What is Restitution of Conjugal Rights?

Restitution of Conjugal Rights

Marriage as an institution gives rise to a relationship between two partners: The Husband and the wife, which further gives rise to more relations. This relationship also gives birth to different sets of rights and obligations. These rights and obligations cumulatively constitute’ Conjugal rights’ and can be termed as the essence of the marital union. The term ‘Conjugal Rights’ in literal sense means ‘Right to stay together.’

It is a generally accepted norm that each spouse should act as a support to others in hard times, and should be there to comfort and love the partner. But if any of the partners leaves the other without any reasonable or sufficient cause, then the aggrieved party can knock the doors of the court to seek justice. Restitution of conjugal rights is the only matrimonial remedy available is restitution of Conjugal Rights.

PREREQUISITES FOR GRANT OF RESTITUTION OF CONJUGAL RIGHTS

To obtain a decree of restitution of marital rights, the petitioner must establish the following:

1. Withdrawal from Society: 

The petitioner must demonstrate that the respondent has withdrawn from the petitioner’s society.

2. Unjustified Withdrawal: 

The withdrawal by the respondent must be shown to be without reasonable justification.

3. Court’s Satisfaction: 

The court must be convinced of the truthfulness of the assertions made by the petitioner.

4. No Legal Justification for Denial: 

The petitioner needs to establish that there is no legal justification for denying the application for restitution of marital rights.

If these conditions are met, the court may then issue an order requiring the respondent to live with the petitioner.

Restitution of Conjugal Rights In Different Religions

Hindus Law

Section 9 of the Hindu Marriage Act talks about Restitution of Conjugal Rights, 

There are three important requisites to be fulfilled for Section 9[8]

• Spouses must not be staying together.
• Withdrawal of a party from the other must have no reasonable ground for such withdrawal.
• The aggrieved party must apply for restitution of conjugal rights

 Muslim Law

The principle of restitution of conjugal rights is also embedded in Muslim law, as articulated by Tayabji, stating that the court may intervene and order the recovery of conjugal rights if one spouse has withdrawn from the other’s society or has neglected their duties without acceptable reasons. The legal authority for restitution of conjugal rights in muslim law is derived from Muhammadan Law

In Muslim law, the right to seek restitution of marital rights is not exclusive to wives; husbands can also seek it. However, the court may decline to issue a restitution of conjugal rights order for the following reasons:

• Cruelty by the husband and in-laws.
• Refusal by the husband to fulfill marital obligations.
• Failure by the husband to timely pay the dower.

This legal concept in Muslim Law aims to protect the legal rights of spouses. In the case of Abdul Kadir v. Salima, the Allahabad Court clarified the notion of restitution of conjugal rights in Muslim law, emphasizing that the determination of compensation should be based on Muslim Law (Sharia) rather than judicial morality or natural law.

Christian Law

A decree for the restitution of conjugal rights can also be sought by a Christian husband and wife. However, the court may be unable to issue the decree in certain situations, including:

1. Cruelty by either the wife or the husband.
2. Insanity of one or both spouses.
3. Remarriage of either spouse.

In cases where a spouse unjustifiably stays away without reasonable cause, and the suit for restitution of conjugal rights is successful, the court may mandate that the couple reunite and stay together. This legal remedy is aimed at encouraging the reconciliation of spouses and promoting the institution of marriage, but it is subject to the mentioned exceptions related to cruelty, insanity, and remarriage.

Special Marriage Act

Section 22 of the Special Marriage Act outlines the conditions under which an aggrieved party can seek restitution of conjugal rights through a petition to the district court. The provision states that if either the husband or the wife has withdrawn from the society of the other without a reasonable excuse, the aggrieved party has the right to apply for restitution of conjugal rights.

Process of Restitution of Conjugal Rights

1. Submission of Petition:

Initiate the process by submitting a petition to the district court.

2. Court Satisfaction:

The court must be convinced about the truthfulness of the statements presented in the petition.

3. Legal Grounds Check:

The court needs to verify that there are no legal grounds preventing the application from being granted.

4. Decree Issuance:

If both the truthfulness of statements and the absence of legal obstacles are confirmed, the court may issue a decree for the restitution of conjugal rights.

5. Urge to Return:

The decree may include an order urging the party who withdrew from the marital society to return.

