Restitution of conjugal rights
Author: Aayushi Raghuwanshi
With the passage of time relationships are becoming weak, back in time, small fights would never lead to separation of the couples but as time has passed couples instead of sorting things out find it easier to part their ways. Here, the decree of restitution of conjugal rights acts as a positive remedy and tries to unite the spouse for a better future. So to reunite the couple, the Hindu marriage act, 1955 provides for a remedy to the spouses in the form of restitution of conjugal rights under section 9 which clearly defines that if either of the husband or the wife, has without any reasonable excuse withdrawn from the society of the other, then the aggrieved party can apply for the decree. Such a petition is to be filed before the district judge; the petitioner has to satisfy the court that the other party without any reasonable cause has withdrawn from his/her society. The court may dismiss the petition if it finds that there is no truth in the statements made. Also, to file a petition in the court there are certain qualifying criteria which are needed to be followed otherwise the petition may not be accepted. The decree completely describes each factor including when it is reasonable for either of the spouses to withdraw from the society of the other and when it will be considered to be unreasonable. The decree has different rules for different religions as those religions differ in their matrimonial rights. This decree follows every constitutional right and is for the benefit of the society. This paper tries to conclude, whether the decree of restitution of conjugal rights benefits the society or not.
Marriage under every matrimonial law is a union which imposes upon each of the spouse’s certain marital duties and also provides each of them with certain legal rights to avoid exploitation of either of the spouses. The most important implication of marriage is that, both the parties have to live together. Therefore, the rights and duties of a married couple are known as “matrimonial rights”. Matrimonial rights were basically made to protect the wife because, she is the one who could be exploited more rather than the husband, as after marriage the wife has to adjust in new surroundings and in order to protect her from various atrocities certain rights are provided, such as Right to residence Right to committed relationship Right to maintenance, Right to streedhan, Right to dignity and respect. But in modern times, it has been seen that wife also exploit the husband in various ways so the rights of the husbands are found equally important and in order, to protect the matrimonial life and to give proper liberty to each individual the concept of divorce, judicial separation came into force but there was a drawback that such laws talked about separating the spouse and not about uniting them for the better good. For example the Hindu marriage act,1955 provided the provision of judicial separation under section 10. In this particular law it was stated that if the parties are willing to give each other some-time and do not want the immediate dissolution of the marriage then the remedy of judicial separation is asked for.it is a temporary suspension of marriage between the spouses and if the cohabitation between the spouses did not resume for one year then the decree of judicial separation act as a ground for divorce. Judicial separation is also a good law but as it is clearly seen it is directly concerned with the legal separation of the spouses.so, this concept of divorce needed a new perspective which was seen in the term Restitution of conjugal rights. This research will focus on why we needed this law, what does it mean, why is it criticized, and does this law breaches any constitutional right of the individual.
Objectives of the study
The aim of this research paper is to analyze the key issues which are related to the restitution of conjugal rights in regard to different personal laws applicable in India. Some of the key issues which were raised and will be studied further in this research paper are as follows:
- Is this concept of restitution of conjugal rights has been criticized and if yes then why?
- Whether the decree of restitution of conjugal rights is violative of Article 14 that is equality before law and article 21 that is right to life under the constitution of India?
- Is the restitution of conjugal rights fair and reasonable towards the society?
This study tries to conclude whether the laws relating to the restitution of conjugal rights are effective or not.
Review of literature
Manu in one of his writings quoted that, “Let mutual fidelity continue till death. Let a man and woman united by marriage, constantly beware, lest at any time disunited they violate their mutual fidelity”. He exclaimed that the decree of restitution of conjugal rights is the only positive remedy under the Hindu marriage act,1955 while other reliefs which are provided under this law tends to weaken the marriage instead of strengthening them.
Sir Paras diwan in his book, law of marriage and divorce, stated that ‘the remedy of restitution of conjugal rights was neither recognised by Hindu law or Dharma-shastra nor did the Muslim law made any kind of provisions for it.’ This remedy came with Raj.
The evolution of conjugal rights is different in various countries. Earlier in English law, the decree was provided by the court Christian or court spiritual which were also known as ecclesiastical courts, and later this decree was obtained through the court for divorces or matrimonial happenings. Also, before 1813, there was no desertion included in matrimonial offences. And if once the decree of restitution of conjugal rights were provided then the spouse had to continue with his/her marital obligation. If one did not comply with the decree, he/she should be punished with ex-communication. Later, the ecclesiastical court’s act, 1813 replaced the punishment of ex-communication with imprisonment for 6 months.
