Restitution of conjugal rights is the legal mechanism for situations in which one spouse withdraws from the society of the other spouse for no valid justification. In this blog, we explore the definition, legal framework and precedents related to the restitution of conjugal rights in India to bring a holistic view to readers.
What is Restitution of Conjugal Rights?
Restitution of Conjugal Rights is a matrimonial remedy under the matrimonial laws of India. It enables an aggrieved spouse to ask the court for the restoration of marital cohabitation when the other has withdrawn from the relationship without any reasonable excuse.
- Purpose: To facilitate reconciliation and safeguard the sanctity of marriage.
- Application: It is recognised in Hindu, Muslim, Christian and Parsi Personal laws, and also in the Special Marriage Act, 1954.
Laws Governing Restitution of Conjugal Rights:
1. Hindu Marriage Act, 1955 (Section 9):
“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights, and the court, on being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.”
The similar wordings are found in other matrimonial counterparts.
2. Special Marriage Act, 1954 (Section 22):
Similar to Section 9 of the Hindu Marriage Act, it applies to interfaith or civil marriages.
3. Divorce Act, 1869 (Section 32 & 33):
Similar to Section 9 of the Hindu Marriage Act, it applies to Christian couples or those who got married under Christian Marriage Act or as per Christian rituals.
4. Indian Evidence Act, 1872 (Section 114):
Courts rely on presumptions of continuity in marital relations until proven otherwise.
5. Indian Penal Code, 1860:
Though the IPC does not specifically deal with restitution of conjugal rights, its provisions (Section 498A for cruelty, for instance) indirectly affect cases when cruelty or abuse is claimed as a defence.
6. Code of Civil Procedure, 1908 (Order XXI Rule 32):
It deals with the execution of a decree of restitution of conjugal rights including the attachment of property in the case of non-compliance.
Landmark Cases and Judicial Precedents:
1. T. Sareetha v. T. Venkata Subbaiah (1983)AIR 1983 AP 356:
- Facts: The petitioner challenged the constitutionality of Section 9 of the Hindu Marriage Act, arguing that it infringed on the right to privacy and bodily autonomy.
- Judgement: The Andhra Pradesh High Court declared Section 9 unconstitutional stressing that forced cohabitation could lead to violations of personal consent by the parties which could also potentially expose individuals to marital abuse or rape.
2. Harvinder Kaur v. Harmander Singh (1984)AIR 1984 Delhi 66:
- Facts: It was an appeal challenging the validity of Section 9 after the T Sareetha judgment.
- Judgement: The Delhi High Court upheld Section 9 as constitutional, on the basis that it was a provision designed to promote family unity and was not a violation of fundamental rights.
3. Smt. Saroj Rani v. Sudarshan Kumar Chadha (1984) AIR 1984 SC 1562:
- Facts: After the husband withdrew from her society, the wife pleaded for the restitution of conjugal rights.
- Judgement: The Supreme Court ruled that Section 9 was valid stressing that it assists in the reconciliation of the spouses.
Defences Against Restitution of Conjugal Rights:
One spouse may challenge a petition for restitution of conjugal rights by providing adequate defences. These include:
1. Reasonable Excuse for Withdrawal:
- Cruelty: Physical or mental injury caused by the petitioner (for example, abuse under Section 498A IPC/ 85 & 86 of BNS).
- Adultery: Extramarital relations or sexual misconduct.
- Impotence or Refusal to Consummate the Marriage.
- Neglect of Obligations: Failure to provide emotional or financial assistance.
2. Violation of Consent:
- Forced cohabitation violates individual freedom under Articles 19 and 21.
- Fear of marital rape or violence (although marital rape is not criminalized).
3. Invalid Marriage:
Bigamy, fraud or failure to fulfil personal law requirements can nullify the marriage.
4. Lack of Reconciliation Intent:
Petitions filed for harassment or financial leverage instead of genuine reconciliation.
5. Unreasonable Delay:
Long delays lower the petition’s credibility.
6. Health or Safety Risks:
Risks to mental or physical condition or exposure to infectious diseases.
7. Constitutional Challenges:
The defence may draw upon T. Sareetha v. T Venkata Subbaiah, asserting that Section 9 of the Hindu Marriage Act violates privacy and dignity.
These defences reflect the balance that courts need to make between marital sanctity and individual autonomy.
Criticism of Restitution of Conjugal Rights:
- Violation of Personal Autonomy:
Critics argue that the remedy violates personal liberty and dignity, forcing one to live with an estranged spouse. Such coercion poses ethical problems, particularly when consent is overridden.
- Gender Bias:
Although theoretically neutral, the provision is misused against women and leaves them open to marital abuse. These concerns are only made worse by the fact that marital rape is not recognized legally.
- Effectiveness:
Implementing such decrees becomes tricky in practice. In most cases, the solution does nothing to reconcile but prolongs conflict.
Execution of Decrees:
Under Order XXI Rule 32 of the CPC, courts may enforce decrees for restitution of conjugal rights through the attachment of property. However, imprisonment cannot be imposed as a punitive measure.
Current Relevance and Future Outlook:
In modern India, the debate around the restitution of conjugal rights is constantly evolving:
- Intersection with Marital Rape:
As public awareness of marital rights increases, the lack of legislation against marital rape becomes an important factor in restitution cases. The fact that the law does not recognize marital rape runs counter to equality and freedom.
- Progressive Interpretations:
The courts are often called upon to strike a balance between the sanctity of marriage and individual freedom. Consent and dignity come into play often in recent decisions, but systemic reforms are still required.
- Impact of Societal Changes:
Urbanization and changing attitudes towards marriage and personal freedom affect the way these rights are interpreted and exercised.
Conclusion:
Restitution of conjugal rights highlights the interplay between personal law, constitutional rights and societal norms. This provision is intended to preserve family harmony, but it’s also a grave threat to autonomy and equality. Landmark judgements and evolving legal perspectives highlight the importance of taking a balanced approach that respects both individual rights and the institution of marriage.
Reach out to Divorce By Law — Bangalore based law firm for legal solutions to matrimonial disputes, to understand this further and also if you are in a situation prompting to file for a Restitution petition.
Advocate Kiran S R – A highly skilled, passionate, dedicated advocate, with vast wealth of knowledge, professionalism, ethical approach and expert skills. One of the sharpest legal mindset brings the best principles of legal practice to the forefront. A qualified Engineer turned Advocate. His passion, dedication and vision to help and assist his clients achieve the best results is his driving force.
