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This article was written by Satarupa Sarkar, a student of Amity Law School, Noida.
“A marriage without conflicts is almost as inconceivable as a nation without crises”. —- Andre Maurois
Marriage is one of the most important social institutions today. It forms the very basis of social organization. Hindu shastras and law regard marriage as a sacrament which is eternal. It is considered to be a contract by some as well. Marriage, whether considered to a contract or a sacrament, confers the status of husband and wife on the parties to marriage, of legitimacy on the children born out of the marriage and gives rise to certain spousal mutual rights and obligation of spouses. This sacramental character of marriage has given rise to certain anomalies. The declaration of Manu that “neither by sale nor by desertion is wife released from the husband” was hitherto applied only to women and not men. Thus there was an element of inherent injustice on the wife in Hindu law. After marriage the husband is entitled to the society of his wife and vice versa. A need for legal action arises when one of the parties to the marriage withdraws from the society of the other. To counter such inequalities among spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies. One such remedy is that of ‘Restitution of Conjugal Rights’ which is found under section 9 of the Hindu Marriage Act, 1955. The foundation of the right is the fundamental rule of matrimonial law that one spouse is entitled to society and comfort-consortium- of the other spouse and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse.
Like many anachronistic remedies, the restitution of conjugal rights dates back to the feudal era in England, where marriage was considered a property deal, and wife was part of man’s possessions like other chattels. A man’s wife was treated no more than a cow. If it ran away from its master’s shed then it could be roped back. It is quite unfortunate that many anachronistic common law actions were abolished in other spheres, but they survived in case of matrimonial law and from there, they were introduced in the laws and practices of the British colonies as well. Restitution of conjugal rights is a remedy which was made available to members of all communities at a very early period of the British rule in India. The remedy was unknown to Hindu law till the British introduced it in the name of social reforms. After independence this remedy found place in the Hindu Marriage Act, 1955. In modern India, the remedy is available to Muslims under general law, to Hindus under section 9 of the Hindu Marriage Act,1955, to Christians under section 32 of Divorce act, to Parsis under section 36 of the Parsi Marriage and Divorce Act and to persons marrying in the civil form under section 22, Special Marriage Act.
Section 9 of the Hindu Marriage Act provides that “When either the husband or the wife has, without treasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights. The court, on being satisfied of the truth of 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.”
The court may decree the restitution of conjugal rights if:
- The respondent has withdrawn from the society of the petitioner
- The withdrawal is without any reasonable cause or excuse,
- The court is satisfied about the truth of the statement made in such petition, and
- There is no legal ground why relief should not be granted.
As a safeguard against hasty separation, section 9 provides an opportunity for reconciliation between the two spouses. Either spouse can initiate proceedings in court for directing the other spouse to give back the conjugal society which has been unreasonably withdrawn.
In T. Sareetha vs Venkata Subbaiah the Andhra Pradesh High Court has observed that the remedy of restitution of conjugal rights is a violation of right to privacy and human dignity guaranteed by article 21 of the Constitution. According to the judgement, a woman is denied a free choice regarding her own body and whether it was to become a machine for procreation of another human being. A decree of restitution of conjugal rights deprived a woman of her control to make her most intimate decisions. It was arbitrary and void as offending article 14 of the Constitution as well.
However in Smt. Harvinder Kaur vs Harmander Singh, the Delhi High Court observed that Section 9 of the Hindu Marriage Act is not violative of articles 14 and 21 of the Constitution.
The Supreme Court has now settled the law with regard to the constitutionality of section 9 of the Act. In Saroj Rani vs Sudarshan Kumar the Supreme Court observed that section 9 of this act cannot be said as violative of articles 14 and 21 of the Constitution if the purpose of the decree of restitution of conjugal rights is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.
INSINCERITY OF THE PETITIONER IN RESTITUTION CASES
The most fundamental problem with the remedy is the insincerity of the petitioner. The remedy is blatantly misused to achieve ulterior purposes other than reconciliation. The root cause of this problem lies in Section 13 (1A)(ii) of Hindu Marriage Act, 1955. This section says that if a restitution decree has not been complied with for a period of one year the parties can file for divorce. The general trend in restitution claims is that the “aggrieved party” files a restitution petition, then does not willingly comply with the decree and after the statutory period of one year, files for divorce under S. 13 (1A)(ii) on the ground of non-compliance with the decree. There is a string of cases to this point. In fact, Justice Rotagi in Harvinder Kaur v Harminder Singh recognised that “the legislature has created restitution of conjugal rights as an additional ground for divorce”.
Yet another major problem with restitution petitions is that it is used as a defence for maintenance suits. In England where until 1949, a married woman’s claim to maintenance could be sustained only if she has already applied for some other matrimonial relief. Almost every restitution petition made by the wife was to prepare the ground for claim of maintenance. This was aptly proved by the fact that when the law was changed and maintenance could be claimed without any previous claim to some other relief, the number of wives’ restitution petitions fell by more than sixty-three percent within a couple of years. The situation is no different in India.
WORKING WOMEN AND RESTITUTION OF CONJUGAL RIGHTS
It has been held in various cases that a wife is not obligated to live with her husband under one roof if she is gainfully employed in a place away from her husband’s residence. The Court holds it to be a reasonable excuse to live apart in such a case and the husband’s restitution petition is not granted.
In Alka Bhasker vs Satchidananda Barke the Bombay High Court further held that the matrimonial home is not necessarily the house of the husband or the house of his parents. In this case both the husband and wife were gainfully employed at different places and decide to book ownership of a flat at Bombay. The husband contributed initial amount and the wife paid the remaining balance. It was held that this flat at Bombay was the matrimonial home of the parties.
CRUELTY AS A GROUND FOR WITHDRAWAL OF SOCIETY
The Court is not barred from considering cruelty as a valid reason for withdrawal of society. Cruelty shown by husband’s parents over various grounds including dowry as well, emotional and physical torture by the spouse, verbal abuse and even raising questions over wife’s chastity are categorised under cruelty and are valid reasons for withdrawal of society.
In Smt. Sumanbai vs Anandrao Onkar Panpatil the court held that there can be no more insulting injury to the wife than her own husband questioning her chastity. If such allegations are lightly made and persisted in filing the petition, the husband is not entitled to any relief under section 9 of the act.
IMPORTANCE OF BURDEN OF PROOF
It appears to be an established law now that once the petitioner has proved that the respondent has withdrawn from society of the petitioner, the burden of proof that the withdrawal is for a reasonable cause lies on the respondent.
Even though the concept of restitution of conjugal rights has been much criticized, it still has not been replaced. Many jurists are of the opinion that reconciliation is a better method for addressing matrimonial disputes than restitution. However, restitution of conjugal rights still prevails under section 9 of the Hindu Marriage Act,1955 in the present day.
 AIR 1983 Andh.Pra.356
 AIR 1984 Delhi 66
 AIR 1991 Bom. 164
 AIR 1976 Bom 212