Author: Tanisha Gautam
Institute of Law, Nirma University
"A society in which conjugal infidelity is tolerated must always be in the long run a society adverse to women." ~ C. S. Lewis.
Marriage, for decades has been considered as the most sacred and the purest bonds which two people share. Co-habitation is the essence of marriage. The need for restitution arises when one of the spouses denies any of the marital rights without any reason to the other, thereby, causing a violation of conjugal rights. It is possible and understandable that people have different perceptions, responses and societies. Both husband and wife have some mutual obligations towards each other that must be considered with the utmost respect. Sometimes it may not be easy for either the husband or the wife to adapt to each other’s worlds. Marriage under all matrimonial laws imposes certain marital duties, and obligations and gives to each partner certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to the comfort of the other. In no other relation, other than a conjugal relationship, “the right to society exists”. “Conjugal rights” imparts two main ideas;
1. The right of the couple to have each other’s society.
2. The right to marital intercourse.
CONJUGAL RIGHTS AND PROVISIONS
“Conjugal” means “matrimonial”, “nuptial”, or “connubial”. “Restitution of Conjugal Rights” means “Restoration of Matrimonial rights”. The provisions regarding the restitution of conjugal rights are mentioned under various Personal Laws:
1. Section 32, Indian Divorce Act, 1869
2. Section 36, The Parsi Marriage and Divorce Act, 1936
3. Section 22, Special Marriage Act, 1954
4. Section 9, Hindu Marriage Act, 1955
HISTORY OF RESTITUTION OF CONJUGAL RIGHTS IN INDIA
The concept of restitution of conjugal rights became prevalent in India after its introduction by the British. The origin of the same is found in the Jewish Laws. This concept was applied in the case of Moonshee Bazloor vs. Shamsoonaissa Begum by the Privy Council. The principle of restitution on conjugal rights was opposed by various leaders of that time, such as:
1. Khardekar, the former member of Parliament opposed by saying, “to say the least this particular cause is uncouth, barbarous, and vulgar. That the government should be abettors in a form of legalised rape is something very shocking”
2. Bromley, an author, also opposed this concept in his book.
3. Vehemently opposed the remedy saying, “I have not once known a restitution petition to be genuine, that these were merely a convenient device either to enforce a money demand or to obtain a divorce.”
PRE-REQUISITES FOR GRANTING RESTITUTION OF CONJUGAL RIGHTS
These requirements were laid down in the case of, Shanti Devi v. Balbir Singh. The petitioner will have to prove:
1. The respondent has withdrawn from the society of the petitioner,
2. The withdrawal of the respondent is deprived of any reasonable excuse,
3. The court is satisfied with the arguments and facts made in the petition and considers them to be true,
4. There is no legal ground for the refusal to grant an application.
WITHDRAWAL FROM THE SOCIETY
It means that one of the spouses has either, refused to stay together, refused to provide comfort to each other, refused to have marital intercourse, or refused to discharge any of the matrimonial obligations and duties. In the Zavari v. Zavari, it was held that in the petition for restitution of conjugal rights if the aggrieved partner can prove the withdrawal from the society by the defendant, the defending partner must give a reasonable excuse for doing so.
1. A reasonable excuse could be something that makes it impossible for the wife or the husband to stay in cohabitation. The burden of proof lies on both parties. The plaintiff/aggrieved party shows that the defendant has withdrawn from the society while the defendant has to provide a reasonable reason for doing so, this was held in the case of P. Rajesh Kumar Bagmar v. Swathi Rajeshkumar Bagmar.
2. After marriage, if the wife refuses to stay with the husband and denies the acceptance of his society without any reasonable excuse, then the husband is entitled to file for restitution of conjugal rights. Similarly, if the husband withdraws from the society of the wife and denies the fulfilment of his matrimonial duties then the wife can file for a petition of restitution of conjugal rights.
3. It includes a high standard of living not maintainable by the husband, the husband refuses to live with his wife in her paternal place, or there is an agreement between the parties(ante-nuptial/postnuptial) and it is opposed to the public policy, etc. In the case of Shanti Nigan v. Ramesh Chandra, the court observed that withdrawal from the society of the husband may be physical but without any intention to leave his company.
4. So as long as the wife completely cuts herself and decides not to go to her husband and breaks all marital ties with him then it will be a ground for a decree of restitution of conjugal rights. Refusal to quit the job at the instance of the husband is not a ground for a decree of restitution of conjugal rights.
EFFECT OF THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS
If the decree of restitution is passed by the Court, then its mandatory for the respondent to resume cohabitation and coitus relations with his/her partner (plaintiff). If on any terms the plaintiff refuses or fails to do so within a span of one year, then it can act as a basis for the plaintiff to seek divorce. In the case of Sushil Kumar Dang v. Prem Kumar, the husband’s petition failed as it was filed with in-genuine and mala-fide intention.
