By Ayushi Budholia
Published on: 05 August 2022 at 22:19 IST
Marriage is regarded as a sacrament in India, where the man and woman who marry are considered to be united within one connection and recognized as one soul. When a man and woman marry, they adhere to particular cultural and religious traditions that bind them together for the rest of their lives. They are believed to be living together until their last breath, sharing all of their joys and sorrows, and supporting each other.
Consider a circumstance in which two people marry and then the husband abandons his wife and relocates to another location without explaining himself or providing a solid explanation. In this case, the woman who left her family and married the man of her dreams is left with broken dreams and hearts. In this scenario, the lady has every right to pursue legal action to compel her husband to live with her and provide her with a life free of abandonment.
This legal privilege is not only available to women; it is also available to males if their wife withdraws from their husband’s society without offering any good reason.
The Hindu Marriage Act of 1955 gives married couples certain responsibilities and rights in their marriage. The man and the wife are expected to live together after marriage in a marriage. Both parties in a marriage have the right to seek comfort from their spouse, and if one of the spouses fails to perform his or her obligations in an unreasonable manner, the other spouse has the right to seek recourse to compel him or her to do so.
Since the Hindu Marriage Act of 1955 codified Hindu Laws in relation to marriage, it has been both a contract and a sacrament.
Jewish law is the source of restitution of conjugal rights. This remedy was brought into Indian law through the English Common Law of the British Raj, not the Dharmashtra or any personal law on the Indian subcontinent.
In its purest form, conjugal rights refer to the right to have a physical relationship with one’s spouse and to live together. One of the most basic conditions of marriage is that the woman and husband live together and respect each other’s rights.
“Restitution of Conjugal Rights” is a legal rule that allows a harmed person to continue cohabitation lawfully against a wife or husband who withdrew without justification. It’s frequently seen as a means to keep a marriage together.
RESTITUTION OF CONJUGAL RIGHTS
The resumption of both spouses’ marital relationship is known as restitution of conjugal rights.
The major goal is to complete the marriage and adapt to each other’s culture and comfort. The petition for restitution of conjugal rights is submitted in order for the court to intervene between the parties and decide the matter and issue a restitution decision in order to keep the marriage together.
Restitution of conjugal rights is a relief or remedy available to either of the married spouses who has been abandoned by the other spouse without explanation or reasonable justification.
The concept of restitution of conjugal rights dates back to ancient times, when the institution of marriage was founded on the husband’s ownership rights.
Cohabitation is a requirement of marriage for both partners. The Indian judiciary had taken an extremely archaic and platitudinous stance, maintaining that a wife’s primary responsibility to her husband is to submit herself obediently to his rule and to live under his roof and protection.
The wife was considered the husband’s property and was therefore compelled to live in the husband’s consortium at all times. Even a mutual agreement between husband and wife to live separately was deemed void since it went against public opinion.
Restitution of conjugal rights gives the husband the right to his wife’s conjugal society and allows him to compel her to live in his domain if she refuses, and vice versa.
If either party unfairly withdraws from the conjugal society of the other and intentionally refuses to share a home with their spouse, the aggrieved party may file a petition for restitution of conjugal rights.
If the respondent has a valid reason to reside apart from the petitioner, the latter will be unable to enforce the petition.
Three elements must be met for a court to issue a decree in favour of the petitioner:
- Without any justification, the respondent has abandoned the petitioner’s society.
- The withdrawal has nothing to do with the petitioner’s activities.
- There are no legal reasons why the relief should be denied.
PROVISIONS UNDER HINDU MARRIAGE ACT, 1955
Section 9 of the Hindu Marriage Act of 1955 provides for the return of conjugal rights as follows:
“When either the husband or the wife has withdrawn from the other’s society without reasonable cause, the aggrieved party may petition the district court for restitution of conjugal rights, and the court, if satisfied that the statements made in the petition are true and that there is no legal reason why the application should not be granted, may decree restitution of conjugal rights.”
In this section, it’s further explained that when it comes to proving a reasonable cause for withdrawing from society, the burden of proof is on the person who has withdrawn from society.’
