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Legal provisions and Constitutional validity of the Restitution of Conjugal Rights

Marriage is one of the main important vital roles in all human life. Every man and woman has dreams about their marriage. After the marriage, the parties have some obligations to their life. After the marriage, the sexual relationship between the husband and wife is also an important part of the marriage.

If any one of the spouses leaves the other, then the other spouse can claim the restitution of conjugal rights. The restitution of conjugal rights is applied for both husband and wife. The two major words, restitution and conjugal rights, restitution means the restoration of some lost and conjugal rights means the marriage relationship between husband and wife. Each party to the marriage is bound to live together in a conjugal society and entitled to a conjugal society of others.

If any one of the parties like a husband or wife has withdrawn from the society without any reasonable causes, the affected person may apply by petition to the district court for the restitution of conjugal rights. If there is a reasonable cause the court cannot decree the restitution of conjugal rights but if there is no reasonable cause the court will grant a decree for the restitution of conjugal rights.

The conjugal rights are the rights to claim the both of the parties i.e., the husband as well as the wife. Hindus can claim the restitution of conjugal rights under the Hindu marriage act, 1955, Muslims can claim under the General Law, Christians can claim under the Indian Divorce Law, 1869, Parsis can claim under the Parsi Marriage and Divorce Act, 1969 and the persons who married under the Special Marriage Act can claim under the Special Marriage Act, 1954.

Historical background:
The remedy of the restitution of conjugal rights originated from Jewish Law. The remedy of the restitution of conjugal rights was unknown to India until the British introduced. After Indian independence, the remedy of the restitution of conjugal rights is available in Indian laws. But this remedy was opposed by many leaders in India.

This remedy was opposed by:
  1. Khardekar, the former Member of Parliament opposed the restitution of conjugal rights.
  2. Brombley, an author has opposed the restitution of conjugal rights in his book
  3. Vehemently also opposed this remedy and also held that this remedy was not genuine.
The restitution of conjugal rights was introduced in India in Moonshe Buzloor Ruheem vs. Shumsoonissa Begum.

Defense for restitution of conjugal rights:

When there is any reasonable cause for the separation between the spouses, the decree of the restitution of conjugal rights is not granted by the court. For a reasonable excuse, there are no hard and fast rules about it, and it may be decided by the court by means of justice, equity and good conscience.

The followings are some of the examples of the reasonable excuses:
  1. The petitioner has treated the other party with cruelty.
  2. The petitioner has converted to other religions.
  3. The petitioner has been suffering an incurable form of leprosy.
  4. The petitioner has been of an unsound mind.
  5. The petitioner has been suffering from venereal disease.
  6. The petitioner has entered a religious order.
Whether the person has reasonable causes to withdraw from the society, the question arises, the burden of proving the reasonable excuses shall be on the person who has withdrawn from the society. Itwari vs. Asghari, in this case the petition filed against his first Muslim wife for the restitution of conjugal rights.

The court held that the husband cannot compel the wife to live with him in his house. The husband cannot compel his wife because compulsion is also a cruelty. So the High Court has refused to provide the decree for the restitution of conjugal rights against the wife.

Laws govern the Restitution of Conjugal Rights:

  1. Sec. 9 of the Hindu Marriage Act 2. Sec. 32 and 33 of the Indian Divorce Act 3. Sec. 36 of the Parsi Marriage and Divorce Act 4. Sec. 22 of the Special Marriage Act Sushila Bai vs. Prem Narayan, in this case, the husband deserted his wife. It shows that the husband had been withdrawn from the society of his wife and hence the wife has the right to file a petition for the restitution of conjugal rights. In this case, the court held about the conditions to be satisfied for filing the petition of the restitution of conjugal rights. The conditions are as follows: 1. The petitioner should prove that the respondent spouse has been withdrawn from his/her society without any reasonable excuse.
     
