RESTITUTION OF CONJUGAL RIGHTS: IS IT JUSTIFIABLE?

The concept of restitution of conjugal rights means restoration of all the rights and privileges
involved in a marriage relationship. This principle is dealt under Section 9 of the Hindu
Marriage Act, 1955.

Section 9 of the Act reads, “When either the husband or wife has without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply, by petition to the
district court for the restitution of conjugal rights and the court, on being satisfied of the
truth of the statements made in such a petition and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights accordingly.”

If a party to the marriage has left the other without giving any reasonable ground, the Hindu
Marriage Act 1955 gives remedy for the aggrieved party in the form of Section 9 under the
restitution of conjugal rights. The Section 9 of the Hindu Marriage Act says that when either
the husband or the wife has, without reasonable excuse, withdrawn from the society of the
other, the aggrieved party may apply for restitution of conjugal rights. What the aggrieved
party needs to do is file a petition to the district court and 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, the judge may decree restitution of conjugal rights in his or her favor. The
burden of proof was earlier on the petitioner or the aggrieved party. After the 1976
amendment, this has shifted and the burden of proving whether there was a reasonable excuse
or not shall be proved by the withdrawing party.
AGAINST THE MOTION: RESTITUTION OF CONJUGAL RIGHTS: IS
IT JUSTIFIABLE?

I strongly oppose the concept of restitution of conjugal rights. The following are the points
used to justify my stand.

1. The remedy of restitution of conjugal rights was not an Indian notion. It was adapted
from the Jewish law. It was something unknown to the Hindu law until the Britishers
introduced it in the name of social reforms into the Indian society. This remedy was
made applicable to all the communities and religions. After independence, this
remedy also found its place in the Hindu Marriage Act, 1955. Though this remedy
received a lot of criticisms, like, Mr. Khardekar said that this remedy is uncouth,
barbarous and vulgar and by enforcing such a remedy, the government is legalizing
rapes. Sir J. Hannen added that not once has there been a restitution petition with a
genuine reason. He said that restitution of conjugal rights was used as a device to
enforce money demand or to obtain divorce. Various scholars had expressed their
view against this remedy and resorted to abolish it. But the pleas have fallen on deaf
ears. Though the Britishers had introduced it in India, in the Law Reforms Act, 1947,
the remedy of restitution of conjugal rights was abolished in England on the grounds
of excessive misuse, abuse and exploitation of this remedy.
2. The insincerity of the petitioners in restitution cases is another reason why I stand
against this remedy. Restitution of conjugal rights was introduced with the basic aim
for facilitating spouses to cohabit together. But the fundamental problem with this
remedy is insincerity of the petitioner. It can be observed that this remedy was
misused for other purposes than reconciliation.
(i) Under Section 13(I A) (ii) of Hindu Marriage Act, if the decree of restitution of
conjugal rights has not been complied with for a period of one year, then the
parties can resort to file a divorce petition. This is the general trend followed in
the restitution claims. The aggrieved parties file for restitution of conjugal rights,
then does not comply with the decree for one year, then files divorce under
Section 13 on the ground of non-compliance with the decree.
(ii) Another misuse of restitution of conjugal rights is that restitution petitions are
used as defense for maintenance suits. Before the remedy was abolished under the
 English law, a matter of remarkable notice was that, most of the restitution
petitions which were filed were clams of maintenance. Once the remedy was
abolished, the number of restitution petitions reduced by 60% in a period of only
two years. And this case is no different in India.
Veena Handa vs. Avinash Handa
In this case, the wife fled for restitution of conjugal rights. After a year, on the
condition of non-compliance with the decree of restitution of conjugal rights,
husband filed for divorce. Wife then claimed maintenance. Husband defended that
he had no property in hand to give maintenance. On granting divorce by Court, he
immediately married other woman.
Bitto vs. Ram Deo
In this case, wife filed for restitution of conjugal rights. Husband accused her of
being unchaste. The Court granted divorce.
The above two cases clearly portray that the insincerity on the part of the
petitioner makes him to misuse, abuse and exploit this Section of the Act.
3. Another reason for non-justification of the Act is the enforcement of the decree.
Restitution of conjugal rights is enforced according to Rule 32 of Civil Procedure
Code. Rule 32(1) says that if Court’s decree id not complied, then the Court can
attach property. Rule 32 (2) says that the Court has power to sell the attached property
in not complied with the decree. Though the basic intention of restitution of conjugal
rights is to foster co-habitation, but this Rule in the CPC will amount and lead to
bitterness and overrides the basic am of the remedy. It is also important to analyses
what if the non-complier of the decree has no property to be attached, for instance, he
is a daily wage laborer living in the slums or a rural house wife. This shows that this
remedy is poorly enforced. Furthermore it is a very long and tedious process.
4. The fallacy in Saroj Rani vs. Sudarshan Kumar case also shows that this remedy is
not justifiable. Before discussing this case, it is important to deduce two other
important cases.

