Study Notes: Restitution of Conjugal Rights under Hindu Law

By Abhishek Kaushal 11 Minutes Read

Introduction

Marriage is a holy union that brings together a man and woman, such a relationship that also binds their families as one. In our tradition, marriage is considered to be a sacred bond where the bride and groom take vows to live for lifetimes, to support each other in ups and downs, to prosperity and welfare, to good health, love, and friendship.

The custom of “saptapadi” or “seven steps” around the holy fire is which signifies their relationship to be for seven lifetimes or “saat janam” in pursuit of meaning, truth, and desires; the custom of tying mangalsutra or “auspicious thread”, are followed in every Hindu marriage. In fact as per the Hindu Marriage act, 1955, marriage is solemnized when the last step is taken in saptapadi[1]. The age-old traditions of Hinduism regard marriage as an essential “sanskara” or “sacrament” which is permanent and does not recognize divorce, being a relationship for eternity. With the enactment of the Hindu Marriage Act, 1955, divorce became an option so as to terminate the marriage, also introducing the concept of Restitution of Conjugal Rights and Judicial Separation. Both the latter concepts shall be dealt with in the coming parts.

Restitution of Conjugal Rights

In common parlance, restitution of conjugal rights means ‘restoration of marital rights to its original position’. The concept of Restitution of Conjugal Rights is a legal remedy that cannot be found in the Dharmashastra or any personal law. The remedy finds its origin in Jewish law, which was brought into India by way of Common Law in the British Raj. The application of the concept dates back to the year 1886[2] by Privy Council in India. Marriage implies that husband and wife will cohabit. Both husband and wife are entitled to live together, but if after marriage has been performed, one partner withdraws from the society of the other party, without a reasonable cause. The other party has a legal right to approach the court by way of a petition for restitution of conjugal rights. Passing of the decree for restitution shall depend upon whether there is no legal ground for refusing the petition and the court is satisfied that the statements averred by the aggrieved party are true. Actions of an aggrieved party can be a reasonable cause for withdrawal[3].

Provision under Hindu Marriage Act, 1955
Section 9 of the Hindu Marriage Act, 1955 provides for restitution of conjugal rights as follows:
Either of the party withdraws from the society of the other person,
Such withdrawal was without reasonable cause, aggrieved party, by way of petition to the district court, may apply for restitution of conjugal rights,
The court may a decree restitution of conjugal rights if there is no legal ground for refusal of the petition and the court is satisfied that the statement made by petitioner are true.

From, the essential conditions of the above section, it can be inferred that withdrawal from society is a voluntary refusal to cohabit and the reasonable cause shall be any ground that makes cohabitation impossible. If the husband continually persists wife to live with his parents, this is a reasonable cause for the wife to withdraw from the society of husband[4].

What is matrimonial home?

The definition of a matrimonial home or matrimonial society is not defined in any statute. Black Law Dictionary[5] defines a matrimonial home as a house where husband and wife live together. The definition implies the existence of a household shared by husband and wife. Withdrawal from such society or home would be required for validating the condition under section 9.

Effect of decree of restitution

If a petition is filed by the aggrieved party with the desire to resuming cohabitation and a decree is passed by the court for the same, non – compliance of such decree (non – resumption of cohabitation) for a period of one year, becomes a ground to obtain a divorce for the aggrieved partner[6].

Possible grounds for withdrawal from society

  • Bigamy

When a husband marries a second wife, while the first marriage still being valid, he commits the offence of bigamy. Hindu Marriage act prohibits bigamy and if such an act is committed by the husband, then it would become a justified ground for the wife to withdraw herself from husband’s society. In these cases, the wife has the right to apply for restitution of conjugal rights.

  • Females staying away for work

Normally, after marriage gets solemnized, the wife leaves her parental home to start living in the marital home (husband’s house). The traditional approach in relation to marriage is husband going out for job and the wife staying back for household chores and caretaking of the husband’s family. As a result, in the earlier times, wife was not allowed to withdraw from her husband’s society without his valid consent. Such a lack of freedom inhibited the wives to work outside to have a career. Although, several changes have taken place in such a relationship, due to which nowadays most of the women carry on with their jobs and careers after marriage.

This concept raises the question, whether a wife can choose to live separately due to her employment? In the context of this question, the courts have had a conservative and progressive view. In the cases of Tirath Kaur v. Kirpal Singh[7] and Gaya Prasad v. Bhagwati[8], the court had a conservative approach where it was held that employment is not a sufficient excuse for a wife to live separately and wife has an obligation of cohabitation, a duty to submit herself to his authority. Wife is not entitled to live separately until she proves any misconduct or lack of maintenance from her husband[9]. Whereas, in the case of Shanti Nigam v. Ramesh Chandra Nigam, the court held that if the wife desires to work, she cannot be kept in household, even if such work demands for staying away, she must be able to do so. Where it is felt by wife that such work would be necessary for her own upkeep, so long as she does not cut herself from her husband, husband cannot apply for such a remedy. A similar view was taken by the court in the case of Swaraj Garg v. K.M. Garg, where it was held that there is a provision in Hindu law that warrants the choice of matrimonial as a privilege, exclusive to the husband.

Constitutional Validity of Section 9, Hindu Marriage Act, 1955

The remedy of restitution of conjugal rights was adopted in India in the 19th century from British common law. This was the time when wives were considered as a property of their husbands. The same remedy was abolished in the UK in the year 1947 by an enactment[10]. Since then, the remedy of restitution of constitutional rights has been challenged several times.

In the case of T. Sareetha v. T.V. Subbaiah[11], the court opined that section 9 is in violation of Article 21 of the Constitution. Section 9 was held to be unconstitutional, being the grossest form of violation. In the case of Harvinder Kaur v. Harmander Singh[12], the wife had challenged the decree granted to husband by the lower court, the court held that section 9 was constitutionally valid, and the appeal was dismissed. Basically, the latter case was of opposite opinion on the issue of the constitutionality of section 9.

After both the above-stated cases were decided, the Supreme Court in the case of Saroj Rani v. Sudarshan Kumar[13], where a wife had applied for restitution after being turned out from the house, it was held that section 9 is constitutional. In addition to this, the court further stated that the purpose of this section is to offer to induce husband and wife to live together and settle their disputes in a friendly manner. 

[1]. Hindu Marriage Act, 1955, ss. 7 (ii)

[2]. Moonshee Bazloor v. Shamsoonaissa Begum, 1866-67 (11) MIA 551.

[3]. Surinder v. Gurdeep, 1973 P&H 134.

[4]. Jaindra v Sivacharan, AIR 1965 J&K 59.

[5]. Black Law Dictionary 7th Edition 1999.

[6]. Sushil Kumari Dang v. Prem Kumar, AIR 1976 Delhi 321.

[7]. 1975 PLR 572.

[8]. AIR 1966 M.P. 212.

[9]. Smt. Kailash Wati v. Ayodhia Prakash, 1977 (79) PLR 216.

[10]. Law Reforms (Miscellaneous Provisions) Act, 1947.

[11]. AIR 1983 AP 356.

[12]. AIR 1984 Del. 66.

[13]. AIR 1984 SC 1562.

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