This article is written by Durgesh Yadav of 3rd Semester of B R Ambedkar National Law University, Sonipat, an intern under Legal Vidhiya
Marriage is a union of a man and a woman that constitutes a legal relationship between them. This relationship gives some rights and duties to each other. In legal terms, these rights are termed as conjugal rights. These rights are backed by the courts for the protection of the rights of the spouse and to maintain the sanctity of marriage. These rights regulate the unjust behavior of one partner in this institution of marriage. Partners have the right to cohabit. The legislation allows the guilty spouse to move in with the aggrieved spouse if one of the spouses withdraws from social interactions. Restitution of Conjugal Right is what this is known as. This preserves the sanctity of marriage and helps keep married couples together.
But, in the contemporary world, when people give importance to personal liberty and privacy, these rights act as anarchic and barbaric toward them. So, there is a huge variance of opinion towards this issue. Some believe that these rights protect the roots of marriage as a stable institution. On the other hand, some termed them unconstitutional and oppressive laws over them. So, we have to learn the change in these societal norms for a period of time.
KEYWORDS: Conjugal Rights, Constitutional Validity, Hindu Marriage Act, 1955, Muslim Laws
This work aims to find out the basic concept of conjugal rights and how it evolved in the Indian judicial system with time. In this work, we are going to discuss the relevance of these rights mentioned in marriage laws in India. Also, in recent times, the debate over its constitutionality started in Indian Courts, so I also discuss some cases in this regard.
So hereby, I am analyzing:
- Concept of Conjugal Right
- Sections regarding the same in personal Laws
- Case laws over its constitutionality
Conjugal rights are those rights and privileges that two people share as a result of their marriage. These rights act as a legal remedy for the unjustified physical or emotional abandoning of one spouse. These rights are part of a complex institution of marriage that poses moral and legal obligations of the partners towards each other. Conjugal rights simply refer to “the Right to Stat Together”. Therefore, the right of the parties to be together is restored through the process of restitution of conjugal rights. It elaborates on the idea of continuing mutual commitment after death. Without a good reason, it refers to the re-establishment of a marriage between two spouses who live apart. This will enable the husband and wife to get married and live together. When a couple gets married, they commit to sharing their lives together, which means they have obligations to one another. Conjugal rights also refer to the rights that newlyweds acquire as part of their marriage and which must be upheld by both spouses.
When we dig into its origin, philosophers got Jewish laws that had the same kind of principle. The main idea behind that principle or right was to curtail the freedom of women in society. Women were considered as men’s property. So, they had no right to go anywhere without the permission of men. This same idea was adopted by the British from Jewish Law. They also recognized women as chattel. They believed that they had no right to leave their husbands.
This same idea reached India and other common-law countries through British rule. Moonshee Buzloor Raheem v. Shumsoonissa Begum was the first case in which the Privy Council used this principle.
In India, this became part of Indian Personal Laws for marriage and divorce like in Muslim personal law, Hindu Marriage Act, 1955, Special Marriage Act, 1954, Divorce Act, 1869, etc. Although, this provision was repealed in Britain in 1970 on the grounds of unreasonability or discriminatory nature, but it is present in Indian laws.
RESTITUTION OF CONJUGAL RIGHTS:
Conjugal rights are the rights that arise with marriage. So, in layman’s language, we can describe this term as the restoration of marital obligations. We all know that marriage provides some obligation towards the other partner that must be followed by him/her.
In Hindu or Muslim philosophy of marriage, marriage is a union for long relationships and the constitution of a stable family. If this basic principle is not followed by any of the spouses unreasonably, we can say that he/she doesn’t follow the martial obligations or duties. For the same, the other spouse can approach the court to restore the rights. The other partner must have to perform his/her duties. Mainly two types of duties must be performed by both spouses- Duty to cohabit and have sexual intercourse and Duty to give company to each other.
Now, let’s discuss this concept in accordance with the laws mentioned in Indian Personal Laws.
HINDU MARRIAGE ACT, 1955
In Hindus, marriage is considered as a sacrament that forms an unbreakable bond. In ancient Hindu culture, it was believed to be for seven births of humans. On the same belief, this concept was formulated and enacted in HMA, 1955 to preserve marriages from unreasonable breakdowns. So, restitution of Conjugal rights is a kind of relief provided in marriage to secure the holiness of the institution of marriage.
