A) Meaning of Conjugal.
Relation Or connection between married couples.
B) Meaning of Conjugal rights.
The right of physical attachment or connection between the married couples which means physical relation between spouses.
C) Meaning of Judicial Separation.
It is a provision under the Indian Marriage laws, wherein both the husband and the wife get an opportunity to introspect giving a chance to their marriage before going on with the divorce proceedings.
When two people are bound together in relationship in marriage then there are certain marital duties and certain legal rights which provided to each spouse under all matrimonial laws. If either husband and wife want to withdraw herself or himself from marriage duties and rights without any reasonable excuses then aggrieved party has legal right to file petition in the matrimonial court for restitution of Conjugal Rights.
The guilty party is ordered to live with the aggrieved party after the implement of decree of restitution of conjugal rights. Under the Provision in Present time under the Indian Personal Laws, the aggrieved party can further move petition for a decree of Divorce in the favor of aggrieved party. Decree of Restitution of Conjugal Rights could be passed in case of Valid Marriage Only. In case of Moonshee Buzloor Ruheem Vs. Shumsoonissa Begum, the concept of Restitution of conjugal rights was introduced in India.
In Paras Diwan statement, the remedy of restitution of conjugal rights was neither recognized by the Dharma shastra nor in any Provision of Muslim Law.
According to Hindu Marriage Act.
Sec. 9 of Hindu Marriage Act, 1955 there is provision of Restitution of conjugal rights which means Right to stay Together.
Without reasonable excuse if either Husband or wife want to withdraw themselves from the bond of marriage, then aggrieved party may approach to the court for Restitution of Conjugal rights.
The decree of restitution of conjugal rights cannot be executed by forcing the person who do not have desire to live together with his/her partner. The decree can be executed only by attachment of the properties of judgement debtor. But the Restitution of conjugal rights cannot last more than a year, then after time of a year it becomes a ground of Divorce.
It means that legal separation without Divorce. Either husband or wife may present a petition of any grounds stated in the provision of divorce praying for a decree of Judicial separation. A Judicial separation is a legal separation of couples from each other without obtaining a decree of Divorce.
According to Muslim
In Muslim the Restitution of conjugal right lies under general Law. According to Tayabji statement about the provision for restitution of conjugal rights under the Muslim law is “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”.
In case of Abdul Kadir Vs. Salima, it was held by Allahabad High Court 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.
There are certain requirements under the provision of Restitution of conjugal rights under all Personal law :
i).The withdrawal by the respondent from the society of the petitioner.
ii).The withdrawal is without any reasonable cause or excuse or lawful ground.
iii).There should be no other legal ground for refusal of the relief.
iv).The court should be satisfied about the truth of the statement made in the petition.
In Tiwari 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.
For Christians the Restitution of conjugal rights is provided under Sec. 32 and Sec. 33 of Indian Divorce Act, 1869.
Sec. 32 state that Petition for restitution of conjugal rights. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either wife, or husband 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.
Sec.33 provide Answer to petition. – Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be ground for a suit for judicial separation or for a decree of nullity of marriage.
For Parsi the restitution of conjugal rights is provide under Sec. 36 of the Parsi Marriage and Divorce Act, 1936.
Sec. 36 provide that Suit for restitution of conjugal rights.—Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, 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.
In Special Marriage
And For those person who married according to the provisions of the Special Marriage Act, the restitution of conjugal rights is Provided under Sec. 22 of the Special Marriage Act, 1954 .
Sec. 22 provide that 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.
There are some conditions where court may refuse to grant the order of Restitution of Conjugal rights:
a) Cruelty by husband or in-laws
b) On the failure by the husband to perform marital obligations
c) On non-payment of prompt dower by the husband.
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 before or After the marriage couples are permitted to enter certain agreement.
To suit for conjugal right, valid separation agreement is considered as good defense.
Under a decree of Judicial Separation, both the parties live separately for a period getting adequate space, independence, and time to think about continuing their marriage or not. During this time interval both parties still have same legal status of husband and wife only they live Separately.
Grounds of Judicial separation in India.
1. Cruelty – Either of the spouse or both are cruel for one another.
2.Desertion – when Either of the spouses is missing for seven years or above and is not alive.
3. Adultery – Either of the spouses is being cheated upon by another spouse. In case a husband or a wife knows that their respective spouse is married and that the other person is alive during this petition; then the grounds for judicial separation strengthens.
4.Forced conversion of religion – Either of the spouses is forcing the other one to change and convert his/her religion.
5.Incurable diseases such as leprosy, cancer, Ebola, etc.
6.Insanity or abnormality – Either of the spouses is not in a sound condition.
7.Venereal or sexual diseases – Either of the spouses is suffering from sexual diseases such as HIV, AIDS, Genital Herpes, Syphilis, etc.
8.Rape, Sexual Harassment, Molestation, Bestiality and Sodomy.
9.Renunciation of the world by either of the spouse on religious or spiritual grounds.
10.Child marriage – Either of the spouses is married without his/her consent before attaining 18 years of age.
Judicial Separation is a process in which court decide that to resolve the difference between spouses, couples should live separately before the divorce proceedings interval. The time interval of judicial separation is of two year and this time is provide to couples to resolve their disputes and misunderstanding.
*Website of Indian bar association visited on 5 April 2021.
* Indian code