This Article is written by Aparna Gupta, student of 3rd Year BA LLB at University Law College, Bangalore University, Intern under Legal Vidhiya
Marriage is the union of two people, two families and two cultures. The essence of marriage is the sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to face in life. Marriage comes with certain duties and obligations over the parties. One such obligation is to reside with each other.
Conjugal Right means the Right of a spouse to live with the other. If any of the spouses withdraws herself/himself from the society of other, the law permits for the guilty spouse to start living with the aggrieved spouse. This is called Restitution of Conjugal Right. This helps to prevent married couples from breaking up and protect the sanctity of marriage.
DEFINITION OF RESTITUTION OF CONJUGAL RIGHT
In simple terms, ‘restitution’ means “restoration” and ‘conjugal rights’ means “the Right to Stat Together.” So, restitution of conjugal rights is the restoration of the right of the parties to stay together. It expounds the idea of mutual fidelity being continued until death. It means re-establishment of marital relationship between two spouses who live away from each other, without any valid reason. This is to allow the husband and wife to consummate and live with each other.
Sec. 9 of the Hindu Marriage Act, 1955 addresses the Restitution of Conjugal Right. It reads as follows: “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.”
The above definition highlights that when any of the spouses starts living separately, the other spouse may approach the court and get a decree of restitution upon sufficient proof of the same. For example, A and B are a married couple. 5 years after marriage, A started living away from B for no valid reason. A’s Conjugal Right have been violated and she can ask for a decree for restitution of that right. A is the guilty party and B is the aggrieved party.
The origin of Restitution of Conjugal Right can be traced back to UK. In the olden times, desertion was not an offence of marriage. But there was the remedy of restitution of conjugal right under the Ecclesiastical Courts, which ordered the deserter to re-cohabitate with the spouse. And any failure in the execution of the order on the part of the deserter would get him/her punished by excommunication. Later, as per the Ecclesiastical Courts Act, 1813, disobedience to such order would lead to an imprisonment of up to 6 months. The law developed and the Matrimonial Causes Act, 1884 included desertion by husband (non-compliance with the restitution decree was considered statutory desertion) living with someone else a ground for divorce to the wife. The Act was repealed in 1925 by the Supreme Court Judicature Act. Again, there was the Matrimonial Causes Act, 1965 sec.22 of which granted the restitution of conjugal right and the right of wife to seek maintenance on justified grounds.
The concept of restitution of conjugal right came to us from the Common Law. The concept was first discussed in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum in the year 1867, where it was held that when a wife without lawful reasons ceases to cohabitate with her husband, the husband may sue the wife for restitution of conjugal right.
LAWS PROVIDING THE RESTITUTION OF CONJUGAL RIGHT IN INDIA
- For the Hindus to claim this remedy the Sec. 9 of Hindu Marriage Act, 1955 applies.
- For Muslims, the general law provides for this right. (Abdul Kadir v, Salima)
- Christians are bestowed with this right under Sec. 32 and 33 of Indian Divorce Act, 1869.
- Parsis can avail remedy under Sec. 36 of the Parsi Marriage and Divorce Act, 1936.
- For marriages under Special Marriage Act, 1954 the protection is given under sec. 22.
ESSENTIALS OF Sec. 9 RESTITUTION OF CONJUGAL RIGHT
For claiming remedy under Sec.9 of Hindu Marriage Act, 1955 certain conditions have to fulfilled. They are as follows:
- The marriage between the parties must be valid: No claim can be made for restitution if the parties are not married or have a void marriage. For example, if the marriage took place when the parties were minors, so the court can refuse to decree of restitution as it is in violation of Child Marriage Restraint Act, 1929. However, if after attaining full age the wife has withdrawn from his society without any reasonable cause the decree can be issued. Also see, Asfaq Qureshi v. Aysha Qureshi
- There must be withdrawal from the society of the petitioner
- The withdrawal must be without any reasonable cause.
- There should be no valid ground to deny such relief.
- The court should be satisfied about the truth of the statement regarding the withdrawal.
