Efficacy of The Prohibition of Child Marriage Act, 2006

Efficacy of The Prohibition of Child Marriage Act, 2006 – regarding the age of marriage in the light of different marriage laws prevailing in India.

Pratim Sarkar

Child marriage is a common practice in different parts of the world, however it is prevalent in India, where more than one third of all child brides live. In certain parts of India child marriage became a custom, which in most cases is backed by family and societal pressure. As per the report of UNICEF, 47% of girls are married by 18 years of age and 18% are married by 15 years of age. These marriages are often performed without the consent of the girls involved in the marriage[1]. Indian laws has made child marriage not illegal but voidable. The highest rate are being seen particularly in the rural areas of A.P, Bihar, M.P, Rajasthan and U.P. It affects both boys and girls , but statistics show that girls are far more likely to be forced into a child marriage than boys. However the percentage of girls forced into Child marriage in India has declined in recent years[2]. Now a days child marriage is largely condemned, many consider child marriage to be a human rights violation resulting in death, health problems, poverty, and violence and of education.

Medieval Indian societies were afflicted by several evil social practices. Commendable efforts and initiatives were taken by many social reformers in addition to that modern, progressive secular education introduced by the British, laws were enacted by the colonial Government to prevent some of these evil practices. Child marriage was one of them.

With a view to restraining solemnization of child marriages the Child Marriage Restraint Act was enacted in 1929 and it was amended in 1949 and in 1978 in order to (inter alia) raise the age limit of the male and female persons for the purpose of marriage. The Act, though restrains solemnization of child marriages but it does not declare them to be void or voidable. The solemnization of child marriage is punishable in this Act also.

 Relevant Provisions of different Laws prevailing in India deal with Child Marriage

The Prohibition of Child Marriage Act, 2006

Section 2 (a) “child’ means a person who, if a male has not completed twenty one years of age and a female, has not completed eighteen years of age.

Section 2(b) “child marriage” means a marriage to which either of the contracting parties is a child.

Section 3. Sub Section(1). every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.

Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of marriage.

Section 9. whoever being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

Section 10. whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to five lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

The Special Marriage Act, 1954

Section 4. Conditions relating to solemnization of special marriages-

Cl. (c) the male has completed the age of twenty-one years and the female the age of eighteen years.

Section 24. Void marriages-

Sub Section (1). Any marriage solemnized under this Act shall be null and void and may on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if-

Cl. (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled.

 The Hindu Marriage Act, 1955

Section 5(iii). the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of marriage.

Section 18. Punishment for contravention of certain other conditions for Hindu marriage-

(a). in the case of a contravention of the condition specified in clause (iii) of Section 5, with simple imprisonment which may extend to fifteen days or with fine which may extend to one thousand rupees or with both.

Muslim Law

One of the important elements of Muslim marriage is Puberty. ‘Puberty is a biological phenomenon. It is generally presumed to have been attained at age 15. A person who has attained puberty is called baligh(major). The possibility of attaining puberty at an earlier age is not ruled out-in exceptional cases boys and girls have found to have attained puberty even at age 12 and 9 respectively.’(The Muslim Law of India, Tahir Mahmood, 3rd Edition, 2002, LexisNexis, Butterworths)

 The Indian Christian Marriage Act, 1872

Section 60. Every marriage between Indian Christians applying for a certificate, shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions be fulfilled and not otherwise-

(1) The age of the man intending to be married shall not be under twenty one years, and the age of the woman intending to be married shall not be under eighteen years.

 The Parsi Marriage and Divorce Act, 1936

Section 3 Sub Section (1)No marriage shall be valid if-

Cl.(c) in the case of any Parsi has changed his or her religion or domicile or not who if a male has not completed twenty one years of age and if a female has not completed eighteen years of age.

