RESTITUTION OF CONJUGAL RIGHTS

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This article is written by Saloni of 7^thSemester of Bhagat Phool Singh Mahila Vishwavidyalaya, an intern under Legal Vidhiya

ABSTRACT

As we all know that marriage is a mutually exclusive relationship between a man and a woman that renders them legally as husband and wife. Marriage is universal phenomenon. Marriage plays a significant role in human existence and imposes obligations on both the husband and wife. It is assumed that a husband and wife live together and have a responsibility to support one another. Conjugal Rights are rights bestowed by marriage. The idea behind the concept of conjugal rights is to maintain the sacredness of marriage institution, moreover to maintain the harmony and unity of the family. Only a small number of jurisdictions have adopted this idea, and it is not a legal remedy that is generally recognized. In this article we will deeply analyze the concept of restitution of conjugal rights. We will also examine whether it is constitutional to force one spouse to remain with the other spouse if the other spouse withdraws from that spouse’s social life.

Keywords:

Restitution, conjugal rights, marital relationship, Hindu marriage act 1954, petition for restitution of conjugal rights, constitutional validity

INTRODUCTION

The concept of restitution of conjugal right states that restitution of conjugal rights is a relief if their spouse withdraws from their social circle without a justifiable explanation from either their husband or their wife. Conjugal right is the legal right to remain together after entering into a marriage with a partner. Legally speaking, “restitution of conjugal rights” refers to a petition made by a spouse asking for a court order compelling their estranged partner to live with them once more. After the marriage both the spouses are bound to live with each other and the remedy of restitution of conjugal right is available to both the spouses. In other words we can say this right is an attempt made by the court to save the marriage.

MEANING OF RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights is primarily made up of the words “restitution” and “conjugal rights,” where “conjugal rights” refers to rights pertaining to marriage or the marital relationship between husband and wife and “restitution” refers to the restoration of something that has been lost. Legally speaking, “restitution of conjugal rights” refers to a petition made by a spouse asking for a court order compelling their estranged partner to live with them once more. In simple words conjugal rights denotes the marital relationship between husband and wife.

ORIGIN OF THE CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS

Restitution of Conjugal Rights is a legal idea that has its origins in English common law from the first half of the seventeenth century. Early in the 19th century, the Restitution of Conjugal Rights was acknowledged as a valid legal remedy in England. However, there has been a lot of opposition to the restoration of conjugal rights. This is especially true according to proponents of women’s rights who claim that it can be used as an instrument of oppression and can compel women to stay in abusive marriages. Other common law countries later followed the idea; in 1869, India acknowledged the restitution of conjugal rights.

LAWS GOVERNING RESTITUTION OF CONJUGAL RIGHTS IN INDIA

The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruhneem vs. Shumsoonissa Begum[1], It was decided that a husband could file a lawsuit against a wife for the restoration of conjugal rights if the woman ended their relationship for unlawful reasons. Prior to this decision, in Maulvi Abdul Wahab v. Hingu[2] the courts had acknowledged the restoration of conjugal rights.

The 71st Law Commission Report[3] outlined the significance of this principle in great detail. This report concludes that divorce and separation are the only viable options, marriage is a sacramental bond, and attempts should be made to facilitate reconciliation as opposed to entirely severing the connection.

In India the remedy of restitution of conjugal right is available under the following laws:

To Hindus – under Hindu marriage act 1955 (section 9)[4]

To Muslim – under general law

To Christians- Indian divorce act, 1869 (section 32, 33)[5]

To Parsis- Parsi marriage act 1936 (section 36)[6]

To couples who married under special marriage act- special marriage act 1954 (section 22)[7]

RESTITUTION OF CONJUGAL RIGHTS UNDER DIFFERENT PERSONAL LAWS IN INDIA[8]

Under Hindu marriage act 1955

According to Hindu law, Section 9 of the Hindu Marriage Act governs Restitution of Conjugal Rights (ROCR). A decree of restitution of conjugal rights may be requested from the court under this law if one spouse abandoned the other without giving a cause. When a partner or spouse violates a reasonable clause and moves out without permission, Section 9 of the Hindu Marriage Act can be invoked. Section 9 of the Hindu marriage act acts as a ‘marriage saving’ clause.

