RESTITUTION OF CONJUGAL RIGHTS MEANING AND SCOPE

ABSTRACT

In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was o...

By: ANANYA GHOSH, VAISHNODEVI P GOUDA | Update: 2016-11-14 15:15:34

RESTITUTION OF CONJUGAL RIGHTS MEANING AND SCOPE

ABSTRACT

In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.

This could be brought against a husband or wife who was guilty of "subtraction"; that is, living away from their spouse without a good reason. If the suit was successful, the married couple would be required to live together again.

Hindu law regards marriage as a sacrament—indissoluble and eternal. This sacramental character of marriage has given rise to certain anomalies. The declaration of Manu that “neither by sale nor by desertion is wife released from the husband” was hitherto applied only to women and not men. Thus there was an element of inherent injustice on the wife in Hindu law. To counter such inequalities among spouses and to protect the sacramental aspect of marriage. Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies. One such remedy is that of ‘Restitution of Conjugal Rights’ Section 9 of Hindu Marriage Act. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit. the aggrieved party needs to do is file a petition to the district court and 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, the judge may decree restitution of conjugal rights in his favor.

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.

Section 32 and 33 of the Indian Divorce Act, 1869 provides for restitution of conjugal rights for Christians.

Section 36 of the Parsi Marriage and Divorce Act, 1936 provides for restitution of conjugal rights.

INTRODUCTION

Family and marriage are the basic institutions of any society. Every society has certain norms and rules which have led to the development of key concepts such as usage and custom. Marriage as an important institution has been recognized in the personal laws of all religions. With the passage of time, the complexities increased with areas such as divorce, judicial separation and conjugal rights came up in personal law and it became necessary to codify the laws relating to marriage in India. This led to the codification of marriage as in the Hindu Marriage Act 1955, Indian Divorce Act 1869, Parsi Marriage and Divorce Act, 1936 and various other acts. Interesting to note in the concept of marriage is the existence of rights between spouses. These rights may also be called Conjugal Rights. When there occurs a separation in marriage, then a remedy in the form of restitution of these conjugal rights is offered to the disadvantaged party.

HISTORICAL BACKGROUND

The remedy of Restitution of Conjugal Rights is a new notion in Indian matrimonial jurisprudence that finds its origin in the Jewish laws. The remedy was unknown to Hindu law till the British introduced it in the name of social reforms. In fact it is the only matrimonial remedy which was made available under the British rule to all communities in India under the general law.

As stated by Paras Diwan[1], 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 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[2], where such actions were regarded as considerations for specific performance.

RESTITUTION OF CONJUGAL RIGHTS: MEANING AND SCOPE

MEANING OF RESTITUTION

Restitution basically means restoring to a party to its original place         

The institution of Marriage is often regarded as a primary institution in this society of ours. An individual’s existence in the society is guided by institutions which are often regarded as established forms of procedure characteristic of group activity. Later on, a marriage between two individuals creates a set of rights and obligations between the parties involved. These rights may be called as “conjugal rights”. The word conjugal, in its essence means, “of relating to marriage or to married persons and their relaztionships”

REMEDY OF RESTITUTION OF CONJUGAL RIGHTS UNDER DIFFERENT PERSONAL LAWS

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

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955[3], to Muslims under general law[4], to Christians under Section 32 and 33 of the Indian Divorce Act, 1869[5], to Parsi’s under Section 36 of the Parsi Marriage and Divorce Act, 1936[6] and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954[7].

HINDU

Section 9 of the Hindu Marriage Act, 1955[8] provides for the restitution of the conjugal rights.

“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.

MUSLIM

Restitution of the conjugal rights to Muslims under general laws[9]:       

The conceptualization of the provision for restitution of conjugal rights under Muslim law by Tayabji is 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[10], the Allahabad 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.

CHRISTIAN

Section 32 and 33 of the Indian Divorce Act, 1869[11] provides for restitution of conjugal rights.

SEC.32 PETITION FOR RESTITUTION OF CONJUGAL RIGHTS:-

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

SEC.33 ANSWERS TO PETITION:

“Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be ground for a suit for judicial separation or for a decree of nullity of marriage”.