Significance of the present law

The Act of 2006 would have far reaching ramifications. It being a secular Act, a piece of uniform civil code would be applicable on all communities of India[3]. This Act specifically declares that a child marriage is not void, it is only voidable. The object behind the enactment of this law is to discourage marriages between under aged persons[4]. Thus, if the parties to a child marriage do not get it annulled it shall remain to be a valid marriage before the law. Other than this the legislation does not demarcate between a child marriage and a normal marriage. This implies that the contracting parties to a child marriage have the same rights duties and obligations as the bride and the groom of an ordinary marriage. The provisions for custody and maintenance of the girl child has been made i.e. even of such marriage was declared void, the girl had the right to maintenance from the husband till the time she got remarried. Section 12 makes such marriages null and void in case the child is enticed or taken away from the custody of his/her lawful guardian or is by force compelled or by deceitful means induced to go from any place or is sold for the purposes of marriage and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes. Further, under the new Act the punishment for encouraging or facilitating or solemnizing such marriages was increased. Nonetheless the policy of not holding the women liable for solemnization of such marriages was continued even under the new Act.

Attempt has been made through this new Act to prevent child marriages not to prohibit them. Under the Special Marriage Act such marriages are void, this Act has enacted for literate and advanced people who alone can normally perform civil marriages. On the other hand, the Hindu Marriage Act has enacted for all Hindu people including illiterate, socially-economically backward and tradition ridden people where child marriages are performed for centuries. An attempt to prevent all such child marriages through this new Act is appreciable.

The unbridled and unhindered mass child marriages performed throughout India, are a clear warning that the existing law prohibiting child marriages has failed miserably. The Law Commission took the notice of this failure of the present Act and making an extensive review in child marriages and its implications upon other laws the Commission by its 205th Report has suggested some proposal which can be incorporated in the present law so that it can strictly enforce. The relevant proposal (inter alia) of the Commission are like (i) Child marriage below the age of 16 be made void (i.e. legally unenforceable under any circumstances), (ii) Marriages where either or both spouses are between 16 and 18 be made voidable (i.e. giving an option of either party to get them annulled),(iii) The age of marriages for both boys and girls be made 18 years; (here the Commission says there is no reason for keeping a difference in the two ages), (iv) The provision of maintenance of the girl till her remarriage in either to be continued and all children arising out of either of the marriages under to be deemed legitimate, (v) The legal age for a girl to give sexual consent to be increased to 16 years;(vi) Registration of all marriages to be made mandatory.[5]

 

Judicial Approach

In Tanima v. Pradeep, the Court held that a marriage solemnized in violation of age requirement may not be strictly void or voidable. If one of the parties seeks a declaration that the marriage was a nullity on the ground of minority of the other spouse, the court must consider the nature of the dispute and then endeavour to adjudicate the matter[6]. In Kokkula Suresh v. State of AP, the Andhra Pradesh High Court has held that under Hindu Law, marriage of minor girl below 18 years is neither void nor voidable[7]. The Child Marriage Restraint Act, 1929 prescribed 15 as the minimum age for girls and 18 for the boys. But such was the then prevailing social condition that the child marriages were made neither void or voidable, but, once performed they were perfectly valid as held in Manish Singh v. State Government, NCT[8].

In T. Shivakumar v. Inspector of Police, Thiruvallur Town Police Station & Others[9], The Madras High Court held that Prohibition of child Marriage Act,2006 will have overriding effect over Hindu Marriage Act, 1955. Marriage contracted by a person with a female of less than 18 years is voidable and same shall be subsisting until it is annulled by a competent court under section 3. In Bhukhan & Others v. Kaushalya Bhai & Others[10], the High Court held that, marriage between parties below the age of 18 and 15 years is not void marriage as per Sec. 11 of Hindu Marriage Act. Further Section 18 of the said Act does not make marriage between parties who were below the required age at the time of marriage void but only provide punishment for its contravention. The concerned marriage therefore not declared void.

Delhi High Court observed in Association for Human Rights v Union of India and Others[11]. “Child marriage is a violation of human rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty”.

