RESTITUTION OF CONJUGAL RIGHTS

This article is written by Yash of Chandigarh University, an intern under Legal Vidhiya

Abstract

The concept of “restitution of conjugal rights” has remained an important and contentious issue in the field of family law. This abstract offers a concise yet comprehensive examination of the concept of “restitution of conjugal rights” as it manifests across different personal laws in India. With a focus on Hindu, Parsi, Muslim, and the Special Marriage Act, 1954, this comparative analysis delves into the legal provisions, historical roots, and case law associated with this unique legal remedy. By exploring the diverse approaches taken within these personal laws, we gain insight into the complex interplay between cultural norms, individual rights, and the preservation of marital harmony.

Keywords: Restitution of Conjugal Rights, Family Law, Personal laws, Special Marriage Act, Legal remedy. 

INTRODUCTION

Marriage is an important thread in the complicated fabric of human interactions. It is built on love, devotion, and common goals, yet it, like any complex creation, is prone to unravelling at the edges. Marriage, with all of its delights and challenges, has long been a subject of legal debate and regulation. When marital bliss turns to turmoil, a particularly intriguing facet of family law emerges, and the concept of “restitution of conjugal rights” takes centre stage. The legal philosophy of restitution of conjugal rights is profoundly founded in the preservation of spousal harmony. Its historical development and current importance highlight the delicate balance between individual autonomy and society objectives in the context of marriage. The idea of restitution of conjugal rights, which seeks to heal the bonds of matrimony, is a witness to the continuing desire of marital harmony within the intricate fabric of human relationships.

OBJECTIVES

The objective of this article is to conduct a comprehensive comparative analysis of the legal provisions and judicial interpretations surrounding the concept of “restitution of conjugal rights” across various personal laws in India. By examining Hindu, Parsi, Muslim, Christian, and Special Marriage Act provisions, this study aims to shed light on the similarities, disparities, and evolving nuances within these legal frameworks. Through this comparative study, we intend to offer insights into the legal, cultural, and ethical dimensions of this unique legal remedy, highlighting its role in balancing the preservation of marriage with individual rights and autonomy.

CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights, a legal concept rooted in matrimonial law, entails a court-ordered directive compelling spouses to live together when one has left the marital home without reasonable cause. It seeks to restore marital cohabitation by emphasizing the importance of the sacred union, albeit through legal coercion. This legal remedy aims to preserve the sanctity of marriage by encouraging communication, understanding, and reconciliation, thereby promoting a stable and harmonious family life. In essence, it underscores the judiciary’s role in fostering marital bonds and serves as a testament to the intricate interplay between law and matters of the heart within the realm of matrimony. A decree of restitution of conjugal rights mandates that the spouse at fault must return to live with the aggrieved partner. It is the sole recourse for a deserted spouse seeking reconciliation. Although the court can issue this decree, it lacks the means to enforce it specifically. Failure to comply can strain the marriage further. Currently, under Indian personal laws, the aggrieved spouse can file for divorce one year after the decree. Enforcement can involve property attachment, and non-compliance may lead to contempt of court charges. However, the court cannot compel the erring spouse to consummate the marriage. This decree applies only to valid marriages.

According to Paras Diwan, the concept of restitution of conjugal rights had no precedent in Dharmashastra or Muslim law; it was introduced during the British colonial era[1]. Its origins can be traced to feudal England, where marriage was viewed as a property transaction, and wives were seen as part of a man’s possessions, much like other belongings. The introduction of the notion of restitution of conjugal rights in India can be attributed to the Moonshee Buzloor Ruheem v. Shumsoonissa  Begum case [2], in which such actions were seen as a form of specific performance consideration.

In contemporary India, this legal recourse is accessible to various religious communities: Hindus under Section 9 of the Hindu Marriage Act, 1955; Muslims under general law; Christians under Sections 32 and 33 of the Indian Divorce Act, 1869; Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936; and individuals married under the Special Marriage Act, 1954, through Section 22 of the same act.Top of Form

RESTITUTION OF CONJUGAL RIGHTS AMONG VARIOUS PERSONAL LAWS:

1. THE HINDU MARRIAGE ACT ,1955

Section 9 of the Hindu Marriage Act, 1955 (HMA) is a pivotal provision that addresses the concept of the “Restitution of Conjugal rights.” It seeks to maintain the sanctity of marriage by compelling spouses who have withdrawn from the society of one another to resume marital cohabitation.  

