RESTITUTION OF CONJUGAL RIGHTS

This article is written by Bhumi Reddy Vanaja of BA LLB of 4^th Year of  Sri Padmavati Mahila Viswa Vidyalayam, Tirupati,  an Intern under Legal Vidhiya

ABSTRACT

The purpose of this article is to describe the topic of Restitution of Conjugal Rights and to demonstrate how the idea actually works in the contemporary world.

Hindu marriage is considered as a sacramental union, and different personal rules also grant sanctity to the partnership. The recovery of marital rights has been the subject of extensive discussion and introduction since the Act was passed. The main focus of our piece is to draw attention to the very nature of this statute and how, while being initially prescribed as a solution, it now acts as the ultimate destroyer of a marriage that was already on the verge of disintegrating. We have discussed the remedy’s constitutionality and the pattern of precedents set by Indian courts in this article.

This article has also emphasized how ideas and time have evolved, and that restitution of conjugal rights is no longer an acceptable choice because other, more flexible and workable solutions have taken its place, making this “remedy” out of date.

KEYWORDS

Marriage Obligations, Family, Hindu Marriage Act, Reconciliation, Preservation of Marriage, Emotional well-being, Protection of Children, Legal status, Burden of Proof, Reasonable excuse, Constitutional Validity, Restitution of conjugal rights under different religions.

INTRODUCTION

An essential thread in the complex web of human interactions is marriage. It is based on love, loyalty, and shared objectives, but like any intricate creation, it can come apart at the seams. Lawmakers have long debated and regulated marriage, with all of its joys and difficulties. A particularly fascinating aspect of family law arises when marital joy gives way to turbulence, and the idea of “restitution of conjugal rights” takes center stage. The maintenance of marital harmony is a fundamental tenet of the legal doctrine of restitution of conjugal rights. Its historical evolution and contemporary significance underscore the fine balance that must be struck in the context of marriage between societal goals and individual autonomy. The rights that arise with marriage are known as conjugal rights. Restitution of marital rights is a concept that aims to heal the bonds of matrimony, and is a witness to the continuing desire of matrimonial peace within the intricate fabric of human relationships.

Restitution means bringing back and Conjugal rights means marital rights. Restitution of conjugal rights means bringing back marital rights. Parties to the marriage are entitled to their marital rights after the solemnization of marriage.  Marriage creates reciprocal rights and duties. Where one spouse rejects living in companionship with other without just cause, the other party can apply for the grant of decree of restoration of conjugal rights. This decree compels the party who has withdrawn to join the conjugal society with the petitioner. This is one of the matrimonial remedies, which was borrowed from English law, but England abolished this remedy in the year 1970. The object of this section is to preserve the marriage and not to dissolve it.^[1] Section 9 of the Hindu Marriage Act provides a legal claim for Restitution of Conjugal Rights. The impacted party may petition the district court for the restoration of conjugal rights if one partner unjustly leaves the other’s business. Reestablishing a spouse’s companionship after they have left the relationship without a good reason is the essence of it.

HISTORICAL BACKGROUND

One recent development in Indian matrimonial law, which has its roots in Jewish law, is the remedy known as Restitution of Conjugal Rights. Prior to the British introduction, the remedy was not known in Hindu law. In actuality, it is the sole matrimonial remedy that was authorized by general law for all Indian groups during the British colonial era. The Hindu Marriage Act of 1955 incorporated this remedy after the country gained its freedom. This treatment was rejected by Senior Member of Parliament Khardekar, stating that “this particular cause is, to put it mildly, uncouth, barbaric, and vulgar.” It is astounding that the government would condone rape as a lawful activity. Author of a book on family law, Bromley has also written against this idea in his book. According to Paras Diwan^[2], neither the Dharmashastras nor Muslim law recognized the remedy of restitution of marital rights. The concept of restating conjugal rights originated in medieval England, when marriage was viewed as a business transaction and the woman was regarded as a commodity that belonged to the male, much like other possessions. ^[3]

In the case of Moonshee Buztoor Ruheem v. Shumsapnisso (1867), 1 MIA 551. The idea of restitution of marital rights was first presented in India. At that time, such actions were seen as considerations for special performance. ^[4]

SECTION 9 OF HINDU MARRIAGE ACT, 1955

“When either the wife or the husband 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 restoration of conjugal rights accordingly.”^[5]