In Hindu Marriage Act, 1955, which applies to Indian Hindus, states this principle in Section 9. According to this section, if one spouse leaves the other’s society without a legitimate explanation, the aggrieved party may approach the district court for the restoration of conjugal rights. The court may issue a decision for the restoration of conjugal rights, which would compel the other spouse to move back into the marital residence and begin cohabitation if it is satisfied that there is no legitimate basis for the withdrawal and that the petitioner is not at fault in any manner.  So, when one of the couples begins living separately, the other spouse has the right to petition the court for a reparation order with adequate evidence. The withdrawal must be without any reasonable reason.
Essential of Section 9 of HMA, 1955:
- Respondent has withdrawn from the society of the petitioner
- Without any reasonable cause
- Aggrieved party approach to the court
- The court is satisfied that the statements made in the petition are true
- There is no legal ground for refusing to grant an application
So, by referring to this section, we can say that the parties of the marriage have no right to desert the other partner without any reasonable excuse. On the breach of these rights, the violator or defendant has to prove his or her innocence before the Hon’ble Court. The burden of proof lies on him/her.
However, this section of HMA is one of the most debated provisions in the Indian Judiciary. So, let’s discuss this with some important case laws.
Case Laws regarding the essentials of Restitution of Conjugal Rights-
In the case of Sushila Bai v. Prem Narain Rai, the court held that abandoning the wife at her father’s house and thereafter having no contact with her is deemed to have withdrawn from her society.
In Mohammad Rustam Ali v. Husaini Begam, the court stated that leaving the spouse for self-protection from any form of mistreatment or misbehaving by the other spouse is a valid ground for deserting.
But I am quoting again that the ground must be reasonable one and that reasonability is decided by the court as per the facts of the case. It is hard to live with parents of other spouse is not a reasonable cause for deserting (R. Natarajan v. Sujatha Vasudevan )
CONSTITUTIONALITYOF SECTION 9 OF HMA, 1955
The main issue of this long-lasting debate on its constitutionality is ignorance of the principles of privacy and liberty. Section 9 states that partners have no right to live separately or leave another spouse without any valid cause. He/ She has to indulge in sexual intercourse. Isn’t it against our fundamental right to live freely and our right to privacy? Every Indian citizen has these fundamental rights, then why not to the married couple? What if they just want to live their life alone without any reason for some time? What if a married person doesn’t want to indulge in any sexual relationship? Can we force that person to have sex? Doesn’t this form rape? These types of questions arise before the court from time to time. The main contentions are based on the violation of Articles 14, 19, and 21.
In the case of T. Sareetha v. T. Venkata Subbaiah, The court ruled that Section 9 was unconstitutional and invalid because it violated our fundamental right of Liberty and Dignity protected under Article 21 of the Constitution.
In the case of Harvinder Kaur v. Harmander Singh Chaudhry, the court ruled that Section 9 was constitutional as it protected marriage and the rights of partners, and didn’t impose any force sex on other partner.
In Saroj Rani v. Sudarshan Kumar, the Supreme Court held that Section 9 was constitutional and wasn’t against any provision of Articles 14, 19, and 21. Its main goal was to preserve marriage from unreasonable breakdowns.
Again this provision is challenged in a writ petition by Ojaswa Pathak on the grounds of equality, liberty, and privacy. (Ojarwa Pathak v. Union of India) But, Supreme Court decision is pending on this.
The main reasons for challenging this law are–
- It violates the FR to privacy recognized in the Puttaswamy case. The 9-judge bench held that all have bodily autonomy, but this section is against this principle.
- It is biased against women as they are forced to have sex.
- This provision is misused as a shield in the cases of divorce.
This same principle is mentioned in Section 22 of the Special Marriage Act, 1954.
In Muslim law, this concept of conjugal rights is not ancient. It is inculcated by the British. But in the past also, women had no right to leave their husbands. They were biased toward women. Now in Muhammadan Law for marriage and divorce, restitution of conjugal rights is nothing more than an enforcement of the right to consortium. This is mentioned under Section 281. 
So, the court may order the restoration of conjugal rights when either the husband or wife unlawfully withdrew from the other’s company or failed to uphold the legal or contractual obligations of marriage. The court may also order either party to agree to conditions that will ensure the other party’s enjoyment of their rights.
In the case of Abdul Kadir v. Salima, the court held that the concept of restitution must be based on the principle of Muslim Law.
According to First Corinthians, after marriage, both husband and wife become one flesh. They surrender their right over their body to each other. They have rights over others’ bodies. It is also mentioned that both the married partners have the right to enjoy sex and each has an obligation to help others to enjoy the same. This became the basis of conjugal rights.
