October 20, 2021

Restitution of Conjugal Rights under Hindu Marriage Act

Family Law

Introduction

Conjugal Rights refers to the rights of the spouse to stay together in a marriage. Thus, the concept of Restitution of Conjugal Rights raises the question that if one of the spouse withdraws from the society of the opposite spouse, then the act of compelling that party to live with the opposite party is constitutional or not? The courts have answered this question in range of cases, it had been first declared as unconstitutional in case of T Sareetha Vs T Subbaiha[1] however after then within the cases of  Saroj Rani Vs Sudarshan Kumar Chadha[2] and Harvinder Kaur Vs Harminder Singh[3], the apex court then declared it as constitutional.

The concept of restitution of conjugal rights has been define in section 9 of the Hindu Marriage Act, 1955. It states that restitution of conjugal rights is a relief given to the married person in case of withdrawal from society of other either by the husband or the wife without any just and reasonable ground. Society means the cohabitation and companionship which a married person expects from the marriage. The idea of withdrawal from the society of other party/spouse means withdrawal from the conjugal relationship.

Elements

  • Withdrawal from society;
  • Either by Husband or Wife;
  • Without any Reasonable Ground.

Burden of Proof

Burden of Proof refers to two things in this;

  • Initial burden is on the petitioner to prove that respondent has withdrawn from the society without any reasonable excuse;
  • If the petitioner is able to discharge its burden, then it shifts on to the respondent to prove that withdrawal was for a reasonable excuse.`

Reasonable excuse can be

  • Cruelty;
  • Impotency;
  • Act or conduct which makes it impossible for respondent to cohabit with the petitioner;
  • Demand for Dowry;
  • False accusations of Adultery;
  • Refusal to have sex.

Legal provisions in India related to restitution of conjugal rights

In India different personal laws prescribe different provisions relating to restitution of conjugal rights, the basic being that when either the husband or the wife withdraws from the society of other than the other person may move to the court for decree of restitution of conjugal rights. Some of the provisions are:

  • Section-9 of Hindu Marriage Act, 1955
  • Section-22 of Special Marriage Act, 1954
  • Section- 32 of Indian Divorce Act, 1869
  • Section-36 of Parsi Marriage and Divorce Act, 1936.

Need for restitution of conjugal rights

The need for Restitution of Conjugal Rights is an issue which has come into dispute every year. Some people consider it as a negative relief while on the other hand it is considered as a positive relief by some people as well. It is a sort of both according to us as, it being negative relief due to the forcing of a person to stay with the person without will, while on other hand it is considered as a positive relief as it is a tool which is used to protect marriages which in countries like India is considered more sacramental than a contract or any other thing.

Marriage is seen as an eternal, unbreakable and indissoluble union which is formed in heaven and can’t be broken by the humans. It is considered as a way to bring people withdrawing from the society of his or her partner back to their senses and come back home and perform their marital obligations. Thus, it is quite clear that there is a need of ROCR until the point of time that there is another law formed which could preserve the marriage of the persons more efficiently and in a more positive manner. It is also very important to understand the need of Restitution of Conjugal Rights from a moral perspective as well.

Looking at it, it may seem as violative of certain rights guaranteed by the Indian Constitution like Article 19(1) (c), i.e. Freedom of Association; Article 19(1) (g), i.e. Freedom to reside and settle in any part of India, and Article 19(1) (g) which guarantees right to profession, but on the contrary as we have studied above that marriage is considered as an important part in humans life and it is important to save it rather than being over conscious of the rights of the people sometimes some kind of persuasion or force is necessary to do something good fir the whole society even if it means looking bad or evil in the eyes of people of the world.

Important case laws dealing with Restitution of Conjugal Rights under Hindu Marriage Act

  • T. Sareetha v. Venkata Subbaiah[4]

This case was decided by the Andhra Pradesh High Court which observed that Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity by Article 21 and equality guaranteed by Article 14 of the Indian Constitution.

Section 9 was declared to be constitutionally void for abridging rights guaranteed under Part III of the India Constitution. According to the learned Judge, a decree for restitution of conjugal rights deprived of his/her choice as and when and by whom the various parts of his/her body should be allowed to be sensed. The Andhra Pradesh High court relied on the Scarman Commission’s Report in England that recommended its abolition.

  • Harvinder Kaur v. Harmander Singh[5]

It was held that section 9 was not violative of right to privacy and human dignity by Articles 21 and equality guaranteed by Article 14 of the Indian Constitution, since the leading idea behind Section 9 was to preserve the marriage. The remedy of restitution of the marriage was aimed at consortium and cohabitation and not depend at sexual intercourse.

  • Saroj Rani v. Sudarshan Kumar Chadha[6]

In the case of Saroj Rani v. Sudarshan Kumar Chadha, Supreme Court while verify the constitutionality of Section 9 under Hindu Marriage Act dealing with restitution observed that in cases of restitution of conjugal rights the respondent spouse was liable as per court’s order should cohabit with the aggrieved petitioner and fulfil his marital obligations.

  • Abdul Kadir v. Salima[7]

Where any one of the spouses has withdrawn from the society of the other or has neglected his duties against the partners without a reasonable reason which was explained above, the court may interfere and can apply the concept of restitution of conjugal rights.

Restitution of conjugal rights under Muslim Law is directed towards securing the spouse legal rights. This concept in Muslim Law was explained in the case of Abdul Kadir v. Salima, where the restitution must be decreed as per Muslim Law (Sharia) and not based on Natural Law or Judicial Morality this was held by Allahabad High Court.