Under Muslim law

The idea of restitution of conjugal rights is founded on the notion that the court may order restitution of conjugal rights, ensuring the rights of the other party, if either spouse has unjustly withdrew from the other’s society or failed to fulfill the obligations of the marriage. Restitution of conjugal rights is a discretionary and equitable relief, albeit it can only be requested in cases where the marriage was legitimate.

Under Christian law

Christians have the right to request restitution of marital rights under Sections 32 and 33 of the Indian Divorce Act of 1869. If one partner has unjustly withdrew from the other’s social circle, Section 32 allows either partner to petition the district or high court for the restoration of conjugal rights. In addition, Section 33 specifies that only arguments opposing a request for restitution of conjugal rights that would not lead to the nullification of the marriage or a case for judicial separation are permitted.

Under Parsi law

According to Section 36 of the Parsi Marriage and Divorce Act of 1936, Parsis are entitled to the remedy of restitution of marital rights. When there has been no continuation of cohabitation or restoration of conjugal rights for a period of one year or longer following the entry of a decree for restitution of conjugal rights in a proceeding in which the husband and wife were parties, this can be used as a basis for divorce under Section 32A of the Parsi Marriage and Divorce Act, 1936.

Under special marriage act 1954

Interfaith marriages and court marriages are governed by the Special Marriage Act. According to Section 22 of the Special Marriage Act of 1954, the party who has been wronged may petition the district court for Restitution of Conjugal Rights if either the husband or the wife has isolated themselves from the other without a good reason.

ESSENTIALS ELEMENTS TO CLAIM RESTITUTION OF CONJUGAL RIGHTS

In order to claim the remedy of restitution of conjugal rights following essential condition must be fulfilled:

Marriage: the first and the foremost requirement to claim conjugal right that the couple must be legally married to each other under the country’s law.

Table of Contents

b) Living Separately: The spouse requesting restitution must demonstrate that their partner has abandoned the marital residence and is living separately without any reasonable justification

c) Willful Desertion: the separation of spouses must be willful and voluntary without any external pressure.

d) No Reasonable Excuse: the other requirement for claiming restitution of conjugal right that the spouse must prove that there is no reasonable excuse for separation.

e) No Adultery or Cruelty: it is also essential that the spouse claiming restitution of conjugal rights must not have committed adultery or cruelty to other spouse.

BURDEN OF PROOF

The burden of proof in relation to conjugal rights is a dual concept that does not apply to just one side.

The onus of proof initially rests with the petitioner. The petitioner must provide evidence that the respondent has cut himself off from society.
The onus of proof is now on the respondent, who must then establish the reasonableness of his actions.

NECESSITY OF RESTITUTION OF CONJUGAL RIGHTS

When one of the spouses has unreasonably withdrew from the other’s company, the aggrieved party may petition the district court for the restoration of conjugal rights, and the court, upon being satisfied that the petition’s claims are true and that there is no legal reason why the application should not be granted, may decree the restoration of conjugal rights in accordance. The remedy of restitution of conjugal rights highlighted that it is not intended to end the marriage, as is the case with divorce or judicial separation, but rather to preserve it. It helps to prevent marriage breakdown and is a way to keep a marriage together. Therefore, the restitution of conjugal rights remedies attempts to foster party reconciliation and maintain the married relationship.

PROCEDURE TO CLAIM RESTITUTION OF CONJUGAL RIGHTS

In order to claim the remedy of restitution of conjugal right the spouses who want his/her partner back must submit a reparation suit with the district court.
The petitioner afterwards names HC as the recipient of the case application.
Both parties must appear in court on the days specified.
The court will then set up counseling sessions for both parties.
These courts normally convene three times over the course of four months, with pauses of 20 days in between.
The information supplied by the parties and the counseling sessions will be used by the court to make its conclusion.