Restitution of conjugal Rights, “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 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 ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”[3]

Section 9 lays out three fundamental elements that must be established to invoke it:

1. Existence of a Valid Marriage: The petitioner must prove the existence of a valid marriage between the parties involved.
2. Withdrawal Without Reasonable Excuse: It must be demonstrated that the respondent, i.e., the spouse accused of withdrawing, has done so without reasonable justification. This withdrawal implies a complete cessation of marital cohabitation and consortium.
3. Non-Condonement: The petitioner should not have condoned or forgiven the respondent’s behavior in any way. Condonement refers to the petitioner’s acceptance or forgiveness of the respondent’s withdrawal, and it acts as a bar to invoking Section 9.

Section 9 of HMA 1955 holds significance in maintaining the sanctity of marriage and promoting marital reconciliation. However, it has faced criticism for being archaic and gender-biased, as it may be misused to coerce a spouse into an unwanted marriage. Nevertheless, the courts have consistently emphasized that the section’s purpose is reconciliation and not coercion.   Section 9 of the Hindu Marriage Act, 1955, is a legal provision that seeks to preserve the institution of marriage by providing a legal remedy for spouses facing withdrawal from conjugal society. Its interpretation through case law reflects a balance between upholding the sanctity of marriage and respecting individual rights and liberties. In the case of Manjula Zaverilal Kothari v. Zaveriial Vithaldas Kothari,[4] the husband had made numerous attempts to reconcile with his wife, who had been living separately for an extended period. Despite his efforts, she remained distant, even after relocating from Kuwait to India. Seeking a decree of restitution, the wife alleged mental cruelty as the reason for her withdrawal, presenting letters as evidence. However, the High Court deemed these allegations false, viewing them as desperate attempts by the husband to reunite. Consequently, a decree under Section 9 was granted, as there was no justifiable cause for the withdrawal.

CONSTITUTIONAL VALIDITY OF SECTION 9

The constitutional validity of Section 9 of the Hindu Marriage Act, 1955 (HMA), has been a subject of legal and philosophical debate within the framework of Indian family law. Section 9, which deals with the restitution of conjugal rights, allows an aggrieved spouse to seek a court order compelling their estranged partner to return to the marital home and resume conjugal life. Critics have argued that this provision may infringe upon an individual’s fundamental rights, particularly the right to personal liberty and privacy, as it seemingly allows the state to interfere in the most intimate aspects of a person’s life.

The first instance of questioning the constitutionality of Section 9 arose in the case of  T Sareeta v Venkatasubbiah[5]. In this case, the husband had initially sought a court decree for the restitution of conjugal rights, but after a year had passed without compliance, he filed for divorce. At this point, the wife contested the constitutional validity of Section 9 of the Act. Justice Chaudhary of the Andhra Pradesh High Court deemed Section 9 as a “harsh and inhumane remedy that infringes upon the right to privacy and human dignity protected by Article 21 of the Constitution, rendering it void.” Justice Choudhary also found Section 9 to be in violation of Articles 14 and 21 of the Constitution, thus, in the view of the learned judge, rendering it constitutionally invalid. In the landmark case of Saroj Rani vs. Sudarshan Kumar Chadha (1984), the Supreme Court of India affirmed the constitutionality of Section 9, emphasizing its intent to encourage reconciliation between estranged spouses rather than coerce them into cohabitation.[6] This decision was further reinforced in the case of Harvinder Kaur vs. Harmander Singh Choudhry (1984), where the Court upheld Section 9 as a reasonable restriction on personal liberty in the interest of preserving the institution of marriage[7]. Additionally, in the case of Smt. Sureshta Devi vs. Om Prakash (1991), the Court clarified that the primary objective of Section 9 is reconciliation, not the forced cohabitation of spouses, addressing concerns about individual rights and liberties[8]. These cases collectively provide legal precedent affirming the constitutionality and purpose of Section 9 within the framework of Indian family law, underscoring its role in maintaining the sanctity of marriage while respecting individual rights.

