Author: Muskaan Sawhney,
Vivekananda Institute of Professional Studies, Delhi
Marital alliances are respected and are upheld on a pedestal in India. The relationship between a husband and a wife is sacred.[i] According to Hindu culture, the marriage and bond between the spouses is not limited to one lifetime but it extends to seven lifetimes. In a prejudicial and old school society like India the separation between spouses is frowned upon. Separation and divorce continues to find a stigma attached to it. When the framework of the Constitution of India was prepared, the makers ensured that the values of the land were included/ reflected in the provisions. Since all the laws are the subset of the Constitution of India so it is natural that the Family laws to respect the beliefs of the people. The Restitution of Conjugal Rights had a rocky beginning in India with Khardekar, a former member of the Constituent Assembly who represented Bombay, describing the remedy as “uncouth, barbaric and vulgar”.[ii]But with time, the remedy was accepted and is now a prominent remedy which is used to a large extent by the spouse to save the marriage.
Marriage is two-way partnership of love, trust, respect and fidelity. The matrimonial union gives specific rights and duties to both the parties. Each spouse is entitled to comfort consortium of the other.[iii]It is expected that the spouses will continue to remain in the society of one another throughout their married life, which in India is presumed to be the lifetime of the couple. Both the parties of marriage are bound together legally and as per the holy rights. In a true partnership, both husband and wife can express themselves without fear of judgment, work together towards common goals and have equal influence over important decisions and are able to grow emotionally psychologically and spiritually as a result of their happy marriage.[iv] However, there are many instances where one spouse is turned away without a legitimate reason. The protection of the deserted-spouse becomes the duty of the legislature and the court of justice. This duty was performed by the enforcement of Section 9 in the Hindu Marriage Act, 1955.
Restitution of Conjugal Rights
The Restitution of Conjugal Rights is a prominent provision which highlights the sentiment of anti-separation. This provision has been influenced from the rule of the Colonial regime and has its beginnings from the English landscape. Divorce rates in India are diminished however; informal separation seems to be the solution when it comes to dissolution of marriage. More strikingly, the number of people separated is almost thrice the number of people divorced - 0.61% of the married population and 0.29% of the total population.[v]The separation may not always be due to a reasonable cause. To tackle the problem of unreasonable separation the provision of restitution of conjugal rights was introduced in the framework of the Hindu Marriage Act, 1955. In Hindu, Christian and Parsi personal laws, the remedy of the restitution of conjugal rights is governed by the statutory provisions, whereas under Muslim law, this remedy has been imported from the British Common Law and applied by way of equity, justice and good conscience.[vi]
The Indian legal system brought about the enforcement of restitution of conjugal rights with the influence of Jewish laws and the English culture. The remedy was unknown to Hindu law till the British introduced and it is the only matrimonial remedy which was made available under the British rule to all communities in India under the general law.[vii] The first case of restitution rights was Moonshee Buzloor Ruheem v. Shumsoonissa Begum[viii]in 1867. In Shakila Banu v. Gulam Mustafa[ix], the Hon’ble High Court observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural and this is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”[x] The remedy of restitution was neither recognized by the Dharmashtara nor did the Muslim law made any provisions for it.[xi]
The Restitution of Legal Rights has been mentioned under the Section 9 of the Hindu Marriage Act, 1955 and reads as- “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, 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.”[xii]
A decree of restitution of conjugal rights can only be passed if the following conditions are fulfilled-
· One spouse must not be living with the other.
· The withdrawal must be without any reasonable excuse.
· The party who is aggrieved must apply for the restitution of conjugal rights.[xiii]
This Act gives equal rights to both the wife and husband to obtain a decree of restitution, as the court deems fit. There are several circumstances, owing to which the spouses have to live separately or that one spouse has turned away from his/her marital duties towards the other spouse. If one spouse is unhappy with the separate living situation and wants his/her partner to come back to them then they may approach the district court and present the case. The petitioner is to satisfy the Court that the other party has without reasonable excuse withdrawn from his or her society.[xiv] The court then makes enquires and ascertains the actual reason for the abandonment by the spouse. However, if the court finds that the reason for leaving is reasonable then it may dismiss the petition. Only after it is absolutely certain that the desertion is due to an unreasonable reason then it may pass a decree of restitution of conjugal rights which direct the abandoner to resume the marital duty and cohabitation.
