Saturday, 29 January 2022

Restitution of conjugal rights by Ketaki Virkar

 Restitution of conjugal rights


Ketaki Virkar


The right to remain married is known as conjugal rights. The wife or husband has the right to the society of the other spouse. The privileges and mutual rights that arise from a marriage are referred to as conjugal rights. Mutual rights of support, companionship, affection, sexual connections, joint property rights, and so on are among these rights. 


These rights are recognised by the law in the following areas: -

 personal law (marriage, divorce, etc.) 

 criminal law (requiring payment of maintenance and alimony to a spouse).


The Hindu Marriage Act of 1955, Section 9, deals with the restitution of conjugal rights. 


When either the husband or the wife has withdrawn from the other's company without reasonable cause, the aggrieved party may file a petition with the district court. 


For restitution of marital rights, the court may decree restitution of conjugal rights after being satisfied of the truth of the statements provided in such a petition and that there is no legal reason why the application should not be granted.


The challenge is based on the fact that it infringes on the fundamental right to privacy. According to some legal experts, the historic decision in the privacy case has paved the way for challenges to a variety of legislation, including marital rape, criminalisation of homosexuality, and restitution of conjugal rights.


Another point to examine is the potential for this provision to be abused as a shield against divorce and alimony payments.


The Supreme Court ruled that courts cannot compel couples to stay married. The parties are free to form a mutual rehabilitation agreement, according to the Supreme Court. It further specified that the money could be withdrawn by the wife unconditionally in order for her to meet her and the child's immediate needs.


It is past time for the Indian judiciary and society to adopt more progressive viewpoints, beginning with the progressive marriage theory. The autonomy and independence of two individuals who consent to share them with each other are the foundations of marriage, not the formalities.


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