Marriage is one of the beautiful and one of the important stages of everyone's
life. It is a life-changing decision of two people who agreed to share their
life with each other. But no one can predict the future, sometimes the two
people who agreed to share their life might face problems in it. Marriage is
considered to be a roller coaster ride which means sometimes up and sometimes
down, it depends on the couple whether they are able to face the downs with the
Sometimes they are not, when they are not then they seek happiness in being
apart from either by judicial separation or by divorce. In this blog, we will
discuss what conjugal rights mean? Who can file for restitution of conjugal and
where? under which law restitution of conjugal rights can be filed? How is a
denial of conjugal rights grounds for divorce?
The couple who are married agreed to share their life which
means they have certain duties and responsibility towards each other. Conjugal
Rights also mean the same when the couple is married they have certain
matrimonial rights which should be performed by both the spouses.
- Living together: The spouses or the married couple should live together
- Marital intercourse: The spouses or the married couple have rights and
duties together with each other and have physical or sexual relationships.
- Comfort to each other: The spouses should give comfort to each other
like; emotional and mental comfort.
- Matrimonial Obligation: The married couple is supposed to share the
responsibility of the households as well. Since the two people are sharing
their life one person cannot take responsibility for everything which means
they have to share the household chores.
Laws that talks about conjugal rights are as follows
- Section 9 of The Hindu Marriage Act
- Section 32 of the Indian Divorce Act.
- Section 22 of the Special Marriage Act.
- Section 36 of The Parsi Marriage and Divorce Act.
Restitution of Conjugal Rights:
If any of the spouses refuse to live together or
withdraw herself/himself from the society of their respective halves for no
reason or refuse to enjoy the conjugal rights. Court to maintain gender equality
provided some legal provisions to let the spouses have their rights. If the
spouses are not enjoying the conjugal rights then the other spouse can file suit
for restitution of conjugal rights.
To file the suit for restitution of the
conjugal rights the partner who is filing has to prove it, and certain condition
needs to be fulfilled to file suit for restitution of conjugal rights:
- The defendant has refused from cohabitation or is withdrawing from the
society of the other spouse or petitioner. One of the most important things
need to keep in mind that it is not necessary that they are not living
together makes the other partner file suit for restitution of conjugal
rights, if they are in contact or communicating and staying away is due to
work or for some other valid reason then it will not be considered as a
refusal from the society
- The statement made and mentioned by the petitioner should be true and no
false statement had been made and there has to be unreasonable ground for
the refusal from the society of the significant half.
- If the relief or the application is being denied then there should not
be any legal grounds mentioned for that.
Procedure to file the suit for restitution of conjugal rights: When it comes to
filing any type of suit or case it needs to be done in a proper manner and there
are certain procedures that need to be followed by the person who is initiating
any legal proceedings against any person.
In this case, the procedure is as
- The spouse who wants to file the suit for restitution should contact a
lawyer specialized in such cases, he/she will file the application on your
behalf in the district court from which it will be transferred to High Court
- From there a petition copy will be sent to the other spouse or the other
partner, also the date of the hearing regarding the matter.
- On the given date of hearing both the husband and the wife has to be
present in the court for the case hearing.
- The court will send them to the counselor for their case where they will
describe their issues and try to resolve the matter. In general, the court
will send them for 3 sessions and there will be a 20 days time gap between
- After the 3 counseling sessions, the judge will pass the decree either
in favor of the petitioner or defendant depending upon the statements of the
parties and the counselor.
Rejection of the application of restitution of conjugal rights:
certain cases where the court may deny the application for the restitution of
conjugal rights, but there has to be a proper reason for the denial of the
conjugal rights which are as follows:
- If the spouse or the defendant is staying away or apart is due to any
type of matrimonial issues or problems then the application may be denied
- If the spouse or the petitioner has committed any type of misconduct or
any bad behavior or there is any type of abuse, then the application for
restitution of conjugal rights may be denied.
- There is any cruelty from any party or the in-laws it would amount to a
rejection of the application.
- If the parties are causing or willingly dragging the case for no reason
then the application may get rejected.
What happens when the application is rejected or the proceeding is taking
time: Legal proceeding takes time and also depends upon the statements and the
evidence if the court is satisfied there is a proper reason for staying apart or
the spouse have a valid reason for withdrawing from the other spouseís society
then the court may grant the degree in favor of the defendant.
If the petitioner gets rejected or the petitioner loses the case then the
petitioner has the right to file a case for judicial separation or for divorce.
If the case is taking longer than the petitioner or the court expected then the
application may get rejected and the petitioner can file for judicial separation
If the decree is passed in the favour of the petitioner but the defendants
refused to comply or failed to perform and came back within one year then again,
the petitioner can file for judicial separation or divorce.
Sometimes a couple does not want to officially call their
marriage off but needs some time to sort things out or need time to think but
not ready to part their ways for forever, so they go for judicial separation. It
suspends their marriage for some time which makes the couple realize how
important their marriage is and the significant half is for them also gives them
time to solve the issues they are having.
Grounds for judicial separation:
- Adultery: It is one of the main reasons for judicial, when any of the
spouses is sexually involved with someone else or other than the spouse, it
is called adultery
- Cruelty: When any of the spouses has committed any type of cruelty
towards the other spouse. For any type of abuse then it will become the
ground for judicial separation.
- Desertion: When any of the spouses or the party deserts the other spouse
or the party without any reason or consent for 2 continuous years then the
spouse who gets deserted can file for judicial separation.
- Unsound Mind: If one of the spouses has an unsound mind or not in
his/her senses then the other spouse can file for judicial separation.
- Conversion: When one of the spouses opt for any other religion or
convert himself/herself into some other religion then the other spouse can
file for judicial separation.
- Leprosy: If one of the spouses is suffering from any disease which is
incurable or long term then the other spouse can file for the judicial
- Missing for 7 years: If the spouse is not being found or havenít seen
for 7 years then the other spouse can file for judicial separation.
When a married couple no longer wants to continue their marriage or are
unable to resolve the issues they have or they have any issues which make them
unable to continue their marriage, they seek courtís help in dissolving their
marriage or getting divorced.
Grounds for divorce:
- Desertion: When any of the spouses leave the other spouse for no reason
and without consent then the spouse who is getting deserted can file for
- Cruelty: If any spouse mistreats their spouse or behaves badly or abuses
verbally or physically then the other spouse can ask for a divorce.
- Adultery: When any of the spouses are having affairs with some or
involved in sexual activity with another person then their spouse the other
spouse can file a case for divorce.
- Unsound Mind: When any of the spouses is insane or becomes insane due to
any reason and the other spouse does not want to continue their marriage
then he/she can file for divorce.
- Leprosy: If the spouse is suffering from a disease that is incurable or
has a long time effect then the other spouse can ask for a divorce.
- Conversion: When one of the spouses converts himself/herself into some
other religion then the other spouse can file for divorce.
- Mutual Consent: When both the party or the spouses think that it's
better to call their marriage off or think that they are not happy together
anymore and should part their ways then they can file for divorce on this
ground, where they both agree for it.
- Customary Divorce: When the divorce is performed by following the rules
of the customs is customary divorce.
- Breakdown of marriage: If the spouses or any one of the party claims
that there is no cohabitation of the marriage or they are not enjoying the
conjugal rights or there is no restitution of conjugal rights for up to the
period of 1 year then they can seek divorce.
Cases on Conjugal Rights with respect to Constitutional Validity:
T. Sareetha v. T.Venkata Subbaiah:
In this case, the Court held that restitution
of conjugal rights is a violation of Articles 14, 19, and 21 of the Indian
Constitution. Court held that this right violates the freedom of a woman. It
took away the rights of the woman that when and how she wants to live her life
or consume her marriage. Hence the court held that it should be held void and
Harvinder Kaur v. Harmandar Singh:
In this case, the court states the objective
of restitution of conjugal rights, the court held that the object behind this
right is to make the married life stable for husband and wife and to encourage
reconciliation and conjugal rights do not talk about sexual intercourse only it
talks about the marital relationship overall which makes it valid.
Saroj Rani v. Sudarshan Kumar:
In this case, the Court held that restitution of
conjugal rights is not violating any of the fundamental rights of the spouse or
is not violating Article 14,19, or 21 of the Indian Constitution. On the other
hands, it is stopping a marriage from being dissolved which means it is serving
a social purpose but if any of the spouses is not complying with the decree of
restitution of conjugal rights for 1 continuous year then they can get a divorce
on this ground as a court cannot force a person to have a physical relationship
or sexual intercourse.
Hence it is concluded that conjugal rights include all marital
rights not just sexual intercourse, conjugal rights talk about the rights of
spouses to living together, sharing household chores, fulfilling responsibility
as husband or wife towards each other and the family and just because spouses
are not living in the same house does not mean they are not cohabiting, if they
are having a conversation or communicating that will ask for restitution of
conjugal rights. Also, it is not unconstitutional or it does not violate the
fundamental rights of the spouses.Award Winning Article Is Written By: Mr.Kishan Dutt Kalaskar
Authentication No: MA34058021655-17-0521