One important criterion that is the basis of a proceeding on restitution of conjugal rights is centered on the importance of a reasonable excuse for leaving the society of the other spouse. The petitioner has to present his case in front of the district judge and has to prove that his or her respective spouse left him or her because of an unreasonable excuse. A reasonable excuse is relative in nature and what may be reasonable for one might not necessarily be reasonable for another. As a result, it is the duty of the court to judge the excuse by considering the response of a considerate, normal individual. The court cannot regard the questioning meter on the basis of a very sensitive person or an aloof person but that of a prudent individual. In the case of Sushila Bai v. Prem Narayan[xv]the wife had been deserted by her husband and the husband was not inclined towards reconciliation. The court observed that there was ‘long silence, unresponsive attitude and cold indifferent towards the wife’. The court further regarded it as abandonment on part of husband. The court further held that there is no ground as to why, without any rhyme or reason, the wife-appellant should leave her husband and be left in the lurch in this world by becoming a parasite to her paternal resources.[xvi] Wife had shown that she is sincere in the sense that she has a bona fide desire to resume matrimonial cohabitation and to render the rights and duties of such cohabitation.[xvii] Thereby, the petition of the wife for the restitution of conjugal rights was subsequently allowed.
Constitutionality of Restitution of Conjugal Rights
Section 9 of the Hindu Marriage Act has been a controversial section and its constitutionality has been questioned multiple times. It is contended that the provision is violative of Article 14 and Article 21 of the Indian Constitution and should be declared as ultra-vires on the grounds of it dismissing an individual’s fundamental right to liberty, privacy and dignity.[xviii] It is held that the court has no power to compel a spouse to return back to the marriage and it is a matter of personal choice. Furthermore, the decree can be misused and violent and abusive husbands can force their wives to come back and submit to their torturous marital life. Not only that, the provision could be used to force the unhappy party to consummate and have sexual intercourse without their consent.
The question over the constitutionality arose in T Sareetha v. Venkata Subbaiah[xix] under which the Andhra Pradesh High Court held Section 9 of Hindu Marriage Act as unconstitutional as this decree could be used to steal away the privacy of the wife and force her to live with her husband against her wishes and thereby struck down the provision in question. However, the Delhi High Court in, Harvinder Kaur v. Harmander Singh[xx] deemed this provision as valid. Moreover, the High Court of Haryana and Punjab had a contrasting opinion and was opposed to the decision of the High Court of Andhra Pradesh. The Supreme Court, in 1984 after due consideration upheld the latter opinion and declared Section 9 as constitutional and valid in the landmark judgment of Saroj Rani v. Sudarshan Kumar Chada[xxi] and held that “The object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity and the leading idea of Section 9 was to preserve the marriage and that the courts do not and cannot enforce sexual intercourse, thus, the restitution decree did not enforce sexual intercourse.”[xxii]
Law is fixed and it is only when there is an amendment bill or ordinance passed in the Parliament that the law is amended. The judicial organ of the government plays an important role to maintain and preserve the integrity of the law. The dynamic nature and value system of the society is adopted and precedents are set by the judiciary which ensures that the law has an eternal character. The judiciary helps to interpret, elaborate and clarifies the extent of the law. There has been a wide debate over the consequences of passing of a decree of restitution with respect to sexual cohabitation. It has been contended that the party in marriage, generally the wife is forced to cohabit and this goes against the very nature of the ideals of Articles 14 and 21. However, the judicial pronouncements have time and again refuted this claim and have declared that the passing of decree of restitution does not constitute enforcement of sexual intercourse between the spouses. The landmark judgment of Saroj Rani v. Sudarshan Kumar Chada clarified that the powers of the court and were clear in their opinion that the act of enforcement of sexual intercourse could not be brought on by the decision of the court.[xxiii] The aim of the court is to preserve the marriage. The same stance was reflected in Sudha Gupta v. Har Prasad Gupta[xxiv]that on passing of the decree for the restitution of conjugal rights or for its execution, the court at the most can enforce cohabitation between estranged spouses but cannot enforce sexual relations between estranged spouses.