PARSI

Section 36 of the Parsi Marriage and Divorce Act, 1936[12] provides for restitution of conjugal rights

SEC.36 SUIT FOR RESTITUTION OF CONJUGAL RIGHTS:-

 “Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly”.

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

CONSTITUTIONALITY: RELIEF OF RESTITUTION OF CONJUGAL RIGHTS

 During the time of introducing the provision for restitution of conjugal rights under different personal laws, there were heated debates in the Parliament for and against it. In Shakila Banu v. Gulam Mustafa[13], the Hon’ble Bombay 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[14] where the Hon’ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh[15] though had non-conforming views.

Ultimately Supreme Court in Saroj Rani v. Sudharshan Kumar[16] 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[17].

ENFORCEMENT OF THE RESTITUTION DECREE

“The order of restitution of conjugal rights is observed by its breach rather than its abeyance.” When a person fails to comply with a decree of restitution the Court has a power to enforce the decree under Order 21 Rule 32 of Civil Procedure Code, 1908[18].

           “Under Rule 32(1), if the party willfully does not comply with the decree, then the Court can attach the property of the decree- holder.”

           “Under Rule 32 (3), the Court has the power to sell the attached property if the decree holder has not complied with the decree for six months.”

The difficulty arises if the judgment–debtor has no actual property in possession. In India, we find that in most cases and especially in rural India that wives’ do not have actual possession over any property. In such cases, if a restitution decree is not complied with, then the court is required to ascertain the share of the wife in the property of her husband, when it is not divided and arrive at her share in the property, but this involves cumbersome procedures. Difficulty also arises if the husband is a property-less person—say, a daily wage laborer living in a slum—how will the Court execute the decree in such cases? It is naive to think that coercing a person that his property would be attached and sold away can change the attitude of the adamant spouse and make him obey the decree. The aim of this remedy is the cohabitation of the spouses, but when the property is attached and sold, it will lead to bitterness between the spouses and the purpose of the remedy is frustrated.

THE RIGHT TO LIFE AND RESTITUTION OF CONJUGAL RIGHTS

The Right to Life of a person is regarded as the most important aspect of a person’s fundamental rights. It is stated in the Constitution as follows[19];

No person shall be deprived of his life or personal liberty except according to the procedure established by law”.                    

Restitution of conjugal rights violates equality and right to life[20]. Equality does not mean physical equality between husband and wife, but it means equality of thought, action and self-realisation. Moreover, it is anachronistic for educated women to be forced by State power to go and live in a place, where from they have withdrawn. Some scholars recognise the continuance of the remedy is bound to lead to unwanted pregnancies and assert it as infringement of a woman’s sense of self-respect, dignity and individual fulfilment.

The right to privacy is not expressly guaranteed in the constitution, it is implicitly provided in Article 21[21] of the constitution. There has been no fixed definition of privacy. Subba Rao J. in Kharak Singh v State of U.P[22] “any definition of right to privacy must encompass and protect the personal intimacies of the home, family, marriage, motherhood, procreation and child rearing”. In Bai Jiva v. Narsing Lalbhai[23] the Bombay High Court held that the Courts have no right to force the wife to return to her husband against her will.  This compulsion of the Court acts as a psychological restraint on an individual. The US Supreme Court in Eisenstaedt v. Baird[24] held “the marital couple is not an independent entity with a mind and a heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person”. The position is well explained by Justice Subba Rao in Kharak Singh’s case[25]. In that case he said that “the right to personal liberty takes in right not only to be free from restriction placed on his movements but also free from encroachments into his private life…In the last resort, a person’s house where he lives with his family is his ‘castle’: it is rampart against encroachment against his personal liberty. If physical restraints on a person’s movement affect his personal liberty, a physical encroachment on his private life would affect it to a large degree. Indeed nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. We would therefore define right to personal liberty in Article 21 as a right of an individual to be free from restriction or encroachments imposed directly or indirectly brought about by a calculated measure”.