“Withdrawal from the society”
“Withdrawal from society” means leaving the marital home in which the spouses resided after marriage, refusing to fulfil their marital obligations towards each other.
In Mirchumal v. Devi Bai, the wife was living away from the husband due to work. When husband asked her to quit her job and move in with him. She refused to quit. However, she never refused to perform marital duties; he could come and go as he wanted and she would also do the same. The Court held that mere refusal to quit working is not a ground to seek this remedy as there was no reluctance on her part to perform her marital obligations.
Sushila Bai vs. Prem Narain Rai, The husband dumped the wife at her parent’s house and cut contact with her. This was considered to be “withdrawal from the society” on the part of the husband and a decree was awarded under Sec. 9.
“Without reasonable cause”
There is no strait-jacket list of what is a reasonable cause and what is not. That differs on a case-to-case basis. The Courts have in plethora of judgements expounded what constitutes “reasonable cause”.
In Manjula Zaverilal Kothari vs Zaveriial Vithaldas Kothari, The wife had been living away from the husband from many years. He wrote many letters persuading her to come back to him. He sought to meet her, but all his efforts were wasted. She was living in Kuwait at her parent’s house, but when she moved to India, she did not meet him. The husband approached the court to get a decree of restitution. The wife claimed mental cruelty as her cause of withdrawal. She showed letters as proof saying that they contained innuendos. However, the High Court found the allegations to be false. They were seen as desperate attempt of the husband to live with his wife and therefore, a decree under Sec. 9 was awarded as the “withdrawal” was for no justifiable cause.
R. Natarajan v. Sujatha Vasudevan – In this case, it was held that wife refusing to cohabit in the marital home, because she finds it difficult to live with his parents is not a “reasonable cause.”
Mohammad Rustam Ali v. Husaini Begam – The wife refused to live with her husband because she was mistreated and thought that her safety would be at risk. The Court found mistreatment (cruelty) to be reasonable cause as such.
In Timmins v. Timmins, it was held by the Court of Appeal that the husband was not guilty of cruelty but his conduct was a grave and weighty matter which gave the wife a good cause to leave him and also prevented him from getting a decree for restitution lest he satisfied the court that he would behave with conjugal kindness with her.
In Hardeep Singh v. Dalip Kaur, it was determined that cruelty can be a valid defence in an action of restitution of conjugal right.
The case of Rabindranath v. Pramila Bala determined that habitual nagging of wife amounted to mental torture and was a reasonable cause for such withdrawal.
Madan Mohan v. Sarla Kohli propounded that baseless allegation of unchastity constituted “reasonable cause”.
“No valid ground to deny such relief”
What is meant here is that, there should be no valid grounds as to why restitution decree should be not be refused. It implies that if there are any valid grounds for rejection, then such decree of restitution will not be decreed.
The application for restitution can be rejected if the petitioner (aggrieved party) is cruel, adulterous. If he/she is impotent. He/she has failed to perform marital duties towards the other. The grounds for divorce are also considered as valid ground for denying the decree of restitution.
If there is delay in taking such an action without reasonable cause, or condonation on the part of the petitioner itself then also no relief can be granted.
CONSTITUTIONAL VALIDITY OF RESTITUTION OF CONJUGAL RIGHT
The Constitutional validity of restitution of conjugal right has been challenged multiple times for infringement of many fundamental rights. It was supposed to have violated Art. 14, 19 and 21 of the Constitution.
T. Sareetha Vs T. Venkata Subbaiah
In this case, Sec. 9 was challenged on the ground of being against Right to Liberty and Dignity. The Court held that the sec. 9 was unconstitutional and void for being in violation of Right to Liberty and Dignity guaranteed in Art. 21 of the Constitution. In arriving at that decision, the Scarman Report in England for Abolition of the remedy was referred to. The learned Judge opined that it was violative of the wife’s right to privacy. The law intervened between the privacy of married couples. Even the ancient Vedas never proposed for forceful cohabitation of couples. It was also observed that a woman’s right to reproduce is her choice; Sec.9 absolves her of that choice of procreation. No state interest can supersede the privacy of a married couple.