Section 9 of the Hindu Marriage Act, 1955 allows the aggrieved party to file a petition for restitution of conjugal rights if the other party withdraws from the other’s marital society without a valid reason and the parties are not living together. Withdrawal from society means total cessation of cohabitation.^[6]

CONDITIONS FOR GRANT OF RESTITUTION OF CONJUGAL RIGHTS

• There must be a legal marriage between the parties.
•  The Respondent must have withdrawn from the petitioner without reasonable cause or excuse.
•  The court must be satisfied with the truth of the statements made in the petition.
•  That there is no legal ground why the relief should not be granted.

BURDEN OF PROOF

According to Section 22 of the Special Marriage Act, the initial burden of proving that the respondent has withdrawn from the society of the petitioner is on the petitioner and the burden of providing a reasonable excuse for such withdrawal shall be on the person who has withdrawn from the society.^[7]

WITHDRAWAL FROM THE SOCIETY

Withdrawal from society means refusing to continue the marital relationship, such as refusal to cohabitate, refusal to have sexual intercourse, refusal to give company and comfort.

In the case of  A.E. Thirumal v. Rajaram, AIR 1986 Mad 201, the court has held that the husband and wife living separately under a valid agreement couldn’t be said to have withdrawn from the society of other.^[8]

In the case of  Jyothi Pai v. P.N. Pratap Kumari, AIR 1987 Kant 23, where the husband dumped his wife at her father’s house and totally neglected her, the court held that the husband had withdrawn from society.^[9]

REASONABLE EXCUSE

Any matrimonial misconduct, which is grave and weighty, will amount to a reasonable excuse. Nevertheless, there are a few reasons why this kind of petition might not be approved, and they are as follows:

• Cruelty
• Adultery
•  and any other kind of misconduct in marriage

If any of the previously described accusations against the petitioner are found to be true, then his request to have his marital privileges restored will be denied.

In the case of Leelamma v. Dilip, AIR 1993 Ker 97, where a husband tries to persuade his wife to have sexual intercourse with his friend, was held to be a reasonable excuse for withdrawing herself  from the society of her husband.^[10]

According to the ruling in Trilok v. Savitri, AIR 1972 All 52, the petitioner’s action or act that prevents the respondent from cohabiting with the petitioner would qualify as a legitimate justification, according to the court. ^[11]

CONSTITUTIONAL VALIDITY OF SECTION 9 THE OF HINDU MARRIAGE ACT, 1955

Due to numerous violations of fundamental rights, the constitutional legitimacy of the recovery of marital rights has been contested on several occasions. Articles 14, 19, and 21 of the Constitution were allegedly breached.^[12]

T. Sareetha v. T. Venkata Subbaiah, AIR 1983 A.P 356,

In this instance, Section 9 was contested on the grounds that it violated people’s rights to liberty and dignity. Section 9 was declared illegal by the Court because it violated the right to liberty and dignity that is protected by Article 21 of the Constitution. Referencing the Scarman Report in England for Abolition of the remedy, that decision was made. According to the erudite Judge, it violated the wife’s right to privacy. The privacy of married couples was violated by the law. Even the age-old Vedas never advocated forcing a couple to live together. Moreover, it was noted that a woman’s choice to procreate is unaffected by Section 9, which relieves her of that obligation. State interests are not superseded by the privacy of a married couple.^[13]

Smt. Harvinder Kaur v. Harmander Singh, AIR 1986 Delhi 66,

The Delhi High Court disagreed with the AP High Court’s earlier ruling that Section 9 was unconstitutional. The Learned Judge emphasized that, contrary to what was thought in the Sareetha v. In the Venkata Subbaiah Case, the primary goal of restitution of conjugal rights is to maintain marriage. He further stated that although having sex is a requirement of marriage, the court cannot compel it. No decision of restitution of conjugal rights may be granted if one spouse cohabits with the other and declines to engage in sexual activity. He claimed that enacting constitutional laws domestically is completely out of place and analogous to bringing a bull to a China shop. There are no Article 12 or 21 fundamental rights at home; the adoption of constitutional legislation would weaken the delicate law. Section 9 of the Hindu Marriage Act of 1955 was respected, and no fundamental rights were violated.^[14]

K.S. Puttaswamy v. Union of India AIR 2017 SC 4161.