CASE LAWS

THE DECISIONS IN

T. SAREETHA v. T. VENKATASUBBAIAH[26]  &

HARVINDER KAUR v. HARMINDER SINGH[27]

The question of constitutional validity of S.9 for the first time came up in came up in the case of T. Sareetha v Venkatasubbaiah where the husband had himself  

asked  the Court to pass a decree of  restitution of conjugal rights and after completion of a year he filed a petition for divorce on the ground that the decree has not been complied to. The wife challenged the constitutional validity of S.9 of the Act. Justice Chaudhary of the Andhra Pradesh High Court held S.9 to be “savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution, hence void”.

Chaudhary J. stated that section 9 imposes "sexual cohabitation between unwilling, opposite sexual partners." He called it "forced sex", "coerced sex" and "forcible marital intercourse". He went on to hold that the state interference in personal rights destroyed the "sexual autonomy" and "reproductive autonomy" of the individual. A wife who is keeping away from her husband, because of permanent or temporary arrangement, cannot be forced, without violating her right to privacy, to bear a child by her husband.

This decision is the first of its kind to take this view. The decree for restitution does nothing of the kind. Under section 9 of the Hindu Marriage Act, 1955, the Court has power to make a decree of restitution of conjugal rights which is the remedy available to enforce the return of a spouse who has withdrawn from cohabitation. The decree, if granted, orders the respondent to return within a period of one year to the aggrieved party. This period is specified in section 13(l-A) (ii) of the Act. This remedy is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation.

The decisions of Hon’ble High Court of Delhi in Harvinder Kaur v. Harminder Singh[28] case held that remedy of restitution of conjugal rights null and void, being violative of Article 21 and Article 14 of the Constitution of India.

SAROJ RANI V. SUDARSHAN KUMAR[29]

In this case, the wife petitioned for restitution of conjugal rights. She was married in 1975 and had given birth to two daughters during her brief married life. She was turned out of her matrimonial house in 1977 and subsequently filed a petition to which she was granted an interim maintenance by the Court. The husband later filed a consent memo for the passing of the decree and the decree of restitution of conjugal rights was accordingly passed  in favor of the wife. One year later, the husband applied for a divorce under Section 13 (1-A) of the Hindu Marriage Act, 1955 on the ground that he and his wife had lived separately during the one year period. The question of cohabitation arose where in the spouses stayed together for a period of two days after the decree was passed.

It was submitted that the ground for divorce was unjustified and the husband was getting away with his ‘wrongs’. This argument was based on the principles of natural law, i.e. justice, equity and good conscience. It was further argued that the concerned section, that is Section 9 of the Hindu Marriage Act 1956 violated Articles 14 and 21 of the Indian Constitution. The Hon’ble Court under Justice Sabyasachi Mukhatji observed:

“We are unable to accept the position that Section 9 of the Hindu Marriage Act is violative of Art. 14 and 21 of the Indian Constitution. Hindu Marriage is a sacrament and the object of section 9 is to offer an inducement for the husband and wife to live together in harmony. If such differences may arise as in this case, it may be a valid ground for divorce after a period of one year. Hence Section 9’s validity is upheld.”

Thus the Court granted the divorce but at the same time understanding the situation of the wife and daughters, ordered the husband to pay a prescribed maintenance to the wife until she remarries. The Hon’ble Court has thus considered the interests of both parties and maintained harmony in this area.

CONCLUSION AND SUGGESTIONS

You can take a horse to the water, but you can’t make him drink, is a very popular proverb and the provision for restitution of conjugal rights under the Indian personal laws seems to be akin.

Now, if we were to abolish the remedy, what next? A member of the Indian Parliament once suggested that the remedy for restitution might be substituted by reconciliation[30].  The tone in restitution seems to be quite harsh and compelling. The petitioner is asking the unwilling respondent to cohabit; this might further deteriorate the relationship than make it up. The tone of reconciliation is more mild and requesting. If the remedy is reconciliation then it might be inoffensive and might not only lead to cohabitation but also clears the misunderstanding.

R.K Agarawala has provided in her article[31] the way we can actually bring about reconciliation:

  •    The Court might be authorised to appoint a committee for reconciliation consisting of the judge himself, the spouses and one or two of the relatives or friends selected according         to the choice of the spouses on each side.
  •     The Court should not sit as a Court to condemn or adjudge but as a conciliator.
  •     It the committee fails in its purpose, but it feels that reconciliation might be attained through the help or guidance of an expert, e.g. psychiatrist it might take such help.

