Author: Anchal Vishwakarma, 2nd-Year B.A. LL.B. Student (Undergraduate), Prof. Rajendra Singh (Rajju Bhaiya) University, Prayagraj, Uttar Pradesh.
Introduction
Restitution of conjugal rights is a remedy where a spouse who has withdrawn from the society of other, without reasonable excuse, can be ordered by court to resume cohabitation. It is the only matrimonial remedy aimed at preserving the marriage rather than dissolving it.
In Hindu marriage act,1955
Section 9, Hindu marriage act- The Jewish law provided the remedy of restitution of conjugal rights. From Jewish law the remedy was adopted in English common law and from English law it came to Indian law. A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party.1
According to Section 9- “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition of the District Court, for restitution of conjugal right and the court, on being satisfied of 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.”
In simple word we can say that after marriage the primary duty of spouse is to live together and perform their marital obligations. The term conjugal rights denote the marital obligations and to live conjointly within the society of each other. If either of the spouse makes breach of the marital obligations without any reasonable ground or any justiciable cause, then the other can go to the court for the restoration of the conjugal rights.
Meaning
Restitution of conjugal rights means restoration of marital obligations. 4 important essential for seeking the remedy
- Either of the spouse must have withdrawn from the society of petitioner
- The withdrawal from the society must be without reasonable excuse
- The court must be satisfied with the truth of the statement made in petition.
- Lastly, there is no other ground for denial of relief.
It moreover the burden of proving reasonable ground is on the respondent.
The meaning of withdrawn from the society
Marriage implies consortium that is husband and wife are entitled to each other’s company and comfort2 refusal of which good amount to withdrawal. The term society over here implies the martial cohabitation and fulfilment of mutual duties as a husband and wife.
What amount of withdrawal from the society?
The question has come before our court in several cases in an interesting manner: does the wife’s refusal to give up her job at the instance of the husband amount to withdrawal from the society of the husband? The question came for consideration before the Punjab High court in several cases and it answered in the affirmative.3
In Tirath Kaur v. Kirpal Singh4– Section 555 of Mulla’s Hindu law A wife’s first duty is to submit herself obediently to the authority of her husband and to maintain his roof and protection. Justice Grover said that If a wife is allowed in this manner than it can be said to be virtually withdrawn from the society of her husband.
However, this view was not accepted in Delhi high court in the case of
Swaraj Garg vs K.M. Garg5 The court overrule the earlier decisions and took a progressive view it observe that – The right to set up a matrimonial home is given to the husband alone at all the times is based on Shastrik principles and customs prevailing at the time and period when it was necessary. But now when women are equally empowered and participating in well fair of family and society side-by-side. It cannot be said that the past customs fit in modern era. There are various instances where women are better places and the wife is earning more than the husband further there is no such rule especially mentioned under the Hindu law that the choices of peace of matrimonial home is the choice of husband alone.
Burden of proof
Explanation of section-9- “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 the society.”
Means- the person who is withdrawn from the society of the other spouse shall be have the burden to proving the reasonable cause of withdrawn.
Constitutional validity of section 9 of Hindu marriage act 1955 was challenged
In the case of T.Sareetha vs T.Venkata Subbaiah6 section 9 being violate of right of privacy and human dignity guaranteed under article 21 of the Indian constitution.
This view was strongly rejected
In the case law of Harvinder Kaur vs Harmander Singh7 The object of the restitution decree is to bring about cohabitation between the estranged couples that is they can live together in matrimonial home in conciliation. It brings about cohabitation and consortium among the parties. Also in the case of Saroj rani vs Sudarshan8 The apex court cleared the ambiguity which has arose due to different judgements of Section-9 of Hindu marriage act. It held Section-9 to be constitutional valid.
Restitution of conjugal rights in other statutes
The Family courts act 1984 – A suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;9
The Special Marriage act 1954- Restitution of conjugal rights lies in Section 22,
- Judicial separation – on the ground of failure to comply with a decree for restitution of conjugal rights.10
- Divorce – 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.11
Code of Civil Procedure 1908 – Decree for specific performance for restitution of conjugal rights, or for an injunction.—(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced 1[in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.12
Discretion of Court in executing decrees for restitution of conjugal rights. — (1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree 4[against a husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree 5[shall be executed in the manner provided in this rule.13
Differentiation on the basis of different religion of restitution of conjugal rights
| Hindu marriage act,1955 | Muslim recognized under personal law which is uncodified | Parsi marriage and divorce act 1936 | Indian divorce act 1869 |
| Section-9 | _ | Section 36 | Sections 32 and 33 |
| Application – If either spouse withdraws from the | Application – Either spouse can sue for the restitution of | Application – If a spouse deserts or separates from the | Application – If a spouse deserts or separates from the |
| other’s society without a “reasonable excuse,” the aggrieved party can petition the District Court. | conjugal rights. The Muslim law treats marriage as a civil contract and emphasizes spousal obligations. If a spouse withdraws from marital obligations without a lawful ground, a civil suit can be filed. | other without lawful cause, the deserted partner can sue for restitution of conjugal rights. The court may order restitution if it is satisfied with the truth of the allegations. | other without lawful cause, the deserted partner can sue for restitution of conjugal rights. The court may order restitution if it is satisfied with the truth of the allegations. |
Evaluation through modern times
In Suchita Srivastava v. Chandigarh14 Administration the Supreme Court recognized reproductive autonomy within the frame of personal liberties granted under Article 21, and stated that everyone has to make a right to their reproductive decisions and their body.
Navtej Singh Johar v. Union of India15 the Supreme Court recognized sexual autonomy and intimate choice as protected constitutional rights. Court held that intimate relationships and sexual orientation form an essential part of individual identity and dignity.
Joseph Shine v. Union of India16 The Court rejected patriarchal assumptions underlying traditional marriage laws and affirmed that marriage does not subordinate one spouse to the control of the other. It recognized that dignity, autonomy, and equality continue to exist within marital relationships.
Criticism
Restoration of conjugal rights was first seriously examined in T.Sareetha vs T.Venkata subbaiha17 where the constitutional validity is challenged of section 9 and the Andhra Pradesh high court struck down the Section 9 because it violate article 14, 19 and 21. Justice P.A. Choudhry observed that “It violates the right to privacy. “Privacy, bodily autonomy, human dignity all are violated because of this remedy people have to live with their spouse unwillingly.
The remedy of restitution has been criticized as most inhuman and obnoxious. This anachronistic remedy has been called worse than tyranny and worst slavery. It is obvious that a marriage cannot be specifically enforced; a party can perform the obligation only if body is willing. All over the world, the jurists and sociologists are of the view that remedy of restitution should be abolished.18
Conclusion
The constitutional discussion of restitution of conjugal rights is indicative of an ever-evolving Indian constitutional jurisprudence and family law. Marriage is a traditionally adopt in India as an institution. It considered as a sacrament, companionship, responsibilities, safeguard of social harmony and a stable household. In these sense the remedies such as restitution conjugal rights are helps marriage to sustain and discourage the separation by demanding to cohabitate with spouse again. In earlier times it seems to force on women with Mulla’s Hindu law and Shastrik principles.19
Lastly I can say that this remedy work effectively and after more judicial interpretation and cases it may emerge as more strong, and effective remedy to sustain marriage and encourage people or spouse to live conjointly.
References
1 DR. PARAS DIWAN, MODERN HINDU LAW (26TH edition 2023, ALLAHABAD LAW AGENCY) 192,193.
2 DR. PARAS DIWAN, MODERN HINDU LAW (26TH edition 2023, ALLAHABAD LAW AGENCY) 193.
3 DR. PARAS DIWAN, MODERN HINDU LAW (26TH edition 2023, ALLAHABAD LAW AGENCY) 193,194.
4 Tirath Kaur v. Kirpal Singh 1964 PUNJAB 28.
5Swaraj Garg vs K.M. Garg AIR [1978] DELHI 296.
6T,Sareetha vs T. Venkata Subbaiha AIR [1983] AP 356.
7 Harvinder Kaur v. Harmander Singh AIR [1984] DELHI 66.
8 Saroj Rani v. Sundarshan 1984 SC 1562.
9 Chapter III Sec 1 explanation (a).
10 The Special Marriage act 1954, Section 23(1)(b).
11 The Special Marriage act 1954, Section 27 (2)(ii).
12 Code of Civil Procedure 1908 Rule 33 Order 21.
13 Code of Civil Procedure 1908 Rule 34 Order 21.
14 Suchita Srivastava v. Chandigarh AIR 2010 SUPREME COURT 235.
15 Navtej Singh Johar v. Union of India AIR 2018 SUPREME COURT 4321.
16 Joseph Shine v. Union of India, (2019) 3 SCC 39, AIR 2018 SC 4898, [2018] 11 S.C.R. 765.
17 AIR [1983] AP 356.
18 DR. PARAS DIWAN, MODERN HINDU LAW (26TH edition 2023, ALLAHABAD LAW AGENCY) 193.
19 Swaraj garg vs K.M. garg AIR [1978] DELHI 296.