The Indian Constitution’s Article 21 recognizes the right to privacy as a basic right, as held by a nine-judge bench in the case of Justice K.S. Puttaswamy v. Union of India. The Hindu Marriage Act’s clause about privacy should be removed immediately since it infringes upon our Constitution’s most fundamental right and leads to unwarranted harassment, criminal penalties, and the abuse of the prohibition against the woman’s wife. For that reason, it ought to be ruled unconstitutional, as” You can take a horse to the water pond, but you can’t make it drink.” ^[15]

Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562,

Here again, the argument that section 9 violated Articles 14, 19, and 21 called into question the constitutionality of the provision. The Supreme Court cited the Delhi High Court’s earlier ruling in ruling that it was constitutionally valid. Section 9 only codified an earlier statute. This section helps to keep marriages intact and helps to mediate disputes peacefully between partners. The Learned Judge stated that it would be impossible to declare section 9 to be in violation of Articles 14 and 21 if it is correctly read, understood, and applied in its totality. They affirmed the section’s constitutional validity and gave the wife Rs. 200 per month and the first daughter, Menka, Rs. 300. Therefore, Sec. 9, which refers to the restitution of conjugal rights, is regarded as constitutionally valid at this time.^[16]

RESTITUTION OF CONJUGAL RIGHTS UNDER  MUSLIM LAW

Muslim personal law in India does not recognize the concept of restitution of conjugal rights as law. Muslim personal law is guided by ideas drawn from Islamic jurisprudence and is principally based on the Quran and Hadith, which are the sayings and customs of the Prophet Muhammad. In Muslim personal law, there is no special provision for requesting the restoration of conjugal rights, unlike in Hindu and certain other Indian personal laws. In situations of marriage and divorce, mutual consent and willingness are paramount in Islamic law. When a husband and wife separate, they can choose to get back together through mediation, arbitration, or mutual consent, but there is no legal way for one of them to force the other to move back in and cohabit against their choice. Rather, Muslim personal law in India acknowledges the idea of “Talaq,” or unilateral divorce, enabling a husband to do so by fulfilling specific guidelines.

The respondent wife contended In Muhammad Rustam Ali v. Husaini Begum (1907) ILR 29 All 222, that she had been mistreated and that she was afraid for her safety if she moved back in with her husband. The Hon’ble Allahabad High Court determined that it was a strong defense against Section 9 of the Hindu Marriage Act, 1955. ^[17]

RESTITUTION OF CONJUGAL RIGHTS UNDER CHRISTIAN LAW

Christians in India have a legal way to ask for their marital cohabitation to be restored through the restoration of conjugal rights under Sections 32 and 33 of the Indian Divorce Act, 1869^[18]. These parts provide a distinctive viewpoint on the idea of conjugal rights within this society and are exclusive to Christian marriages. If one spouse in a Christian marriage has been abandoned by the other without a good reason, they may submit a petition for Restoration of rights to marriage under the Indian Divorce Act of 1869, Section 32. The guilty spouse may be ordered by the court to move back in with the resentful spouse.

The legal ramifications of breaking the reparation decree are outlined in Section 33 of the same Act. The court may decide to use a variety of tactics to enforce the decree if the spouse it has been issued against does not comply without a valid reason. These tactics may include property attachment or even jail time for contempt of court. Restitution of conjugal rights may sound like a strange idea, but in some Christian cultures, it is nevertheless important since it emphasizes the value of marriage. It is imperative to acknowledge, though, that this legal remedy has come under fire for allegedly infringing upon individual liberty and private rights.^[19]

THE SPECIAL MARRIAGE ACT OF 1954 PROVIDED FOR THE RESTORATION OF CONJUGAL RIGHTS

For people in India who choose to get married under the Special Marriage Act, 1954, restitution of conjugal rights under Section 22 ^[20]provides a unique legal framework, regardless of their religious background. This clause, which is essential to promoting marital reunion, enables a spouse to request court intervention when their partner has left the marital residence voluntarily and without good reason.^[21]

In the case of (Navin Kohli v. Neelam Kohli AIR 2006 SC 1675)  Special Marriage Act of 1954’s recovery of conjugal rights was further clarified by this ruling. The court emphasized that the parties should not be forced into a marriage against their will, underscoring the need for mutual consent and readiness to cohabit. Rather, the focus should be on reaching a peaceful conclusion and upholding the integrity of the marriage contract.^[22]

