Restitution of Conjugal Rights

Marriage has a vital role in human life and obligates the husband and wife to certain responsibilities. Husband and wife are presumed to live together and have the duty to comfort each other.

Oxford English Dictionary defines ‘Conjugal’ as a term that relates to marriage. In a literary sense, conjugal rights mean the right of husband and wife to stay together.

Restitution of Conjugal Rights is the right of one spouse to restore the marital relationship if the other spouse has withdrawn from the relationship without giving sufficient cause. In simple terms, conjugal Rights are rights bestowed by marriage.

Let us read about the restitution of conjugal rights in detail.

Concept of Restitution of Conjugal Rights

Restitution of the Conjugal Right occurs when one spouse leaves the other spouse without any specific reason, and the other spouse has the right to claim the restitution of conjugal rights.

Restitution of conjugal rights incorporates two words, restitution and conjugal. Therefore, restitution means restoring something lost. Conjugal rights denote the marital relationship between the husband and wife.

Both the spouses are bound to live with each other, and restitution of conjugal rights is available to both parties. Therefore, the right is an attempt made by the court to save the marriage.

Conjugal rights include the following rights and duties:

• Spouses should live together.
• Spouses should oblige to their rights and duties towards each other and consummate their relationship.
• Spouses are supposed to comfort each other mentally, physically, and emotionally.
• The married couple should share the responsibility of the household.

Historical Background of Restitution of Conjugal Rights

Restitution of Conjugal Rights originated from Jewish Law. The Britishers introduced the Restitution of Conjugal Rights in India. During British rule, the remedy was made available for all the communities in India in their personal and general laws. However, the leaders in India opposed it. The leaders who opposed the include:

Khardekar, a member of the Constituent Assembly, disagreed with the Restitution of Conjugal Rights and believed that the concept was uncivilised, barbaric, and vulgar. Further, the concept was criticised on the contention that there is no such case of Restitution of Conjugal Rights.

He opposed the remedy of Restitution of Conjugal Rights and believed that the petition of restitution was not genuine. According to him, the restitution petition is not a convenient device to enforce money demands or divorce.

Famous Author, Paras Diwan, argued that Dharmashastra neither recognised the remedy of Restitution of Conjugal Right nor its provision is provided under Muslim Law.

Constitutional Validity of the Restitution of Conjugal Rights

The provision for the Restitution of Conjugal Rights was initially introduced in the Hindu Marriage Act 1955 and Special Marriage Act, 1954. There was a tremendous debate in the parliament to introduce the Restitution of Conjugal Rights.

When the provision was introduced in the Hindu Marriage Act, its constitutional validity was challenged. The contention behind the challenge was that it abridged the fundamental right guaranteed by the Constitution of India. It was argued that the decree of the Restitution of Conjugal Rights deprives the spouse of the right of his choice to live or not live with the person.

In Sareetha v. T. Venkata Subbaiah, the High Court of Andhra Pradesh decided that the Restitution of Conjugal Rights violates the right to privacy, human dignity and equality as guaranteed under Article 14 and 21 of the Constitution of India.

In Harvinder Kaur v. Harmander Singh, the High Court of Delhi restored the Constitutional Validity of the Restitution of Conjugal Rights. The court stated that the objective of restitution of conjugal rights is to resume cohabitation and grow the friendly relationship between the spouse and not just sexual intercourse. It further stated that the intention behind introducing the remedy of Restitution of Conjugal Rights was never to abridge the right of privacy but merely to preserve the marriage from being dissolved.

Laws governing Restitution of Conjugal Rights in India

The remedy for Restitution of Conjugal Rights in India is available to the following law:

• Hindus under Section 9 of the Hindu Marriage Act, 1955
• Muslims under the general Law
• Christians are dealt with under Sections 32 and 33 of the Indian Divorce Act, 1869
• Parsis get dealt with under Section 36 of the Parsi Marriage and Divorce Act, 1936.
• Section 22 of the Special Marriage Act, 1954 for persons married under the Special Marriage Act.