RESUMPTION OF COHABITATION
Mere resumption of sexual intercourse cannot be proof that the parties have resumed cohabitation. If the spouse who withdrew from cohabitation and matrimonial duties try to make attempts to resume cohabitation and the other spouse refuses, then, the spouse who initially withdrew is entitled to the decree of restitution. For example, if earlier ‘T’ withdrew from the society of ‘Y’ and then later with bona fide intention resumes cohabitation with ‘Y’, if ‘Y’ refuses to cohabitation, ‘T’ is entitled to the decree of restitution even when earlier the petition was filed by ‘Y’.
GROUNDS FOR REJECTION OF RESTITUTION OF CONJUGAL RIGHTS
A petition can be declared non-maintainable when;
1. Any matrimonial relief can be provided to the respondent.
2. The spouses are staying away due to work or employment.
3. If the petitioner’s actions aren’t favourable for a marital relationship.
4. Confessions made by the petitioner regarding misconduct on his/her part.
5. If either of the spouses marries again.
6. If there has been an unreasonable delay in instituting a proceeding.
DEFENSE OF RESTITUTION OF CONJUGAL RIGHTS
Restitution of conjugal rights involves certain defences that allow the Court to not grant the decree, such as:
1. The petitioner has treated the other party with cruelty.
2. The petitioner has converted to other religions or entered a religious order.
3. The petitioner has been suffering an incurable form of leprosy.
4. The petitioner has been of an unsound mind or has been suffering from venereal disease.
WHERE SHOULD A PETITION BE FILED FOR RESTITUTION OF CONJUGAL RIGHTS?
A petition for Restitution of Conjugal Rights is to be filed in a Civil Court or a Court of jurisdiction, which is decided based on the following:
1. In the Civil Court in whose jurisdiction the parties’ marriage was performed.
2. In the Civil Court in whose jurisdiction the husband and wife stay together.
3. In the Civil Court in whose jurisdiction the husband and wife last stayed together.
RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU MARRIAGE ACT
1. Restitution of conjugal rights under the Hindu Marriage Act is governed by Section 9. It states “When either the husband or the wife has, without reasonable excuse, withdrawn from the society for the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with 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”
2. Under Section 9 of the Hindu Marriage Act, certain conditions need to be looked upon to invoke restitution of conjugal rights, such as the spouses must not be living together, withdrawal of one of the spouses without reasonable excuse, and the aggrieved has to apply for the restitution of conjugal rights.
3. It is believed that restitution of conjugal rights violates certain fundamental rights such as Article 19 – Right to Freedom, Article 21 – Right to Privacy.
RESTITUTION OF CONJUGAL RIGHTS UNDER MUSLIM LAW
1. The restitution of conjugal rights is available to Muslims under Personal Law. It states “Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights”
2. Either of the spouses can seek restitution of conjugal rights only when the marriage is legal and valid.
3. Without a reasonable and lawful cause, the wife or the husband cannot sue for restitution of conjugal rights. When the wife refuses to stay with her husband, he can file for the petition of restitution of conjugal rights and in turn, the wife can claim for the fulfilment of marital duties by the husband. This is not an absolute right as the husband, being the dominant one as per the Quran and Muslim Laws holds more power.
4. In Itwari v Asghari, a Muslim husband filed a petition for restitution of conjugal rights against his first wife, the Allahabad High Court held that it cannot force the wife to live with the husband and can refuse the relief if the court feels that it would not be reasonable and just to do or that passing the decree would be inequitable. Some High Courts have also denied the relief of restitution of conjugal rights considering cruelty on part of the husband towards the wife.
5. Under Muslim Law, grounds of irregular marriages, marriages avoided by the option of puberty, and other provisions are mentioned in the Dissolution of Muslim Marriage Act, 1939.
RESTITUTION OF CONJUGAL RIGHTS UNDER CHRISTIAN LAW
1. Restitution of conjugal rights for Christians is given under Section 32 and 33 of the Indian Divorce Act, 1869.
2. A petition can be filed by the aggrieved party in either the District Court or the High Court.
3. Nothing which would not be a ground for a decree of nullity of marriage or a suit for judicial separation can be pleaded as a defence against a petition for restitution of conjugal rights under Section 33 of the Indian Divorce Act, 1869.
4. The court will not pass the decree of restitution of conjugal rights if there are shreds of evidence of cruelty on part of the husband/wife, if the husband/wife is insane, or if the husband/wife marries again.
5. The existence of a co-wife acts as a defence for the wife against the restitution of the conjugal rights petition.
RESTITUTION OF CONJUGAL RIGHTS UNDER PARSI LAW
1. The restitution of conjugal rights is available to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936. It states, “36. Suit for restitution of conjugal rights - Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.”
2. The respondent is required to resume cohabitation with his/her partner after the decree of restitution of conjugal rights is passed. If he/she fails to do so within a year, then it can act as a ground for filing for divorce by the aggrieved party.
