

Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi supreme court views and upheld the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.

''the consequences of such a decree are firstly to transfer the choice to have marital intercourse to the state from the concerned individual and secondly to surrender the choice of the individual to allow or not to allow one's body to be used as" a vehicle for another human being's".

Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.

“The court observed that the object of the section 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.


Conclusion:

The decree of restitution of conjugal rights has loopholes as it is is not possible for the court by any law to completely ensure the physical re cohabitation of the spouses but it still provides as a backdoor for preventing divorce and avoid judicial separation.

The restitution of conjugal rights is a part of each personal law and it aims at making a way for the rehabilitation of spouses and to be a positive alternative of judicial separation and divorce, and hence it is means of saving a marriage. But in the end, the final decision is of the parties to follow the decree and cohabit again or just get separated.

© The People Bookmark | 2020

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