Author: Khushi, a 2nd semester student at Maharshi Dayanand University, Rohtak
Marriage in India are considered a very sacred bond. Every marriage imposes an obligation on both spouses to cohabit with each other. The basic implication of marriage is that the parties will live together. But suppose one party refuses to live with the other , can the latter, by a legal process, compel the former to live with him? Restitution of conjugal rights is one such legal remedy.
History
The Jewish law first gave the remedy of restitution of conjugal rights. From Jewish law it was was adopted in English common law and from English law later it came to Indian law. A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. The concept of restitution of conjugal rights has its origin to the ancient days when the marriage was based on the concept of exclusive rights of the husband. The wife was considered as a property of her husband and was, therefore, required to live at all times in the home provided by the husband and if she refused to do so or ran away, she could be compelled to live with him, almost the same way as a cow which ran away from master’s shed could be brought back and tied to its post. Formerly, the decree of restitution was enforced by the arrest of the respondent and delivering her person to the husband. In the later law, the remedy of restitution was made available to the wife, but the execution of decree by arrest was done. Still the decree could be executed by the attachment of the respondent’s property.
Subsequently, the English law removed this mode of execution of the decree. Later, the non-compliance with the decree meant constructive desertion and the aggrieved party on the expiry of the statutory period, could ask for divorce. Another advantage of this remedy was that if the wife obtained this decree and the husband refused to comply with it, she got the right to claim maintenance. In English laws, the remedy of restitution of conjugal rights has now been abolished by Section 20 of the Matrimonial Proceedings and Property Act,1970.
In India, the remedy of restitution of conjugal rights is available to members of all communities, either under the personal law or under the general law. In India, the decree of restitution can be executed by attaching the property of the respondent and not by arrest.
Critics
The remedy of restitution has been criticized as most inhuman and obnoxious. This outdated remedy has been called worse than tyranny and a form of slavery. It is obvious that a marriage cannot be specifically enforced; a party can perform the obligation only if a body is willing. All over the world, the jurists and sociologists are of the view that remedy of restitution should be abolished. But unfortunately, we still retain it.
The main reason for its retainment is that marriage is considered as a sacred bond in India. The main object of restitution decree is to bring about cohabitation between the parties so that they can live together in the matrimonial home. It mainly focuses on preventing the marriage from getting broken and it is a chance for the spouses to repair their broken relationship. No matter how much it is criticized but our courts still believe it to be an important matrimonial remedy and that there are enough provisions in our law to ensure that RCR doesn’t turn out to be a disaster.
Amendment
The Marriage Laws (Amendment) Act, 1976, has now repealed sub-section (2) which caused a controversy among our High Courts, and has added an explanation.
The amendment to Section 9 is as under:
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 courts, on being satisfied of the truth of the statement made in such petition and that there is no legal ground because the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation: Where any question arises whether there has been reasonable excuse for the withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
For restitution, the following three basic conditions need to be satisfied:
(i) withdrawal from the society of the petitioner by the respondent without any reasonable excuse,
(ii) the court’s satisfaction about the truth of the statement made in such a petition, and
(iii) there is no legal ground why the relief should not be granted.
The second condition relates to proof. The third condition relates to bars as laid down in Section 23, Hindu Marriage Act, 1955. The first condition contains two elements (a) the withdrawal of the respondent, and (b) the withdrawal of the respondent should be without any reasonable excuse.
But obviously for filing such a petition marriage ought to be there. If the marriage is not proved, then no such application can be filed by any party.
Case: Saroj rani vs Sudarshan Kumar
Facts:
– Saroj Rani and Sudarshan Kumar got married in 1950.
– Sudarshan Kumar filed a petition for the restitution of conjugal rights under the Section 9 of the Hindu Marriage Act, 1955.
– Saroj Rani refused to cohabit with Sudarshan Kumar and did not comply with the court’s decree for the restitution of conjugal rights.
Trials:
– Trial Court: Initially, the trial court granted Sudarshan Kumar’s petition for restitution of conjugal rights.
– The court ordered Saroj Rani to resume living with Sudarshan Kumar.
– However, Saroj Rani did not comply with the court’s order.
Judgment:
– The case was significant as it highlighted the legal concept of restitution of conjugal rights under Hindu law.
– The court’s judgment emphasized the duty of spouses to live together and maintain marital relations, as outlined in Section 9 of the Hindu Marriage Act.
– Despite the court’s decree for restitution, Saroj Rani’s refusal to comply led to legal consequences.
The case of Saroj Rani vs Sudarshan Kumar underscores the legal principles surrounding restitution of conjugal rights in Indian matrimonial law. It reflects the courts’ stance on marital obligations.
There have been many other cases challenging RCR like the case of Harvinder Kaur vs Harmander Singh where the wife refused to follow decree of RCR calling it unconstitutional and violative of Article 14 and 21 of our constitution.
Conclusion
Restitution of conjugal rights is a matrimonial remedy that primarily focuses on bringing back the spouses together and giving them a chance to fix their issues together. Many a times it has been criticized as absurd and violative of human rights but our courts firmly believe it to be a litmus test. If the person doesn’t cohabit even after issuing of the decree of RCR, then the same can be used as a ground for divorce under Section 13 of the Hindu Marriage Act. Hence there are sufficient provisions to not let it become a tyranny.
But it should also be kept in mind that willingness of the other party to live should also not be ignored while issuing a decree of RCR. It is but obvious that if a person is oneself not willing to live then the marriage becomes irreparable because the most basic and important part in any marriage is a person’s will to live in it. If a person loses their will to be in the marriage then it can’t be repaired after that. The courts should ensure that no harm is caused to any party while giving a decree of RCR.
FAQS
1. Who can file for restitution of conjugal rights?
Either spouse can file a petition for restitution of conjugal rights if the other spouse has withdrawn from their company without a reasonable excuse.
2. What are the grounds for filing restitution of conjugal rights?
The primary ground for filing RCR is the refusal of one spouse to cohabit with the other without reasonable justification.
3. How does the court decide on a petition for restitution of conjugal rights?
The court considers whether there has been a withdrawal from cohabitation by one spouse without reasonable cause. It may also examine the intentions of the parties and any attempts at reconciliation.
4. What happens if the court grants a decree for restitution of conjugal rights?
If the court grants the decree, it directs the defaulting spouse to return to marital cohabitation. The decree does not compel physical or sexual intimacy but rather requires the couple to live together under one roof.
5. What if the spouse refuses to comply with the court’s decree for restitution of conjugal rights?
If the defaulting spouse continues to refuse without reasonable excuse, it may be considered a ground for the other spouse to seek legal remedies, including divorce, based on the refusal to comply with the court order.
6. Is restitution of conjugal rights applicable to all religions in India?
No, Section 9 of the Hindu Marriage Act specifically applies to Hindus and applies differently in other personal laws governing marriage in India.
7. Can a spouse refuse restitution of conjugal rights if there are instances of cruelty or other marital issues?
Yes, if there are valid reasons such as cruelty, adultery, desertion, or other marital issues, a spouse may defend against a petition for restitution of conjugal rights on grounds of reasonable excuse.