COMPENSATION CLAIMS AVAILABLE TO THE WIFE
Maintenance can be claimed by anyone, either the husband or the wife if they are not able to maintain themselves. The wife can claim for maintenance under Section 25 of the Hindu Marriage Act, 1955. The court can attach the properties of the husband if he fails to entertain and obey the decree. According to Section 125 of the Criminal Procedure Code (CrPC), 1973 orders any person having sufficient means to provide maintenance to his wife, children if he neglects or refuses to fulfil his marital duties. Moreover, Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides for the wife to claim maintenance.
CIRCUMSTANCES WHERE WITHDRAWAL OF THE WIFE FROM THE SOCIETY OF THE HUSBAND IS JUSTIFIED
1. When the husband remarries. The husband loses the right to restitution of conjugal rights for the second wife if the first wife is alive.
2. When it becomes difficult for the wife to live with her husband as a result of cruelty, gross negligence, etc. when the husband makes it difficult for the wife to live with him, then she can withdraw from his society.
3. The wife is living separately due to a different place of work: when the economic considerations require the wife to take up the job because it is necessary for the upkeep of the family.
CONSEQUENCES OF NOT OBEYING THE COURT’S ORDER
If the respondent fails to obey the court’s order on resuming cohabitation, then the petitioner has a right to apply for the execution of the decree of restitution of conjugal rights under Order 21 Rule 32 of the Code of Civil Procedure, 1908. This rule states, if a party wilfully fails to obey the decree, the same may be enforced by attachment of his/her property. The defendant can also be sued for Contempt of Court. Moreover, if the defendant fails to comply with the decree for over a year, then it can act as a ground of divorce by the aggrieved party.
1. Moonshee Buzloor v. Shumsoonissa Begum - it was held that when a wife without any lawful or reasonable cause, refuses to cohabit with her husband, the husband may sue her for restitution of conjugal rights. It was held that the suits for restitution have to be carried out under Muslim law. Equity and good conscience were used only to supplement the Muslim law where texts were not available.
2. Sushila Bai v. Prem Narayan- husband (the respondent) left his wife (the appellant) and was in negligible touch with her. This attitude was evident enough for the wife to file for the petition of restitution of conjugal rights. Hence, the wife’s petition was allowed.
3. T. Sareetha v. Venkatasubbaiah- the Court held that the Subordinate Judge was correct in holding that the parties lived at the house of Venkata at Cuddapah as Venkata Subbaiah had specifically pleaded this and Sareetha failed to deny this allegation. The Civil Revision Petition was allowed. Section 9 of the Hindu Marriage Act, 1955 was declared null and void.
4. Harvinder Kaur v. Harmendar Singh- The constitutionality of Section 9 was upheld and the judgment in Sareetha’s case was overruled. The court justified the alleged violations of the ‘Equality Protection’ and the ‘Right to Life and Liberty’ by giving a proper emphasis on the meaning and definition of the term “Restitution of Conjugal Rights.” The concept of marriage was emphasised to include the ideas of both ‘contract’ and ‘sacrament’. Sexual intercourse was considered to be only one of the elements of a marriage.
5. Tirath Kaur v. Kirpal Singh- The High Court of Punjab held that the refusal by one spouse to render themselves to their job and live with the other is withdrawing the society of the other. The Hon’ble Court said that the husband was justified in asking the wife to live with him even if she had to give up on her service as the Conjugal duties could not be performed by living at such a distance, the husband was entitled to claim restitution.
6. Saroj Rani v. Sudharshan Kumar Chadha- the Apex Court overruled the judgment given in T. Sareetha v. Venkatasubbaiah. It was held that the right of husband/wife to each other’s society does not exist merely out of statute law, but out of the institution of marriage. Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution. It serves a social purpose and acts as an aid to the prevention of breaking of marriage. Moreover, the husband would continue to pay maintenance to both the wife, provided she remains unmarried, and the child/children. The court thus granted the divorce and considered the wife’s plea and ordered the husband to pay for maintenance until she remarries.
The article deals with the exhaustive analysis of restitution of conjugal rights. This law is a root of bias for both the husband and the wife. It is a draconian and arbitrary law that holds a limited value in today’s time. Such laws should be done away with. The vague aspects, such as the factors of reasonability, maintenance, adapting to the societies, etc. are narrow enough to hinder and disrespect an individual’s liberty and freedom, and privacy. It should be the husband and the wife to decide on matters related to marriage and separation on a mutual basis, this law jeopardises that essence.
 (1867) 11 MIA 551  AIR 1971 Delhi  AIR 1975 Guj 158  (2008) 4 CTC 338.  AIR 1971 ALL 567  AIR 1976 Delhi 321  AIR 1960 All 684  1866, II M.I.A. 551 P.C  AIR 1964 MP 225  AIR 1983 AP 356  AIR 1983 Del 66  1964 Punj 28  AIR 1984 SC 1562