Thursday, 10 February 2022

Restitution of Conjugal Rights

 Restitution of Conjugal Rights

By Shweta Nair

Marriage is a sacred union between a husband and a wife. The main objective of a marriage comes from the fact that both husband and wife must live together where each of them is conferred certain legal rights and marital duties to perform. Each being entitled to the society and comfort of the other. 

If without any reasonable cause or excuse, one of the spouses leaves the other or withdraws from the society of the other, the other spouse is eligible to a decree by the court for restitution of conjugal rights whereby the court orders the other spouse to come back and live with each other. 

The term ‘conjugal rights’ implies two connotations- first being marital intercourse and the second being the right which both the spouses have to each other’s society. This is as per the Jowitt’s Dictionary of English Law. 

There are three ingredients that must be satisfied for passing the decree of restitution of conjugal rights: 

  • Without the consent of the other

  • Without reasonable cause and excuse

  • Has withdrawn from the society of the other. 

When the aggrieved spouse has been deserted by the other spouse, the only remedy in such cases happens to be restitution of conjugal rights. What he or she can do is to file an application in the form of a petition in the District Court. After hearing the aggrieved spouse, if the court does not find any reasonable ground for not granting this decree or is satisfied with the truth of the statements mentioned in the petition, the decree of restitution of conjugal rights may be passed. 

Once the decree has been passed, an important question which the court has to deal with is the reasonable excuse of the spouse behind withdrawing from the society of the aggrieved spouse, the burden of proving the reasonable excuse behind it solely lies on the spouse who left the aggrieved spouse. 

The court may dismiss the petition under the following circumstances: 

  • If the aggrieved spouse’s own conduct has resulted in it

  • If any advantage is being taken out of one’s own wrong

  • If the spouse who left the matrimonial home has a reasonable excuse for not cohabiting with the spouse who filed the petition. 

  • If the petition contains untrue statements in it

  • If any other legal grounds exist.

Also, it is important to note that in case cohabitation between the spouses has not been recommenced for 1 year or more after the passing of the decree for restitution of conjugal rights, then they can choose to divorce merely on this ground. 

In T. Sareetha v. T. Venkata Subhaiah, AIR 1983 A.P. 356, it was held by the High Court of Andhra Pradesh that this decree of restitution of conjugal rights provided under Section 9 of the Hindu Marriage Act,1955 violates the right to privacy under Article 21 and right to equality under Article 14 of the Constitution and therefore this provision is constitutionally void. Later, in Harvinder Kaur v. Harmander Singh Choudhary AIR 1984 Del. 66, the Delhi High Court held non-conforming views with the judgement passed by the Andhra Pradesh H.C. And finally, it was in the case of Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 S.C. 1562 wherein the Andhra Pradesh High Court’s judgment was overruled and it was held that Section 9 of the HMA Act of 1955 does not violate Article 21 and Article 14 of the Indian Constitution. 

If the husband or the wife’s conduct can be considered as grave and weighty i.e., it falls short of cruelty, it can be considered as a sufficient ground and a reasonable excuse for withdrawal. Only in the case of valid marriages, such a decree can be passed. It was formulated for the sole purpose of reunion of husband and wife and for preventing divorces. Of course, it is a really good remedy but it should be noted that the court can never force cohabitation therefore, the execution of it in practical life becomes tough. It can be enforced with the attachment of property which leads to contempt of court if not complied with. Thus, main aim is to save the marriage.




  3. N.H. Jhabvala’s Principles of Hindu Law

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