RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW : A PLEA FOR THE ABOLITION

OF THE REMEDY
Author(s): Raj Kumari Agarwala
Source: Journal of the Indian Law Institute, Vol. 12, No. 2 (APRIL-JUNE 1970), pp. 257-268
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43950070
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 RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU
LAW : A PLEA FOR THE ABOLITION OF THE REMEDY

Mrs. Raj Kumari Agarwala *

While under most of the western legal systems law relating to m

monial remedies had a natural and gradual development, the Hind
on the subject was suddenly transformed by legislative action a d
and a half ago and it assumed a new form. The moral justificatio
the social need for such a course could hardly be denied. The H
society in the fifties of the twentieth century had marched much a
of Manu and Yajnvalkya, and it had for all practical purposes o
grown the apparel designed for it by these ancient sages. Any am
of alterations provided by the genius of courts or even piecemeal leg
lation could not fit the old garment to the present shape of soc
Such attempts actually made the matters worse because they led to t
creation of different laws for different sections of the same commun
It thus became a matter of chance as to what matrimonial remedies w
available to a Hindu, depending upon the fact of residence or mar
in a particular state. Obviously this was most unsatisfactory.t T
introduce both reform and uniformity in matrimonial law peraining
Hindus, the Hindu Marriage Act, 1955 2 was introduced. It was
of the most controversial legislations passed after independence.
The traditional and the cautious group was against the passin
the Hindu Marriage Act while the so-called progressive element o
ciety favoured it. The Hindu women, probably prompted by the
tinctive desire for self-protection were by and large, vehemen
opposed to the statute.
That controversy is now dead and the bill however controvers
might have been has become law. All institutions social or legal,
this in common with rivers, that they do not easily flow backwa
It is futile to expect or to suggest a revision or repeal of the e
statute. The legitimate query today should be about the intr
merits and demerits of the various provisions of the statute.
By virtue of the Hindu Marriage Act, a Hindu now possesses

*M.A., LL.M. (Yale), Reader in Law, University of Poona, Poona.

1. To mention a few - Baroda Hindu Act of 1937; Bombay Hindu Divorce
Act, 1947; Madras Hindu (Bigamy Prevention and Divorce) Act, 1949;
Saurashtra Hindu Divorce Act, 1952 created different matrimonial rights and duties
for Hindu spouses in different states. The remaining Hindus were applied the old
Shastric law which was again different.
2. Act No. 25 of 1955.
3. C.H. LetourNeau, The Evolution of Marriage and of the Family 355 (1891).

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258 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 12 : 257

usual matrimonial remedies of restitution for conjugal rights, 4 judicial

separation, 5 nullity and annulment of marriage, 6 and divorce. 7 Bar-
ring the remedy for judicial separation, each one of these remedies in
one form or the other existed under the old Hindu law too. 8 Even
divorce was not entirely unknown to the old law. Marriage being a
samskar, generally divorce was not recognized, but an exception
was made in those cases where custom sanctioned it. 9 The remedy for
restitution has been borrowed from English law but it has been applied
to Hindus since the latter half of the nineteenth century. 1 0 Therefore
any criticism offered here against the remedy for the restitution of con-
jugal rights is not due to its novelty, but is based upon the inherent
characteristics of the remedy.
When the Hindu Marriage Act was being formulated, all the energies
in and out of the legislature were so deeply concentrated on the issue of
inclusion or exclusion of divorce in the statute that the remaining
remedies hardly got a fair chance of intelligent and unbiassed scrutiny.
Further, our legislators quite readily and copiously followed the scheme
of matrimonial remedies existing under the English law. They ought
to have re-tested the English matrimonial remedies before incorporating
them in our law, for we were starting afresh and had no reason to load
our legal system with some archaic remedies. Actually the then majority
party in the Parliament i.e. Congress was so much committed to the
bill and it so overwhelmingly out-numbered the other parties that in
the zeal to get it passed, it hardly permitted any time to anybody to
scrutinize each remedy academically. In their enthusiasm to moderni-
ze the then existing outdated matrimonial laws, they in fact imported