  2.  The statement made by the petitioner should be true
     
  3. The court satisfied that there is no legal ground why the application should not be granted The only defence for the restitution of conjugal rights is a ‘reasonable excuse'.
 If the respondent spouse has withdrawn from the society of the petitioner spouse then it is a complete defence for the restitution of conjugal rights. The remedy of restitution of conjugal rights has been criticized a lot. Huge criticism has been raised in Tirath Kaur vs. Kirpal Singh, in this case, the wife went to a training for tailoring and succeeded a diploma in tailoring. Hence, she got a job at her home town which was located some distance from her husband's house.

Thus, she went to her home town and stayed with her father. The husband stayed and so he asked his wife to resign her job and join him at his house. But the wife refused, so the husband filed a petition at Punjab High Court for restitution of conjugal rights. The High Court held that the refusal by one spouse to give to his/her job and live with the other leads to withdrawing the society of the other.

Further, the High Court held that the wife's first duty is to submit herself to the husband and remain under his roof and protection. This judgment given by the Punjab High Court attracted a lot of criticism on the restitution of conjugal rights. Constitutional validity: In Forster vs. Forster, the court held that the purpose of the restitution of conjugal rights is to compel the unwilling wife to have sexual intercourse with her husband.

In Maneka Gandhi vs. Union of India, whether the decree on the restitution of conjugal rights would be just, fair and reasonable and it didn't compel the unwilling wife to live with her husband. Then, the sec. 9 of the Hindu Marriage Act does not violate Article 21 of the Constitution.

In Sareetha vs. T.Venkatasubbaiah, in this case, the petitioner Sareetha was an actress and she was busy in her shooting and so she stayed separate from her husband for five years. Her husband filed a petition for the restitution of conjugal rights. So, Sareetha filed a case in the Andhra Pradesh High Court by claiming that the sec. 9 of the Hindu Marriage Act is unconstitutional because sec. 9 of the Hindu Marriage Act violates Article14 and Article 21 of the Constitution.

She also claimed that sec. 9 of the Hindu Marriage Act denies the women to choose their career and is also an instrument of forced sexual relationship so it violates the right to privacy guaranteed by Art. 21. The High Court held that the sec. 9 of the Hindu Marriage Act violates the Article 14 and Article 21 of the Constitution and therefore it was held as void.

In Saroj Rani vs. Sudarshan Kumar Chadha, the Hon'ble Supreme Court held that the principle of the restitution of conjugal rights was created to prevent the break up between the spouses. The reasonable excuse for the separation of the spouse is a clear defence for the restitution of conjugal rights.

Hence, the sec. 9 of the Hindu Marriage Act doesn't violate the Article 14 and Article 21 of the Constitution. But still many people are against the restitution of conjugal rights, they held that the restitution of conjugal rights was introduced by the English people in India and India is continuing it. The Law Commission didn't oppose the restitution of conjugal right in its fifty- ninth and seventy-first report. According to the Indian culture the marriage was considered sacramental and hence the husband and wife should live together.

The purpose of the restitution of conjugal rights is that the husband and wife should not be separated without any reasonable excuse. Conclusion: Even though many criticisms are evolved against the restitution of conjugal rights, there is no clear evidence that the restitution of conjugal rights is barbarous and violates fundamental rights.

It cannot be said that the restitution of conjugal rights violates Article 14 and Article 21 of the Constitution. The only purpose of the restitution of the conjugal rights is to prevent the break up between the spouses. It promotes the reconciliation between the spouses and also maintains a good matrimonial relationship between them. It protects society from denigrating. Hence, the restitution of conjugal rights serves as an aid to prevent the break up between the spouses.

Written By:
  1. Sandeep Harish B II year B.A., LL.B. The Central Law College
    Ph no: 8110067837 E-mail: [email protected]
  2. Barathkumar K M II year B.B.A., LL.B.(Hons.) Sastra Deemed to be University
    Ph no: 9952657851 E-mail: [email protected]

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