Restitution of conjugal rights

Introduction:Section 9 of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjuga Rights under !hich after so emni"ation of marriage if one of the spouses abandons the other, the aggrie#ed part$ has a ega right to fi e a petition in the matrimonia court for restitution of conjuga rights% &his right can be granted to an$ of the spouse% &his section is identica to section '' of the Specia Marriage Act, 195(%)'* &he pro#ision is in s ight $ different !ordings in the +arsi Marriage and ,i#orce Act, 19-., but it has been interpreted in such a manner that it has been gi#en the same meaning as under the Hindu Marriage Act, 1955 and the Specia Marriage Act, 195(% Ho!e#er, the pro#ision is different under the section -' /ndian ,i#orce Act, 10.9 but efforts are being made to gi#e it such an interpretation so as to bring it in consonance !ith the other a!s% &he pro#ision under Mus im a! is a most the same as under the modern Hindu a!, though under Mus im a! and under the +arsi Marriage and ,i#orce Act, 19-. a suit in a ci#i court has to be fi ed and not a petition as under other a!s% 1a!fu !ed oc2 bet!een t!o persons imposes an ob igation on both the spouses to cohabit !ith each other and to i#e !ith each other% &he e3pression 4withdrawal of society5 means cessation of cohabitation, to bring an end the consortium% &he cessation of cohabitation or bringing to end of consortium shou d be the act of the respondent% &he !ord 6societ$6 here means the same thing as cohabitation% Refusa to i#e !ith other spouse,
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refusa for marita intercourse, refusa to gi#e compan$ and comfort to each other, a amounts to !ithdra!a from societ$% /n a petition for restitution of conjuga rights, it is not re7uired to sho! that the parties !ere cohabiting ear ier% /f the parties !ere not sta$ing together ear ier, the petition !ou d ie !hen one of the parties intends to cohabit !ith the other% &his petition can be presented e#en if the marriage is not consummated and the other part$ !ants to consummate the marriage from English law. In English law, wife and husband were treated as a single entity and therefore a wife could not sue her husband or vice versa From England these rights passed on to her various colonies onto which her Anglo-Saxon jurisprudence was grafted and India was no exception in this regard. The provision was never a part of Hindu, Sikh, Muslim or Parsi Law, but the British imported it into India, through judicial pronouncements.

&hus in the absence of an$ statutor$ a! the /ndian courts passed decrees for restitution of conjuga rights for a re igious communities% &here is no !arrant in authorit$ e3tending o#er 158 $ears in 9ng and from !here !e ha#e borro!ed this matrimonia remed$% Section 9 in a sense c ear $ is inconsistent !ith the a! as e3pounded in 9ng and and /ndia in a stream of authorities% As ong ago as 10.. the +ri#$ Counci in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, :10.;< ' Moo /A 551 app ied to this countr$ the 9ng ish remed$ of restitution% /n /ndian egis ature in 1955 codified this remed$% Section 9 had mere $ aped the =ritish and

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mechanica $ re-enacted that ega pro#ision of the =ritish ecc esiastica origin%6 Restitution of Conjugal Rights. &he !ithdra!a is unreasonab e or un a!fu :ie it has not% been co#ered under the grounds for di#orce, or judicia separation or nu it$ of marriage<% Ho!e#er, if the reason for !ithdra!a is reasonab e or a!fu , a decree for restitution !ou d be gi#en% 1%9ither spouse has !ithdra!n or refused to cohabit !ith the other spouse% >hen discussing restitution, one must oo2 at !hat constitutes !ithdra!a from societ$% /n 9ng and, in the case of >i 2ies #% >i 2ies :!hich !as a case for di#orce< the court he d that e#en though the husband and the !ife !ere i#ing under the same root, the$ !ere i#ing in separate $% &he pro#ision in the Hindu Marriage Act and the Specia Marriage Act has the same !ordings% S%-' of the /ndian ,i#orce Act is simi ar and in addition s%-- gi#es the grounds !hich !ou d be considered in den$ing a decree for restitution of conjuga rights% &he +arsi Marriage Act a so, in sum and substance has simi ar pro#ision re ating to restitution of conjuga rights% &he main ingredients of the #arious pro#isions re ating to restitution of conjuga rights are: Ss% -' and -- of the /ndian ,i#orce Act, 10.8% &here is no ega ground !hich pre#ents the decree from being passed% Withdrawal From Society ?actum of Marriage

/n cases of restitution of conjuga rights, natura $, it must first be pro#ed that the marriage !as a ega $ #a id one%