4. The Hindu Marriage Act, 1955 § 9 :

(1 ) When either the husband or the wife has, without reasonable excuse, with-
drawn from the society of the other, the aggrieved party may apply, by peti-
tion 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.
(2) Nothing shall be pleaded in answer to a petition for restitution of con-
jugal rights which shall not be a ground for judicial separation or for nullity
of marriage or for divorce.
5. The Hindu Marriage Act, 1955 § 10.
6. The Hindu Marriage Act, 1955 §§ 11 & 12.
7. The Hindu Marriage Act, 1955 § 13.
8. 2 Kane, History of Dharamasastras pt. I. chs. IX, XI, XIII and XIV
(1941). See also Duncan Derrett, Introduction to Modern Hindu Law 138 (1963),
Gupte, Hindu Law of Marriage 46-53 (1961).
9. Banerjee, Marriage and Stridhana 207 (5th ed. 1923) Duncan Derrett,
"Divorce by Caste Custom," 65 Bom. L. R. 161. (Mrs.) R. K. Agrawala, "Hindu
Divorce Law - Its History" 1959 S.C.J. {Jour.) 242; Kodumme v. Joteeram, I.L.R.
(1878) 3 Cal. 305.
10. Jodonath Bose v. Shumsoonnissa Begum , (1869) 11 M.I. A. 551 ; Binda v.
Kaunsilia, I.L.R. (1891) 13 All. 126; Tikait v. Santa , I.L.R. (1901) 28 Cal. 751.

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 1970] RESTITUTION OF CONJUGAL RIGHTS 259

at least a couple of remedies that are themselves outd

for restitution of conjugal rights is one such example. T
ness and futility of this remedy has long back been a
perts of English family law11 which has been the mode
monial laws. After the second world war its deletio
recommended in England but somehow the Royal Co
to continue the remedy.12 Some of our own legisla
posed the inclusion of the remedy in our law but even t
found a place in the Hindu Marriage Act. 13
Under law by restitution a spouse seeks order from
compel the other spouse to resume cohabitation and
remedy of restitution is based on the notion that by the
husband and wife are entitled to the society of each
vow suggests that each party is to associate with the oth
default of fulfilling such obligation, the guilty spouse c
so by law. Nevertheless right to restitution is not ab
it usually also comtemplates that in deserving cases the
tion shall fail. What shall be a deserving case to def
restitution depends upon the scheme of each legal s
the Hindu Marriage Act, generally speaking, the re
fend a restitution petition on any of the grounds ment
matriomonial remedies under the Act, 1 4 though accord
the defence can be extended to any other reasonable cau
The merit of the remedy for restitution is, that it is t
remedy whereas the other matrimonial remedies are of
racter. While divorce, nullity and judicial separation a
or permanent dissolution of marriage, restiution aims a
Reconciliation and not rupture of matrimony being
matrimonial law, the remedy for restitution apparen
able. But the truth is that this positive character is m
and in actual practice it tends to become as negative as t
dies. Human beings are not machines, they are emo
If it is true for a horse that it can be taken to water but
to drink it, it is more true in the case of humans. A cou
ing restitution cannot suddenly crease out the emo
imaginary) misgivings of a spouse.

11. Marshall v. Marshall, Ll 879] 5 P.D. 19; Rayden, Practice

Divorce Division 160 n. (e) (6th ed. 1953); Bromley, Family La
Derrett; op. cit. supra note 8 at 197.
12. The Royal Commission on Marriage and Divorce 1951-1955 Command
Papers 9678, paras 320-324.
13. The Hindu Marriage Act, 1955 § 9.
14. The Hindu Marriage Act, 1955 § 9(2).
15ģ Gurdev Kaur v. Sarwan Singh , A.I.R. 1959 Punj. 162; G ur char an Singh v.
Smt. Waryam Kaur, A.I.R. 1960 Punj. 422; Smt . Mango v. Prem Chand , A.I.R.
1962 All. 447; Tulsa v. Pannalal , A.I.R. 1963 Madh. Pra. 5.

