RESTITUTION OF CONJUGAL RIGHTS IN THE BACKDROP OF ARTICLE 21 OF

INDIAN CONSTITUTION: A CRITICAL ANALYSIS

INTRODUCTION

Restitution of conjugal rights basically comprises of two major words, Restitution and
Conjugal Right.

RESTITUTION: The restoration of something lost.

CONJUGAL RIGHTS: rights relating to marriage or the relationship between husband and wife.

Legally it means that 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withdrawn from the society of the other, the aggrieved party may apply, by petition to the district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. The restitution of conjugal
rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a
positive remedy that requires both parties to the marriage to live together and cohabits. 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burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

The restitution of conjugal rights is often regarded as a matrimonial remedy but at the same time,
it has faced a lot of criticisms. In majority cases the question which arises is regarding the
constitutionality of this very provision. Therefore, in this paper appropriate conclusions shall be
drawn about restitution of conjugal rights based on the provisions mentioned in different Indian
personal laws.

BACKGROUND

The principle of restitution of conjugal rights has been borrowed into Indian laws from English
law. In English law, wife and husband were treated as a single entity and therefore wife could not
sue her husband or vice versa. From England these rights passed on to various colonies onto
which 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. Thus in the absence of any statutory law the Indian
courts passed decrees for restitution of conjugal rights for all religious communities. The
introduction of this concept of Restitution of Conjugal Rights was by the case Moonshee Bazloor
Ruheem v. Shumsoonisa Begum and Suryamoni v. Kalikanta.
RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The
aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights.
One of the important implications of Section 9 of the Hindu Marriage Act, 1955 is that it
provides an opportunity to an aggrieved party to apply for maintenance under Section 25 of the
Hindu Marriage Act, 1955. Maintenance can also be obtained by the party in case when the
action is pending under Section 25 of the Hindu Marriage Act, 1955. So, wife who does not want
a judicial separation or disruption of marriage can attain maintenance from her husband without
filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Another
important implication of the section is that it provides ground for divorce under Section 13(1A)
of the Hindu Marriage Act, 1955 on a condition that there has been no restitution of conjugal
rights between them for a period of one year or more after the passing of a decree for restitution
of conjugal rights.

MAJOR CASE LAWS

The constitutional validity of the provision has time and again been questioned and challenged.
The earliest being in 1983 before the Andhra Pradesh High Court where the Hon'ble High Court
held that the impugned section was unconstitutional.

The Delhi High Court in Harvinder Kaur v Harminder Singh, though had non-conforming views.

Ultimately Supreme Court in Saroj Rani v. Sudharshan, gave a judgment which was in line with
the Delhi High Court views and upheld the constitutional validity of the section 9 and over-ruled
the decision given in.

RESTITUTION OF CONJUGAL RIGHT AND ARTICLE 21

Section 9 is criticized for being an instrument of forced sexual relation and hence being violative
of right to privacy guaranteed under Article 21.

The right to privacy is not expressly guaranteed in the constitution, it is implicitly provided in
Article 21 of the constitution. There has been no fixed definition of privacy. Subba Rao, J.
in Kharak Singh v State of U.P any definition of right to privacy must encompass and protect
the personal intimacies of the home, family, marriage, motherhood, procreation and child
rearing. In Bai Jiva v Narsing Lalbhai the Bombay High Court held that the Courts have no
right to force the wife to return to her husband against her will. This compulsion of the Court
acts as a psychological restraint on an individual. The US Supreme Court in Eisenstadt vBaird
held the marital couple is not an independent entity with a mind and a heart of it own, but an
association of two individuals each with a separate intellectual and emotional makeup. If the
right of privacy means anything, it is the right of the individual married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person. The
position is well explained by Justice Subba Rao in Kharak Singhs case. In that case he said that
the right to personal liberty takes in right not only to be free from restriction placed on his
movements but also free from encroachments into his private lifeIn the last resort, a persons
house where he lives with his family is his castle: it is rampart against encroachment against his
personal liberty. If physical restraints on a persons movement affect his personal liberty, a
physical encroachment on his private life would affect it to a large degree. Indeed nothing is
more deleterious to a mans physical happiness and health than a calculated interference with his
privacy. We would therefore define right to personal liberty in Article 21 as a right of an
individual to be free from restriction or encroachments imposed directly or indirectly brought
about by a calculated measure.

In T.Sareetha v. T. Venkatasubbaiah, the Andhra Pradesh High Court held section 9 of the Hindu
Marriage Act to be violative of the constitution the impugned section was unconstitutional. The
court indicated that:

''the consequences of such a decree are firstly to transfer the choice to have marital intercourse to
the state from the concerned individual and secondly to surrender the choice of the individual to
allow or not to allow one's body to be used as" a vehicle for another human being's".

But much contrary is its purpose. The remedy of restitution aims at cohabitation and consortium
and not merely at sexual intercourse. In Halsbury's Laws of England it is observed:
(cohabitation) aces not necessarily mean serial intercourse, which the court cannot enforce, so
that refusal of sexual intercourse by itself does not constitute refusal to cohabit."

According to Maneka Gandhi, section 9 tries to bring the parties together. Whether to grant
restitution decree would be just, fair and reasonable in the facts and circumstances of a given
case is left to the court to be decided in its judicial discretion. What better guarantee can the law
afford for the "inviolability of the body and mind" of the wife and her "marital privacy" and
therefore it can be safely stated that section 9 is not violative of Article 21.

CONCLUSION:

The institution of marriage has been inherent in the Indian Society and all must be done to
protect it. Furthermore, if a spouse does not wish to stay with his/her partner then he may make
use of remedies such as judicial separation and divorce. Leaving a partner without a reasonable
excuse cannot be justified. It cannot be said that this remedy is unconstitutional. Section 9 has
sufficient safeguards to prevent the marriage from being a tyranny. In truth, it serves the social
good purpose, by promoting reconciliation between the parties and maintenance of matrimonial.
Although it is true that the following provisions is much exploited and many a times used to get
an easy pass for divorce and maintenance but still we cant eliminate the provision from its roots
since it is serving as a last resort to protect the disturbed marital status of any couple which could
have been occurred due to misunderstanding or any other menial issue.