  • Asfaq Qureshi v. Aysha Qureshi[8]

Now in the case of Asfaq Qureshi v. Aysha Qureshi, the Chhattisgarh High Court held that a decree of restitution can only be given in case of a valid marriage. The court also held that conversion followed by a marriage where conversion was improper, As the marriage is null and void the decree of restitution of Conjugal Rights cannot be given.

  • Vuyyuru Pothuraju v. Radha[9]

In this case, there was a pre- nuptial agreement between the spouse that after marriage, the husband would live with wife at her foster- father’s house. But he was ill-treated there and returned to his village and requested his wife to come over to him. When she  refused, he initiated a suit of restitution of conjugal rights. The Court held the that agreement was unenforceable.

As a general principle, any agreement, be it under Hindu law or Muslim law, between husband and wife to live separately, is considered to be void for being contrary to public policy.

  • Mirchumal v. Devi Bai[10]

The case of Mirchumal v. Devi Bai firstly deals with the effect of wife and husband working in different places. In this case, the husband was working near Ajmer and the wife worked in Adipur. On the wife’s refusal to quit her job, the husband filed the petition for restitution of conjugal rights.

The court held that if there’s no refusal on the part of the wife to permit access to her husband and no reluctance on her part in going to her husband, then the mere refusal on her half to resign her job is sufficient ground for the husband to seek relief for this concept.

  • Sushila Bai v. Prem Narayan[11]

As we have dealt with provisions related to restitution of conjugal rights under different laws for example Section-9 of Hindu Marriage Act 1955, Section-22 of Special Marriage Act 1954,Section- 32 of Indian Divorce Act 1869 certain essentials could be concurred for filing a suit for the same. The essential are define under –

  1. That the withdrawal neither has a reasonable reason nor is legal.
  2. That the court is satisfied with the petitioner’s arguments.
  3. That there was no other legal ground for the refusal of relief.
  4. That the respondent has withdrawn from the petitioner’s society.

Thus, these 4 grounds form the basis of a suit for restitution of conjugal rights under all personal laws. This was amend in the case of Sushila Bai v. Prem Narayan, wherein the court gave an order of restitution and confirmed the above essentials as a ground for restitution of conjugal rights. The court in the following case also laid down certain  essential elements:

  1. That the facts show and it is proven that the petitioner is guilty of misconduct.
  2.  That the respondent can claim a matrimonial relief as against the suit.
  3. That due to certain acts or omissions it becomes impossible for the spouses to live together.
  • P. Rajeshkumar Bagmar v. Swathi Rajeshkumar Bagmar[12]

In the case of P. RajeshkumarBagmar v. Swathi Rajeshkumar the court has to decide whether or not the withdrawal was made on an affordable excuse, the burden of proving the reasonability of the excuse is upon the person who has withdrawn from the society or the other person. Once he/she proves his/her case, the burden shifts over the respondent or to the other perosn to prove the reasonability of his/her excuse.

  • Seema v. Rakesh Kumar[13]

In the case of Seema v. Rakesh Kumar, Supreme Court held that in cases for decree of restitution of conjugal rights, the petitioner wife becomes entitled and have the right to receive maintenance from her husband if the two are living with each other and the wife is unable to live a decent life on her own and don’t have a stable source of income. Section 9 of the Hindu Marriage Act, 1955 additionally to provide for the restitution of conjugal rights also provides for an opportunity to the petitioner spouse to seek maintenance under Section 25 of the Act.

It’s to be noted here that maintenance under these provisions could be searched for even in cases wherever the action concerning maintenance is still pending. Therefore, a wife who doesn’t want the disruption of marriage or don’t want the divorce can get maintenance from her husband directly through the provisions of restitution of conjugal right even without actual dissolution.

Conclusion: 

It is often explicit that the idea of Restitution of Conjugal Rights is based on good faith of the people and intention to save a marriage from breaking down or divorce, while preserving the sanctity of marriage being its utmost priority. However at the same time, it will hinders upon right of an individual to be left alone because it could generally coerce an unwilling individual to cohabit with his or her partner and therefore could intrude upon his/her privacy.

Therefore, it brings out a fragile situation which needs to be looked upon by the courts rigorously and a balance should be maintained between the two as following a strict approach on either aspect could prove to be fatal for both an individual or the society as a whole. Thus, to make a decision whether or not Restitution of Conjugal Right is still remain relevant or not, the courts should use their wise discretion and at the same time ensure utmost care and not indulge in judicial adventurism whereas it plays a full of life role within the society.


[1] https://indiankanoon.org/doc/1987982/

[2] https://indiankanoon.org/doc/1382895/

[3] https://indiankanoon.org/doc/191703/

[4] https://indiankanoon.org/doc/1987982/

[5] https://indiankanoon.org/doc/191703/

[6] https://indiankanoon.org/doc/1382895/

[7] https://indiankanoon.org/doc/119342/

[8] https://indiankanoon.org/doc/1426063/

[9] https://indiankanoon.org/doc/561652/

[10] https://indiankanoon.org/doc/165054/

[11] https://indiankanoon.org/doc/1312783/

[12] https://indiankanoon.org/doc/534256/

[13] https://www.casemine.com/judgement/in/5767b118e691cb22da6d2fcc

Author Details: Mayank Malik [JIMS Engineering Management Technical Campus (JEMTEC)]

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