AN ALTERNATIVE REMEDY UNDER MATRIMONIAL LAW - RESTITUTION OF CONJUGAL RIGHTS

What are Conjugal Rights?

The set of rights that make the base of the marital bond is called conjugal rights, which include companionship, care, affection, emotional support, physical or sexual relationship, comfort, cohabitation, and the like. In the Dictionary of English Law, Earl Jowitt defines conjugal rights as; ‘The right which husband and wife have to each other’s society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any significant reason, in which case the court will decree restitution of conjugal rights…’

Matrimonial law has its fundamental principle that one spouse is entitled to the company and comfort of the other. Where one leaves the company of the other without just cause, the courts, upon the petition of the other, grant a decree for the restitution of conjugal rights. The primary object of this principle is to restore the cohabitation of the spouses. 

Restitution of Conjugal Rights under different laws in India:

1. Hindu Marriage Act, 1955 – Section 9
2. Divorce Act, 1869 – Sections 32 
3. Special Marriage Act, 1954 – Section 22
4. Parsi Marriage & Divorce Act, 1936 – Section 36

‘When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being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.’

The provisions under different laws are worded similarly, and the primary object of such a petition is assumed to be the Respondent’s return to cohabitation. 

Essential Ingredients:

The presence of a valid marriage 

A valid marriage between the parties is solemnized under ceremonies valid under personal or secular laws.

Withdrawal from the society of petitioner

Either the husband or wife has withdrawn from the society of the other. The aggrieved party is the petitioner, and the party that has withdrawn themself is the Respondent. 

Without reasonable excuse

Such withdrawal from society by the Respondent is without a reasonable excuse or a lawful reason. 

No ground justifying a claim for separation by the respondent

As stated in the Bejoy v Aloka AIR 1969 Cal 477 & Sadhu Singh v Jagdish Kaur AIR 1969 Punj 139, ‘No ground justifying a claim by the Respondent for judicial separation, nullity or divorce prevails. But the scope of the word ‘excuse’ is not restricted to the grounds for judicial separation or nullity or divorce in answer to the petition for restitution.’

No legal ground for not granting the decree of RCR

The provision of the law states that there is no legal ground why the decree should not be passed. This can be understood with the following instances;

1. Any conduct or fact which is wrong and the petitioner is taking advantage of such wrong. If the petitioner is guilty of adultery and the Respondent has left their company for the same reason.
2. Improper delay in presenting the petition
3. Any ground on which the Respondent could have asked for a decree of judicial separation for nullity of marriage or divorce. When the husband oppresses the wife, the wife’s keeping away from her husband’s society is justified. 
4. Failure to prove that the petitioner attempted to bring the Respondent back to the marital home.
5. Collusion between the parties. 

Procedure to obtain RCR decree:

Choosing the best divorce lawyer

Yes, a divorce lawyer/ family matter lawyer deals with all kinds of cases concerning the family. To file a petition for Restitution of Conjugal Rights, one needs to consult a lawyer dealing with family law matters. 

Consultation with the divorce lawyer

Write down all the questions/queries/ doubts that you have in mind as a preparation before your consultation. Note down the dates on which prominent incidents have taken place for easy referral. The details you provided are essential to determine the qualifications of your situation to file a case for RCR. 

Documents 

Documentary evidence for all your claims, including address proof, proof of marriage through the marriage certificate, photographs, and, if children are involved, their birth certificates, and any other documentary proof that validates your case, must be gathered and submitted to the lawyer to prepare the petition. 

Preparation of Petition

You will be asked to provide details of your case, such as important events between the spouses before and after the marriage that are significant to the case. Based on the details provided, a petition seeking the decree of Restitution of Conjugal Rights will be prepared. You will be asked to go through the petition, and corrections are made, if any. 

Filing the petition

Once you sign the petition and other accompanying documents, the lawyer files your case in the Family Court or district-level civil court based on the jurisdiction. The one who files the case is called the petitioner and the other spouse against whom the petition is called the Respondent. 

Notice to the Respondent

A notice/ summons is sent to the Respondent through the court either through post or by hand by the court personnel to the address you provided. The court follows the procedure established by the law to deliver the notice to the Respondent. 

Court Proceedings

Once the notice stage is received/ deemed to be accepted by the Respondent, other steps of the court proceedings will follow. Your presence as a petitioner is crucial in some of the stages, your legal team will communicate of the same. The Respondent gets an opportunity to put forth their objections to the petition, and the other steps, such as evidence by both parties, examination and cross-examination of both parties and arguments, occur one after the other. 

Mediation 

Mediation is a procedure where an independent mediator helps the litigating couples settle their differences. The court orders mediation at the beginning of the case itself, but the parties can ask for mediation at any point before the final judgment. Mediation helps speed up the case’s disposal, whereas court proceedings involve several stages necessary for the court to decide. If the differences get settled and the Respondent agrees to cohabit with the petitioner, the mediator will report the same to the court. The court decrees accordingly.

Decree & judgment 

After all the stages are completed and upon hearing the final arguments on both sides, the court considers all the facts presented and gives its final decision, answering the prayer made in the petition and counterclaims made by the Respondent. If RCR is granted, a decree of RCR is given. 

Appeal

The aggrieved party to the court’s decision can appeal to the higher court within three months. However, if the case is settled amicably through mediation, there is no option for appeal. However, a fresh cause of action can be considered for further litigation. 

Consequences of Non-Cohabitation post-RCR decree

Grant of the decree of RCR implies that the Respondent has been asked to restore cohabitation with the petitioner. If cohabitation is not established for one year or more from the date of the judgment, the petitioner can use this as grounds to file a divorce case.  

Why Divorcebylaw? 

Our experience exclusively dealing with the family law cases has enhanced our knowledge in the field of cases seeking Restitution of Conjugal Rights. At Divorcebylaw, we share our knowledge garnered through our acquaintance with cases seeking matrimonial remedies. We understand not everyone who is abandoned by their spouses seek divorce as the remedy to sort out their family lives. Through our interactions with people who are under distress due to these reasons we have recognized that some of the spouses work on their marriage or give it another chance.