Harvinder Kaur vs Harmander Singh Choudhry
The Delhi HC dissented from the previous judgement of AP HC in declaring Sec. 9 as unconstitutional. The Learned Judge pointed out that the main objective of restitution of conjugal right is to preserve marriage and not “forced sex” as was considered so in the Sareetha v. Venkata Subaiya Case. It was added by him that sexual intercourse though a part of marriage cannot be forced upon by the Court. If the spouse cohabits with the other and refuses sexual intercourse, no decree of restitution of conjugal right can be awarded. He said that introducing Constitutional law at home is like bringing a bull to China Shop; totally inappropriate. At home no fundamental right of Art. 12 or 21 exists; introduction of constitutional law would weaken the delicate law. There is no violation of any fundamental right and Sec, 9 of HMA 1955 was upheld.
Saroj Rani v Sudarshan Kumar
Here, again the Constitutional validity of the sec. 9 was questioned on the grounds that it was against Art. 14, 19 and 21. The SC held that it was constitutionally valid referring to the previous decision by the Delhi HC. Sec.9 was only codification of a pre-existing law. The section aids in the prevention of breaking-up of marriage and to settle a dispute amicably between spouses. The Learned Judge opined that if sec. 9 is read and understood properly in its execution and disobedience, it would be impossible to call it violative of Art. 14 and 21. They upheld the Constitutional Validity of the Section and provided for Rs. 200pm/- to the wife and Rs. 300 to the first daughter Menka.
Thus, in the present times Sec. 9 i.e., restitution of Conjugal right is considered to be constitutionally valid.
It can be said that the remedy of restitution of Conjugal Right has been taken with the view of preventing marriage from break-downs. The Restitution has been abolished in many foreign countries, but in a country like India, the law is still needed. Here, marriages breakdown due to lack of communication, miscommunication, petty fights and such other petty reasons; Restitution of Conjugal Right allows them to cohabit and settle the matter between themselves amicably.
As mentioned earlier, the aim of the remedy is not “sexual intercourse” between the spouses, it is living together in one house and sharing joys and sorrows of life.
- Restitution of Conjugal Rights under Hindu Marriage Act, available at: https://lawbhoomi.com/restitution-of-conjugal-rights-under-hindu-marriage-act/#_ftnref8
- Restitution Of Conjugal Rights Under Section 9 Of the Hindu Marriage Act, available at: https://www.writinglaw.com/restitution-of-conjugal-rights/
- Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/
- Restitution of Conjugal Rights, available at: https://vakilsearch.com/restitution-of-conjugal-rights
- Restitution Of Conjugal Rights, available at: https://www.legalserviceindia.com/legal/article-10487-restitution-of-conjugal-rights.html
 Abdul Kadir v, Salima, (1886) ILR 8 All 149
 Sukram v. Mishri Bai, AIR 1979 MP 144.
 Asfaq Qureshi v. Aysha Qureshi, First Appeal M 128 of 2008
 Mirchumal v. Devi Bai, AIR 1977 Raj 113
 Sushila Bai vs. Prem Narain Rai, AIR 1964 MP 225
 Manjula Zaverilal Kothari vs Zaveriial Vithaldas Kothari, (1974) GLR 758
 R. Natarajan v. Sujatha Vasudevan C.M.A. Nos. 3769 and 1775 of 2010
 Mohammad Rustam Ali v. Husaini Begam (1907) ILR 29 All 222
 Timmins v. Timmins,50 A.D.2d 720
 Hardeep Singh v. Dalip Kaur, AIR 1970 P&H
 Rabindranath v. Pramila Bala, AIR 1975 Ori 85
 Madan Mohan v. Sarla Kohli, AIR 1967 Punj 397
 T. Sareetha Vs T. Venkata Subbaiah, AIR 1983 AP 356.
 Harvinder Kaur vs Harmander Singh Choudhry, AIR 1984 Delhi 66
 Saroj Rani v Sudarshan Kumar, 1985 SCR (1) 303