Marriage under matrimonial laws is a union which binds two people to one another thus imposing certain marital rights and duties against each other but the most important of which is that the spouses live together under the same roof and start their family. Therefore, after the solemnisation of the marriage if either of the spouses without reasonable reason refrains from fulfilling his/her duty against the other spouse then the latter has a legal right to file a petition for restitution of conjugal rights. The court after hearing the petition and on being satisfied with the petitioner may pass a decree of restitution of conjugal rights. Laws in the relation of Restitution of conjugal rights are of great importance to the Modern matrimonial laws and here in this article, we will discuss the same.
What is meant by Restitution of Conjugal Rights and by what law is it governed by?
By a bare reading of the phrase, even a layman can understand that it means “the restoration of the marital rights”. But before diving into what the law means, it is important to know what a Conjugal Right essentially is. Under Hindu Law, marriage is considered as the most sacred ceremony. The ceremony of Saptapadi in a Hindu marriage imposes certain rights and duties upon both the husband and the wife that they have against each other. These rights and duties which are binding upon both the spouses under Hindu law are termed as Conjugal or Marital rights. Certain important conjugal rights imposed on the spouses are to reside as Husband and Wife under the same roof, Procreation, raising a family etc.
Parties to a marriage have great aspirations for their married life but many times things don’t work and the parties have to go for a divorce. But divorce is a dire step which ends the relation in its totality therefore when one of the spouses feels that there could be a chance to save their relation, he/she can file an application for Restitution of Conjugal Rights to have a new start of their marital relationship. It had its origin in the feudal English Law but was later abolished in the 1970s. An important note to be made here is that this restitution could be sought for only in the case of a valid marriage.
A decree of restitution of conjugal rights means that the respondent spouse is ordered to cohabit with the plaintiff spouse and have to fulfil his/her duty against the other. Under the Hindu Marriage Act or the Special Marriage Act restitution is the only remedy which could be availed by a deserted spouse against his/her partner if he/she wants to continue with the marriage.
The decree of restitution of conjugal rights can be enforced through coercive measures in the form of attachment of property when the party complained against wilfully disobeys the decree and could also be punished for contempt of court.
Provisions for restitution of conjugal rights is given under Section 9 of the Hindu Marriage Act, 1955, Section 22 of the Special Marriage Act, 1954 and Order 21, Rules 32 and 33 of the CPC, 1908.
In Saroj Rani v. Sudarshan Kumar Chadha[i], Hon’ble Supreme Court while validating the constitutionality of Section 9 of the Hindu Marriage Act dealing with restitution observed that in cases of restitution of conjugal rights the respondent spouse (here the husband) becomes liable as per court’s order should cohabit with the aggrieved petitioner and fulfil his marital obligations.
Provisions for restitution of Conjugal Rights under Hindu Marriage Act, 1955 and Special Marriage Act, 1954
Provision for restitution of Conjugal Rights under the Hindu Marriage Act, 1955 is given under S. 9 whereas under the Special Marriage Act, 1954 it is given under Section 22. The provisions read identically and are as follows –
When either of the spouses has, withdrawn from the society of the other without a reasonable reason, the aggrieved party may file a suit to the district court, for restitution of conjugal rights. The court, on being satisfied with the petitioner’s arguments in the petition and after confirmation that there is no legal embargo on such claim can decree restitution of conjugal rights.
This concept is even under Muslim Law which according to Tayabji is as follows –
Where either one of the spouses has withdrawn from the society of the other or has neglected his duties against the partners without a reasonable reason, the court may interfere and can decree restitution of conjugal rights.
Therefore, this concept under Muslim Law is directed towards securing the spouse his/her legal rights. The concept of Restitution of Conjugal Rights in Muslim Law was explained in the case of Abdul Kadir v. Salima[ii], where the Allahabad High Court held that restitution must be decreed as per Muslim Law (Sharia) and not based on Judicial Morality or Natural Law.
In Asfaq Qureshi v. Aysha Qureshi[iii], the Chhattisgarh High Court held that in cases of conversion followed by a marriage where conversion was improper, decree of restitution of Conjugal Rights cannot be given because the marriage is itself null and void. The court also observed that a decree of restitution can only be given in case of a valid marriage.
