RESTITUTION OF CONJUGAL RIGHTS

RESTITUTION OF CONJUGAL RIGHTS

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AUTHORED BY: MS. NISHITA KAPOOR, B.COM.LL.B, STUDENT AT UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY & RESEARCH WRITER AT LAW AUDIENCE.

I. INTRODUCTION:

The concept of Restitution of Conjugal Rights was earlier unknown in India and was not recognized by the Hindu Law. It has been adopted from the Jewish Law through English common law. Section 9 of the Hindu Marriage Act, 1955 provides for the Restitution of Conjugal Rights. The foundation of the rule of bringing a suit for restitution of conjugal rights is that one spouse is entitled to the society and comfort of the other spouse. Thus, where a spouse withdraws without any reasonable cause from the society of the other, the court should grant a decree for restitution.

II. CONSTITUTIONAL VALIDITY OF SECTION 9:

The constitutional validity of Section 9, Hindu Marriage Act, 1955 was challenged for the first time in the case of T. Sareetha v. T. Venkata Subbaiah[1], on the ground of being in violation of rights guaranteed under Article 14, 19 and 21 of the Indian Constitution. It was held that Section 9 is void as it violates the privacy and human dignity of a person, that sexual cohabitation is enforced because of this remedy which ultimately violates one’s freedom to expression under Article 19.

However, this decision was overruled in the case of Saroj Rani v. Sudarshan Kumar Chadha[2], wherein the court observed that the right of a husband or wife to the society of the other is not only a creature of statute but is also inherent in every institution of marriage and upheld the constitutionality of Section 9 as not being in violation of Article 14, 19 and 21 of the Constitution if it is understood in its proper perspective. It was also observed that this remedy is an aid to prevent the break-up of a marriage and also that the requirement of “Reasonable Excuse” within Section 9 ensures that this remedy cannot be misused.

III. ESSENTIAL REQUIREMENTS OF SECTION 9:

The decree for restitution of the conjugal rights may be passed in favour of an aggrieved party when:

  • The wife or husband of such party withdraws from the society of the other
  • The withdrawal is without any reasonable cause
  • There should be no legal ground that why relief of restitution of conjugal rights should not be provided.
  • The court is satisfied on the truth of the statements made in the application.

Therefore, only when the above-stated essentials are fulfilled the court grants the relief of restitution of conjugal rights. The word “society” in Section 9 has the same meaning as cohabitation, which means living together as husband and wife and fulfilling the matrimonial duties. Hence, where a party to the marriage stops performing the conjugal duties, it will amount to withdrawal from the society of the other.

It was held in the case of Venugopal v. Lakshmi[3], that the petition under Section 9 would be maintainable even if the parties have not cohabited at all after marriage.

IV. MEANING OF REASONABLE CAUSE:

If the respondent leaves the petitioner due to some reasonable excuse, then in such case the petitioner is not entitled to the relief of the restitution of conjugal rights and likewise, if the respondent left without any reasonable cause, then in such case the petitioner is entitled to restitution of conjugal rights. The terms “Reasonable excuse” and “Reasonable Cause” have the same meaning.

In the case of Shyamlal v. Saraswati[4], it was held that act or omission amounting to reasonable cause must be something which is grave and weighty or grave and convincing. Any act or omission must makes it impossible for the wife to live with the husband will amount to a reasonable excuse.[5]

The legal grounds for refusing to grant relief may consist of:-

  • Any conduct on the part of the petitioner by which he is taking any advantage of his wrong or disability [Sec. 23(1)(a)]
  • Collusion with the respondent [ Sec. 23(1)(c)]
  • Unnecessary or improper delay [ Sec. 23(1)(d)]
  • Grounds which are available to a wife to claim maintenance under Section 18, Hindu Adoptions and Maintenance Acts, 1956.[6]
  • Bona fide agreement to live separately.[7]

The initial burden as a rule is on the petitioner to establish the averments made on the basis of which relief is claimed. However, the onus of proving reasonable excuse rests upon the respondent.

V. MODE OF EXECUTION OF DECREE:

The mode of execution of a decree of restitution of conjugal rights has been provided under Order XXI Rules 32 and 33, Code of Civil Procedure. Where the decree for restitution of conjugal rights has been passed and the judgment debtor does not obey it then, it may be executed by only by attachment of his property. If such decree is not obeyed for a period of 6 months, then the attached property can be sold. 

In no case, can such decree be executed by sending the person to the civil prison. In the case of Sreevastava v. Veena[8], it was held that if the judgment debtor is ready and willing to obey the decree but the decree holder obstructs the execution without reasonable cause, the court can at the instance of judgment debtor enter satisfaction of the decree. 

VI. CONCLUSION:

The main object behind providing the remedy of restitution is that the sacramental bond of the husband and wife is protected and one is not denied the pleasure and company of the other. No doubt, it is the only positive remedy which is available under the Hindu Marriage Act, 1955, which seeks to preserve the institution of marriage, yet the relief of restitution of conjugal rights has been criticized as being inhuman, barbarous and infringing the privacy and personal will of a person. It is in the present scenario losing its significance. Noteworthy point is that this remedy has been abolished in England[9], from where such remedy was borrowed in India. Recently, PIL has been filed in the Supreme Court against the constitutionality of Section 9 of Hindu Marriage Act,1955 on the ground that the courts force the separated couples to live together. [10]

[1] A.I.R. 1983 A.P. 356 (India).

[2] 1984 A.I.R. 1562 (India).

[3] 1936 Mad 288 (India).

[4] 1967  MP 204 (India).

[5] Gurdeo v. Sarwan, 1966 PLR744 (India).

[6] N. Satyanarayana v. M. Veramuni, A.I.R. 1918 AP 123 (India).

[7] A.E. v. Thirumal v. Rajaram, 1968 Mad 201 (India).

[8] A.I.R. 1965 Punj. 54 (India).

[9] Section 20, Matrimonial Proceedings Act, 1970 (India).

[10] Raghav Pandey, “Compelling wife to cohabit with husband violates fundamental rights: its time SC reviews Section of Hindu Marriage Act”, FirstPost, Mar 06,2019.

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