•  MUSLIM LAW

Restitution of conjugal rights, as a legal concept, is not recognized under Muslim personal law in India. Muslim personal law is primarily based on the Quran and Hadith (sayings and practices of Prophet Muhammad) and is governed by principles derived from Islamic jurisprudence. Unlike Hindu and some other personal laws in India, there is no specific provision for seeking the restitution of conjugal rights in Muslim personal law.In Islamic law, the emphasis is on mutual consent and willingness in matters of marriage and divorce. If a husband and wife are separated, they have the option of reconciliation through arbitration, counseling, or mutual agreement, but there is no legal mechanism for one spouse to compel the other to return and cohabit against their will. Instead, Muslim personal law in India recognizes the concept of “Talaq” (divorce), which allows a husband to unilaterally divorce his wife by following certain procedures.

It’s important to note that personal laws can vary within the Muslim community in India, as there are different schools of thought (Hanafi, Shafi’i, Maliki, and Hanbali) that may have varying interpretations and practices regarding family and marriage matters. Additionally, the Muslim Women (Protection of Rights on Divorce) Act, 1986, introduced certain provisions related to maintenance for divorced Muslim women, but it does not include provisions for the restitution of conjugal rights.

• INDIAN DIVORCE ACT ,1869

Restitution of conjugal rights under Sections 32 and 33 of the Indian Divorce Act, 1869, provides Christians in India with a legal avenue to seek the restoration of their marital cohabitation. These sections are specific to Christian marriages and offer a unique perspective on the concept of conjugal rights within this community. Section 32 of the Indian Divorce Act, 1869, allows either spouse in a Christian marriage to file a petition for restitution of conjugal rights if they have been deserted by their partner without any reasonable justification. The court may issue a decree ordering the guilty spouse to return and live with the aggrieved spouse.

Section 33 of the same Act provides the legal consequences of non-compliance with the decree of restitution. If the spouse against whom the decree has been issued fails to comply without reasonable excuse, the court may choose to enforce the decree through various means, including property attachment and even imprisonment for contempt of court. While restitution of conjugal rights may seem like an archaic concept, it remains relevant in some Christian communities, emphasizing the significance of marital bonds. However, it’s crucial to recognize that this legal remedy has faced criticism for potentially violating personal autonomy and the right to privacy.

• PARSI MARRIAGE AND DIVORCE ACT,1936

Restitution of conjugal rights under Section 36 of the Parsi Marriage and Divorce Act, 1936, offers a distinct legal framework for Parsi marriages in India. This provision allows a Parsi spouse to seek the court’s intervention when their partner has voluntarily withdrawn from the marital home without a valid reason.  Section 36 of the Parsi Marriage and Divorce Act, 1936, empowers Parsi individuals to file a petition for the restitution of conjugal rights if they find themselves deserted by their spouse without any reasonable cause. The court, upon due consideration of the case, can issue a decree ordering the spouse at fault to return and cohabit with the aggrieved spouse.

• SPECIAL MARRIAGE ACT,1954

Restitution of conjugal rights under Section 22 of the Special Marriage Act, 1954, offers a distinctive legal framework for individuals in India who choose to marry under this act, irrespective of their religious backgrounds. This provision allows a spouse to seek court intervention when their partner has voluntarily withdrawn from the marital home without reasonable grounds, and it plays a vital role in fostering marital reconciliation

Case Law Illustrations:

1.Dr. N. G. Dastane v. Mrs. S. Dastane:[9] In this notable case, the Bombay High Court deliberated on the applicability of Section 22 of the Special Marriage Act, 1954. The court emphasized the importance of considering the unique circumstances of each case when granting a decree for restitution. It was highlighted that this remedy should not be a mere formality but should genuinely aim to encourage reconciliation between spouses, ensuring that the aggrieved party is not responsible for the separation.

2.Navin Kohli v. Neelam Kohli ^[10]: This case further elucidated the principles governing restitution of conjugal rights under the Special Marriage Act, 1954. The court underscored the significance of mutual consent and willingness to cohabit, emphasizing that the court should not force the parties into a marriage against their wishes. Instead, it should work towards amicable resolution and preserving the sanctity of the marital bond.