/n @o!rishan2ara #% @a$athri ,e#i, 1 :1905< ,MC -., the court said 6recent #ie! seems to be that the e3cuse ma$ be sufficient $ gra#e or !eight$% /t ma$ be distinct from crue t$ to the e3tent it fa s short of ega crue t$%6 A ground for re ief in an$ matrimonia cause i2e judicia separation, di#orce etc% A matrimonia misconduct not amounting to a ground of a matrimonia cause, $et sufficient $ !eight$ or gra#e% Such an act or omission !hich ma2es it impossib e to i#e !ith the petitioner% R S!I!"!I#$ #F C#$%"&'( RI&)!S 1i#ing in different rooms and this amounted to A i#ing separate $B, or A!ithdra!a from societ$B, as re7uired for di#orce% &his position !as ater changed b$ a =ritish egis ation ca ed the ,i#orce Reform Act 19.9% According to this act !ithdra!a meant that the husband and !ife must be i#ing in separate houses, to app $ for di#orce, and not mere $ in separate rooms% ?o o!ing the !ordings of the statute, the court he d in Mouncer #% Mouncer that e#en though the spouses had been i#ing separate rooms, the court cou d not grant a di#orce, as it did not amount to !ithdra!a from societ$% Reasona*le +cuse &he ne3t 7uestion that arises is !hat constitutes a Areasonab e e3cuseBC

A reasonab e ground need not be e7ui#a ent to a matrimonia cause% An$ matrimonia conduct, !hich is gra#e and !eight$, !i Areasonab e e3cuseB /n short the fo o!ing !i amount to a reasonab e e3cuse: amount to a

Dn $ after the ega marriage is pro#ed can the court come to the 7uestion !hether a decree of restitution of conjuga can be granted or not% Certain i ustrati#e cases are discussed% /n the case of +%R% Eo!nshan2ara #% F% @a$athri ,e#i the husband and !ife !ere married as per Hindu rites, and i#ed in M$sore after marriage% &he husband a eged that after si3 months, the !ife eft the house and !ent a!a$ to =anga ore% &he husband p eaded to her, through etters, to return but on her intransigence, he ser#ed her a ega notice !hich she ignored% &he !ife in her response a eged that her husband and mother-in- a! used to beat her up merci ess $% He on one occasion tried to force her to consume s eeping pi s and to !rite a suicide note% &his created an apprehension in the !ifeGs mind that it !as unsafe for her to continue to i#e !ith the husband% &he court !as con#inced of the !ifeGs #ersion and he d that she had a reasonab e ground to !ithdra! from the societ$ of her husband and conse7uent $ did not grant a decree in fa#our of the husband% /t !as he d in Jagiro v. Sohan Singh, 1995 :'< H1R '50 :+HH< that the petition can be a o!ed on $ if the burden of pro#ing a ingredients of Section 9 !as satisfactori $ discharged% the important

&he section :for Restitution of Conjuga Rights<, !as in fact based on the anti7uated =ritish 1a!s, !hen a !ife and chi dren !ere considered to be the Apropert$ of the husband, so if the !ife eft, it !as i2e a co! that had to be brought home,B he said% He pointed out that though the a!s in =ritain ha#e progressed, this concept is no! abo ished, it continues in this countr$% Iustice Shah recounted that there !as nothing in the Hindu ,harmashastras or the Mus im a!s that had an$thing i2e such coerci#eness% /t is true that the ancient Hindu s$stem fu $ uphe d that the dut$ of the !ife is to surrender to her husband, but it ne#er aid do!n an$ sanction to force the !ife to return to the husband,G he remar2ed, adding that the Constitution guarantees fu and persona ibert$ to a before a!% At present, a petition for ARestitution of conjugal rights, is fi ed b$ !omen, main $ to get maintenance or to get bac2 into the matrimonia home% Since the main matter is JrestitutionG, if it is dismissed, the !oman neither gets maintenance nor the matrimonia home% Iustice Shah made a strong pitch for separation of the anci ar$ matters from the main matter% ADurs must be the on $ countr$ in the !or d !here there is no pro#ision for a matrimonia home for a !ife% /n 9ng and a !ife has rights o#er her matrimonia home, here, despite some !onderfu orders in this respect, there has been no cr$sta i"ation of an$ a!%B He too2 the e3amp e of 9ng and !here a petition for anci ar$ matters i2e maintenance cou d be fi ed !ithout an$ petition on matrimonia matters% Referring to a number of judgments gi#en b$ #arious high courts in the countr$ and the Supreme Court, he reca ed the judgment of Iustice Chaudhur$ in the Andhra +radesh HC !here the Iudge had stated that the notion that a !ife shou d go bac2 to the husband if he is not gui t$ of
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misconduct runs contrar$ to the rights of pri#ac$ inherent in the fundamenta rights of the citi"ens% /n the case of Har#inder Faur #s Harmander Singh :A/R 190( ,e hi ..< the constitutiona #a idit$ of Sec 9 !as raised% :1< &he appea raises an issue of great importance% &he husband fi ed a petition for restitution of conjuga rights% &he !ife opposed% &he Additiona ,istrict Iudge granted a decree of restitution of conjuga rights to the husband% ?rom that decree the !ife fi e an appea % :'< Dn appea , the counse for the !ife attac2ed the constitutiona #a idit$ of section 9 of the Hindu Marriage Act% /n the forefront of his arguments, the counse referred &% Sareetha #% &% Ken2ata Subbaiah% /n that case +% A% Chaudhar$ I% had he d that section 9- of the Hindu Marriage Act, 1955, :the Act< offends Artic es 1( and '1 of the Constitution and therefore dec ared it nu and #oid% /t !as a case in !hich the husband had fi ed an app ication against the !ife for restitution of conjuga rights under section 9 of the Act% &he !ife raised an objection to the jurisdiction of the court% &he subordinate judge he d that Cuddapah Court had jurisdiction to tr$ the petition% &he !ife !ent in re#ision to the High Court% Chaudhar$ I%, in agreement !ithL the subordinate judge, he d that Cuddapah Court had jurisdiction to tr$ the petition% &he Court decided on the constitutiona #a idit$ of section 9 of the Act% &he earned judge he d that the remed$ of restitution of conjuga rights !as 6barbarousB,5 unci#i i"ed6 and 6an engine of oppression6% &he main reason for ho ding that section 9 offended Artic e '1 of the Constitution !as that a decree for restitution of conjuga rights !as an order 6to coerce through: judicia process, the un!i ing part$ to ha#e se3 against that personGs consent