For Indian Christians, this concept is mentioned under Sections 32 and 33 of the Indian Divorce Act, 1869. According to Section 32, if either the husband or the wife withdraws themselves from the other’s society, a petition can be brought before the court for the restitution of conjugal rights. And in accordance with Section 33, no argument may be raised in opposition to a petition or the restoration of conjugal rights that would not constitute a basis for a decision of nullity of marriage or an action for judicial separation. 
So, we discussed this concept of conjugal rights in different personal laws. Now, before summing up this work, let’s discuss some benefits of conjugal rights to know their relevance.
BENEFITS OF CONJUGAL RIGHTS
- Preservation of Marriage: The main reason for the enactment of these rights is to preserve marriage. Sometimes, one of the spouses denies rights to others, which creates a sense of barrier between them. So, to prevent further breakdown in the relationship, the court can pass an order to restore the conjugal rights.
- Period of Reconciliation: It aids in reconciliation and relationship repair. In many cases, lack of communication makes a marriage difficult which further result in divorce. However, filing a petition for the restoration of conjugal rights demonstrates a spouse’s willingness to improve their marriage and commitment to making it work.
- Emotional will-being- Emotional and physical intimacy are important components of marriage. Access restrictions between spouses might result in mental discomfort and feelings of isolation and rejection.
- Protection of Children- In a marriage, the children are as important as the couple. They also suffer tremendously when a marriage disintegrates. So, these rights can safeguard the situation of children.
- Other benefits- There are some other benefits like the financial stability of both spouses, legal recognition by renewed commitment, etc.
So, we can say that restitution of conjugal rights helps couples to overcome the barriers in their married life. However, this remedy is abolished in many countries, but it preserved many unreasonable breakdowns in marriage in India. But we have to maintain a balance between the institution of marriage and an individual’s freedom.
In the end, I want to say that the pursuit of reconciliation should be motivated by real desire and free will rather than by a court order. A court order can’t improve any marriage.
- Aparna Gupta, RESTITUTION OF CONJUGAL RIGHTS, Legal Vidhya, https://legalvidhiya.com/restitution-of-conjugal-rights/
- Mr. Kishan Dutt Kalaskar, Conjugal Rights How to be Restored, Legal Service India (16 September 2023, 6:23 PM) https://www.legalserviceindia.com/legal/article-5508-conjugal-rights-how-to-be-restored.html
- Apurva Vishwanath, Explained: Conjugal rights before the Supreme Court, The Indian Express, (16 September 2023,6:18) https://indianexpress.com/article/explained/explained-conjugal-rights-before-supreme-court-7411007/
- Bhumika Indulia, Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Guj HC answers, SCC Blogs, (11 September, 2023, 1:21 AM)
 Aparna Gupta, RESTITUTION OF CONJUGAL RIGHTS, Legal Vidhya, (16 September 2023, 6:10 pm) https://legalvidhiya.com/restitution-of-conjugal-rights/
 Mr. Kishan Dutt Kalaskar, Conjugal Rights How to be Restored, Legal Service India (16 September 2023, 6:23 PM) https://www.legalserviceindia.com/legal/article-5508-conjugal-rights-how-to-be-restored.html
 Moonshee Buzloor Raheem v. Shumsoonissa Begum (1867) 1 MIA 551
 Hindu Marriage Act,1955, Section 9, No.25, Act of Parliament, 1955 (India)
 Apurva Vishwanath, Explained: Conjugal rights before the Supreme Court, The Indian Express, (16 September 2023,6:18) https://indianexpress.com/article/explained/explained-conjugal-rights-before-supreme-court-7411007/
 Sushila Bai v. Prem Narain Rai AIR 1964 MP 225
 Mohammad Rustam Ali v. Husaini Begam (1907) ILR 29 All 222
 R. Natarajan v. Sujatha Vasudevan C.M.A. Nos. 3769 and 1775 of 2010
 T. Sareetha Vs T. Venkata Subbaiah, AIR 1983 AP 356.
 Ojarwa Pathak v. Union Of India WP(c) 250/2019
 Bhumika Indulia, Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Guj HC answers, SCC Blogs, (11 September, 2023, 1:21 AM)
 Abdul Kadir v. Salima (1886) 8 All 149
 Editor Team, Conjugal Rights in Marriage, Ligoneir Org (11 Sep. 23, 5:10 PM) https://www.ligonier.org/learn/devotionals/conjugal-rights-in-marriage
 Indian Divorce Act, 1869, Section 32 and Section 33, Act No. 4 of 1869