RESTITUTION OF CONJUGAL UNDER PARSI MARRIAGE AND DIVORCE ACT, 1936

A unique legal framework for Parsi weddings in India is provided under Section 36 of the Parsi Marriage and Divorce Act, 1936, ^[23]which restores conjugal rights. This clause enables a Parsi spouse to request the involvement of the court in cases when their spouse has left the marital residence voluntarily and without a good explanation.  If a Parsi person discovers that their spouse has abandoned them without good reason, they have the right to petition for the restoration of their marital rights under Section 36 of the Parsi Marriage and Divorce Act, 1936. After giving the matter careful thought, the court may provide a judgment directing the guilty spouse to move back in with the injured spouse.^[24]

BENEFITS OF RESTITUTION OF CONJUGAL RIGHTS

• Reconciliation: It helps couples reconcile and mend their relationship.
• Preservation of Marriage: Marriage is a sacred institution that should be preserved at all costs.
• Protection of Rights: Ensures that both spouses enjoy their rightful companionship.
• Avoidance of Adultery: By encouraging spouses to live together, it reduces the likelihood of extramarital affairs.
• Emotional Well-Being: Restoring companionship contributes to emotional stability.
• Protection of Children: A stable environment benefits children.
• Legal Recognition: It reinforces the legal bond between spouses.
• Financial Stability: Shared living arrangements can lead to better financial stability. ^[25]

EFFECTS OF RESTITUTION OF CONJUGAL RIGHTS

1. If a restitution of conjugal rights decree is granted, the respondent will be required to move back in with the plaintiff.
2. Either partner may file for divorce if this isn’t done within a year of the decree’s date.

PROPOSALS

1. It is debatable whether or not to restore conjugal rights. Some say it’s to protect the marriage, while others say there’s no point forcing the other person to stay with the resentful party because they don’t really want to. There is, however, always room for improvement.
2. An alternative to the rigid matrimonial rights is to try the concept of reconciliation. Although restitution is a very harsh and merciless concept that makes individuals compromise, the compromise itself is quite subtle and noteworthy. The problem with restitution is that there’s a good chance that things will get ugly after both spouses compromise. This way, the environment won’t be antagonistic toward either party and any misconceptions will be cleared up.
3. Since the court’s role is to settle disputes rather than make concessions, the legal executive should not be involved in carrying out this task. A new committee will be formed in its place, and its only responsibility will be the management and resolution of marriage problems. Due to its expediency, effectiveness, and reasonability, the prospect of reparation is very likely.
4. Despite our discussions of gender equality and the law’s gender-neutrality, this clause takes advantage of the fact that women in Indian society continue to face disadvantages. Women are frequently emotionally and mentally mistreated and tormented for dowries, and dowry murders are a scourge on society.
5. A restitution of conjugal rights decree is a rope around the necks of these spouses, exhausted and crushed by brutality, as they leave their husband’s home.
6. It’s time for the Indian judiciary and society to adopt more progressive stances, beginning with the progressive marriage theory. The foundation of a marriage is not the ceremonies but rather the independence and self-determination of the two people who choose to share them.

CONCLUSION

According to Section 9 of the Hindu Marriage Act, restitution of conjugal rights enables a spouse who has been wronged to file a lawsuit when the other unjustly ends their marital companionship. This remedy, which requires the spouses to live together, was started by submitting a petition to the district court. Its goal is to restore conjugal rights. One could argue that the goal of the conjugal right reparation remedy is to keep marriages from disintegrating. Many other nations have done away with the Restitution, yet in a nation like India, the law is still in place. When a marriage breaks down for trivial reasons like miscommunication, lack of communication, or small arguments, the Restitution of Conjugal Right enables the parties to cohabit and resolve their differences peacefully.

Restitution of conjugal rights is one such matrimonial remedy that can compel an individual to preserve their marriage, but it cannot ensure that the marriage will be successful. Additionally, some claim that it contradicts the natural law paradigm.