and free!i !ith the decree-ho der6% &his, the Court he d, !as 6degrading to human dignit$ and monstrous to human spirit6% &he earned judge too2 the #ie! that the =ritish /ndian courts 6thought ess $ imported that ru e into our countr$ and b ind $ enforced it among the Hindus and the Mus ims% &he origin of this unci#i i"ed remed$ in our ancient countr$ is on $ recent and is !ho $ i egitimate% Section 9 had mere $ aped the =ritish and mechanica $ re-enacted that ega pro#ision of the =ritish ecc esiastica origin%6 /n m$ opinion the CourtBs #ie! !as based on a misconception of the true nature of the remed$ of restitution of conjuga rights%

Section 9 reads as under: Restitution of Conjuga rights% 4>hen either the husband or the !ife has, !ithout reasonab e e3cuse !ithdra!n from the societ$ of the other, the aggrie#ed part$ ma$ app $ b$ petition to the ,istrict Court for restitution of conjuga rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no ega ground !h$ the app ication shou d not be granted, ma$ decree restitution of conjuga rights according $%5 93p anation: >here a 7uestion arises !hether there has been reasonab e e3cuse for !ithdra!a from the societ$, the burden of pro#ing reasonab e e3cuse 6sha be on the person !ho has !ithdra!n from the societ$%6 Mnder section 9 the court has po!er to ma2e a decree of restitution of conjuga rights, !hich is the remed$ a#ai ab e to enforce the return of a spouse !ho has !ithdra!n from cohabitation% &he decree, if granted, orders the respondent to return !ithin a period of one $ear to the aggrie#ed part$%
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&his period is specified in section 1-:1-A<:ii< of the Act% 6&his remed$ is aimed at preser#ing the marriage and not at disrupting it as in the case of di#orce or judicia separation6% Consortium means 6companionship, o#e, affection, comfort, mutua ser#ices, se3ua intercourse% A these be ong to the married state% &a2en together the$ ma2e up consortium%6 Consortium has been defined as 6a partnership or associationL but in the matrimonia sense it imp ies much more than these rather co d !ords surest% /t in#o #es a sharing of t!o i#es, a sharing of jo$s and sorro!s of each part$, of their successes and disappointments% /n itsG fu est sense it imp ies a companionship bet!een each of them, entertainment of mutua friends, se3ua intercourse a those e ements !hich, !hen combined, justif$ the o d common a! dictum that a man and his !ife are one person6 :-< &he eading idea of section 9 of HMA, is to preser#e the marriage% &he outstanding fact is that the husband and !ife are i#ing apart and eading their o!n separate i#es% &he court see2s to en7uire into this separation% &he in7uir$ into the affairs of the matrimonia ife is to be confined to this one fact 4/s there a just cause for the respondent to i#e apart and separate from the petitioning spouseC5 &he decree of restitution of conjuga rights acts as an inde3 of connubia fe icit$% /t is a sort of itmus paper% /t sho!s a change of heart, the restitution decree is obe$ed% /f the decree is disobe$ed it is indicia that the parties ha#e reached a stage of no return% &he ActGs professed object is to faci itate reconci iation in matrimonia cases% &his it does b$ as2ing the !ithdra!ing spouse to return to the matrimonia home and gi#es one $earGs time to do so% /f the restitution decree is not obe$ed the court disso #es the marriage on proof of non-comp iance of the restitution decree%
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&he Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha, A/R 190( SC 15.' he d that 4&he object of the restitution decree is to bring about cohabitation bet!een the estranged parties, i%e% the$ can i#e togetherNN%&he remed$ of restitution is at cohabitation and consortium and not mere $ se3ua intercourseNNand in the pri#ac$ of home and married ife neither Artic e '1 nor Artic e 1( has an$ p ace%5 &hus, Section 9 of the HMA affords a remed$ to the aggrie#ed !ife or husband against the disserting spouse% /f the court passes a decree in her fa#our it can be e3ecuted as per the procedure of the Ci#i +rocedure Code%

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