Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. So after the solemnisation of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall be refused and on being satisfied of the truth of the statements made in the petition may pass a decree of restitution of conjugal rights.
A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law. The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse. At present as per the provisions available under the Indian personal laws, the aggrieved party move a petition for a decree of divorce after one year from the date of the passing of the decree and the competent court can pass a decree of divorce in favour of the aggrieved party. The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the Court may also punish him or her for contempt of court. But under no circumstances the court can force the erring spouse to consummate marriage. Decree of restitution of conjugal rights could be passed in case of valid marriages only.
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. It came with the Raj. Restitution of conjugal rights has its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession like other chattels. The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum, where such actions were regarded as considerations for specific performance.
In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 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 are identical in Section 22 the Special Marriage Act, 1954 and Section 9 of the Hindu Marriage Act, 1955. It is 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 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.
Explanation: 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.”
During the time of introducing the provision for restitution of conjugal rights in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the Parliament for and against it. In Shakila Banu v. Gulam Mustafa, the Hon’ble High Court observed:
“(The concept of restitution of conjugal rights) is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”
The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Hon’ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.
The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law. Decree of restitution of conjugal rights could be passed in case of valid marriages only. Apart from legislation relating to matrimonial law, courts in India in case of all communities have passed decrees for restitution of conjugal rights.
Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights. One of the important implications of Section 9 of the Hindu Marriage Act, 1955 is that it provides an opportunity to an aggrieved party to apply for maintenance under Section 25 of the Hindu Marriage Act, 1955. Maintenance can also be obtained by the party in case when the action is pending under Section 25 of the Hindu Marriage Act, 1955. So, a wife who does not want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Another important implication of the section is that it provides a ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955 on a condition that there has been no restitution of conjugal rights between them for a period of one year or more after the passing of a decree for restitution of conjugal rights. The legal grounds for refusing to grant relief are:
· For instance, any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;
· Reasonable excuse for withdrawing from the society of the petitioner;
· Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disability for the purpose of such relief;
· Unnecessary or improper delay in instituting the proceeding
If the husband either deserts a wife or neglects to perform his marital obligations without any proper reason, then the wife can apply for restitution of conjugal rights. Even husband can apply for restitution of conjugal rights. But the court can refuse to grant order of restitution of conjugal rights for following reasons:
· Cruelty by husband or in-laws
· On the failure by the husband to perform marital obligations
· On non-payment of prompt dower by the husband
A Christian husband and wife can also apply for an order of restitution of conjugal rights. The Court cannot pass the decree for following reasons:
· Cruelty of husband or wife
· If either of the spouse is insane
· If any one of the spouse marries again