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RESTITUTION OF CONJUGAL RIGHTS

 RESTITUTION OF CONJUGAL RIGHTS

BY NUPUR GARG

INTRODUCTION

Marriage is one of the main important vital roles in all human life. Every man and woman has

dreams about their marriage. After the marriage, the parties have some obligations to their

life. After the marriage, the sexual relationship between the husband and wife is also an

important part of the marriage. If any one of the parties like a husband or wife has withdrawn

from the society without any reasonable causes, the affected person may apply by petition to

the district court for the restitution of conjugal rights. If there is a reasonable cause the court

cannot decree the restitution of conjugal rights but if there is no reasonable cause the court

will grant a decree for the restitution of conjugal rights.

The conjugal rights are the rights to claim the both of the parties i.e., the husband as well as

the wife. Hindus can claim the restitution of conjugal rights under the Hindu marriage act,

1955, Muslims can claim under the General Law, Christians can claim under the Indian

Divorce Law, 1869, Parsis can claim under the Parsi Marriage and Divorce Act, 1969 and the

persons who married under the Special Marriage Act can claim under the Special Marriage

Act, 1954.

Section 9 of the Hindu Marriage Act (HMA), 1955 and Section 22 of the Special Marriage

Act (SMA), 1954 provides for restitution of conjugal rights which states that if a husband or a

wife has withdrawn from the society of the other without any reasonable excuse, then, the

aggrieved party can file a petition before the District Court for restitution of conjugal rights

i.e. to bring the spouse back to live with the other spouse. The court may grant a decree of

conjugal rights if it is satisfied that the petition is based on truth and there is no legal ground

for dismissing the petition.

CONSTITUTIONAL VALIDITY OF SECTION 9

Section 9 has always been in controversy regarding its constitutional validity. However, the

same was taken into consideration in true sense in 1983 by the Andhra Pradesh High Court.

In 1983, in the case of T. Sareetha vs T. Venkata Subbaiah, the High Court of Andhra

Pradesh struck down Section 9 of the Act declaring it null and void. It was decided by a

single judge bench, P. Choudhary, who held that it breaches the right to privacy as

cohabitation was an intimate matter and it was better if the couple decided rather than the

state. Another reason cited was that restitution of conjugal rights could result in forced sexual

cohabitation for women who would face grave consequences.

However, this decision was rescinded and a diametrically opposite view was taken by the

Delhi High Court in the same year in Harmander Kaur v Harvinder Singh Choudhry,

critiquing the stand taken by the Andhra Pradesh High Court. According to the Delhi High

Court, emphasis should not be given on sex rather on maintaining the relationship between

the two spouses which would be 'beneficial for the children and society'. The Delhi High

Court argued that the section aimed at consortium rather than cohabitation and sexual

intercourse was not the ultimate goal of marriage. Hence, the Supreme Court upheld the


decision of the Delhi High Court and overruled the decision of the Andhra Pradesh High

Court.

DEFENSE FOR RESTITUTION OF CONJUGAL RIGHTS:

When there is any reasonable cause for the separation between the spouses, the decree of the

restitution of conjugal rights is not granted by the court. For a reasonable excuse, there are no

hard and fast rules about it, and it may be decided by the court by means of justice, equity

and good conscience.

The followings are some of the examples of the reasonable excuses:

1. The petitioner has treated the other party with cruelty.

2. The petitioner has converted to other religions.

3. The petitioner has been suffering an incurable form of leprosy.

4. The petitioner has been of an unsound mind.

5. The petitioner has been suffering from venereal disease.

6. The petitioner has entered a religious order.

Whether the person has reasonable causes to withdraw from the society, the question arises,

the burden of proving the reasonable excuses shall be on the person who has withdrawn from

the society. Itwari vs. Asghari, in this case the petition filed against his first Muslim wife for

the restitution of conjugal rights. The court held that the husband cannot compel the wife to

live with him in his house. The husband cannot compel his wife because compulsion is also a

cruelty. So, the High Court has refused to provide the decree for the restitution of conjugal

rights against the wife.

CONCLUSION

Granting a decree for restitution of conjugal rights can compel spouses to live together but it

in no way can ensure an effective relationship. Further, if such a decree violates any

constitutional right, then it becomes extremely crucial to repeal it. With all the ambiguities

that lie within the sections pertaining to restitution of conjugal rights, it has become

extremely important for the Supreme Court to look into the matter and to ensure that this

right which is considered as a remedy does not violate somebody’s fundamental rights and in

case if it violates the fundamental rights, then the same must be held unconstitutional at the

earliest.

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