Restitution of Conjugal Rights is a provision of the law that has been criticised and its validity has often been questioned. However, the provision is termed to be a happy provision as it aims to preserve the sanctity of marriage. It is the only law that aims to make and not break. As a result, this law has been awarded significant importance and is widely used as a last resort to save the marriage. This provision had been rejected in the beginning; however, it was accepted and used by the populace with time. The decree is a paper decree and is not binding on the spouse who has left the society of his/her spouse. The court can only pass the decree but cannot force the spouse to accept his/her spouse back. If the spouses do not cohabit and reconcile for more than one year, then the decree may be used as a ground for divorce. If either of the parties passes away within the period they are separated then whether or not they are able to obtain a decree for restitution, they have complete legal right over the property of the deceased spouse as they are still legally married.
[i]https://timesofindia.indiatimes.com/blogs/voices/marriage-a-sacred-bond/ [ii]https://www.latestlaws.com/articles/restitution-of-conjugal-rights-an-analysis-by-ekta-kumari/#:~:text=If%20either%20party%20to%20a,for%20restitution%20of%20conjugal%20rights.&text=The%20other%20spouse%20has%20withdrawn,reasonable%20excuse%20for%20such%20withdrawal. [iii]https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/ [iv]https://www.bbc.com/news/world-asia-india-37481054#:~:text=But%20here%20are%20some%20of,people%20in%20India%20are%20divorced.&text=More%20strikingly%2C%20the%20number%20of,divorced%20and%20separated%20than%20men. [v]http://220.127.116.11:8080/jspui/bitstream/123456789/15474/1/011_Restitution%20of%20Sonjugal%20Rights%20%281-5%29.pdf [vi]http://18.104.22.168:8080/jspui/bitstream/123456789/15474/1/011_Restitution%20of%20Sonjugal%20Rights%20%281-5%29.pdf [vii]https://www.latestlaws.com/articles/restitution-of-conjugal-rights-an-analysis-by-ekta-kumari/#:~:text=The%20concept%20of%20restitution%20of,as%20considerations%20for%20specific%20performance. [viii] (1867) 11 M.I.A. 551 [ix]AIR 1971 Bom 166 [x]https://www.legitquest.com/case/shakila-banu-golam-mustafa-momin-v-gulam-mustafa-abdul-hamid-momin/179A4B [xi]https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-personal-laws/#:~:text=Sudharshan%20gave%20a%20judgment%20which,the%20decision%20given%20in%20T.&text=marriage%20by%20law.-,Decree%20of%20restitution%20of%20conjugal%20rights%20could%20be,case%20of%20valid%20marriages%20only. [xii] Bare Act, Section 9, Hindu Marriage Act, 1955 [xiii]https://www.lawnn.com/restitution-of-conjugal-rights/ [xiv]http://www.legalservicesindia.com/divorce/restitution-conjugal-rights.htm [xv]AIR 1986 MP 225 [xvi]https://www.lawyerservices.in/Sushila-Bai-Versus-Prem-Narayan-1985-03-14 [xvii]https://indiankanoon.org/doc/1312783/ [xviii]https://www.firstpost.com/india/compelling-wife-to-cohabit-with-husband-violates-fundamental-rights-time-sc-reviewed-section-9-of-hindu-marriage-act-6200151.html#:~:text=Section%209%20of%20the%20Hindu%20Marriage%20Act%20encompasses%20the%20provision,a%20petition%20demanding%20for%20the [xix]AIR 1983 AP 356 [xx] AIR 1984 Delhi 66. [xxi]1985 SCR (1) 303 [xxii]https://www.casemine.com/judgement/in/56098dabe4b014971138aab7 [xxiii]supra xxi [xxiv] 2016 SCC OnLine Del 5504