Restitution of conjugal rights is a concept that is more related to the matrimonial side of family laws. But, what exactly are these conjugal rights consist of? What is the need for the restitution of such rights to any of the spouses? This article will answer those questions by looking into this concept of restitution of conjugal rights, which has been witnessed as a matrimonial relief from a family law perspective.
Introduction:
Before looking into the legal provisions relating to restitution of conjugal rights, it is much important to gain an understanding as to what constitutes these conjugal rights and the origin of such a concept. Conjugal rights are nothing but a bunch of rights that include the right to intercourse, the right to cohabitation or the right to live together. Conjugal right under the Family law perspective deals mostly to ensure the cohabitation of husband and wife. This concept of restitution was taken from the Ancient Jewish and roman laws, where the court of law entertained such matrimonial cases and made the separated wife live together with her husband. This is the main purpose behind the idea of restitution of conjugal rights.
Restitution of Conjugal rights in India:
Coming to the Indian perspective, restitution of conjugal rights has been serving as an important matrimonial relief, to preserve the sanctity of the marriage that has happened. Courts in several cases have done their most work and have been making the relief available to the parties. Such reliefs are focused on various personal laws such as the
Let us have look at each of such provisions given under each personal law.
It is to be noted that section 9 of the Hindu marriage act, 1955 deals with restitution of conjugal rights. It states that when a person – either the husband or the wife has renounced or had withdrawn from the society of the other individual without any reasonable excuse, then the aggrieved party, either the husband or wife can approach the court of law in the respective district for restitution of his/her conjugal rights. If the district court is satisfied with the petition and has found no legal ground for rejecting the application for such restitution, then the respective court may pass a decree for the restitution of conjugal rights. The explanation clause under section 9 states that whenever there is a question regarding the reasonable excuse for withdrawal from society, the burden of proof shall lie with the person who has withdrawn from society.
While dealing with section 9 of this act, it is important to note that this particular section was challenged before the court of law for its constitutionality. Two main cases that dealt with this issue are as follows. Firstly, in T. Sarita v. T. Venkata Subbaiah (1983) case, section 9 of the act was challenged for its constitutionality on the ground that it would be the grossest violation of an unwritten fundamental individual’s right to privacy. The court thereby agreeing with the petitioner struck down the section.
But, the same verdict was overruled and validly ensured with its constitutional validity by the Supreme Court in the case of Saroj Rani v. Sudarshan (1984). The court observed that section 9 of the Hindu marriage act was used by the judiciary to maintain the sanctity and the institution of Marriage. It should be held valid because it helps the couple to live together not for the purpose of sexual favours, but with an objective of cohabitation.
Muslim law has not specifically defined or provides the provisions for restitution of conjugal rights. But it ensures that, if the wife unlawfully ceases to live with her husband or to cohabit with her husband, then Muslim Husband can seek the court for restitution of his conjugal rights and the same will apply for the wife in case her husband ceases to cohabit with her and she has the right to demand the fulfilment by her husband of his duties as per Muslim marriage. It has to be noted that, as per the sources, the husband exercises his dominance over filing of restitution petition and his right is also not absolute in nature. This is because of the presence of the woman’s defence against him. For example, Cruelty would defend the wife from restitution.
Section 32A(1) of the Parsi Marriage and Divorce act, 1936 deals with non-resumption of co-habitation or the restitution of conjugal rights within one year in pursuance of a decree to be ground for divorce.
Subsection 1 of section 32A states that marriage between the parties irrespective of solemnization before or after the commencement of the amendment act of 1988, can seek the divorce on grounds as mentioned. If they failed to resume their cohabitation within the period of one year from the date on which they have their decree on divorce being notified and in which they were the parties or in case of failure to cohabit between each other for the period of one year or more after the passing of decree on the restitution of conjugal rights. Even though the section does not elaborate the idea of restitution of conjugal right, it vests the matrimonial duty to live together within one year from the date of passing of a decree for divorce or within one year from the passage of decree on the restitution of conjugal rights.
Under Special Marriage Act, 1954 and Indian Divorce act, 1869:
Section 22 of the special marriage act and Section 32 of the Indian Divorce Act, which is applicable for all persons residing in India, states that if the husband or the wife has renounced or had withdrawn from the society of the other individual without any reasonable excuse, then the aggrieved party, either the husband or wife can approach the court of law in the respective district for restitution of his/her conjugal rights. If the district court is satisfied with the petition and has found no legal ground for rejecting the application for such restitution, then the respective court may pass a decree for the restitution of conjugal rights.
