Marriage is just not only a ceremony, it also includes various marital duties and legal rights associated with it. One of the fundamental purposes of marriage is that the spouses live together and one spouse is entitled to the society and comfort. A cause of action, therefore, arises when one party to the marriage withdraws from the society of the other without reasonable and just cause and excuse would be proceeded against by the other in the court of law praying for a decree of restitution of conjugal rights. The expression ‘conjugal rights’ connotes two ideas:
- Right of couple to have each other’s society, and
- Right to marital intercourse
During the time of introducing the provision for restitution of conjugal rights in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the Parliament for and against it. In Shakila Banu v. Gulam Mustafa, the Hon’ble High Court observed: “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”
This remedy of Restitution of Conjugal Rights has been laid down under Section 9 of Hindu Marriage Act, 1955. It runs 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“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the court on being satisfied with 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 Explanation attached to the section clarifies that when a question as to the existence of reasonable excuse for withdrawal from the other person’s society arises, the burden of proof to prove the same shall be on the person who has withdrawn from the society.
Therefore, for restitution the following three conditions must be satisfied:
- Respondent has withdrawn from the society of petitioner without reasonable excuse
- Court is satisfied with truth of statement made in such petition, and
- There is no legal ground why the relief should not be granted
Withdrawal from the Society:
The expression, “society” used in this Section should be understood as marital cohabitation that is to say that the husband cherishing and supporting his wife as a husband should do and a wife rendering duties as a housewife. Though they may not live under the same roof yet there would be cohabitation in the wider sense of the term if they fulfill the mutual duties to each other as husband and wife. The expression “withdrawal from the society of the other” involves a mental process besides physical separation.
It means withdrawal from the totality of conjugal relationships, such as refusal to stay together, refusal to give comfort to other, refusal to have marital intercourse and refusal to discharge matrimonial obligations. Where the husband throws out or leaves a wife who is guilty of the matrimonial offense (adultery, cruelty or apostasy), it cannot be said that she has withdrawn from the society of the husband. The reason is that she has not left the husband on her own. Withdrawal by the respondent takes place when the respondent does it voluntarily. In cases where husband compelled his wife to leave the matrimonial home is not withdrawal by the wife from the husband’s society.
Cases on Constitutional validity of Section 9
- Sareetha v. Venkata Subbaiah(1983)
The case was decided by the Andhra Pradesh High Court which observed that Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity and equality guaranteed by Article 14 & 21 of the Constitution.
Hence, Sec 9 was declared to be constitutionally void for abridging rights guaranteed under Part III of the Constitution. According to the learned Judge, a decree for restitution of conjugal rights deprived of her choice as and when and by whom the various parts of her body should be allowed to be sensed. The court relied on the Scarman Commission’s Report in England that recommended its abolition.
- Harvinder Kaur v. Harmander Singh 1983
It was held that sec 9 was not violative of Articles 14 and 21 of the Constitution since the leading idea behind Sec 9 was to preserve the marriage. The remedy of restitution was aimed at cohabitation and consortium and not merely at sexual intercourse
- Saroj Rani v. Sudarshan Kumar
The above contradictions about the constitutional validity of Sec 9 were set at rest by the Apex Court in this case. The case primarily raised 3 issues:
- Determination of husband entitlement to divorce when petitioning of restitution of conjugal rights was filed by the wife. – Since a spouse is not barred by Sec 23(a) from claiming relief under Sec 13(1A), the decree was passed.
- Constitutionality of remedy of restitution of conjugal rights provided under Sec 9 of the Act. – It was held that Sec 9 is not violative of Article14 and 21 of Constitution.
- Determination of maintenance – Separate maintenance was ordered for the wife and the daughter.
- Vuyyuru Pothuraju v. Radha 1965
In the instant case, there was a pre- nuptial agreement between the husband and wife that after marriage, the husband would live with wife at her foster- father’s house. Subsequently, he was ill-treated there and returned to his village and requested his wife to come over to him. On her refusal, he initiated a suit of restitution of conjugal rights. The Court held that pre- nuptial agreement was unenforceable and subsequently allowed the petition.
As a general principle, any agreement, be it under Hindu law or Muslim law, between husbands wife to live separately, is considered to be void for being contrary to public policy.
- Mirchumal v. Devi Bai
This case primarily deals with the effect of husband and wife serving in different places. In this case, the husband was in service near Ajmer and the wife worked in Adipur. On the wife’s refusal to quit her job, the husband moved the petition for restitution of conjugal rights. The court held that if there is no refusal on the part of the wife to allow access to her husband and no reluctance on her part in going to her husband, then the mere refusal on her part to resign her job is sufficient ground for the husband to seek relief for restitution of conjugal rights. Hence the petition was dismissed.
Author – Monika Sharma