Essentials to file a suit for Restitution of Conjugal Rights
As we have dealt with provisions related to restitution under different laws certain essentials could be concurred for filing a suit for the same. The essential conditions for filing a suit for restitution of conjugal rights are as follows –
1. That the respondent has withdrawn from the petitioner’s society.
2. That the withdrawal neither has a reasonable reason nor is legal.
3. That there was no other legal ground for the refusal of relief.
4. That the court is satisfied with the petitioner’s arguments.
Thus, these four grounds form the basis of a suit for restitution under all personal laws. This was again ratified in the case of Sushila Bai v. Prem Narayan[iv], wherein the court gave an order of restitution and confirmed the above essentials as a ground for restitution. The court in the same case also laid down certain situations which could be taken as a defence in a suit of restitution which is as follows –
1. That the respondent can claim a matrimonial relief as against the suit.
2. That the facts show and it is proven that the petitioner is guilty of misconduct.
3. That due to certain acts or omissions it becomes impossible for the spouses to live together.
Thus, under these circumstances, the suit for restitution is vitiated and the court becomes bound to a decree for a Judicial Separation followed by a Divorce.
Who has the onus of proof in a suit filed for restitution of Conjugal Rights?
When the court has to decide whether the withdrawal was made on a reasonable excuse, the burden of proving the reasonability of the excuse is upon the person who has withdrawn from the society or the respondent. But primarily the onus is on the shoulders of the petitioner to prove the wrong done against him. Once he/she proves his/her case, the burden shifts over the respondent to prove the reasonability of his/her excuse. This was also ruled out in the case of P. RajeshkumarBagmar v. Swathi Rajeshkumar Bagmar[v].
Where can a party move for a suit for restitution of Conjugal Rights?
A party can file a suit for restitution to the District Court in whose jurisdiction – the marriage was solemnized, the couple stayed or the couple last stayed. Thus, a spouse to file a suit for restitution of conjugal rights may approach a court with proper jurisdiction.
Can a wife ask for maintenance in cases of suits for restitution of Conjugal Rights?
Section 9 of the Hindu Marriage Act, 1955 in addition to provide for the restitution of conjugal rights also provides for an opportunity to the petitioner spouse to seek maintenance under Section 25 of the Act. It is to be noted here that maintenance under these provisions could be sought for even in cases where the action concerning maintenance is still pending. Therefore, a wife who does not want the disruption of marriage can get maintenance from her husband directly through these provisions even without actual dissolution. In Seema v. Rakesh Kumar[vi], Hon’ble Supreme Court held that in cases for decree of restitution of conjugal rights, the petitioner wife becomes entitled to receive maintenance from her husband if the two are living with each other and the wife is unable to live a decent life on her own.
As understood from what we have discussed above, it is clear that the restitution of conjugal rights is a matrimonial remedy which is guided by Indian tradition and custom of sanctity and purity of marriage. It is aimed at preserving the marriage and not at disrupting it thus promoting reconciliation and maintenance of the marital bond. It can, therefore, be said that restitution of conjugal rights is a positive remedy because it is aimed at preserving the noble bond of marriage.
Frequently Asked Questions
What are Conjugal Rights?
Conjugal or marital rights are the rights assigned to both the husband and wife by virtue of their marriage. They are bound to fulfil their obligations to have a healthy marital life. Like for instance, a husband has an obligation to maintain his wife whereas the wife has an obligation to maintain the house hold.
What is restitution of conjugal rights?
When one of the spouses refrains himself/herself from fulfilling his/her obligation against the other spouse than the aggrieved spouse can move before a court for a remedy wherein the court after completely satisfying itself with the matter at hand may pass a decree of restitution of conjugal rights and may order the respondent spouse to fulfil his marital obligations.
Under what laws can a decree of restitution of conjugal rights be sought for?
For Hindus a decree can, be passed under Section 9 of the Hindu Marriage Act, Similarly for Parsis provision for it are given under Parsi Marriage Act, for Christians provisions for restitution is given under the religion neutral Indian Divorce Act. Provisions for restitution of conjugal rights are also given under Section 22 of the Special Marriage Act and also under Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908.
Where can a suit for restitution of Conjugal Rights be filed?
An aggrieved spouse may file a suit for the decree before the District Family Court with proper jurisdiction (as mentioned in the Article).
Who has the onus to prove in case of restitution of conjugal rights?
In these cases, primarily the burden is upon the aggrieved petitioner which shifts to the respondent once the former proved his miseries.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
[i]Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90.
[ii]Abdul Kadir v. Salima, (1886) ILR 8 All 149.
[iii]Asfaq Qureshi v. Aysha Qureshi, 2010 SCC OnLineChh 63.
[iv]Sushila Bai v. Prem Narayan, AIR 1986 MP 225.
[v]P. RajeshkumarBagmar v. Swathi RajeshkumarBagmar, (2008) 4 CTC 338.
[vi]Seema v. Rakesh Kumar, (2000) 9 SCC 271