Concept of Restitution of Conjugal Rights: Law and Case Laws

The Author, Ridhi Seth, is a 2nd year BBA LLB student at Maharaja Agrasen Institute of Management Studies (MAIMS), Delhi. She is currently interning with LatestLaws.com.

Abstract

Marriage is considered to be a turning point in the life of an individual. It is believed that marriage marks the beginning of the second phase of one’s life. It is considered to be a sacred act in Hinduism. Thus, marriage is a sacrament under the Hindu Law[1]. It involves sharing of a common life, including the happiness and the sorrows coming along the way. It requires constant commitment from both the sides and a will to stay together despite of all the shortfalls. The apex court held that “the essence of marriage is sharing of a common life, sharing all the happiness that life has to offer and all the misery that one has to face.” [2]

Conjugal Rights

Some rights and obligations emerge as a result of this union like the right to stay together and to engage in sexual intercourse with each other, basically the rights emerging from a marital bond; which have to be fulfilled by both the parties, and if they do not do so naturally, they can be compelled by the courts to do so. These rights are known as Conjugal Rights. These rights constitute the base of the marriage. One of the main obligations in marriage, as already stated, is that the couple should stay together. If either of the party decides to part from the other party’s society without any reasonable justification, the court may intervene and order restitution i.e., the restoration of these rights may be ordered under Section 9 of the Hindu Marriage Act, 1955.

Section 9

This section states that:

1. When either the husband or the wife,
2. without any reasonable excuse, withdraws from the society of other,
3. the aggrieved party may apply, by petition to the District Court for restitution of conjugal rights,
4. and the court, on being satisfied with the truth of the statements made such petition and finds that there is no legal ground why the petition should not be granted,
5. may decree restitution of conjugal right accordingly.[3]

Essential elements of Section 9

There are certain essential elements that need to be present to avail this remedy of ‘restitution of conjugal rights’ as stated above. Let us look at them in intricate details.

• Firstly, the existence of a valid marriage between the parties is one of the most crucial factors. If the marriage is invalid, then the couple would not be husband and wife in the eyes of law. Hence, there would not be any point of restoring the marriage that did not exist in the first place.
• Secondly, there should be withdrawal by one party from the society of the other. This means that the person withdrawing, not only ceases to live with the other; but also restrains from performing any of the marital obligations. Since, cohabitation is considered to be one of the prime aspects of marriage which involves staying together while performing the respective duties as husband and wife. Sometimes, a couple may live together but one of then intentionally restrains from performing the duties. This is considered to be mental withdrawal. The main object of the decree is that it attempts to safeguard the marital bond of the couple, it helps in reigniting the concerns that a married couple tend to have for each other.

It was held by the court in the case of Sushila Bai v. Prem Narain Rai[4] that a husband leaving his wife in her father’s home and not maintaining any connection with her thereafter, would be considered as withdrawing from her society and the decree of restitution shall be passed.

In another case of R. Natarjan v. Sujatha Vasudevan, the court held that if a wife is asking to live separately from husband’s aged parents, it does not amount to a reasonable excuse of withdrawal and the wife can be granted a decree for restitution of conjugal rights.

• Thirdly, this withdrawal from the society would come under the purview of this act only if it is done without any reasonable cause. If there is a justifiable reason behind such an action on the part of the other person, this section will not apply. To understand what a reasonable cause is not, we shall first understand what a reasonable cause is; when the ground for the withdrawal is based on something, that typically has the potential to get the party granted with matrimonial relief, then that would be a reasonable excuse in the eyes of the court. Also, if there is a case of any sort of matrimonial misconduct, which apparently does not create divorce grounds[5] but is of a grave nature; it may be considered as a reasonable excuse depending on the discretion and intelligence of the court. Another reasonable excuse arises when either of the party is actually found guilty of any conjugal act, omission or even misconduct, thereby making it unfit for the other party to continue living with them.

