Explained: Restitution of Conjugal Rights in India

Explained: Restitution of Conjugal Rights in India

Marriage as an institution is essential to the development of society.  Family is formed by marriage, hence it is equally true to say that marriage is a subset of family. Due to the accelerated pace of life in our day, many disputes arise within marriages. These factors collectively have led to the discord among married couples.

What are conjugal rights? 

Sharing a marital life means having the companionship of the person you are married to. It is not uncommon in a lot of cases for one of the spouses to withdraw said companionship without any explanation and justification. Section 9 of the Hindu Marriage Act provides a legal entitlement where the aggrieved spouse can apply to the district court to regain the companionship of their partner who has abandoned the relationship. This is called the restitution of conjugal rights.

A consent decree for the restoration of conjugal rights may be given, and it won't be null and void, according to Section 9 of the Hindu Marriage Act of 1955. If it is not challenged through an appeal or another legal means, at which time it becomes conclusive. Such a command cannot be ignored, but if it is, the Hindu Law Marriage Act of 1955 allows for its use as a ground for divorce under Section 13 (1A). If the lawsuit for restitution of conjugal rights is successful and one spouse is found guilty of separating without a good or sufficient reason, then the pair must remain together.

As a result, it can likewise be assumed that section 9 is the marriage-saving provision. In the case of Moonshee Bazloor v. Shamsoonaissa Begum 1866-67 (11) MIA 511, the privy council first used this remedy in India after having previously used it in England. However, in England, this matrimonial remedy—restitution of conjugal rights—was abolished in 1970. The requirements for the fulfillment of Section 9 are as follows: 

  1. Spouses should not be residing together. 

  2. There must be no reasonable ground for the party to withdraw from the marriage. 

  3. Application for restitution of conjugal rights is a prerequisite. 

Scope of Restitution of Conjugal Rights

The remedy of restitution of conjugal rights is accessible in India to people even beyond the scope of Hindu Marriage Act. It applies to: 

  1. Muslims under ordinary law. 

  2. Hindus, according to Section 9 of the Hindu Marriage Act.

  3. Those who are are considered under Section 36 of the Parsi Marriage and Divorce Act, 1936.

  4. Under the Indian Divorce Act, 1896, Section 32 - 33, to Christians.

  5. To those who fall under Section 22 of the Special Marriage Act.

On what grounds can an Order for Restitution of Conjugal Rights be passed?

The following are the grounds that are sufficient for the court to grant the restitution of conjugal rights order:

  1. The petition will be granted if the petitioner can persuade the judge that the respondent (spouse) withdrew from society without presenting a legitimate reason.

  2. The court found no legal reasons why the aggrieved spouse shouldn't be given the restoration of conjugal rights because the petitioner's (the aggrieved spouse's) allegations in the petition are valid.

The court may refuse to reinstate marital rights for the following legal reasons:

  1. Any grounds the respondent may have used to get a court separation order, a divorce, or a declaration that the marriage is null and void.

  2. Any actions taken by the petitioner or events that might suggest that the petitioner is abusing his or her rights or any inability to secure such relief; any other reasonable explanation for the petitioner's social isolation.

Constitutional Validity 

Right to Privacy

The Andhra Pradesh High Court issued a relatively progressive ruling in the matter of T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP356, where the Court found that Section 9 seriously violated the privacy rights of spouses. This ruling was a step toward rectifying this feudal law that violated people's fundamental rights under the pretence of protecting marriage ties. In the matter of Harvinder Kaur v. Harmander Singh Chaudhary AIR 1984 Delhi 66, the Delhi High Court took a different tack. The Supreme Court's decision in the case of Gobind v. State of Madhya Pradesh was upheld by the Court in this instance. The Court maintained Section 9 as a clause protecting the sacredness of marriage. It made a distinction between sexual connections and the idea of consortium or cohabitation as it applied to marriages. Furthermore, Section 9 only requires cohabitation between spouses; it does not mandate sexual interactions within a marriage. By ruling that courts lack the ability to uphold this basic right in an individual's private area, this judgement trimmed down the reach of the right to privacy. 

Although the judge correctly identified the underlying purpose of Section 9, she was mistaken when she claimed that this clause had no bearing on an individual's right to privacy. Enforcing cohabitation on a spouse puts them and their fundamental rights in severe danger in a nation where marital rape is still not recognised as a crime.

Although the Court was right to say that the aforementioned rule does not require sexual interactions, the lack of a law to ban marital rape presents a gap that could be exploited by getting a decision on restitution of conjugal rights. The landmark K.S. Puttaswamy v. Union of India decision clearly established that a person's right to privacy includes their ability to control their own body. Therefore, putting a person at risk of losing their autonomy over their own body—a freedom essential to the fundamental right to live with dignity protected by Article 21 of the Constitution—is incredibly unfair.

Article 14 and 21

The constitutionality of Section 9 of the HMA was contested in Smt. Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562, before the Hon'ble Supreme Court. The Honourable Supreme Court declared that a husband or wife's right to be with their spouse does not have legal standing in India. The institution of marriage includes the legal right to divorce. Section 9 of the Hindu Marriage Act contains enough protections to keep it from turning into a dictatorship. If the decree for the restoration of conjugal rights in the aforementioned Act is viewed in its proper context and the manner of execution in cases of disobedience is taken into consideration, it was also decided that Section 9 of the Act does not violate Article 14 or Article 21 of the Constitution. 

The Hon'ble Supreme Court received a new petition challenging the constitutionality of Section 9 of the HMA in Ojaswa Pathak and Anr. vs. Union of India, WP (C) 250/2019. This case is likely to be affected by the Hon'ble Supreme Court's decisions in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, and Joseph Shine v. Union of India, (2019) 3 SCC 39, where the Court ruled that certain laws were unconstitutional.

It is quite challenging to bring two people together when they are emotionally estranged from each other. Restitution of conjugal rights is one such matrimonial remedy because it will compel the spouse to save the union but cannot ensure its success. Additionally, some claim that it goes against the idea of natural law theory.