Under all marital laws, marriage imposes marital duties on each spouse and gives each many legal rights. Each partner is entitled to the other's ‘consortium’. Therefore, after the marriage is solemnized, if one spouse withdraws from the company of the other, then the party who is denied companionship without fair cause is an aggrieved person and has a legal right to file a petition for restitution (restoration) of conjugal rights before the appropriate matrimonial court.
We study below how this concept plays out in various religions’ matrimonial laws.
In Moonshee Buzloor Ruheem vs. Shumsoonnissa Begum, (1867) 1 MIA 551, cited in Bai Jivi vs Narsing Lalbhai, 101 Ind Cas 403, the principle of restitution of conjugal rights was first introduced in Indian law, with basic safeguards:
“It seems to them clear, that if cruelty in a degree rendering it unsafe for the Wife to return to her Husband's dominion were established, the Court might refuse to send her back…”.
Today, the restitution of conjugal rights remedy is available, with some differences, to:
Hindus – u/s. 9 of the Hindu Marriage (HM) Act, 1955,
Muslims – based on general principles of Mohammedan (Muslim) Law, and not on principles justice, equity and good conscience.
Christians – u/ss. 32 and 33 of the Indian Divorce (ID) Act, 1869,
Parsis – u/s. 36 of the Parsi Marriage and Divorce (PMD) Act, 1936, and to
Persons married under the Special Marriage (SM) Act, 1954 – u/s.22 of that Act.
S.22 of the SM Act and s.9 of the HM Act are identically worded in clear language as below:
22. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being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: When a doubt arises as to whether a valid excuse for withdrawal from society exists, the duty of demonstrating a reasonable excuse rests with the individual who has withdrawn from society.
Restitution of conjugal rights is one of the reliefs provided to spouses in distress in marriage by the law. The aggrieved spouse may apply for it by petition to the District Court. But the court can refuse to grant the relief for the following reasons:
Cruelty by husband or in-laws;
Failure by the husband to perform marital obligations; or
Non-payment of prompt dower by the husband.
While we take it for granted today, the introduction of the concept of restitution of conjugal rights in the SM Act and HM Act in 1954 and 1955 respectively saw hot discussion and debate in Parliament, and litigation in many states for nearly 30 years till the Supreme Court settled the issue of its constitutional validity in 1985.
In September 1970, in Shakila Banu vs Gulam Mustafa, AIR 1971 Bom 166, the Bombay High Court observed that the relief of granting restitution of conjugal rights in a husband's suit means ordering an unwilling wife to go to her husband…
It [the concept of conjugal rights restitution] 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.
A Christian husband or wife can also apply for an order of restitution of conjugal rights. The Court can refuse to pass the decree for the following reasons:
Cruelty of husband or wife,
Either spouse is insane, or
If any spouse marries again.
The decree cannot be refused in a case of marriage in violation of age prescribed u/s.5 of the HM Act.
In the matter of conjugal rights, Hindu law does not discriminate by gender – all are treated equally. In Muslim law, however, a husband can defeat a wife's petition for restitution at any time by pronouncing talaq on her. In Hindu law, the relief of decree for restitution is an equitable relief; equitable considerations must be considered before compelling the defendant to return to cohabit with the plaintiff.
Defences for restitution petitions under the HM Act, 1955 and the ID Act, 1869 are broad. Under Muslim law, grounds of:
void and irregular marriages,
marriage avoided by the exercise of option of puberty, or
husband is made an outcast by his community.
are defences for a petition for restitution of conjugal rights.
Bigamous marriages are now to a great extent disapproved by the courts in India. Some HCs have considered it as cruelty by the husband and have denied the relief of restitution of conjugal rights. In Hindu law as well as Christian law, courts have wide power and discretion to decide what constitutes cruelty. In Muslim law, separation agreements are not part of matrimonial laws. They are regulated by the general law of contract and can be a good defence to a suit for restitution.
The concept of dower is specific to Mohammedan law only. A Muslim wife living separately from the husband on account of non-payment of prompt dower cannot be granted conjugal rights. The courts have the discretion to make the decree conditional on payment of her unpaid dower debt. The final decision whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not is that of the parties.
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