India along with Australia and Canada borrowed the principle of the decree of conjugal rights from English law. As stated, by Sir Paras diwan in his book, law of marriage and divorce, ‘the remedy of restitution of conjugal rights was neither recognised by Hindu law nor Dharma-shastra nor did the Muslim law made any kind of provisions for it.’ This remedy came with Raj.
The introduction of the concept of restitution of conjugal rights, in India was by the case moonshee Bazloor Ruheem v. shumsoonissa Begum [i]in this case there was a marriage between the defendant and the plaintiff, the husband. The plaintiff filed a matrimonial suit against her wife and pleaded that the defendant had unreasonably refused the company to him and he was entitled to a decree of restitution of conjugal rights. In this case, the evidence was all one way and hence, every evidence showed that the husband had desired to live with his wife and asked her to live with him and the wife unreasonably refused to live with her husband. Hence, the said evidences justified the decree granted by the trial court. Thus, in the absence of any statutory law, the Indian courts passed decrees for restitution of conjugal rights for all religious communities.
The importance of this law or principle was clearly laid down in the 71st law commissions report and this report agreed that divorce is the last solution but marriage is a sacramental tie and efforts should be made for reconciliation rather than breaking the tie completely without even trying to save the marriage.
Restitution of conjugal rights
Restitution of conjugal rights has been legally defined as ‘when one of the spouse has, without reasonable excuse, withdrawn from the society of the other spouse, the party which has been aggrieved may apply, by the petition to the district court, for the restitution of conjugal rights and the court, on being satisfied with the truth of each statement made in the petition and that there is no legal ground that the application should not be granted, may decree for restitution of conjugal rights accordingly’. The restitution of conjugal rights is the only remedy that could be used by the aggrieved spouse against the other. It is a positive remedy that requires both parties to the marriage to live together and cohabit.
Conjugal-The term conjugal means matrimonial i.e. The relation between the couples.
Restitution-The term restitution means ‘restoration of something’.
Prerequisites to obtain the decree.
For grant of the decree of conjugal rights, the petitioner has to prove that:
- The respondent has withdrawn from the petitioner’s society.
- The withdrawal is unreasonable.
- There is no legal ground for refusing the application.
- The court is completely satisfied with the proves and the statements.
- Withdrawn from the society
It means that the respondent has withdrawn from all types of conjugal relationships with the petitioner. In a famous judgment of Zavari vs Zavari[ii], the court held that the aggrieved spouse must prove that the defendant has unreasonably withdrawn from his/her society only then the decree of restitution of conjugal rights should be granted. In this case, it was also noted that if the husband wants his wife to get back to him and live with him and to resume marital life by writing a letter but the wife refuses such letters just because it consisted of some intimidating contents then the court will consider such letters to be harmless documents.
Conjugal relationships include:
- Refusal to cohabit.
- Refusal to stay with the other spouse.
- Refusal to discharge any kind of matrimonial obligations.
2) Without any reasonable excuse
In the case of Sushila Bai vs prem Narayan[iii] in this case, the husband deserted his wife and became completely unresponsive towards her. And in this case, this behavior of his husband was held sufficient to show that he had withdrawn from the society of his wife. Therefore, the wife’s petition was allowed. So, various decisions were taken by the court, in different cases to include or not to include certain excuses given by either spouse. Some of the excuses which are included in “without any reasonable excuse” are:
- High living standards are not maintained by the husband.
- If the husband denies the idea of living in a wife’s paternal place.
- If there is any kind of agreement which is opposed to the public policy.
- Reasonable Cause
A reasonable cause can be any cause that will make it impossible for the wife to live with the husband and if the court is that the ground is a reasonable one then it will dismiss the petition or it will pass a decree in the favour of the husband. Therefore, the burden of proof lies on both the parties
For example: Husband (as a petitioner) needs to prove that the wife has withdrawn from his society. And the wife (as a respondent) has to show a reasonable cause for doing so.
What are the effects of decree of restitution of conjugal rights?
When all the requirements for restitution of conjugal rights are fulfilled and the court is satisfied by all the proofs given by the plaintiff then it becomes compulsory for the respondent to resume his/her matrimonial rights and also to resume cohabitation with the plaintiff.
Resumption of cohabitation
If the parties resumed the cohabitation then the petition for restitution of conjugal rights is not maintainable. The resumption of cohabitation by resuming to sexual intercourse can be counted but it depends upon the intention of the parties. The mere act of sexual intercourse will not be the proof that the parties have resumed cohabitation.
It was also held that if the spouse who has withdrawn and later made many attempts to resume cohabitation with a bona fide intention and the other spouse refuses, then, the spouse who originally has withdrawn from the society is entitled to the decree of restitution of conjugal rights, as his/her original wrongs were rectified by her bona fide efforts.
