The author, Ms. Vasavi Mahajan is a 2nd year student of B.A. LL.B. (Hons) at Vivekandana Institute of Professional Studies, Guru Gobind Singh Indraprastha University, Delhi. She interned with LatestLaws.com in August, 2022. 

Introduction:

Ever since the beginning of time, marriage has been a key social institution. According to Hinduism, marriage has both contractual and sacramental importance. It is the very basis of a family and serves in a multitude of ways to acclimate an individual to society and the subsequent development of society. It serves a variety of functions, such as regulating sexual behaviour, reproducing, nurturing, protecting children, socializing, and passing down genes.

In Hinduism, marriage is regarded as establishing a relationship between two families rather than simply between two individuals. India is a country where marriage is a one-time event that people sanctify and glorify with social approval. Furthermore, marriage is considered a social necessity; parents are responsible for marrying their children. According to Hindu tradition, marriage isn't to promote self-interest, but love for one another and the entire family, which keeps the family together and prevents it from breaking apart. 

Marriage is based on the assumption that the husband and wife will live together. Both spouses have the right to seek comfort from the other, and if one party fails to meet his or her commitments, the other may be forced to do so. In Smt. Saroj Rani versus Sudarshan Kumar Chadha (AIR 1984 SC 1562), the Supreme Court stated that the essence of marriage is the sharing of common life, a sharing of all the happiness that life has to provide and all the pain that life has to endure.

It has also been observed that the rate of Matrimonial Disputes has been steadily increasing over the last decade. Previously, matrimonial problems were not given much weight. However, as times have changed, a new stream of thought has emerged in which alternative methods for resolving a matrimonial dispute have been adopted. Because of these factors, it is critical to research and analyses the subject.

The purpose of this paper is to critically examine the notion of Restitution of Conjugal Rights, a matrimonial remedy provided to Hindus under the Hindu Marriage Act of 1955.

Conjugal rights are defined by Merriam-Webster as "the sexual rights or privileges indicated by and included in the marriage relationship; the right of sexual intercourse between husband and wife." It can also be interpreted as a right to remain together, or as one spouse's right to the companionship of the other. 

It is widely believed that each spouse should be available to comfort and encourage the other at difficult times. However, if one of the partners abandons the other without fair or adequate cause, the injured party may seek justice in court. 

Marriage is considered the most sacred ceremony according to Hindu Law. As per the Hindu matrimonial ceremony, the Saptapadi ritual imposes specific rights and duties on both the husband and the wife. Conjugal or Marital rights are rights and duties obligatory on both spouses under Hindu law. Certain essential conjugal rights placed on spouses include living together as husband and wife under the same roof, procreation, raising a family, and so on. Marriage parties have great aspirations for their marriage, but things do always work out and the parties eventually have to opt for divorce. However, divorce is a drastic move that permanently terminates the partnership; therefore, if one of the spouses believes that there is a chance to preserve their connection, he or she can apply for Restitution of Conjugal Rights to restart their marital relationship. It originated in feudal English law but was later repealed in the 1970s. It is vital to highlight that this compensation could only be claimed in the case of a legitimate marriage. It is intended that a court can intervene between the parties in restitution cases to preserve the marriage union as much as possible.

A decree of restitution of conjugal rights indicates that the respondent spouse must cohabit with the plaintiff spouse and fulfill his or her obligations to the other. Restitution is the only remedy available to a deserted spouse against his or her partner under the Hindu Marriage Act or the Special Marriage Act if he or she wishes to continue the marriage.

When the party complained about wilfully disobeying the decree, it can be enforced using coercive measures such as the seizure of property, and the party can even be punished for contempt of court.

Contrary to a specific performance decree, for restitution of conjugal rights, the judicial sanction is provided when disobedience to such an order is wilful and deliberate, despite opportunities available.

In India, various personal laws provide for the return of conjugal rights. The general language in all of these act’s states that if either the husband or the wife withdraws from the other's society without reasonable cause, the aggrieved party may petition the Court for recovery of conjugal rights. Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954, Order 21, Rules 32 and 33 of the CPC, 1908, Section 32, Indian Divorce Act, 1869, Section 36, The Parsi Marriage and Divorce Act, 1936 all make provisions for restitution of conjugal rights under distinct personal laws.

