Restitution of Conjugal Rights

RESTITUTION OF CONJUGAL RIGHTS A COMPARATIVE STUDY AMONG INDIAN PERSONAL LAWS

RESEARCH PAPER CIA 3

- By Shivangi Paisal 2ND yr BBA-LLB ‘A’ 1116244 INDEX

1. 2. 3. 4. 5.

Introduction Issues Raised Origin Specific Provisions Application of the Provision in Different Communities

6. Constitutionality of Provision Relating to Restitution of Conjugal Rights. 7. Conclusion

TABLE OF AUTHORITIES

LEGISLATION: 1. The Hindu Marriage Act, 1955. 2. The Indian Divorce Act, 1860 3. Parsi Marriage & Divorce Act. 1936 4. Special Marriage Act, 1954

CASES 1. 2. 3. 4. 5. 6. 7.

Moonshee Bazloor Ruheem v. Shumsoonisa Begum and Suryamoni v. Kalikanta. T.Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356 Saroj Rani v. Sudharshan Shakila Banu v. Gulam Mustafa Raja @ Rajendra v. Pushpa Devi II (1999) DMC 32 Chand Narain v. Saroj AIR1975Raj89 Shanti Devi v. Balbir Singh,

INTRODUCTION LITERAL INTERPRETATION RESTITUTION: The restoration of something lost CONJUGAL RIGHTS: rights relating to marriage or the relationship between husband and wife What “Restitution of conjugal rights” legally means?

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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. Explanation: 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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.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. 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 cohabit.

ISSUES RAISED The aim of this paper is to analyze the core issues related to restitution of conjugal rights with regard to different personal laws applicable in India. Therefore, in this paper the main argument shall be with regard to the constitutionality of restitution of conjugal rights under the personal laws and also regarding Art. 14 and 21 of the constitution.

Following are the main issues raised: 1. Why is being this concept criticized? 2. Whether the restitution of conjugal rights is violative of article 14 and article 21 of the Constitution of India? 3. Is restitution of Conjugal Rights just, fair and reasonable towards the society?

ORIGIN 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 a wife could not sue her husband or vice versa. 1 11.Paras Diwan, Peeyushi Diwan, Family Law, Allahbad Law Agency, Faridabad, 1998, 113. 2. (1901) 18 Cal 37, cited from supra n.

p.

From England these rights passed on to various colonies onto which AngloSaxon 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. 2

SPECIFIC PROVISIONS The provisions dealing with RESTITUTION OF CONJUGAL RIGHTS in the various personal laws, the remedy is available under 1.

2

S. 9 of the Hindu Marriage Act, 1955.

2.

for Muslims under general laws

3.

Ss. 32 and 33 of the Indian Divorce Act, 1860, for Christians

4. 5. marriages

S. 36 of the Parsi Marriage & Divorce Act. 1936 S. 22 of the Special Marriage Act, 1954, in case of inter-caste

In order to get the decree of Restitution of Conjugal Rights, the either party has to file for the decree under the above mentioned provisions and then it will not be obligatory on the parties to cohabit after such decree.

.

APPLICATION OF THE DIFFERENT COMMUNITIES

PROVISION

IN

The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law. Decree of restitution of conjugal rights could be passed in case of valid marriages only. Apart from

legislation relating to matrimonial law, courts in India in case of all communities have passed decrees for restitution of conjugal rights.

Hindu 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, a 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 a 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. The legal grounds for refusing to grant relief are: • For instance, any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce; • Reasonable excuse for withdrawing from the society of the petitioner; • Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disability for the purpose of such relief; • Unnecessary or improper delay in instituting the proceeding.

Muslim If the husband either deserts a wife or neglects to perform his marital obligations without any proper reason, then the wife can apply for restitution of conjugal rights. Even husband can apply for restitution of conjugal rights.

But the court can refuse to grant order of restitution of conjugal rights for following reasons: • Cruelty by husband or in-laws • On the failure by the husband to perform marital obligations • On non-payment of prompt dower by the husband

Christian A Christian husband and wife can also apply for an order of restitution of conjugal rights. The Court cannot pass the decree for following reasons: • Cruelty of husband or wife • If either of the spouse is insane • If any one of the spouse marries again

Parsi Where a husband/wife shall have deserted or without lawful cause ceased to cohabit with his/her spouse, the party so deserted or with whom cohabitation shall have so ceased, may sue for the restitution of his or her conjugal rights and the court if satisfied of the truth of the allegations contained in the plaint and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.

SITUATIONS WHEREIN COURT SHALL GRANT RESTITUION OF CONJUGAL RIGHTS: 1. When there is a reasonable excuse for withdrawing from the society 2. Statements made by the aggrieved spouse in the application are true

3. No legal ground which prevents the decree from being passed



WIDE PERSPECTIVE OF REASONABLE EXCUSE

The next question that arises is what constitutes a 'reasonable excuse'? A reasonable ground need not be equivalent to a matrimonial cause. Any matrimonial conduct which is grave and weighty will amount to a 'reasonable excuse’s in short the following will amount to a reasonable excuse: 1. A ground for relief in any matrimonial cause like judicial separation, divorce etc. 3 2. A matrimonial misconduct not amount to a ground of a matrimonial cause, yet sufficiently weighty or grave 3. Such an act or omission which makes it impossible to live with the petitioner.  In cases of restitution of conjugal rights, naturally, it must first be proved that the marriage was a legally valid one. In Raja @ Rajendra v. Pushpa Devi the court held that in suing maintenance and restitution, the factum of marriage has to be proved. 4  In another case of Chand Narain v. Sarojthe husband had applied for restitution of conjugal rights. The wife alleged that the husband had treated her cruelly. He had forced her to cook fish and meat and to drink alcohol. This was against her religious beliefs. He tried to drag her brutally in a public place. The court held that “the wife had been treated cruelly and the court did not grant a decree of restitution of conjugal rights to the husband.5 3 Supra n. 3, p 117 4 II (1999) DMC 32 5 AIR1975Raj89

 In case of Shanti Devi v. Balbir Singh, the husband and wife lived in Delhi. The wife alleged that the husband had been treating her with cruelty. He at times used to lock her up in her room; he would pick quarrels with her frequently. The husband used to abuse her and he even abused her before her father. He even abused his father-in-law. Further, the husband told her that he would release her only if she gave him a divorce. The wife in these circumstances left the matrimonial home and the court disallowed a petition for restitution of conjugal rights to the husband holding that the wife had a reasonable excuse to withdraw from his society.6

CONSTITUTIONALITY OF PROVISION RELATING TO RESTITUTION OF CONJUGAL RIGHTS. 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 debates with regard to 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.”7  In T.Sareetha v. T. Venkatasubbaiah8, the Andhra Pradesh High Court held section 9 of the Hindu Marriage Act to be violative of the 6 AIR 1971 Del 2913 7 Tuteja, Saloni. Restitution Of Conjugal Rights: Criticism Revisited. Accessed on 28 December 2010 at http://www.legalserviceindia.com/articles/abol.htm

8 AIR 1983 AP 356

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" . Court also stated that the section assailed on the touchstone of ‘minimum rationality’. It promotes no legitimate public purpose based on any conception of the general good and hence is arbitrary and void  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 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah . “The court observed that, the object of the section is to bring about cohabitation between estranged parties so that they can live together. That in the privacy of home and married life neither Article 21 nor Article 14 has any place.”

CONCLUSION Under the Indian law a decree of restitution of conjugal rights can be executed by attachment of the respondent’s property. But it is to be noted that the court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse. As understood, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation. It serves to aid prevention of the breakup of marriage, thus is a means of saving the marriage. So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.