In case of Shanti Devi vs. Balbir Singh[iv] the court clearly stated the requirements of filling the petition. The court said that it is important to see that if the spouse has withdrawn from the society of the other and without any reasonable excuse, and also there should not be any legal ground for rejecting the petition. But if any spouse is having a love affair, or his behaviour is torture-some than these will be considered as a reasonable excuse.
What are the conjugal rights of the husband?
After marriage, the husband and wife must live together. So, if in any circumstances the wife refuses to stay with the husband or withdraws from his society without any reasonable excuse than the husband may file a petition for restitution of conjugal rights. So, if the court is satisfied and there is no legal bar to it, then the petition will be granted. Same in the case when the wife files a case.
During this time can the wife claim maintenance?
Maintenance is provided to either of the spouses in case they are not able to maintain themselves or they are not financially independent enough to earn a living themselves.
There are special provisions for the wife and she can claim maintenance under section 25 of Hindu marriage act,1955. If the provided decree is not followed then the court has powers to attach the properties of the husband. Moreover, if the decree is not obeyed for more than one year than it is considered as a ground for divorce. Section 18 of Hindu adoption and maintenance act,1956 provides that wife can claim maintenance and also the grounds where she cannot claim the maintenance.
- Are there any circumstances under which withdrawal from the society of the husband is justified?
- when husband remarries, even if his first wife is still alive, then he loses the right to file the petition of restitution of conjugal rights for the second wife and hence, it proves to be the valid ground for the wife to withdraw from the society of the husband.
- In case, the financial conditions of the family require the wife to take up the job and move to a different place, then it becomes a valid ground for wife to withdraw from the society of the husband.
In case, there is no economic necessity for the wife to take the job and live separately, the court kept certain obligations to follow in the case of Smt. Kailash Wati v. Ayodhia Prakash[v], in three different parts:
- If the wife was already working before and at the time of the marriage, then it does not give right to the husband to not to share his matrimonial home with her.
- if the husband himself encourages the wife to take up an employment after then the husband cannot give up on his right to live with his wife.
- But in case, if the wife takes up employment after marriage and against her husband then it will be the case of unreasonable withdrawal.
- When any conduct of the husband makes it impossible for the wife to live with the husband for example treating his wife with cruelty or not performing his marital obligations well.
In the case of Moonshi Buzloor Ruheem v. Shamsonnissa Begum[vi], the court held that if a husband mistreats her wife or there is gross negligence on the part of a husband, then it is the valid ground for refusing him the decree.
There are some specific criteria that are to be matched when either of the spouses file the petition for restitution of conjugal rights. The grounds that are to be matched are as follows:
- There should be a valid marriage.
- The spouses are not staying together.
- The withdrawal of one party from the society of the other, should be without any reasonable cause.
- It is important that the petitioner should have bona fide desire to live with the spouse.
- The complaint of restitution of conjugal rights should be entertained by the
What should the aggrieved party do to get the decree?
The aggrieved party has to file a petition in the district court. And when the court finds out that the plea of the aggrieved party is based on true statements and they do not have any valid reason or law to dismiss it then the court will pass the decree of restitution of conjugal rights in the favour of the aggrieved party.
Grounds for rejection of the plea:
The petition can be rejected on the following grounds:
- If for the purpose of employment, the couple needs to stay separately.
- If the petitioner acts in a way which is not favourable for a marital relationship
- Any confession made by the petitioner relating to any marital misconduct on his part.
- Any matrimonial relief can be provided to the respondent.
Application of the provision in different communities:
Courts in India, in the case of all communities, have passed some laws related to decrees for restitution of conjugal rights. Some laws are explained below:
Section 9 of the Hindu marriage act,1955 defines restitution of conjugal rights. The aggrieved party may apply, by the petition of the district court.
One of the most important implications of section 25 of the Hindu marriage act,1955 is that it provides the aggrieved party an opportunity to file or apply for maintenance and alimony to the wife and children in case the husband and wife continues to live separately even if their divorce petition has been accepted or rejected.
The holy Quran under the Islamic Law provides that the husband has to keep his wives with kindness and they can part with them but with equal consideration. The husband does not have absolute rights over his wife but has a reasonable right.
The husband has no conjugal rights if he had not paid the dower money. If the husband in any case fails to pay prompt dower can refuse to live with him until the dower is paid.
In the case of abdul kadir vs. salima[vii], the Allahabad high court ruled that the concept of restitution of conjugal rights should be based on principles of Muslim law and not on the principle of justice, equity.