Reasonable cause:

The burden of proof in situations of marital rights is divided into two parts. First, the petitioner must demonstrate that their spouse has abandoned them. It is now on to the respondent to demonstrate reasonable cause for doing so. Any matrimonial misconduct or act or omission that makes it impossible for the Respondent to live with the Petitioner is a reasonable cause. If the respondent fails to show fair cause, a restitution decree in favor of the petitioner might be issued, ordering the respondent to rejoin living with the husband. The petition will be dismissed if it is demonstrated that the respondent has reasonable and valid grounds for doing so.

Provisions for restitution of Conjugal Rights under the Hindu Marriage Act, 1955, and Special Marriage Act, 1954: 

The provision for restitution of conjugal rights is found in Section 9 of the Hindu Marriage Act of 1955, whereas it is found in Section 22 of the Special Marriage Act of 1954. The provisions are identical in phrasing and are as follows: “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 with 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.”

After a petition for recovery of conjugal rights has been successful and the spouse has been absent without a reasonable cause, the pair is obligated to remain together. Thus, section 9 could be construed as the marriage-saving provision. This remedy was originally used in England and then implemented by the Indian privy council in a case called Moonshee Bazloor v. Shamsoonaissa Begum. However, in England, this matrimonial remedy of the return of conjugal rights was abolished in 1970.

Section 9 of the Hindu Marriage Act, 1955 has a crucial meaning in that it allows an aggrieved party to petition for maintenance under Section 25 of the Hindu Marriage Act, 1955. If the lawsuit is still pending, the party can seek maintenance under Section 25 of the Hindu Marriage Act, 1955. So, under the Hindu Adoptions and Support Act of 1956, a wife who does not want a judicial separation or disruption of her marriage can obtain maintenance from her husband without filing a complaint. A second significant implication of the section is that it provides the basis for divorce under Section 13(1A) of the Hindu Marriage Act, 1955, provided that the conjugal rights between them have not been reinstituted for one year or more after a restitution of conjugal rights decree has been passed. However, despite the above stated there are various legal grounds for a refusal to grant relief. The respondent could, for instance, have sought a judicial separation decree or a nullity decree or a divorce decree, or a reasonable excuse for withdrawing from the petitioner's society.

Under general law, the concept of restitution of marital rights is conceptualized in the form of a civil suit, as opposed to a separate petition in other laws, 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 the marriage, the court may decree restitution of conjugal rights, and may put either part securing to the other the enjoyment of his or her rights.”

According to Tayabji, this concept is even included in Muslim law:

"Were either one of the spouses has withdrawn from the society of the other or has neglected his duties against the partners without a reasonable reason, the court may interfere and can decree restitution of conjugal rights."

Consequently, this notion in Muslim Law is aimed at ensuring the spouse's legal rights. If a wife refuses to live with her husband for no legal reason, the husband can sue for restitution of conjugal rights, and the wife can demand that the husband fulfill marital duties. However, because the Muslim husband is powerful in matrimonial proceedings, and because the Quran enjoins the husband to retain or dismiss his wife with compassion, the Court tends in favor of the wife and requires strict verification of all claims essential for matrimonial relief. A Muslim husband can defeat his wife's reparation petition at any time by pronouncing talaq on her.

In the case of Abdul Kadir v. Salima[ii], the Allahabad High Court declared that reparation must be decreed according to Muslim Law (Sharia), rather than Judicial Morality or Natural Law.

In Asfaq Qureshi v. Aysha Qureshi[iii], the Chhattisgarh High Court ruled that in circumstances of inappropriate conversion followed by marriage, a decree of restitution of conjugal rights cannot be issued because the marriage is null and void. The court further stated that a restitution decision can only be issued in the case of a lawful marriage.