Requirements for the Restitution of Conjugal Rights

Following are the requirements for the Restitution of the Conjugal Right:

• Withdrawal by the respondent from the petitioner’s community
• Withdrawal without any reasonable justification or excuse
• No other lawful ground for denial of relief

In simple terms, the deserted spouse can use the Restitution of Conjugal rights against the other party, and the guilty spouse can be ordered to cohabit with his/her partner. So, if either the husband or wife at any point fails to perform his/her duties without any reasonable excuse, the aggrieved party can seek support from the district court.

Burden of proof

In conjugal rights, the burden of proof is a two-fold concept, and the burden of proof does not lie on just one party only.

1. At first, the burden of proof lies on the petitioner. The petitioner has to prove that respondent has withdrawn from his society
2. After the burden of proof shifts on the respondent, the respondent needs to prove that his act was reasonable.

Grounds for the Maintenance of Petition of Restitution of Conjugal Rights

Petitioner can be entertained on the following grounds:

• The marriage is valid
• The spouse lives separately
• The withdrawal of the party does not have sufficient cause
• The petitioner has a bona fide intention to live with their spouse.

Grounds for the Rejection of Petition of Restitution of Conjugal Rights

• The respondent has the eligibility for any matrimonial relief.
• The actions of the petitioner are not conducive for marital relationships.
• The couple lives separately for employment.
• The petitioner confesses to marital misconduct.

Judgements

• Tirath Kaur v. Kirpal Singh In this case, the wife underwent tailoring training and completed the diploma in tailoring. She got a job in her hometown, situated some distance from her marital home. Thus, she went to live with her father in her hometown. The husband stayed at the marital home. The husband asked his wife to resign and return to the marital home. The wife refused to do so and continued living with her father. Hence the husband filed the petition for Restitution of Conjugal Rights at the Punjab High Court.

  The High Court, in this case, held that the refusal of the spouse to leave the job and live with others results in withdrawal from the society of the other. The Court further stated that the wife’s first duty is to submit herself under one roof with her husband.
  This judgement brought a lot of criticism.

• Sareetha v. T. Venkata Subbaiah In this case, Sareetha was an actress with a hectic lifestyle. She stayed away from her husband for 5 years. Her husband filed a petition for the Restitution of Conjugal Rights.

  Sareetha filed another case in the High Court of Andhra Pradesh, claiming that the provision of Section 9 of the Hindu Marriage Act was unconstitutional. The Constitutionality of the section was challenged on the contention that it violates Article 14 and Article 21 of the Constitution of India. She claimed that the provision of Section 9 denies women from choosing their careers. Further, she contended that the provision is an instrument of forced sexual relationship, hence, violating the right to privacy guaranteed under Article 14 and Article 21 of the Constitution of India.

  The High Court, in this case, held that the provision of Section 9 violates Article 14 and Article 21 of the Constitution of India and, therefore, held the section to be void.

• Saroj Rani v. Sudarshan Kumar Chadha In this case, the Supreme Court ruled that the principle of Restitution of Conjugal Rights was created to prevent spouses from breaking up. The reasonable defence for living separately gets considered as a defence for restitution of conjugal rights. Furthermore, the Court held that the provision of Section 9 does not violate Article 14 and Article 21 of the Constitution of India.

Conclusion

Solemnisation of marriage grants some conjugal rights. Restitution of the Conjugal Right is a remedy against a spouse who deserts the other spouse without sufficient cause.

The objective of providing the remedy is to protect the sacramental bond between the husband and wife. The decree of Restitution of Conjugal Rights can only order the spouse to cohabit with the other spouse.

Restitution of Conjugal Rights is a matter of personal and criminal law. The matter is related to personal law dealing with marriage and divorce and is related to Criminal Law as it requires the payment of maintenance and alimony to a spouse.