T. Sareeta vs. Venkata Subbaiah

In this case the husband filed for restitution of conjugal rights. The wife filed back
another petition challenging the constitutional validity of Section 9. On behalf of her
it was argued that Section 9 was hindering her fundamental rights under Article 14
and Article 21 of the Indian Constitution. It curbed the right to equality of thought,
 action and self-realization and also the right to life and privacy. It also indicated a
compulsion to have sex. The High Court of Andhra Pradesh therefore declared
Section 9 of Hindu Marriage Act as unconstitutional. Justice Chaudary said that
restitution of conjugal rights was savage and barbarous remedy violating right to
privacy and human dignity under article 21, and hence it is void.

Harvinder Kaur vs. Harminder Singh

In this case, husband filed for restitution of conjugal rights. Wife opposed the decree
citing Sareetha’s case and argued Section 9 as invalid. But Justice Rohtagi dissented
that the decision of Andhra Pradesh High Court saying that the judgment
overemphasized on sexual intercourse. Restitution of conjugal rights serves only one
purpose that is to promote co-habitation between the couple. Therefore, Section 9 was
very valid.

Saoroj Rani vs. Sudarshan Kumar

This case was quite the deciding case on Section 9. In this case, wife filed for
restitution of conjugal rights. Court passed a decree for the same. Husband failed to
restore back. After a period of one year, a divorce petition was filed under Section 13
and divorce was granted. Justice Sabyasachi said that Section 9 is not unconstitutional
as it has a remedy of divorce under Section 13 (IA) (ii).

But it is very important to point out Justice Rohtagi’s judgment in Harvinder Kaur vs.
Harminder Singh case. In paragraph 78 of his judgment he mentions that even though
one of the spouses wants to reconcile, the other does not have any such intention. This
physical separation is a clear sign that the marriage is over. In paragraph 74 of his
judgment he further adds that Section 9 is increasing the grounds for divorce. In
paragraph 85 he further points out that it is in the hands of the Legislature to abolish
the law. Judges are safe guarders of the law made by the Legislature and therefore
cannot rewrite statutes. Section 9 is constitutional because of the existing laws. It is
sad to know that Justice Sabyasachi relied on this judgment in Saroj Rani’s case.
There surely exists a fallacy in the judgment made in Saroj Rani’s case.

5. Another ground for restitution of conjugal rights not to be justifiable is that it is a

hindrance to right to life, equality and privacy. Restitution of conjugal rights violates
equality, not physical equality but the equality of thought, action and self-realization.
 It violates right to life and privacy. It may also lead to unwanted pregnancy. It is
surely not humane to force a person to live in a place he or she has willingly
withdrawn from. Restitution of conjugal rights violates the right of an individual to be
free from restrictions. It forces to cohabit in a relation which a person does not want
to.
Bai Java vs, Narsing Lal Bhai
In this case, the Bombay High Court pointed out that the Courts have no right to force
the wife to return to her husband’s conjugal society against her will. Such a
compulsion by the court is a psychological restraint.
6. The last point to mention is that, restitution of conjugal rights is used by the lawyers
to make money in a fruitless petition to the petitioner. It is not a benefit to the
spouses; rather cost earning to the lawyers.