The explanation, which was inserted after the 1976 amending legislation, makes it plain that the person who has withdrawn from conjugal society bears the burden of proving that there was a justifiable reason for such withdrawal.
Prior to the modification, the clause was silent on this issue, and judicial rulings held that the petitioner had the burden of proving that the respondent had abandoned their conjugal society without good reason.
Hence, we can infer that Section 9 of Hindu Marriage Act basically states that if a husband or wife withdraws from the other spouse’s company without giving them any good reason, the other spouse has the right to submit a petition for restitution of conjugal rights before a district court.
If the court is convinced that the petition’s allegations are accurate and that there are no legal obstacles to providing the restoration remedy, the court may issue a judgement of restitution of conjugal rights.
The court may grant a decree for restitution of conjugal rights if the following conditions are met:
- one of the parties has withdrawn from the society of the other spouse without giving any reasonable reason;
- the court is satisfied that the statements made in the petition are true; and
- the petition is not being denied on any legal ground.
The term ‘society’ in this section refers to the cohabitation and companionship that a person anticipates in a marriage. Disengagement from society is synonymous with withdrawal from a conjugal relationship.
The Court stated in Mrs. Manjula Zaverilal v. Zaverilal Vithal Das, 1973, that when an aggrieved party files a petition for restitution of conjugal rights and proves that the defending party has withdrawn from the aggrieved party’s society, the defending party must prove that there was a reasonable reason to abandon or leave their spouse.
ESSENTIAL ELEMENTS OF SECTION 9 OF HINDU MARRIAGE Act, 1955
Section 9 of the Hindu Marriage Act of 1955 has the following key elements:
- The applicant and defendant’s marriage is lawful, valid, and ongoing.
- The defendant should leave the applicant’s social circle.
- It is unjust and unreasonable to withdraw from society in this manner.
- The court must be convinced that the petition and the facts submitted by the applicant are accurate.
- The court must be convinced that there is no legal basis for refusing the ruling.
GROUNDS FOR REJECTION OF PETITON
The Court stated in Sushila Bai v. Prem Narayan (1986) that the following can be used as defences to a restitution suit:
- The respondent can claim matrimonial remedy against the suit.
- Any evidence indicating the petitioner is guilty of any sort of wrongdoing.
- In a circumstance where both couples are unable to live together.
The following reasons may be used to deny a petition for restitution of conjugal rights:
- The petitioner’s cruelty
- Matrimonial infidelity
- Remarriage of either of the spouses
- The start of the proceedings is delayed.
CONSTITUTIONALITY OF THE PROVISION RELATING TO RESTITUTION OF CONJUGAL RIGHTS & JUDICIAL INTERPRETATION
In the case of T. Sareetha v. T. Venkata Subbaiah, 1983, it was argued that Section 9 of the Hindu Marriage Act, 1955, is unconstitutional because it infringes the fundamental right to liberty given by Article 21 of the Indian Constitution.
Section 9 of the HMA is illegal and void, according to the High Court of Andhra Pradesh, since it violates personal liberty, which is a basic right granted by Article 21 of the Indian Constitution.
“If the woman is forced to live with her husband, this will likewise infringe her right to privacy,” the Court stated.
“The remedy of reparation offends the inviolability of the body and mind and invades the marital private and domestic intimacies of such person,” the Court continued.
Later, in the case of Saroj Rani v. Sudarshan Kumar Chandra, 1984 the Supreme Court settled the confusion between Section 9 of the HMA and Article 21 of the Indian Constitution by upholding the Delhi High Court’s decision in Harvinder Kaur v. Harvinder Singh, 1984 holding that “the element of the degree was only to provide an additional incentive for the spouse to live together, and it does not start forcing an unwilling wife to engage in sexual relationships with the husband.”
Restitution of conjugal rights is a remedy that aims to protect a couple’s marital relationship while not infringing on any of the Indian Constitution’s fundamental rights.