Hindu law recognizes restitution of conjugal rights as equitable relief. To compel the defendant to resume cohabitation with the plaintiff, equitable considerations must be taken into account. Marriages under Mohammedan and Christian law are governed similarly. It is at the court's discretion to grant restitution of conjugal rights.

The defenses for the restitution petition under the Hindu Marriage Act, 1955 and the Indian Divorce Act, 1869 are fairly broad, and it states that if the respondent's removal from the petitioner's society is "without justifiable justification," it is in defense to the restitution petition. Tyabji used the phrase "without lawful ground" in Muslim law. It is widely assumed that the phrases "without reasonable excuse" and "without lawful ground" have the same meaning.

According to Hindus and Christians, the presence of a co-wife is a valid reason for the wife to withdraw herself from her husband's society, which can be used as a defense against a restitution petition. Polygamy is permitted following Muslim law. As a result, a Muslim wife cannot deny her husband's comfort consortium because he has taken a second wife. However, in some cases, a husband's second marriage may involve cruelty to the first wife, which justifies her refusal to live with him.

An Islamic husband filed a restitution petition against his first wife in Itwari v Asghari, which held that the court could not force the wife to live with his husband and could deny relief if the court felt that passing a decree would not be just and reasonable. Bigamous weddings are now widely frowned upon by Indian courts. Some High Courts regarded it as cruelty by the spouse and rejected the relief of return of conjugal rights upon those grounds. Hindu law and Christian law do not recognize separation agreements as a part of matrimonial law. The general law of contract governs them. According to Muslim matrimonial law, spouses are allowed to enter into certain agreements either during or after marriage. Also, a valid separation agreement is a viable defense to a suit for restitution of conjugal rights.

Dower is a concept unique to Islamic jurisprudence. Restitution of conjugal rights cannot be given to a Muslim wife who lives apart from her husband due to non-payment of early dower. If the husband sues for restitution of conjugal rights before the marriage is consummated, non-payment of the dower is a complete defense to the claim, and the complaint is dismissed. If the suit is brought after the marriage has been consummated, a decree for restitution of conjugal rights on immediate payment of dower is to be issued. A husband does not have an absolute right to claim unconditional restitution of conjugal rights against his wife; the courts have the discretion to impose conditions that are just, fair and necessary in each case, such as making the decree conditional on her unpaid dower debt.

Defying the freedom of residence, to practice any profession, and to associate freely:

With the advancement of social standards, more women are stepping out to work and progress toward economic independence. This is not simply an ideal, but a right of every woman, and every other human. Previously, even economic considerations did not allow the woman to virtually disappear from the husband's society unless both partners agreed. However, in light of today's society and living situations, this appears to be illogical. Later, in the case of Shanti Nigam v. R. C. Nigam, the Allahabad High Court took a more lenient stance (2). The relevant paragraph of the decision said that "women cannot be confined to the house." In light of changing socioeconomic situations, both husband and wife may see it important to work and pay equal to the family coffers... It's one thing for a wife to claim she won't go to her husband, won't cohabit with him, and won't let him come to her. It's one thing for a wife to claim she won't go to her husband, won't cohabit with him, and won't let him come to her. It is different if she claims that working is required for the family's upkeep and that she would go to her husband whenever she can do so, and the husband might also come to her at his convenience...... In such a situation, she cannot be said to have withdrawn from her husband's company."

It was held in the case of Smt. Kailash Wati v. Ayodhya Prakash that marrying an existing working woman does not imply that the husband relinquishes his claim to share a matrimonial house with his wife. Likewise, the husband does not relinquish his right to reside with his wife. In these cases, the court observed that they must delve deeper into the facts and circumstances of the case to determine and enforce the parties' rights. Consequently, the court ruled that it was a clear case of the husband's unilateral and unjustifiable departure from society, and thus a patent violation of the shared commitment of the husband and wife to live together.