I would like to could that it is quite surprising that this remedy has still been living in the
present society. Being a concept adopted from the foreigners and a highly criticized
remedy, restitution of conjugal rights should be abolished.an alternative solution would
be to adapt reconciliation by having matrimonial courts to prevent the loss of the essence
of marriage. I strongly stand against the motion and therefore restitution of conjugal
rights is not justifiable.
 AGAINST RESTITUTION OF CONJUGAL RIGHTS: IS IT
JUSTIFIABLE?

A decree of restitution of conjugal rights indicates that the guilty party is ordered to live with
the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by
the deserted spouse against the other. A husband or wife can file a petition for restoration of
their rights to cohabit with the other spouse. But the execution of the decree of restitution of
conjugal rights is very difficult. The non-compliance of the issued decree results to
constructive destruction on the part of the guilty spouse. At present as per the provisions
available under the Hindu Marriage Act, 1955, the aggrieved party moves a petition for a
decree of divorce after one year from the date of the passing of the decree and the competent
court can pass a decree of divorce in favor of the aggrieved party. The decree of restitution of
conjugal rights can be enforced by the attachment of property, and if the party complained
against still does not comply, the Court may also punish him or her for contempt of court. But
under no circumstances the court can force the guilty spouse to consummate marriage.
Decree of restitution of conjugal rights could be passed in case of valid marriages only.

As stated by Paras Diwan, the remedy of restitution of conjugal rights was neither recognized
by the Dharmashastra. It came with the Britishers. In modern India, the remedy is available to
Hindus under Section 9 of the Hindu Marriage Act, 1955.

The provisions for restitution of conjugal rights under Section 9 of the Hindu Marriage Act,
1955 is as follows:

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 according to
be restitution of conjugal rights is not a justifiable remedy.

As mentioned earlier the remedy of restitution of conjugal rights was not an Indian notion. It
was adapted from the Jewish law. It was something unknown to the Hindu law until the
Britishers introduced it in the name of social reforms into the Indian society. This remedy
was made applicable to all the communities and religions. After independence, this remedy
also found its place in the Hindu Marriage Act, 1955. This remedy received a lot of
criticisms. It was called vulgar barbarous and was said that it would be misused, abused and
exploited. Scholars commented to abolish this remedy.

In T. Sareeta vs. Venkata Subbaiah case the husband filed for restitution of conjugal rights.
The wife a movie star questioned the constitutional validity of Section 9. She Section 9 was
hindering her fundamental rights under Article 14 and Article 21 of the Indian Constitution. It
restricted the right to equality and the right to life and privacy. The High Court of Andhra
Pradesh therefore declared Section 9 of Hindu Marriage Act as unconstitutional. Justice
Chaudary said that restitution of conjugal rights was savage and barbarous remedy violating
right to privacy and human dignity under article 21, and hence it is void.

Restitution of conjugal rights is not justifiable as it is a hindrance to right to life, equality and
privacy. Restitution of conjugal rights violates equality, not physical equality but the equality
of thought, action and self-realization. It violates right to life and privacy. It is surely not kind
to force a person to live in a place he or she has willingly withdrawn from. Restitution of
conjugal rights violates the right of an individual to be free from restrictions. It forces a
couple to cohabit in a relation which a person does not want to.

Restitution of conjugal rights is also misused for divorce and maintenance. I would conclude
that it was introduced to make husband and wife cohabit and to protect the concept of
marriage, it is often misused, abused and exploited.
 FAMILY LAW 1

DEBATE

TOPIC: RESTITUTION OF CONJUGAL RIGHTS: IS IT

JUSTIFIABLE?

SUBMITTED TO: MISS NIHAAN AHMED

SIGNATURE:

SUBMITTED BY: PRIYANKA RAJA REDDY

REGISTER NO.: 18DBALB032

3RD SEM, 2ND YEAR

SIGNATURE:

BATCH: 2018-2023

CMR SOLS
 FAMILY LAW 1

DEBATE

TOPIC: RESTITUTION OF CONJUGAL RIGHTS: IS IT JUSTIFIABLE?

SUBMITTED TO: MISS NIHAAN AHMED

SIGNATURE:

SUBMITTED BY: SURYA TEJA MP

SIGNATURE: