Family is a group of persons united by the ties of marriage, blood or adoption;
constituting a single household, interacting and intercommunicating with each
other in their respective social roles of husband and wife, mother and father,
son and daughter, brother and sister creating a common culture.~ Burgess and Locks
In India marriage and saptapadi is a sacrament. Due to this, it is a common
practice and accepted notion to preserve and continue the marriage. However,
when such a marriage results in absolute catastrophe in which cruelty and
suffering becomes a daily concern then it is better to end the marriage.
Restitution of Conjugal Rights (RCR) is a way to preserve marriage.It can be
said that it is against the Concept of Natural Law Theory. Marriage is not built
upon the ceremonies but upon the autonomy and freedom of two individuals who
agree to share them with each other.
- Restitution of Conjugal Rights claimed by either party in a marriage.
Since it is an object of marriage, it is governed by personal law.
Currently, Hindu Marriage Act,1955 and Special Marriage Act,1954 under
Section-9 and Section-22 respectively deal with Restitution of Conjugal
- According to the prosecution, when either party to a marriage leaves the
company of another without any justified reason, then the court may grant a
decree of Restitution of Conjugal Rights. Then the other party is bound to
come back and live with the spouse.
- Although the provision is gender neutral, however in its application it
is mostly used against the wife.
- Similar provisions exist in Muslim Personal Law as well as the Divorce
Act,1869 which governs Christian Family Law.
form society of
|| her husband without any
|| reasonable excuse)
District Court -
Petition for RCR
-If Court satisfy-
(There is no legal ground that RCR should not be granted)
Order - RCR - Allow
(Burden of proof is on the party who has withdrawn from another's society. Here
the burden of proof is on the Wife.)
- The term Conjugal Right in literal sense means Right to stay
Conjux-(Latin Word - Husband & Wife)= Relationship between a married couple
(especially sexual relationship)
- The Object behind this provision was to uphold and continue marriage and
reduce marital dispute and divorce. Although, the object and purpose seems
to be welfare in nature, however, in reality these are generally misused.
The Decree of Restitution of Conjugal Rights is useful in order to preserve
marriage. It is through authority of court that unjustified abandonment of
either spouse is presented. However, today this provision faces a lot of
Results in unnecessary harassment and penal liability:
The consequence of not following the decree results in civil contempt under
Contempt of Courts Act,1971 & also a ground for decree of divorce under Section
13(1A) of Hindu Marriage Act,1955. Hence, due to the provision the person gets
exposed to penal liability and court litigations.
Misuse of provision against the wife
Although the provision is gender neutral however, in reality it is mostly used
by husbands against the wives. Due to this, on one hand Section 498A of Indian
Penal Code,1860 tries to present cruelty against the wife but on the other hand
Section 9 of Hindu Marriage Act,1955 is used to force the wife to cohabit with
Further, in Joseph Shine v. Union Of India
on 27 September, 2018 Adultery
(Section-497 IPC) was declared unconstitutional unanimously by a five judge
bench as the husband is not a master of the wife (CJI Dipak Misra). However, by
Section-9 HMA the new idea of choice of wife is taken away. It's time for the
Indian judiciary and society to shift to more progressive views starting with
the progressive theory of marriage.
Decree of Restitution of Conjugal Rights is judicial overreach over one's
The decision of Justice K.S. Puttaswamy v. Union of India
24th August, 2017 a 9
Judge Bench of the Supreme Court delivered a unanimous verdict that Right to
Privacy was recognised as a Fundamental Right under Article-21 of our
Then from this new ideas and changing notions recognised freedom
of choice and say accession as an important aspect of one's right to enjoy his
life. This lead to allowing Homosexual Intercourse (Navtej Singh Johar v. UOI
on 6 September, 2018) and Right to Remarry as a Fundamental Right (Shafin Jahan
vs Asokan K.M
. on 8 March, 2018). Here cannot and should not intrude into the
personal life. In the Shafin Jahan Case the decision of Kerala High Court was
severely criticized by Justice D.Y. Chandrachud for overstepping its limit.
Restitution of Conjugal Rights is against Article-14 & Article-21
As it is practically against the wife hence it is against the principle of
The Constitutional validity of the provision of Restitution of Conjugal Rights
has time and again questioned and challenged. The earliest being in 1983 before
the Andhra Pradesh High Court in T. Sareetha vs T. Venkata Subbaiah
High Court held that the Section was unconstitutional. The Delhi High Court in
Harvinder Kaur vs Harmander Singh Choudhry
though and non-conforming views said
Introduction of the Constitutional Law in the Home is most inappropriate, it is
like introducing a bill in a China shop.
Ultimately Supreme Court in Saroj Rani
vs. Sudarshan Kumar Chadha (1984)
gave a judgement which was in line with the
Delhi High Court views and upheld the constitutional validity of Section-9 of
the HMA,1955 and overruled the decision given in T.Sareetha Case
In this era of transformative constitutionalism the provision against the
reformative social norms are declared unconstitutional. Through this,
constitutional morality and not social morality prevails. Now it is time to do
away with the provision of Restitution of Conjugal Rights. RCR was adopted from
English Common Law. This remedy is not only violative of Article-14 & 21 but
also does not fit with the changing times.
Moreover, such a remedy is against
the ideas of human dignity, individual autonomy and the right to privacy given
by the judiciary in recent judgements. Hence in my personal opinion, there is no
place for such legal remedies in our legal system.
Written by Shashwata Sahu, Advocate
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