The idea of reconciliation is a good one, but Instead of the judge, sitting as one of the committee member’s let some eminent person/s of the society do the job, as the function of the Court is to settle disputes not reconciliation. Let Courts not be actively involved in the process of reconciliation but let the committee formed be a semi-independent committee to the extent that it is appointed and supervised by the Court. The chances of reconciliation are greater where there is private intervention and persuasion rather than the intervention of the courts. Reconciliation is fast, effective and practical solution to restitution of conjugal rights. Perhaps it is the only solution to put an end to this barbarous remedy.


[1] Paras Diwan, Law of Marriage and Divorce, 3rded. 1999,p.98.

[2] Moonshee Buzloor Ruheem v. Shumsoonissa Begum, Moo IA 551, 1867

[3] Herbert Cowell, The Hindu Law, 2nded., R. Cambray & Co. Private Ltd., Kolkata, p.376.

[4] Dr. R. K. Sinha, Muslim Law, 6th ed., Central Law Agency, Allahabad, p.64.

[5] Kumud Desai, Indian Law of Marriage & Divorce, 8th ed., Lexis Nexis Butterworths Wadhwa, Nagpur, p.548.

[6] Dr. S.R. Myneni, Muslim Law & Other Personal Laws, 1st ed., Asian Law House, Hyderabad, p.610.

[7] Kumud Desai, Indian Law of Marriage & Divorce, 8th ed., Lexis Nexis Butterworths Wadhwa, Nagpur, p. 37.

[8]Herbert Cowell, The Hindu Law, 2nded., R. Cambray & Co. Private Ltd., Kolkata, p.376.

[9] Dr. R. K. Sinha, Muslim Law, 6th ed., Central Law Agency, Allahabad, p.64

[10] Abdul Kadir v. Salima (1886) ILR 8 All 149

[11] Kumud Desai, Indian Law of Marriage & Divorce, 8th ed., Lexis Nexis Butterworths Wadhwa, Nagpur, p.548.

[12] Dr. S.R. Myneni, Muslim Law & Other Personal Laws, 1st ed., Asian Law House, Hyderabad, p.610.

[13] Shakila Banu v. Gulam Mustafa  AIR 1971 Bom 166

[14] T.Sareetha v. T.Venkatasubbaiah AIR 1983 AP 356.

[15] Harvinder Kaur v Harminder Singh AIR 1984 Delhi 66

[16]Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1652

[17] T.Sareetha v. T. Venkatasubbaiah AIR 1983 AP 356

[18] Order 21 Rule 32 (1) of the Civil Procedure Code, 1908 States;

“Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity for obeying the decree and has willfully failed to obey it, the decree may be enforced in the case for a decree for the restitution of conjugal rights by the attachment of his property or, in the case for a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property or by both”.

[19] V.N. Shukla, Constitution of India, 11th ed., Eastern Book Company, Lucknow, p.191.

[20] T Sareetha v Venkatasubbaiah AIR 1963 AP 356.

[21] V.N. Shukla, Constitution of India, 11th ed., Eastern Book Company, Lucknow, p.191.

[22] Kharak Singh v. State of U.P AIR 1963 S C 1295.

[23]Bai Jiva v. Narsing Lalbhai AIR 1927 Bom 264

[24] Eisenstaedt v. Baird 405 U.S. 438,92 S.Ct. 1029,31 L. Ed. 2d 349, 1972 U.S

[25] Kharak Singh v. State of U.P AIR 1963 S C 1295.

[26]T.Sareetha v. T. Venkatasubbaiah AIR 1983 AP 356.

[27] Harvinder Kaur v Harminder Singh AIR 1984 Delhi 66

[28] Harvinder Kaur v Harminder Singh AIR 1984 Delhi 66

[29] Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1652

[30] Mrs.Renu Chakravarthy,Lok Shaba Debates, pt.2,session 9th 1955, vol. 4, p.7625.

[31] Raj Kumari Agarawala, “Restitution of Conjugal Rights: A Plea for the Abolition of the Remedy”.

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