MANSI. OM. VISHWAKARMA, a 3rd-year Law Student at Children Welfare Centre Law College, Mumbai has written this “Restitution of Conjugal Rights”
Introduction
Restitution of Conjugal Rights is a legal term that refers to a legal action that can be taken by a married individual seeking to be reunited with their spouse who has left or is not cohabiting with them. This action can be initiated by filing a petition in a family court seeking a court order requiring the absent spouse to return to the matrimonial home and resume cohabitation with the petitioner. The idea behind this concept is to maintain the sanctity of the institution of marriage. Moreover, to preserve the unity and harmony of the family. It is important to note that this concept is recognized only in a few jurisdictions. Also, it is not a universally accepted legal remedy.
“Restitution of Conjugal Rights” is a legal term that refers to a petition filed by a spouse seeking a court order to force their estranged partner to return and live with them. In some countries, this legal remedy is available as a civil remedy to married couples who are living separately and one of them wants to bring back their spouse to cohabit with them. The petition is filed in a family court or a district court. Afterward, the court may issue an order for the restitution of conjugal rights if it deems fit.
It’s important to note that in many countries, including some Indian states, restitution of conjugal rights is not recognized as a legal remedy. In other countries, the law may provide for this remedy but it may not be used often due to social and cultural changes. It’s also worth noting that the concept of restitution of conjugal rights has been criticized by many as being outdated. In addition, as violating individual freedom and privacy also.
Evolution of the Concept of Restitution of Conjugal Rights
The concept of Restitution of Conjugal Rights is rooted in English common law. Dating back to the early 17th century. The term “conjugal rights” refers to the right of a married couple to have sexual intercourse and live together as a married couple. The Restitution of Conjugal Rights was recognized as a legal remedy in England in the early 19th century. The remedy was based on the idea that marriage is a contract and that both parties have a duty to fulfill their marital obligations, including the duty to have sexual relations with each other and to live together as a married couple. If one spouse refused to fulfill these obligations, the other spouse could petition the court for a decree of restitution of conjugal rights, which would order the non-compliant spouse to return to the marital home and resume conjugal relations.
The concept was later adopted by other common law jurisdictions, including India, which inherited its legal system from the British. India recognized conjugal rights restitution in 1869 under the Indian Divorce Act for Christians. Hindu Marriage Act (1955) and Special Marriage Act (1954) allow restitution of conjugal rights as a legal remedy. However, the restitution of conjugal rights has been the subject of much criticism. That too particularly from women’s rights advocates, who argue that it can be used as a tool of oppression and can force women to return to abusive marriages. As a result, some countries have abolished the remedy, while others have restricted its use or modified it. The primary aim is to provide greater protection for women.
Essential Requirements to Claim Restitution of Conjugal Rights
In order to successfully claim restitution of conjugal rights, there are certain essential requirements that must be met. These include:
Marriage
The first and foremost requirement is that the couple must be legally married to each other. To seek restitution of conjugal rights, a valid marriage certificate and legal marriage under the country’s laws are necessary.
Living Separately
The spouse filing for restitution must prove that their spouse has left the marital home. Also, is living separately without any reasonable justification.
Willful Desertion
The separation of the spouses must be willful and voluntary. The spouse who left must have done so voluntarily, without external pressure for conjugal rights restitution.
No Reasonable Excuse
The spouse filing for restitution must prove that there is no reasonable excuse for the separation. This means that the reasons given by the other spouse for leaving must not be valid or justifiable.
No Adultery or Cruelty
The spouse filing for restitution must not have committed adultery or subjected the other spouse to cruelty. If this is the case, the court may not grant the restitution of conjugal rights.
Development in Restitution of Conjugal Rights
Paras Diwan noted that neither Dharmashastra nor Muslim law recognized the restitution of conjugal right remedy. It came with the Raj. The restitution of conjugal rights has its roots in feudal England. Wherein, marriage was considered a property deal and the wife was part of the 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.
Provisions of Restitution of Conjugal Rights under Personal Law.
Hindu Marriage Act of 1955
It is to be noted that section 9 of the Hindu marriage act, 1955 deals with restitution of conjugal right. It states that when a person – either the husband or the wife has renounced or withdrawn from the society of the other individual without any reasonable excuse, then the aggrieved party, either the husband or wife can approach the court of law in the respective district for restitution of his/her conjugal rights. If the district court is satisfied with the petition and has found no legal ground for rejecting the application for such restitution, then the respective court may pass a decree for the restitution of conjugal right. The explanation clause under section 9 states that whenever there is a question regarding the reasonable excuse for withdrawal from society. The burden of proof shall lie with the person who has withdrawn from society.
T. Sarita v. T. Venkata Subbaiah (1983)
Section 9 of this act was challenged in court for its constitutionality while being dealt with. Two main cases that dealt with this issue are as follows. Firstly, in T. Sarita v. T. Venkata Subbaiah’s (1983) case, section 9 of the act was challenged for its constitutionality on the ground that it would be the grossest violation of an unwritten fundamental individual’s right to privacy. The court thereby agreeing with the petitioner struck down the section.
Saroj Rani v. Sudarshan (1984)
But, the same verdict was overruled and validly ensured with its constitutional validity by the Supreme Court in the case of Saroj Rani v. Sudarshan (1984). The judiciary used Section 9 of the Hindu Marriage Act to uphold the sanctity and institution of marriage. It should be held valid because it helps the couple to live together. However, not for the purpose of sexual favors, but with the objective of cohabitation.
Under Muslim Personal laws
Muslim law has not specifically defined or provided the provisions for restitution of conjugal right. But it ensures that if the wife unlawfully ceases to live with her husband or to cohabit with her husband. A Muslim husband or wife can seek restitution of conjugal right through the court. In case her husband stops cohabiting, a Muslim wife has the right to demand that her husband fulfill his duties. It has to be noted that, as per the sources, the husband exercises his dominance over the filing of the restitution petition and his right is also not absolute in nature. This is because of the presence of the woman’s defense against him. For example, Cruelty would defend the wife from restitution.
Parsi Marriage and Divorce Act, 1936
Section 32A(1) of the Parsi Marriage and Divorce Act, 1936 deals with the non-resumption of co-habitation or the restitution of conjugal rights within one year in pursuance of a decree to be ground for divorce.
Subsection 1 of section 32A states that marriage between the parties irrespective of solemnization before or after the commencement of the amendment act of 1988, can seek the divorce on grounds as mentioned. If they failed to resume their cohabitation within the period of one year from the date on which they have their decree on divorce being notified and in which they were the parties or in case of failure to cohabit between each other for the period of one year or more after the passing of decree on the restitution of conjugal right. Even though the section does not elaborate on the idea of restitution of conjugal rights, it vests the matrimonial duty to live together within one year from the date of passing of a decree for divorce or within one year from the passage of the decree on the restitution of conjugal rights.
Under the Special Marriage Act, 1954 and Indian Divorce Act, 1869:
Section 22 of the special marriage act and Section 32 of the Indian Divorce Act, which is applicable to all persons residing in India, states that if the husband or the wife has renounced or withdrawn from the society of the other individual without any reasonable excuse, then the aggrieved party, either the husband or wife can approach the court of law in the respective district for restitution of his/her conjugal rights. If the district court finds no legal grounds for rejecting the restitution application, it may pass a decree for conjugal rights restitution.
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