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[highlight]-Ankit Shukla, Institute of Law, Nirma University.[/highlight]

marriage dictionary CONSTITUTIONALITY OF RESTITUTION OF CONJUGAL RIGHTS

Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together.

[pullquote]Each spouse is entitled to comfort consortium of the other.[/pullquote] So after the solemnization of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall be refused and on being satisfied of the truth of the statements made in the petition may pass a decree of restitution of conjugal rights.

Section 9 of the Hindu Marriage Act, 1955

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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.

In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards her. This behavior was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed. The defense to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defense to a restitution petition.

Opinions of the Court

The court will normally order restitution of conjugal rights if:

i. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her society

ii. The statements made by the aggrieved spouse in the application are true, and

iii. There is no legal ground why the petitioner’s prayer should not be granted

The court has held in various cases that the following situations will amount to a reasonable excuse to act as a defence in this area:

i. A ground for relief in any matrimonial cause.

ii. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave

iii. Such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent.

[quote]It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by the court where the disobedience to such a decree is willful that is deliberate, in spite of opportunities.[/quote]

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.”

Checking The Constitutionality of Restitution of Conjugal rights

[quote]The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah 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 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah.[/quote]

[highlight]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.[/highlight]

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