Restitution of Conjugal rights is a debatable topic which gives rise to questions like being involved in the institution of marriage, isn’t restitution of conjugal rights violation of the right to life[1]. Conjugal Rights basically means Right to stay together. Section 9 of the Hindu Marriage Act, 1955 states that if either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights. The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes Petition for restitution. However, if the decree of restitution of conjugal right is not honored for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce. There are three important requisites to be fulfilled for Section 9; viz; spouses must not be staying together, withdrawal of a party from the other must have no reasonable ground for such withdrawal and the aggrieved party must apply for restitution of conjugal rights.

The basis on which petition for Restitution of Conjugal Rights can be rejected are that when the respondent is capable of claiming any matrimonial relief or when the petitioner accepts that he had committed any matrimonial misconduct or when the petitioner’s action makes it impossible for the respondent to stay with him. The wife during this period can claim maintenance under Section 25 of Hindu Marriage Act. The onus is on the petitioner to prove that the respondent left them. If the petitioner successfully proves, then the burden shifts to the respondent to prove that there was a reasonable ground as to why the respondent went away from the petitioner’s society. As stated by Paras Diwan, the remedy of restitution of conjugal rights was neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it. Restitution of conjugal rights had its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession.

 The case of Moonshee Buzloor Ruheem vs. Shumsoonissa Begum, introduced the concept of restitution of conjugal rights in India. In Sushila Bai v. Prem Narayan[2] the wife was deserted by the husband and the latter was totally unresponsive towards the former. This behavior was sufficient to show that he had withdrawn from the society and therefore, the wife’s petition for restitution of conjugal rights was allowed. The remedy is available in India under Section 9 of the Hindu Marriage Act, 1955 to Hindus, Section 32 and 33 of the Indian Divorce Act, 1869 to Christians, under Section 36 of the Parsi Marriage and Divorce Act, 1936 to Parsis and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954. The provisions for restitution of conjugal rights under section 22 of the Special Marriage Act, 1954 & section 9 of the Hindu Marriage Act, 1955 are identical. It states the following:

• When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

 Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

• The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit[3].

Under the Muslim law, it states as follows:

• Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights.
• Thus, the Muslims equate this concept with securing to the other spouse the enjoyment of his or her legal rights. Earlier, it was also attached with the specific performance of the contract of marriage. In Abdul Kadir v. Salima, the Allahbad High Court decided that the concept of restitution must be decided on the principles of Muslim Law and not on the basis on justice, equity and good conscience[4].

CONSTITUTIONAL VALIDITY

In the case of T. Sareetha vs T. Venkata Subbaiah[5], the court held the impugned provision to be unconstitutional on the grounds that it violated the Right of Equality enshrined in Article of 14 & 21 of the Constitution of India. In the case, the petitioner for restitution of conjugal rights was the husband and the petition was opposed by his wife who was a famous cinema star (Sareetha). On behalf of the wife it was argued that the right to privacy confers on a woman, a right of free choice as to whether, where and how her body is to be used for the procreation of children and also the choice of when and by whom the various parts of her body are to be sensed[6]. However the High Court of Delhi in Harvinder Kaur v Harminder Singh[7], the court held it constitutional.

CONCLUSION

 To sum up, under all personal law, the requirements of the provision of restitution of conjugal rights are as following:

• The withdrawal by the respondent from the society of the petitioner.
• The withdrawal is without any reasonable cause or excuse or lawful ground.
• There should be no other legal ground for refusal of the relief.
• The court should be satisfied about the truth of the statement made in the petition.

Judiciary should come up with more lenient measures to protect the institution of marriage. Instead of passing orders, the courts and parties should try to reconcile the matters through alternate dispute resolution. The matrimonial courts should try and settle the dispute in spite of forcing the other party to live with his/her spouse. The British have abolished the provision of Restitution of Conjugal Rights which concludes that this right must also be removed from the Hindu Marriage Act, 1955 as it stands unconstitutional.

[1] Supriya Dash-All About Restitution of Conjugal Rights in India, Introduction to Restitution of Conjugal Rights in India | Legodesk, visited on 20-07-2021 at 11:04hrs.

[2] AIR 1986 MP 225.

[3] Restitution of Conjugal Right (indianbarassociation.org), visited on 20-07-2021 at 11:46hrs.

[4] IBID.

[5] AIR 1983 AP 356.

[6] https://lawlex.org, visited on 19-07-2021 at 16:58hrs.

[7] AIR 1984 RLR 187.

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