The Court went on to say that the restitution of conjugal rights decree does not force the couple to have a sexual relationship with each other, but rather attempts to bring them together in a consortium.
In the case of Mrs. Aruna Gordon vs. Mr. G.V. Gordon, a review petition was filed in 1999 with the goal of shifting the burden of proof from the respondent to the respondent itself.
The burden of proof will remain on the petitioner to prove that the respondent left the petitioner’s society without giving any reasonable reason, and then the burden of proof will shift to the respondent to discharge himself from the allegations leveled against him and prove that the withdrawal was made with good reason.
The court held in P. Rajesh Kumar Bagmar v. Swathi Rajesh Kumar Bagmar, 2008, that the burden of proof initially lies with the petitioner seeking restitution to prove that the respondent has withdrawn from the petitioner’s society without reasonable cause, and that once the court is satisfied that the petitioner’s statements are true, the burden of proof shifts to the respondent to prove that there is a reasonable excuse for such withdrawal.
NEED FOR RESTITUTION OF CONJUGAL RIGHTS
In India, marriage is seen as a lifelong commitment that must be maintained even after death. Withdrawal or desertion is not considered good or natural, thus both people in a marriage must work hard to solve their difficulties, get along with one another, and stay together.
When a man and woman marry, they are thought to become one soul who cannot survive without the other.
As a result, it is critical that if one person abandons the other, specific procedures be taken to bring the pair back together and ensure that they appreciate the gravity of their connection. The stage of restitution of marital rights obligates both parties to live together.
Restitution of conjugal rights is a remedy that a person can use if he or she wants to give their relationship another chance to succeed.
Hence, it is critical that the law provide a legal remedy to enable a person in a marital relationship to live together, where they can work out their differences and give their partnership a chance, or come to a mutual understanding on whether they can live together in the future. One individual is left unanswered and without reasonable excuse if that one chance is not given.
SCOPE OF IMPROVEMENT
Conjugal rights restoration is a hotly debated and contentious topic. Some believe it is to save the marriage, while others argue that pushing the other person to stay with the aggrieved party is pointless because they are not interested. However, by adjusting anything, there is always room for improvement.
Instead of rigorous conjugal rights, the concept of reconciliation could be considered. Restitution is a harsh and brutal concept that pushes either party to compromise. The tone of reconciliation, on the other hand, is quite gentle and solicitous.
The issue with restitution is that there is a good likelihood that the situation may deteriorate once both parties are compelled to live together against their will. However, if the remedy is reconciliation, it is unlikely to offend either party and will clear the air of misunderstanding.
The judiciary should not be involved in implementing this because the Court’s role is to settle disputes, not to mediate. What can be done is to organize a separate committee whose primary purpose will be to manage and resolve divorce problems. The reconciliation concept is also very effective because it is quick, efficient, and practical.
It is necessary to examine both the risks and the benefits of this remedy in order to determine whether it is useful to the general population.
A couple should work hard to get along with each other and make their relationship work, according to Indian culture.
This section gives these civilizations legal support, but it also forces two people to live together who do not want to live together, and a forced relationship has no future.
When a person is emotionally estranged from another, reuniting them becomes extremely tough. Thus, restitution of conjugal rights is a matrimonial remedy that will compel a person to save their marriage but does not ensure its efficiency. Some argue that it is incompatible with the concept of natural law theory.
ABOUT THE AUTHOR
Ayushi Budholia is a third-year, B.A.LL.B Student of Lloyd Law College, Greater Noida.
- Limitations of Restitution of Conjugal Rights
- The Hindu Marriage Act, 1955
- Restitution of Conjugal Rights Without Any Just and Reasonable Grounds
- Restitution of Conjugal Rights
- Restitution of Conjugal Rights under Section 9 and its Execution
- Supreme Court Take on Conjugal Rights
- AIR 1975 Guj 158 ↑
- AIR 1986 MP 225 ↑
- AIR 1983 AP 356 ↑
- AIR 1984 1562 ↑
- AIR 1984 Delhi 66 ↑
- 2000 VAD Delhi 97 ↑