IMPLEMENTATION OF DECREE RESTORING CONJUGAL RIGHTS

When a spouse receives a decree from a trial court, their next step is to get the decree satisfied by submitting an application for its execution to the trial court. Execution gives the decree holder the right to pursue the judgment debtor for the decreetal sum or any relief awarded under the decree. With the implementation of the decree approved for the restoration of conjugal rights, order (21) rule (32) of the C.P.C. is sealed. It states that:

In the case of a decree for restitution of conjugal rights, the decree may be enforced if the party against whom a decree for the specific performance of a contract, for the restitution of conjugal rights, or for an injunction, stay has been passed has had the opportunity to obey the decree and if he has willfully failed to obey it.

1. through the attachment of his property, or in the case of a ruling for the injunction or particular performance of a contract

2. His detention in a civil prison

ARGUMENTS AGAINST DENYING THE PETITION FOR THE RESTORATION OF CONJUGAL RIGHTS

Any marital relief is available to the respondent.
Marital ties are not supported by the petitioner’s actions.
For reasons of work, the couple is split apart.
Infidelity in marriage is admitted by the petitioner.

RESTITUTION OF CONJUGAL RIGHTS: NOT AN ABSOLUTE RIGHT

The remedy for the restitution of conjugal right is not an absolute right available to the spouses. Rather it is discretionary remedy which is available to the spouses. It is discretionary power of the court. The court will decide whether the claim made by the spouse is bonafide or malafide depending upon the circumstances. In Abdul Khadir v. Salima,[9] the court established that Indian courts will operate as mixed courts of equity and be influenced by the rules of Equity in English jurisprudence in a petition for the restoration of conjugal rights. It is also taken into account how the party requesting a specific performance of the marriage has acted.

REPERCUSSION OF NON-COMPLIANCE OF RESTITUTION OF CONJUGAL RIGHTS

A decree order cannot require a judgment debtor to remain with them while the decree of restitution of marital rights is being carried out. The sole remedy accessible to the decree holder is to file for divorce against the judgment debtor after a year if the spouse does not return and does not comply with the order despite the decision being given for the restoration of conjugal rights. No allegations of contempt of court have been brought regarding order non-compliance.

In accordance with section 23(1)(a) of the Hindu Marriage Act, the spouse’s failure to comply with the decree for the restoration of conjugal rights would not constitute “wrong.”

saroj rani vs. sudarshan kumar[10], where the Hon’ble Supreme Court of India held that following a decree for restitution of conjugal rights, the husband is entitled to a decree of divorce under Section 13 of the Hindu Marriage Act and his failure to resume cohabitation would not amount to “wrong” within the meaning of Section 23(1) (a) of the act, must be the center of all disagreements on this matter.

VALIDITY OF THE RESTITUTION OF CONJUGAL RIGHTS UNDER THE CONSTITUTION

The Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 introduced the Restitution of Conjugal Rights provision. The Restitution of Conjugal Rights was introduced after a heated debate in the parliament. The provision’s constitutional legality was contested when it was included in the Hindu Marriage Act. The argument in support of the challenge was that it infringed upon a fundamental right protected by the Indian Constitution. It was contended that the Restitution of Conjugal Rights decree deprived the spouse of the freedom to choose whether or not to live with the individual.

RELATED CASE LAWS

The High Court of Delhi reinstated the constitutional validity of the restitution of conjugal rights in Harvinder Kaur v. Harmander Singh[11], The court ruled that the goal of regaining conjugal rights is to reestablish cohabitation and strengthen the spouses’ cordial relationship, not merely engage in sexual activity. It went on to say that the Restitution of Conjugal Rights remedy was never intended to restrict the right to privacy but rather to prevent the dissolution of the marriage.

In the case of Jagdish Lal vs. Smt. Shyam Madan and Others (AIR 1966 AII 150)[12] the husband requested restitution of conjugal rights. The court had rejected the restitution suit on reasonable grounds because the wife had established that the husband is impotent.