 

Conclusion

In child marriage, not only the rights of the parties are violated but their immaturity, helplessness and inexperience in many respects make them more vulnerable to further exploitation. In that sense, child marriage is a clear violation of human rights. It is worth mentioning here that the right to free and full consent to marriage is recognized in the Universal Declaration of Human Rights and in many other subsequent Human Rights Instruments.

Child Marriages are a social phenomenon which cannot be tackled by legislative initiatives alone. Compulsory registration may not also provide the remedy for restraining the child marriages. This would primarily require change in mind set of the society. Attempt should be made so that people can of their rights, focusing on the evil effects of this practice.

[1] For details visit http://en.wikipedia.org/wiki/Child_marriage_in_India, last accessed on 10.09.2012

[2] Ibid

[3] Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law, (2012), Allahabad Law Agency, Faridabad, pp.108-109

[4] Dr. Basant K. Sharma and Divya Sharma, Hindu law, (2008), Central Law Publication, Allahabad, p. 51.

[5] ‘Child Marriage in India: Policy Changes proposed by the Law Commission of India’, viewed at http:// www.legalperspective.blogspot.com, last accessed on 08/09/2012

[6] AIR 1992 Ori 178

[7] AIR 2009 AP 52

[8] AIR 2006 Del 37

[9] AIR 2012 Mad 62

[10] AIR 2012 (NOC) 223 (CHH)

[11] ‘Delhi high Court recognizes Child Marriage as human rights violation’, for details visit http:// www.hrln.org last accessed on 01.03.2012

Restitution of Conjugal Rights : A Comparative Study among Indian Personal Laws

– ANUJA AIYAPPAN

CHAPTER 1

 

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.

 

 

CHAPTER 2

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.

 

2.2.1 Hindu

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.

 

2.2.2 Muslim

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

 

2.2.3 Christian

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

 

2.2.3 Parsi

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.

 

 

CHAPTER 3

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.

 

3.2 Conclusion

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.

 

BIBILIOGRAPHY

Books:

1. V.P. Bharatiya, Syed Khalid Rashid’s Muslim Law, (4th ED. : 2004) (Eastern Book Company Lucknow)

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)

4. A.G.Gupte, Hindu Law, (1st ED. : 2003) (Premier Publishers Delhi)

5. S.P.Gupte, Hindu Law in British India, (2nd ED. : 1947) (Premier Publishers Delhi)

6. Asaf A.A.Fyzee, Outlines of Muhammadan Law, (5th ED. : 2008) (Oxford University Press New Delhi)

 

Articles:

1 Aditya Swarup, Constitutional Validity of Restitution of Conjugal Rights: Scope and Relevance, http://works.bepress.com/adityaswarup/8 , (Last Visited : Feb. 27, 2011)

2 Vimal Balasubrahmanyan, Conjugal Rights vs Personal Liberty: Andhra High Court Judgment, http://www.jstor.org/stable/4372307, (Last Visited : Mar. 03, 2011)

3 Vimal Balasubrahmanyan, Conjugal Rights: Shift in Emphasis Needed, http://www.jstor.org/stable/4373507, (Last Visited : Mar. 02, 2011)

4 Lucy Carroll, Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife, http://www.jstor.org/stable/312203, (Last Visited : Mar. 02, 2011)

5 Saloni Tuteja, Restitution Of Conjugal Rights: Criticism Revisited, http://www.legalserviceindia.com/articles/abol.htm, (Last Visited : Feb. 28, 2011)

6 Arlette Gautier, Legal regulation of marital relations: an historical and comparative approach, http://lawfam.oxfordjournals.org/content/19/1/47.abstract#target-1, (Last Visited : Mar. 11, 2011)

7 Frances Raday, Culture, religion and gender, http://wunrn.com/news/2008/03_08/03_03_08/030308_culture_files/030308_culture.pdf , (Last Visited : Mar. 10, 2011)

 

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