The constitutional validity of Section 9 of the Hindu Marriage Act, 1955:

The constitutionality of Section 9 of the Hindu Marriage Act, 1955, was called into question in the 1983 case of T. Sareetha v. T. Venkata Subbaiah, in which it was argued that this Section is constitutionally invalid because it violates the fundamental right to liberty guaranteed by Article 21 of the Indian Constitution. The Andhra Pradesh High Court ruled that Section 9 of the HMA is unconstitutional and void because it violates personal liberty, which is a basic right guaranteed by Article 21 of the Indian Constitution. The Court determined that “If the wife is compelled to live with her husband, this will also violate her right to privacy.” the court further added that “the remedy of restitution offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such person.”

Thereafter, in the case of Saroj Rani v. Sudarshan Kumar Chandra, AIR 1984 SC 1562, the Supreme Court addressed the contradiction between Section 9 of the HMA and Article 21 of the Indian Constitution by maintaining the Delhi High Court's judgment in the case of Harvinder Kaur v. Harvinder Singh, 1984, 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.”

Restitution of conjugal rights is a remedy that aims to safeguard a couple's marital relationship whilst simultaneously not violating any fundamental rights stipulated by the Indian Constitution. The Court continued by stating that the decision of restitution of conjugal rights does not compel the couple to have a sexual relationship with one other, but rather attempts to bring them together amicably.

Desertion was not considered a matrimonial relief in medieval English Ecclesiastical law. It provided for the restitution of conjugal rights as a viable remedy. This recourse was not available under British common law, and on July 9, 1969, the British Law Commission, presided over by Mr. Justice Scarman, sought the removal of the ignorant remedy of reparation. The British parliament agreed with the commission's recommendation and adopted Section 20 of the Matrimonial Proceedings and Property Act, 1970, which repealed the restitution of marital rights.

Maintenance in suits for restitution of conjugal rights:

In addition to providing for the restitution of conjugal rights, Section 9 of the Hindu Marriage Act, 1955 provides for the petitioner spouse to seek support under Section 25 of the Act. It should be emphasized that maintenance under these rules might be sought even if the action for maintenance is still pending. As a result, a wife who does not intend to dissolve her marriage can obtain maintenance from her husband directly under these rules even if the marriage is not dissolved. In Seema v. Rakesh Kumar[vi], the Hon'ble Supreme Court held that a spouse who lives with the petitioner and is unable to maintain a respectable life on her own can receive maintenance from her husband in cases for restitution of conjugal rights.

Conclusion:

The restitution of Conjugal Rights is a widely contested and contentious issue. Some believe it is to save the marriage, while others believe there is no use in pushing the other person to stay with the aggrieved party if they are not interested. However, there is always room for improvement by modifying anything.

It is critical to examine this legal remedy from multiple viewpoints to determine whether it is advantageous to the public.To make a relationship work, a couple must work hard to get along with each other. This section gives legal support for these cultures, but it also forces two people who do not wish to live together, and a forced relationship has no future.

Instead of rigorous conjugal rights, the concept of reconciliation may be considered. The concept of restitution appears harsh and brutal, as it pushes either party to concede. On the other side, the tone of reconciliation is quite soft and requesting. The issue with restitution is that there is a great likelihood that the situation will turn unpleasant after both parties are compelled to live together unwillingly. However, if the remedy is reconciliation, it may not be disagreeable to either party and will also cleanse the air of misunderstanding.

A classic proverb goes as follows "you can lead a horse to water but cannot compel him to drink", and the provision for restitution of conjugal rights in Indian personal laws appears to be analogous to the same. The court might issue a decision resuming marital rights and ordering the spouses to cohabit together. A decision of restitution of marital rights can also be carried out under Indian law by attaching the respondent's property. However, the court cannot compel the defaulting spouse to physically return to the decree-holder spouse's comfort consortium.

The restitution of conjugal rights is a facet of an individual's laws; therefore, it is governed by ideas such as religion, tradition, and custom. It is critical to underline that restitution of conjugal rights is a remedy targeted at preserving the marriage rather than disturbing it, as in the case of divorce or judicial separation. It aids in the prevention of marriage breakdown and so serves to save the marriage. As a result, the restitution of conjugal rights remedy attempts to promote reconciliation between the parties and the preservation of married relationships.

 

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