Tirath Kaur v. Kirpal Singh[13] In this case, the High Court ruled that one spouse’s refusal to quit their employment and live with others causes the other to withdraw from society. The wife’s primary responsibility is to submit herself to living with her husband under one roof, the court further stated.

Sareetha v. T. Venkata Subbaiah[14] In a subsequent case, Sareetha argued that Section 9 of the Hindu Marriage Act was unconstitutional in the High Court of Andhra Pradesh. On the grounds that it contravenes Articles 14 and 21 of the Indian Constitution, the section’s constitutionality was contested. She argued that the Section 9 rule prevents women from selecting their careers. She further argued that the clause violated the right to privacy protected by Articles 14 and 21 of the Indian Constitution because it is a tool for coerced sexual encounters. In this case, the High Court determined that Section 9’s provision breaches Articles 14 and 21 of the Indian Constitution and is consequently null and unconstitutional.

• Saroj Rani v. Sudarshan Kumar Chadha[15] In this case, the Supreme Court held that the restitution of conjugal rights principle was established to prevent spouses from divorcing and that a reasonable justification for cohabitation is taken into account as a justification for restitution of conjugal rights. The Court also determined that Section 9 does not violate Articles 14 and 21 of the Indian Constitution.

RECENT DEVELOPMENTS

In Joseph Shine v. Union of India[16], The Supreme Court has just heard a new appeal to this provision on the grounds that it breaches the fundamental rights to privacy and equality. Furthermore, the petitioners claim that the state is engaging in “coercive acts” by enforcing these rights, which violates people’s autonomy over their sexuality and decisions. Additionally, it goes against the premise outlined by the Supreme Court. The Hindu Marriage Act of 1955, which allows for the restitution (recovery) of conjugal rights under Hindu personal law, Ojaswa Pathak v. Union of India[17] is the name of the plea, which was submitted to the SC in February 2019

CONCLUSION

Marriage is one of the most significant and crucial aspect human lives. With the solemnization of marriage conjugal rights are granted to both the spouses. Restitution of the Conjugal Right is a remedy against a spouse who deserts the other spouse without sufficient cause. The objective of providing the remedy is to protect the sacramental bond between the husband and wife.

[1] (Moonshee Buzloor Ruheem and Jodonath Bose V/S Shumsoonnissa Begum, 1867)

[2] (Anamika M J, 2020) https://indianlegalsolution.com/restitution-of-conjugal-rights/

[3] https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-71-hindu-marriage-act1955

[4]https://www.indiacode.nic.in/showdata?actid=AC_CEN_3_20_00004_195525_1517807318992&sectionId=38575&sectionno=9&orderno=9

[5] https://indiankanoon.org/doc/89797906/, https://indiankanoon.org/doc/1560260/

[6]Parsi marriage act 1936 (section 36)

[7]https://www.advocatekhoj.com/library/lawreports/hindumarriageact1955special/125.php?Title=Hindu%20Marriage%20Act,%201955%20and%20Special%20Marriage%20Act,%201954&STitle=Section%2022,%20Special%20Marriage%20Act,%20(Restitution)#:~:text=Section%2022%20of%20t

[8] https://lawrato.com/indian-kanoon/family-law/restitution-of-conjugal-rights-in-india-procedures-under-different-religions-2832

[9] (Abdul Kadir Vs Salima And Ors, 1886) https://www.lawyersclubindia.com/judiciary/abdul-kadir-vs-salima-and-ors-5227.asp

[10] (Smt. Saroj Rani vs Sudarshan Kumar Chadha, 1984) https://lawplanet.in/saroj-rani-v-sudarshan-kumar-case-summary-1985/

[11] (Harvinder Kaur vs Harmander Singh Choudhry, 1983) https://www.lawinsider.in/judgment/harvinder-kaur-vs-harmander-singh-choudhary

[12] (Jagdish Lal vs Smt. Shyama Madan And Ors, 1964) https://indiankanoon.org/doc/1056450/#:~:text=in%20the%20instant%20case%2C%20the,the%20society%20of%20the%20petitioner.