Marriage is a sacrament that binds two persons together and makes them legally obligated to one another. When two parties come together and get married, the consequence of such marriage requires both the parties to live with each other. Marriages entitles the couple to companionship, co-habitation and company of each other. However, a situation may arise where one party no longer wishes to continue in the company of the other and withdraws from his/her society without any reasonable cause. That is when restitution of conjugal rights can be demanded by the party whose company has been left and if he/she is able to satisfy the court of the truth of his/her statements, then a decree of restitution of conjugal rights is passed in the favour of the aggrieved party.
The basic underlying principle of a marriage is comfort consortium which grants the parties a right to each other’s cooperation, companionship and aid. However, this principle originally was only to aid the husband as it was believed that since he works and earns the bread, the wife was considered to be inferior to him. Hence, she could not seek any relief for the loss of consortium.
Originally, the concept of Restitution of Conjugal Rights was alien to the Indian society as it was nowhere mentioned in the Dharamshastra or in the Muslim laws. Its origins can actually be traced back to the Jewish laws. By the way of restitution of conjugal rights, the church made it mandatory for two parties who did not wish each other’s company to stay together as a consideration for specific performance. It was considered necessary to preserve the sanctity of marriage within the framework of marriage. From there, it travelled to many of the British Colonies and was introduced in India as well. In fact, the very first case where Restitution of Conjugal Rights was applied is the case of Moonshee Buzloor Raheem v. Shumsoonissa Begum (1867) 1 MIA 551. Interestingly, the concept of Restitution of Conjugal Rights that was brought in India by the British Government was abolished in UK in 1970.
RESTITUTION OF CONJUGAL RIGHTS
The provisions regarding Restitution of Conjugal Rights can be found in Section 9 of the Hindu Marriage Act 1955, Section 22 of the Special Marriage Act 1954, Section 36 of the Parsi Marriage and Divorce Act 1936, Section 13 of Matrimonial Causes Act 1965 and Section 32 of the Divorce Act, 1869.
Section 9 of the Hindu Marriage Act, if put simply, means when either of the two parties to marriage, withdraws from the society of the other, the aggrieved party has the liberty to approach the district court for restitution of conjugal rights and if the court is satisfied of his/her truth and finds no irregularities in the said petition, the court may pass a decree of the restitution of the conjugal rights.
1. Withdrawal from the society of the spouse:
The word society here means where a married couple lives together which is commonly known as their matrimonial home. When one party stops living in his/her matrimonial home, it can be said that he/she has withdrawn from the society of the other party. However, if one party is simply living away from his matrimonial home owing to his work, it cannot be called withdrawal from the society of the other (G vs. G (1930) P 72, Hill J ).
Animus and Factum are the two essentials of withdrawal from the society of the spouse. Animus means the intention to move to a place and stay at such place indefinitely and factum means the actual physical movement. If a party intends to leave the matrimonial home, it would not constitute as withdrawal from the society unless it is clubbed with the factum.
In Sushila Bai vs. Prem Narain Rai AIR 1964 MP 225, the husband left the wife at her father’s house and cut all ties with her. This was considered as withdrawing from the society of the wife. Consequently, a decree of restitution of conjugal rights was passed in favour of the wife.
2. Without any reasonable cause:
If a party withdraws from the society of the other, the aggrieved party has to first prove that the Respondent has withdrawn from the society of the petitioner. Once the petitioner has proved the same, then the burden of proof falls upon the party withdrawing from the society of the other and respondent must have a reasonable cause to do so. If the respondent fails to provide a reasonable cause for such withdrawal, then a decree of restitution of conjugal rights may be passed in favour of the aggrieved party. However, there are certain grounds on which such petition may fail that are listed as follows:
- Any other matrimonial misconduct
If the petitioner is proved to be guilty of any of the above stated grounds, then his petition for restitution of conjugal rights will fail.
In the case of Mohammad Rustam Ali v. Husaini Begam (1907) ILR 29 All 222, the respondent wife alleged she was subjected to cruelty and did not want to resume cohabitation with her husband as she believed that her safety would be compromised. The Hon’ble Allahabad High Court considered it to be a valid defence against Section 9 of the Hindu Marriage Act, 1955.
In Hamid Husain v. Kubra Begum (1918) ILR 40 All 332, the husband filed for a petition of restitution of conjugal rights but the wife refused to resume cohabitation on the grounds of cruelty. In this case, the husband’s petition for restitution of conjugal rights failed.
In R. Natarajan v. Sujatha Vasudevan C.M.A. No.’s 3769 and 1775 of 2010 and M.P. No.’s 1 and 2 of 2011 in C.M.A. 1775 of 2010, it was held that if the wife withdraws from the society of her husband on the account of her finding it difficult to stay with his parents does not amount to a reasonable to cause to withdraw from the society of the husband.
DOES A DECREE UNDER SECTION 9 ALSO GIVE THE RIGHT TO CONSUMMATION?
The issue arose in a landmark judgment of T. Sareetha vs. T. Venkata Subbaiah AIR 1983 AP 356 where P.A. Choudary, J. held that Section 9 of the Hindu Marriage Act, 1955 is violative of right to privacy and right to equality and held it to be void. Therefore, this section was struck down. However, an opposing view was given by the Delhi High Court in Harvinder Kaur vs. Harmander Singh Choudhry AIR 1984 Delhi 66 by Rohatgi, J. who upheld the validity of Section 9 of the HMA, 1955. Rohatgi, J. heavily criticised the T. Sareetha judgement stating that Section 9 aims to bring stability to a marriage. It is a fundamental principle in matrimonial law that a spouse is entitled to comfort consortium and to deny the same by bringing in the constitutional principles would significantly weaken the bond between the spouses. He further criticised the over emphasis on the intercourse during the cohabitation under Section 9 of the HMA, 1955. He was of the opinion that cohabitation under Section 9 does not mean coerced sex and relied on Lord Stowell’s decision in Forster vs. Forster (1790) I. Hag. Con. 144 (3) where it was held – “the court cannot compel matrimonial intercourse though it may matrimonial cohabitation.”
Soon after, the debate regarding the constitutional validity of Section 9 of HMA, 1955 was noticed in the Hon’ble Supreme Court as well. The validity of Section 9 was deliberated upon in the case Saroj Rani vs. Sudarshan Kumar Chadha 1984 AIR 1562 and the Supreme Court upheld the validity of Section 9 of the HMA, 1955. The Hon’ble Apex Court held that “the object of the decree was only to offer an inducement for the spouse to live together, and it does not force an unwilling wife to engage in sexual relationships with the husband.”
Restitution of Conjugal Rights serves the purpose of giving the couple an opportunity to revive their relationship and live in each other’s company by resolving the issues that hold them back. Section 9 of the HMA, 1955 aims to uphold the sanctity of the institution of marriage and tries to protect the same. However, it fails to recognize that if the parties have reached a point in their relationship where they refuse to provide each other the comfort consortium, then to force them by the way of Section 9 to live together only adds to their agony. The provision of restitution of conjugal rights makes it extremely painful for the withdrawing party to live in the company of a person that he/she has no affection or care for. In this sense, section 9, in reality, is ruining the sanctity of marriage rather than protecting it. The validity of Section 9 is yet again under the scrutiny of the Supreme Court of India in the case of Ojaswa Pathak vs. Union of India WP(C) 250/2019.