– ANUJA AIYAPPAN
1.1 Restitution of Conjugal Rights: Concept and Origin
Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. So after the solemnisation of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall be refused and on being satisfied of the truth of the statements made in the petition may pass a decree of restitution of conjugal rights.
A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law. The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse. At present as per the provisions available under the Indian personal laws, the aggrieved party move a petition for a decree of divorce after one year from the date of the passing of the decree and the competent court can pass a decree of divorce in favour of the aggrieved party. The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the Court may also punish him or her for contempt of court. But under no circumstances the court can force the erring spouse to consummate marriage. Decree of restitution of conjugal rights could be passed in case of valid marriages only.
As stated by Paras Diwan, the remedy of restitution of conjugal rights was neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it. It came with the Raj. Restitution of conjugal rights has its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession like other chattels. The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum , where such actions were regarded as considerations for specific performance.
In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.
The provisions for restitution of conjugal rights are identical in Section 22 the Special Marriage Act, 1954 and Section 9 of the Hindu Marriage Act, 1955. It is as follows:
“Restitution of conjugal rights
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”
The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.
The conceptualization of the provision for restitution of conjugal rights under Muslim law by Tayabji is as follows:
“Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights”
Thus the Muslims equate this concept with securing to the other spouse the enjoyment of his or her legal rights. Earlier, it was also attached with the specific performance of the contract of marriage. In Abdul Kadir v. Salima , the Allahbad High Court decided that the concept of restitution must be decided on the principles of Muslim Law and not on the basis on justice, equity and good conscience.
To sum up, under all personal law, the requirements of the provision of restitution of conjugal rights are the following:
• The withdrawal by the respondent from the society of the petitioner.
• The withdrawal is without any reasonable cause or excuse or lawful ground.
• There should be no other legal ground for refusal of the relief.
• The court should be satisfied about the truth of the statement made in the petition.
1.2 Sufficient Cause for Withdrawal and Burden of Proof
The fundamental rule of matrimonial law that one spouse is at liberty to the society and comfort of the other spouse, forms the foundation of the right to bring a suit for the restitution of conjugal rights. The court has the duty of granting a decree for restitution in the cases where either spouse has abandoned or withdrawn from the society of the other. When the question arises whether there has been reasonable excuse for the withdrawal of the respondent from the society of the aggrieved party, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. But this concept is only secondary in nature. The primary object of showing proof or onus rests with the petitioner. Once the petitioner has proved his/her case, the burden of proof then shifts to the other party to prove the defence of a ‘reasonable excuse or cause’. Here the term ‘society’ corresponds to cohabitation, and ‘withdrawal’ signifies cessation of that cohabitation and bringing to end consortium. This must be a voluntary act of the respondent.
In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards her. This behaviour was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed. The defence to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defence to a restitution petition. The court will normally order restitution of conjugal rights if:
i. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her society
ii. The statements made by the aggrieved spouse in the application are true, and
iii. There is no legal ground why the petitioner’s prayer should not be granted
The court has held in various cases that the following situations will amount to a reasonable excuse to act as a defence in this area:
i. A ground for relief in any matrimonial cause.
ii. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave.
iii. Such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent.
It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by the court where the disobedience to such a decree is wilful that is deliberate, in spite of opportunities.
2.1 Constitutionality: Relief of Restitution of Conjugal Rights
During the time of introducing the provision for restitution of conjugal rights in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the Parliament for and against it. In Shakila Banu v. Gulam Mustafa , the Hon’ble High Court observed:
“(The concept of restitution of conjugal rights) is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”
The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Hon’ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah .
2.2 Application of the Provision in Different Communities
The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law. Decree of restitution of conjugal rights could be passed in case of valid marriages only. Apart from legislation relating to matrimonial law, courts in India in case of all communities have passed decrees for restitution of conjugal rights.
Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights. One of the important implications of Section 9 of the Hindu Marriage Act, 1955 is that it provides an opportunity to an aggrieved party to apply for maintenance under Section 25 of the Hindu Marriage Act, 1955. Maintenance can also be obtained by the party in case when the action is pending under Section 25 of the Hindu Marriage Act, 1955. So, a wife who does not want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Another important implication of the section is that it provides a ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955 on a condition that there has been no restitution of conjugal rights between them for a period of one year or more after the passing of a decree for restitution of conjugal rights. The legal grounds for refusing to grant relief are:
• For instance, any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;
• Reasonable excuse for withdrawing from the society of the petitioner;
• Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disability for the purpose of such relief;
• Unnecessary or improper delay in instituting the proceeding.
If the husband either deserts a wife or neglects to perform his marital obligations without any proper reason, then the wife can apply for restitution of conjugal rights. Even husband can apply for restitution of conjugal rights. But the court can refuse to grant order of restitution of conjugal rights for following reasons:
• Cruelty by husband or in-laws
• On the failure by the husband to perform marital obligations
• On non-payment of prompt dower by the husband
A Christian husband and wife can also apply for an order of restitution of conjugal rights. The Court cannot pass the decree for following reasons:
• Cruelty of husband or wife
• If either of the spouse is insane
• If any one of the spouse marries again
Where a husband/wife shall have deserted or without lawful cause ceased to cohabit with his/her spouse, the party so deserted or with whom cohabitation shall have so ceased, may sue for the restitution of his or her conjugal rights and the court if satisfied of the truth of the allegations contained in the plaint and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.
3.1 Provisions for Restitution of Conjugal Rights under Hindu, Christian and Muslim Law
When either of the spouses has withdrawn from the society of the other without reasonable cause, the other person may file a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. Similarly a Christian husband or wife can file a petition for restitution of conjugal rights under Section 32 and 33 of the Indian Divorce Act, 1869. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law a suit in a civil court has to be filed and not a petition as under other laws. A petition for restitution of conjugal rights is maintainable only when there is a valid marriage.
The concept of gender discrimination has not been incorporated in the Hindu Marriage Act, 1955 and all are treated as equals under the Section 9. There is no classification of sexes in Section 9 and all equals have been treated equally in this area. In Hyde v. Hyde and Woodmansee , the status of partners in Christian marriage was stated as “Marriage has been well said to be something more than a contract, either religious or civil – to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite lights upon their offspring.” While in Muslim law where a wife refuses to live with her husband without any lawful cause, the husband can sue for the restitution of conjugal rights and likewise the wife has the right to demand for the fulfilment of marital duties by the husband. But this right is not absolute as the Muslim husband being dominant in matrimonial matters, and as the Quran enjoins the husband to retain his wife with kindness or to dismiss her with kindness, the Court leans in favour of the wife and requires strict proof of all allegations necessary for matrimonial relief. Under the Muslim law a Muslim husband can defeat wife’s petition for restitution at any time by pronouncing talaq on her.
In Hindu law the relief of decree for restitution of conjugal rights is an equitable relief and equitable considerations must be considered before compelling the defendant to return to cohabitation with the plaintiff. Similar is the law with respect to the marriage governed by Mohammedan law and Christian law. Relief of restitution of conjugal rights is discretionary.
The defences for the restitution petition under the Hindu Marriage Act, 1955 and the Indian Divorce Act, 1869 is very broad and it puts down that if the withdrawal of the respondent from the society of the petitioner is “without reasonable excuse”, it is in defence to restitution petition. Under Muslim law, Tyabji has used the expression “without lawful ground”. It is accepted that the expression “without reasonable excuse” and “without lawful ground” should have same meaning.
Under the Hindu Marriage Act, 1955 anything which constitutes a ground for nullity, dissolution of marriage or judicial separation is a defence against a petition for restitution of conjugal rights. Accordingly under the Section 33 of the Indian Divorce Act, 1869 applicable for Christians nothing can be pleaded as defence against a petition for restitution of conjugal rights which would not be a ground for judicial separation or for a decree of nullity of marriage. Under Muslim law grounds of void and irregular marriages, marriage avoided by the exercise of option of puberty and other provisions under the Dissolution of Muslim Marriage Act, 1939, are defences for a petition for restitution of conjugal rights. A petition may also be rejected if the husband has been made an outcaste by his community.
A marriage in violation of the age prescribed under Section 5 (iii) of the Hindu Marriage Act, 1955 being neither void nor voidable, a decree for restitution of conjugal rights cannot be refused on the ground of the violation. For Indian Christian according to Section 60(1) of the Indian Christian Marriage Act, 1872 it is required that at the time of marriage the bride should not be less than eighteen years and bridegroom should not be less than twenty-one years. The non-age does not render the marriage void or voidable. Thus the marriage remains a valid marriage; a decree for restitution of conjugal rights cannot be refused.While in Muslim law under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 when the marriage has been avoided in the exercise of option of puberty the suit for restitution of conjugal rights fails.
As far as the Hindus and Christians are concerned the existence of a co-wife is a sufficient cause entitling the wife to withdraw herself from the society of her husband which can be taken as a defence by the wife against a restitution petition. While under Muslim law controlled polygamy is allowed. So, a Muslim wife cannot refuse the comfort-consortium to husband because of husband’s taking a second wife. But in certain situations, a husband’s second marriage may involve cruelty to the first wife justifying her refusal to live with him. In Itwari v Asghari , a restitution petition filed by the Muslim husband against his first wife the court had held that it cannot compel the wife to live with husband and can refuse the relief if the court feels that it would not be just and reasonable to do or it would be inequitable to pass decree. In India bigamous marriages are now to great extent disapproved by the courts. Some High Courts have considered it as cruelty by the husband and denied on that ground the relief of restitution of conjugal rights.
Cruelty need not always be physical and it can also be mental. The Section 13 (1) (ia) of the Hindu Marriage Act, 1955 can be used as defence of cruelty against a petition for restitution of conjugal rights. The definition of ‘cruelty’ or what all actions constitute cruelty has not been specified in the Hindu Marriage Act, 1955 or the Indian Christian Marriage Act, 1872 or the Indian Divorce Act, 1869. Thus, in Hindu law as well as Christian law the courts have the wide power and discretion to decide what constitute cruelty. While in Muslim law, Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939, both physical cruelty as well as legal cruelty together with all instances of cruelty is included under the definition of cruelty. The relief of restitution of conjugal rights can be denied to the husband if any of the instances of cruelty as given under the section are proved against him.
In Hindu law and Christian law, the separation agreements are not part of the matrimonial statutes. They are regulated by the general law of contract. While in Muslim matrimonial law the spouses are permitted to enter certain agreements, either at the time of marriage or even after. Also a valid separation agreement is a good defence to a suit for restitution of conjugal rights.
The concept of dower is specific to Mohammedan law only. A Muslim wife living separate from the husband on account of non payment of prompt dower, restitution of conjugal rights cannot be granted subjected to certain conditions. If the husband sues for restitution of conjugal rights before consummation of the marriage takes place then non-payment of dower is a complete defence to suit, and the suit will be dismissed. If the suit is brought after the consummation of the marriage then a decree for restitution of conjugal rights on payment of prompt dower is to be passed. There is no absolute right in a husband to claim restitution of conjugal rights against his wife unconditionally; the courts have discretion to make the decree conditional on the payment of her unpaid dower debt or to impose other suitable conditions considered just, fair and necessary in the circumstances of each case.
You can take a horse to the water, but you can’t make him drink, is a very popular proverb and the provision for restitution of conjugal rights under the Indian personal laws seems to be akin. The court can pass a decree for restitution of conjugal rights and order the erring spouse to cohabit with the aggrieved spouse. Also under the Indian law a decree of restitution of conjugal rights can be executed by attachment of the respondent’s property. But it is to be noted that the court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse.
As understood from the previous chapters, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation. It serves to aid prevention of the breakup of marriage, thus is a means of saving the marriage. So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.
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2. Dr.Paras Diwan, Law of Marriage and Divorce, (5th ED. : 2008), (Universal Law Publishing Co)
3. M.N.Das, Marriage and Divorce, (6th ED. : 2002) (Eastern Law House New Delhi)
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TABLE OF CASES:
1. Abdul Kadir v. Salima, ILR (1886) 8 All. 149
2. Abdul Karim v. Aminabai, AIR 1935 Bom. 308
3. Alopbai v. Ramphal Kunjhilal,AIR 1962 MP 211
4. Gurdial Kaur v. Mukand Singh, AIR 1967 Punj 235
5. Harvinder Kaur v. Harminder Singh, AIR 1984 Del. 66
6. Hyde v. Hyde and Woodmansee, (1866) LR 1 P. & D. 130
7. Itwar v Asghari , AIR 1960 All. 684
8. Kanna v Krishnaswami, AIR 1972 Mad. 247
9. Moonshee Buzloor Ruheem v. Shumsoonissa Begum, (1867) 11 MIA 551
10. Mt.Anis Begum v. Malick Muhammed Istefa Wali Khan, AIR 1933 All 634
11. Peddagiri v. Peddagiri,AIR 1963 AP 312
12. Raj Mohammad v. Saeeda Amina Begum, AIR 1976 Kant 200
13. Samraj Nadar v. Mohinder Singh , AIR 1970 Mad 434
14. Saroj Rani v. Sudharshan, AIR. 1984 SC 1562
15. Sukram v. Mishri Bai, AIR 1979 MP 144
16. Sushila Bai v. Prem Narayan, AIR 1964 MP 225
17. Shakuntala v. Babu Rao, AIR 1963 MP 10
18. Sushila Bai v. Prem Narayan, AIR 1964 MP 225
19. T.Sareetha v. T. Venkatasubbaiah, AIR 1983 AP. 356
20. Teja Singh v. Sarjit Kaur, AIR 1962 Punj 195