NEED OF RESTITUTION OF CONJUGAL RIGHTS

  The restitution of conjugal rights serves as a legal mechanism with the potential to facilitate the preservation of marital bonds and familial stability. Its need emanates from several facets of Indian society and law. Firstly, it aligns with the cultural and societal significance attached to marriage in India, where marital harmony is often considered fundamental to a stable and harmonious family life. Additionally, it encourages couples to explore avenues of reconciliation before resorting to the emotionally and financially taxing process of divorce, minimizing the adverse impact on spouses, children, and extended family members. Moreover, this legal remedy reflects the diverse personal laws in India, offering a common ground for spouses across different religious backgrounds to seek reconciliation when their matrimonial relationships are strained. However, it’s imperative that the need for restitution of conjugal rights evolves with the changing dynamics of contemporary relationships, ensuring that it respects the individual rights and dignity of all parties involved.

CONCLUSION

In conclusion, the examination of restitution of conjugal rights across different personal laws in India reveals a complex interplay between legal principles, cultural norms, and individual rights. While this legal remedy persists as a means to uphold the sanctity of marriage and encourage reconciliation, its applicability and implications vary significantly among communities. In Hindu and Parsi personal laws, spouses can seek the restitution of conjugal rights, emphasizing the importance of maintaining matrimonial harmony. However, it’s essential to ensure that this remedy does not infringe upon individual autonomy and dignity, as highlighted in relevant case law. Muslim personal law, rooted in Islamic jurisprudence, does not provide for this remedy, placing a stronger emphasis on mutual consent in marital matters. This reflects the diversity of legal approaches within India’s multicultural society. Under the Special Marriage Act, a more secular approach is taken, allowing individuals from different religious backgrounds to access this legal provision. Here, the courts must balance the preservation of marriage with the recognition of individual freedom. In this comparative exploration, it becomes evident that the concept of restitution of conjugal rights evolves in response to specific cultural and legal contexts. While it serves as a mechanism for marital reconciliation in some cases, it also raises questions about privacy, coercion, and the changing dynamics of contemporary marriages. Ultimately, the study of restitution of conjugal rights across different personal laws underscores the need for nuanced legal approaches that respect both the institution of marriage and the fundamental rights of individuals.

REFERNCES

1. Singh, N., “The Restitution of Conjugal Rights in India: Contemporary Relevance and Ethical Dilemmas,” 26 J. Fam. Stud. 125 (2020).
2. Gupta, A., “Divorce and Its Impact on the Family,” 21 IOSR J. Hum. & Soc. Sci. 28 (2016).
3. Choudhary, A., “Conjugal Rights and Personal Laws: An Examination of Judicial Trends,” 32 J. Legal Stud. 301 (2020).
4. M.N. Das, Marriage and Divorce (6th ed., Eastern Law House 2002) 9.
5. https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/ (last visited on Sep 11,2023)
6. https://blog.ipleaders.in/restitution-of-conjugal-rights-under-the-hindu-marriage-act/ (last visited on Sep 11,2023)
7. https://www.legalservicesindia.com/article/814/Restitution-of-Conjugal-Right.html/. (last visited on Sep 12,2023).
8. https://www.jstor.org/stable/43951874 ( last visited on Sep 13,2023)
9. https://www.scconline.com/blog/post/2020/11/07/thinking-of-seeking-transfer-of-petition-for-restitution-of-conjugal-rights-under-section-21-a2b-of-the-hindu-marriage-act-1955-sc-says-you-cant/ ( last visited on Sep 14,2023 )

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[1] Dr. Paras Diwan, Law of Marriage and Divorce (5th ed., Universal Law Publishing Co. 2008) 302.

[2] Moonshee Buzloor Ruheem v. Shumsoonissa Begum, (1867) 11 MIA 551.

[3] Hindu Marriage Act, 1955, § 9 (India).

[4] Manjula Zaverilal Kothari v. Zaveriial Vithaldas Kothari, (1974) GLR 758.

[5] T Sareeta v Venkatasubbiah, AIR (1983) AP 356.

[6] Saroj Rani vs. Sudarshan Kumar Chadha, (1984) 4 SCC 90.

[7] Harvinder Kaur vs. Harmander Singh Choudhry, (1984) 1 SCC 92.

[8] Smt. Sureshta Devi vs. Om Prakash, (1991) 2 SCC 25

[9] Dastane v Dastane AIR (1975) SC 1534.

[10] Naveen Kohli v. Neelu Kohli AIR (2006 )SC 1675.