Restitution to Conjugal Rights: Meaning & Application

Marriage under Hindu law is a ‘sacrament’ and not just a mere ceremony. It entails both rights and responsibilities. It is a union of two different people and their families. The spouses live together and share their society.

One of the important purposes of marriage is that spouses must live together, and one spouse is entitled to society, comfort, and a consortium of each other. No other relationship, no matter how close, such as that between parents and children, has the rights of society. Divorce can break up a couple's relationship, but as long as they're married, neither has the right to withdraw from the other's society for no reason.

What is the Meaning of “Restitution of Conjugal Rights?”

In a normal sense, "restitution of conjugal rights" refers to the restoration of rights previously enjoyed by the husband and wife. The text of Hindu law recognised the principle "let mutual fidelity continue until death.".

Restitution of conjugal rights means the re-establishment of the marital relationship between husband and wife because the prime objective of the marriage is that the parties will consummate it and enjoy society and comfort each other. Restitution to conjugal rights arises when one spouse withdraws from the society of another without any reasonable cause. The idea of providing for restitution by a court decree is to preserve the marriage tie as far as possible, by enabling the court to intervene and enjoin the withdrawing party to join other.

The term ‘conjugal rights’ denotes two ideas which are −

Section 9, Hindu Marriage Act, 1955

The Section 9 of the Act talks about the restitution of conjugal rights. It states that −

• When either husband or the wife,

• Without reasonable excuse, withdrawn from the society of the other,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 that there is no legal ground because the application should not be granted,

• May decree restitution of conjugal rights accordingly.

It must be noted that such a concept existed in England since the 19th Century and was introduced in India in the case of Moonshee Bulzor vs. Shumsoonisa Begum.

The following are the pre-requisites for grant of Restitution of Conjugal rights −

• The respondent has withdrawn from the society of the petitioner.

• The withdrawal by the respondent party is without any reasonable cause.

• The court is satisfied that the statements made in the petition are true.

• There is no legal ground for refusing to grant application. Withdrawal from the Society.

Any of the spouses can file the petition for restitution under Section 9 of the Act. The idea of providing the restitution decree by a court is to preserve the marriage union as far as possible by enabling the courts to intervene between the parties.

The words "withdraw from society" and "reasonable excuses" are nowhere defined, but several judicial pronouncements, state what will be included. The term "society" refers to the marital world. i.e., living together and performing their duties and obligations towards each other. Sometimes, when a husband and wife stop living together or fulfilling their duties towards each other, the term "withdrawal from society" is used. When either the husband or wife refuses to fulfil marital duties and obligations, the couple withdraws from society. It happens voluntarily, there should be no forced withdrawal.

Generally, the term "reasonable excuse" includes the grounds on which the party can get matrimonial relief. If the party is guilty of matrimonial misconduct, that misconduct does not form any ground for divorce under Section 13 of the Act. Still, while that misconduct is grave and weighty, this may also be considered a reasonable excuse.

The burden of proving reasonable excuse has been placed on person on against whom, the allegation of withdrawal is made. If the party is guilty of any conjugal omission or misconduct that makes the situation not fit for the other party to live with each other.

Some of the cases of reasonable excuses are as follows −

• Wife’s reasonable apprehension that it would be unsafe to live with the petitioner.

• Husband forcing an educated Brahmin wife to eat meat and drink liquor.

• Husband having another wife.

• Acts of physical violence short of cruelty.

• Overbearing, domineering conduct of either of the spouse.

• Extravagance in living.

Constitutional Validity of Restitution of Conjugal Rights

A person's right to life is regarded as the most important aspect of a person's fundamental rights. It is argued that Section 9 of the Act, violates an individual's right to privacy. It denies the spouse his or her free choice to live with each other or not.

"Coercive act" on the part of the state that violates one’s decisional autonomy, right to privacy, and dignity, which fall under the purview as provided under Article 21 of the Constitution of India.

In the landmark case of T. Sareetha vs. T. Venkata Subbaiah, in the Andhra Pradesh High Court, it was argued that Section 9 of the Hindu Marriage Act, 1955, was against the right to liberty and dignity guaranteed under Article 21. The court held Section 9 to be unconstitutional. The court said that "if the wife is compelled to live with the husband, this will also violate her right to privacy."

In the case of Saroj Rani vs. Sudarshan Kumar Chandra, the Supreme Court finally resolved the tussle between Section 9 and its constitutional validity. The court upheld the view put forth by the Delhi High Court in Harvinder Kaur vs. Harvinder Singh, and held that the object of the degree was only to offer an inducement for the spouses to live together and that it does not force an unwilling wife to engage in a sexual relationship with her husband. The remedy of restitution only aims to protect the institution of marriage, and it does not violate Articles 14, 19, and 21 of the Indian Constitution. It was further held that the word ‘conjugal’ is not limited to sexual intercourse but rather is related to a consortium, which means the need for the company of a spouse.

Conclusion

Restitution to conjugal rights is a redundant provision in today’s society. If a spouse has withdrawn from the society of another, then forceful cohabitation cannot restore marital bliss. The rationale behind it is the same stereotype that Hindu marriage is a sacrament and everything must be done to preserve it. But the courts have failed to understand the oppressed position of a woman in society.

Frequently Asked Questions

Q1. Is legal notice mandatory for restitution of conjugal rights?

Ans. Yes, sending a legal notice is mandatory under Section 9 of the Hindu Marriage Act.

Q2. What are the conjugal rights of a wife?

Ans. Also known as marital rights, prima facie, conjugal rights refer to the rights and obligations of spouses to have a sexual relationship with each other and to live together. Usually, both husband and wife have a right to expect conjugal relations with their spouse, unless there is a valid reason for not doing so, such as medical reason or any such valid reason.

Q3. Can wife deny conjugal rights?

Ans. It depends. A wife can deny conjugal rights to her husband provided if there is a valid reason for doing so. In fact, conjugal rights are not absolute, and a spouse may be justified in withholding them if, for example, the other spouse has committed adultery, is abusive or violent, or has failed to fulfill their marital duties.

Q4. What is possible consequences, if a wife denies conjugal rights without a valid reason?

Ans. In such a condition, when a wife denies her husband’s conjugal rights without any valid reason, in such a case, prima facie, a court may ask to restore the conjugal rights. However, even after the court’s order, if the wife denies, then the aggrieved husband can file a divorce petition, considering it a valid ground for divorce.