Other than the ones stated above any other reason for withdrawal is considered to be unreasonable by the court, and the decree shall be granted if the court is overall satisfied. There is no specific definition or formula for the same.

The burden of proof comes upon the defendant relating to the existence of a reasonable excuse for their withdrawal. This happens once the petitioner has laid down that the withdrawal was unreasonable.

Lastly, the court should suffice from the statements in the petition that no legal ground whatsoever exists for it to refuse such a decree. Then only can it be passed.

Constitutionality

This section was held to be unconstitutional by the Andhra Pradesh High Court in the case of T. Sareetha Venkata Subbaiah v. State[6]. This was because it was believed to invade the wife’s right to privacy by compelling her to stay with her husband when she evidently does not want to do so.

But, later the Delhi High Court in the case of Harvinder Kaur v. Harmandar Singh[7] held Section 9 of the Act to be valid. The ratio of this case was upheld by the court in Saroj Rani v. S.K. Chadha. The Supreme Court in the case of Saroj Rani v. SK Chadha[8] held that in the matters of privacy of home and the married life of a couple, Articles like Article 14 and Article 21, do not have much of a place.

In Saroj Rani v. Sudarshan Kumar Chandra, the Supreme Court finally resolved the tussle between Section 9 and the Fundamental Rights. The Supreme Court upheld the view put forth by the Delhi High Court in Harvinder Kaur v. Harvinder Singh (AIR 1984 Delhi HC) and held that “the object of the degree was only to offer an inducement for the spouse to live together, and it does not force an unwilling wife to engage in sexual relationships with the husband.”

With Supreme Court declaring the Right to Privacy as a Fundamental Right in K.S. Puttaswamy and Joseph Shine clarifying that privacy depends on the exercise of autonomy by individuals and the Right to Privacy cannot be infringed by considering familial structure a private space, debate is once again ripe on the constitutional validity of this Section.[9]

The Decree

The petition for restitution of conjugal rights is firstly filed by the aggrieved party i.e. either of the spouses, in the District Court. The case application may be assigned by the petitioner to the High Court later.

Both the parties are then supposed to appear before the court on the specified dates. Then, they are sent for the counselling sessions by the court. Usually, these courts hold 3 sessions with an interval of 20 days between sessions which go on for four months. Based on the counselling and the petitions filed, the judge may decide whether to pass the decree or not.

Below mentioned are the instances where the court would not grant the decree;

1. Where there is a reasonable excuse behind the withdrawal of one party from the society of the other.
2. If there is any conduct on the part of the petitioner that may be parallel to them taking advantage of any wrong act or disability on their part.
3. Any basis on which the respondent might have asked for divorce, judicial separation or nullity of marriage.

Documents like the address proof, identity proof, proof of marriage and photo of the petitioner and the documents confirming the jurisdiction of the court are required to be submitted.[10]

It is to be noted that the petition for divorce amongst the couple can only be lodged after the failure of the decree of restitution of conjugal rights. This is because, both the decrees are entirely opposite from each other and cannot be dealt with simultaneously.

Conclusion

The decree of restitution of conjugal rights is a debatable one. There have been mixed point of views coming from the legislature and in general about the same. The main purpose behind such a remedy, as already stated is to preserve the marital bond. But one side says that, it is a fact that someone moving out without any reasonable cause simply points to the disinterest that they have in staying with their partner. Hence, passing such a decree and then wanting it to be obeyed would amount to forcing a person to live with another which seems to be an infringement of their freedom of association.[11] The wife is compelled to stay with her husband against her will.

The courts could adopt a more relaxed approach as this one tends to defeat the whole purpose. Methods like reconciliation can be adopted, rather than forcing the decree, once passed on either of the spouses. In some instances, this decree might be used by the spouses to extract their own benefits. In such cases, it may happen that the situation might take an ugly turn later and it may lead to unwanted circumstances for the couple or either one of them. Reconciliation on the other hand, helps the couple while removing any unnecessary obligation to stay together, this way the misunderstandings get a clear ground to be settled on.

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