What happens if Restitution of Conjugal Rights Order is not followed

The Supreme Court has observed that failing to participate in a proceeding for the restitution of conjugal rights carries civil consequences. It’s crucial to note that the Court is unable to actively enforce the restitution of conjugal rights; it can only issue a decree in that direction. In a specific case, a decree was passed in favor of the wife , indicating the Court’s satisfaction that the husband had withdrawn from the company of W without reasonable cause.

However, if this decree is disobeyed, the Court cannot forcibly ensure within the home that conjugal rights are restored. In the event that there is no restitution of conjugal rights even after one year or more following the issuance of this decree, either the wife or the husband  can present a petition for the dissolution of marriage by a decree of divorce under Section 13(1A)(ii) of The Hindu Marriage Act, 1955.

Does Restitution of Conjugal Rights violate Right to Equality

An important development in the field of restitution of conjugal rights is exemplified in the case of Ojaswa Pathak v. Union of India. In this case, the petitioners raised a significant question about the implications of this provision on the rights to sexual and reproductive autonomy, health, and the right to equality granted by the Constitution.

The petitioners challenged the provisions of Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act, 1954, and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908. They sought a socio-legal interpretation of these provisions to assess their constitutionality.The argument put forth was that although the legal provision allows both men and women to equally seek restitution of conjugal rights, the societal structure in India, which has evolved to favor men, makes these provisions unfairly impactful on women.

This is particularly concerning because it places women in a position that is not only unjust but may also be detrimental to their well-being if they are compelled to live in their husband’s home against their will. The Supreme Court, as rightly held in the case of Shakila Banu v. Gulam Mustafa, noted that this concept originated in ancient times when women were considered as property or mere chattel, and practices like slavery or quasi-slavery were not considered illegal.

Consequently, it is argued that this feudal English law has no place in a constitutional setup that guarantees personal liberties and equality of status to both men and women, allowing the state to make special provisions for safeguarding these rights.From a socio-legal perspective, the position of women in Indian society cannot be ignored, as they continue to be perceived as occupying a lower social and financial status compared to men. Under such circumstances, allowing men to benefit from a woman’s financial dependence or lack of awareness, as facilitated by existing laws and remedies, is seen as problematic.

Forced cohabitation resulting from the restitution of conjugal rights has been observed in many cases to lead to unwanted pregnancies, sexual exploitation, and physical and mental abuse of women by their husbands and their families. Thus, the remedy of restitution of conjugal rights is argued to violate the right to equality, which encompasses equality of thoughts, actions, and self-realization. Imposing restrictions on an individual’s choice of living arrangements is considered a violation of these rights, rendering this provision in contravention of the Constitution.

Conclusion

The concept of Restitution of Conjugal Rights is deeply embedded in various personal laws governing marriages in India, such as the Hindu Marriage Act, Muslim law, and Christian laws. It serves as a legal remedy for a spouse who feels aggrieved due to the withdrawal of the other party from the marital relationship without reasonable justification.

The prerequisites for obtaining a decree of Restitution of Conjugal Rights involve demonstrating the withdrawal of one spouse from the other without reasonable cause, presenting truthful assertions in court, and establishing the absence of legal justification for denying the application. However, these requisites vary slightly based on the personal laws governing different religious communities.

The case of Ojaswa Pathak v. Union of India raises important constitutional questions regarding the right to equality and personal liberties. It challenges the gender-neutral nature of the legal provisions, arguing that despite their equality in theory, these laws disproportionately affect women due to societal structures and historical biases. The argument suggests that compelling a woman to live with her husband against her will, as mandated by restitution of conjugal rights, is violative of Articles 14 and 15(1) of the Constitution.

From a socio-legal perspective, it is argued that such legal remedies can lead to adverse consequences for women, including unwanted pregnancies, sexual exploitation, and mental and physical abuse. This perspective asserts that dictating a person’s choice of living arrangements violates the right to equality, encompassing equality of thoughts, actions, and self-realization.

The consequences of not following a Restitution of Conjugal Rights order are outlined, emphasizing that while the court can issue a decree, it cannot enforce the restoration of conjugal rights. If the order is not obeyed for a year or more, either spouse may petition for the dissolution of marriage through a decree of divorce under Section 13(1A)(ii) of The Hindu Marriage Act, 1955.

In summary, while Restitution of Conjugal Rights is a legal provision aimed at preserving the sanctity of marriage, its implications on constitutional rights, particularly the right to equality, raise significant concerns. The ongoing discourse surrounding these issues emphasizes the need for a nuanced examination of matrimonial laws to ensure they align with contemporary notions of personal liberties and gender equality.

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