REFERENCES

1. https://lawbhoomi.com/restitution-of-conjugal-rights-under-hindu-marriage-act/#_ftnref8 visited on 11-04-2024.
2. https://www.writinglaw.com/restitution-of-conjugal-rights/  visited on 11-06-2024.
3. https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/  visited on 11-06-2024.
4. https://vakilsearch.com/restitution-of-conjugal-rights visited on 11-06-2024
5. https://www.legalserviceindia.com/legal/article-10487-restitution-of-conjugal-rights.html visited on 11-04-2024.
6. M.P. JAIN, Indian Constitutional Law 8^th edition 2018.
7. The Hindu Marriage Act, 1955 Act & 9, No25, Acts of Parliament 1955 (India).
8. The Special Act, 1954 Act, & 22, No. 43, Acts of Parliament 1954 (India).
9.  The Indian Act, 1869, & 32 and 33, No.4, Acts of Parliament 1869 (India).
10. The Parsi Marriage and Divorce Act, 1936 & 36, No.3, Acts of Parliament 1936 (India).
11. A.E. Thirumal v. Rajaram, AIR 1986 Mad 201.
12. Jyothi Pai v. P.N. Pratap Kumari, AIR 1987 Kant 23.
13. Leelamma v Dilip, AIR 1993 Ker, 97.
14. Trilok v. Savitri, AIR 1972 All 52.
15.  T. Sareetha v. T. Venkata Subbaiah, AIR 1983 A.P 356.
16.  Smt. Harvinder Kaur v. Harmander Singh, AIR 1986 Delhi 66.
17. K. S. Puttaswamy v. Union of India, AIR 2017 SC 4161.
18. Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.
19.  Muhammad Rustam Ali v. Husaini Begum (1907) ILR 29 ALL 222.
20. Navin Kohli v. Neelam Kohli AIR 2006 SC 1675.

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[1]  https://thelawcodes.com/what-is-restitution-of-conjugal-rights/  visited on 06-04-2024.

[2] Paras Diwan, Modern Hindu Law 64,(Allahabad agency 21^st edition).

[3] https://www.scribd.com/document/505159999/Restitution-of-Conjugal-rights visited on 06-04-2024.

[4] Moonshee Buztoor Ruheem v Shumsapnisso ( 1867), 1 MIA 551.

[5] The Hindu marriage Act, 1955 Act & 6, No25, Acts of Parliament 1955 (India).

[6] https://www.indiacode.nic.in/show-

Data? actid=AC_CEN_3_20_00004_195525_1517807318992&orderno=9  visited on 06-06-2024.

[7] The Special Act, 1954 Act, & 22, No. 43, Acts of Parliament 1954 (India).

[8] A.E. Thirumal v. Rajaram, AIR 1986 Mad 201.

[9] Jyothi Pai v. P.N. Pratap Kumari, AIR 1987 Kant 23.

[10] Leelamma v Dilip, AIR 1993 Ker, 97. 

[11]Trilok v. Savitri, AIR 1972 All 52.

[12] https://www.legalserviceindia.com/legal/article-10701-golden-triangle-of-the-constitution-of-india-articles-14-19-and-21.html visited on 06- 04-2024.

[13]  T. Sareetha v. T. Venkata Subbaiah, AIR 1983 A.P 356.

[14]  Smt. Harvinder Kaur v. Harmander Singh, AIR 1986 Delhi 66.

[15] K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.

[16]  Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.

[17]  Muhammad Rustam Ali v. Husaini Begum (1907) ILR 29 ALL 222.

[18]  The Indian Act, 1869, & 32 and 33, No.4, Acts of Parliament 1869 (India).

[19] https://www.indiacode.nic.in/bitstream/123456789/2280/1/A1869-04.pdf visited on 06-04-2024.

[20] https://www.indiacode.nic.in/bitstream/123456789/15480/1/special_marriage_act.pdf visited on 06-04-2024.

[21]  The Special Marriage Act, 1954,& 22, No.43, Acts of Parliament 1954(India).

[22] Navin Kohli v. Neelam Kohli AIR 2006 SC 1675.

[23]  The Parsi Marriage and Divorce Act, 1936 & 36, No.3, Acts of Parliament 1936 (India).

[24] The Parsi Marriage and Divorce Act, 1936 & 36, No.3, Acts of Parliament 1936 (India).

[25] https://vakilsearch.com/blog/benefits-of-restitution-of-conjugal-rights/ visited on 06-04-2024.

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