A Christian spouse has every right to apply for an order of restitution of conjugal rights. The court should not pass the decree for the following reasons:
- Cruelty on the part of husband or the wife.
- If either of the spouse is not mentally strong or is insane.
- If any of the spouse marries again.
Why is this law criticised? And does this right of restitution of conjugal right truly has loopholes?
When Hindu marriage act,1955 was being passed in the Parliament, there were doubts regarding the efficacy of this remedy. In the case of Russell v. Russell[viii], sir J. Hannen opposed the remedy. Some of the reasons why this law is criticised and why it should not be criticised:
- Is this right against the society?
1)Abolitionists argued that any law which forces any person to live with the other will always be contrary to the value of the society.
But Judiciary tried to explain this, and argued that section 9 clearly tries to save the marriage. It is the policy of the act to save the marriage and that the parties should live together and should try to maintain their marriage. By enforcing cohabitation, the court is just trying to serve this purpose and not trying to go against society.
- Is it unconstitutional?
2)It is also argued that this remedy is unconstitutional and openly violates the fundamental right to equity, right to life, and right to privacy.
- Article 14 provides for, equality before the law or equal protection of the laws within the territory of India. It is often claimed that this law is gender discriminatory and also violates article 14 of the constitution. It was confirmed in the case of T. Sareetha. Which said that it is possible that the judge considers the whole case from the point of view of the women.
By this statement, it seems like it has been overlooked that the decree of restitution if conjugal rights can also be claimed by the wife. And it is relevant to state that the section is gender-neutral as by amending the act 44 of 1964 both the parties to a marriage it being, the husband or the wife is allowed to present a petition in front of the court. There are complete equality and protection to both the sexes and equal protection of the laws. Hence, this claim of abolitionists is wrong.
- Article 21 of Indian constitution which states right to life and liberty, and encompasses the right to privacy, this remedy or section 9 is also criticised for being an instrument of forced sexual relations and therefore, this law violates Article 21 of the constitution.
But much contrary is its purpose. This remedy aims at consortium and cohabitation and not merely at restarting the sexual intercourse between the spouse. In Halsbury’s Laws of England, it is observed that: “cohabitation” not necessarily mean sexual intercourse, which the court cannot enforce, so the denial of sexual relationship by any of the spouse, does not constitute a refusal to cohabit. In support of this proposition a statement by Halsbury in the case of Forster v. Foster, is made which is ‘that the court cannot enforce sexual intercourse’.
- Is it fair?
3) This remedy is also criticized on the grounds that it gives an advantage to the withdrawing spouse to take advantage of his on wrong, which in any way against the scheme of section 23.
However, in the case of Dharmendra Kumar v. Usha Kumari, the court of law very clearly stated that the expression “in order to be wrong” which is within the meaning of section 23 1)(a) the conduct has to be more than the mere expression to agree to an offer of reunion, the misconduct should be serious enough to justify the denial of the relief to which the spouse is otherwise entitled to.
Therefore, these were some of the main criticisms which tried to show some loopholes in this law. But was exceptionally explained and cleared.
- The procedure should be easy and liberal for the parties.
- The court should have a new process and a committee should be set for reconciliation.
- Such committee should be supervised by the court.
- The committee should contain any kind of expert for counselling.
In the above research paper, we were made familiarized with the legal provisions which are related to remedies to the marriage act and was able to know the decree of restitution of conjugal rights to a great extent. As, we have seen the restitution of conjugal rights is a part of personal laws, but still are guided by the religions, customs, and traditions. Individuals nowadays do not understand the value of a magical tie between two souls and try to end their relations due to mere mistakes or fights. Restitution of conjugal rights is aimed at preserving the marriage and not at all in the favour of ending the relationships, as in the case of judicial separation and divorce. So, the decree of restitution of conjugal rights tries to promote reconciliation but it is on the part of the parties whether to obey the decree provided by the court or to continue with the matrimony or not.
[i] Moonshi Buzloor Ruheem v. Shamsonnissa Begum, (1867) 11 MIA 551
[ii] Zavari vs Zavari, AIR 1975 Guj 158
[iii] Sushila Bai vs prem Narayan, AIR 1964 MP 225
[iv] Shanti Devi vs. Balbir Singh, AIR 1971 Delhi
[v] Smt. Kailash Wati v. Ayodhia Prakash, LXXIX P. L. R. 216. (1977)
[vi] Moonshi Buzloor Ruheem v. Shamsonnissa Begum, (1867) 11 MIA 551
[vii] abdul kadir vs. salima, (1886) ILR 8 All 149
[viii] Russell v. Russell, (1880) LR 14 Ch