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260 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 12 : 257

In the past, both under the English as well as Hindu law, a restitu-
tion decree used to be accompanied with some positive sanction
for its enforcement. The law was so strict that a Hindu wife refusing
to obey a restitution decree could be imprisoned, 1 6 and in England the
assets of the defaulter could be attached or he could be ex-communi-
cated. 1 7 But soon it was realised that a forced get-together is neither
desirable nor fruitful, it could only further deteriorate the relation-
ship instead of improving it. Therefore the sanctions were removed.
Under both the legal systems, a forced execution of the restitution dec-
ree is no more possible. The former barbaric procedure has been done
away with.
Once it is theoretically admitted that a restitution decree should
not be executed without the free co-operation of the respondent, the
remedy becomes virtually impotent. In the absence of any sanction
behind the decree, the chances of its execution are nil. It is naive
optimism to believe that the decree in itself can change the attitude of
the adamant respondent. On the contrary, the court action brought
out by the successful plaintiff spouse is most likely to embitter the other
party still further. Bromley puts it aptly :

It is obvious that if the relationship between the parties is such that the
respodent will not resume cohabitation before the petitioner brings restitu-
tion proceedings, a decree which has no sanction if it is disobeyed is not
likely to induce him to do so.... 18

It shall be very useful if a study is made as to the actual fate of the

restitution decrees in our country. At the moment no such study is
available. However, knowing human nature as we do it may safely
be assumed that happy ending is not the fate of such decrees.
In the Parliament Mr. Khardekar had opposed the remedy of resti-
tution of conjugal rights, saying

to say the least this particular cause19 is crude, uncouth, barbarious, and
vulgar. That Government and court should be abettors in a form of legali-
sed rape is something very shocking.... 2°

In reply, the then Minister of Law Mr. H. V. Pataskar21 had

admitted that the term restitution of conjugal rights sounded rather

16. Code of Civil Procedure, 1908, o.XXI, r. 32 and 33 (prior to the amend-
ment of 1923).
17. Bromley, op . cit., supra note 11 at 168; Rayden, op. cit., supra note 11 at
clviii& 158,
18. Bromley, op. cit. supra note 11 at 168.
19. The Hindu Marriage Act, 1955 § 9, see supra note 4.
20. Lok Sabha Debates pt. 2, session 9th, (1955). vol. 4,22nd April, to 7th May
p. 7626.
21. Id. at 7635-36.

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1970] RESTITUTION OF CONJUGAL RIGHTS 261

harsh in modern times, but he pointed out that according

dural law 2 2 in our country the decree for restitution could
bly executed, therefore there was no fear of a brutal ge
to this remedy. In case now we reinforce the former
fear stated by Mr. Khardekar would become a reality. C
as there is no possibility of the remedy becoming eff
submitted that the proper thing to do would be to aban
Derrett suggests some special use of the remedy fo
society. He says :

The practical utility of the remedy is little in contemporary E

in India, where spouses separate at times due to misunderstand
of mutual communication, or the intrigues of relatives, the reme
tution is still of considerable value....28

Optimism of Derrett as regards the utility of the remedy for restitution

in the Hindu society is rather well meant wishful thinking, than a con-
sidered conclusion. It is for some sociologist with relevant data to
prove or disprove Derretťs surmises. Yet, it is a little difficult to
appreciate the logic behind the reasons put forth by him to support his
suggestion.
Hindu spouses are not particularly known to separate due to mutual
misunderstandings. Actually, the chances of separation due to mutual
misunderstandings are fewer in our society than in the English or in any
other Western society. Even the modern Hindu wife is usually tradi-
tional in her concept of marriage, possesses an immense capacity for
toleration and her demands from her partner are modest in comparison
to her Western counterpart. Hindus, by training and temperament
are fatalists and consider marriage to be a sacrament or samskar ,
they are therefore naturally apt to accept many shortcomings in their
spouses, without breaking the nuptial tie. There is, therefore, nothing
to suggest that the Hindu society is a particularly fertile ground for
misunderstandings between the spouses. Similarly, no explanation
has been suggested as to why the Indian society is more prone to the
failure of mutual communication between the spouses, than any western
society. Possibly only separation due to unjustified and mischievous
interference from relatives could truly be called an unique feature of our
society. But it has to be reckoned at the same time that the Hindu
family pattern has already undergone a drastic change and the number of
nuclear families is rapidly outnumbering the joint families. Due to the
rapid pace of industrialization in the country the above change is
evident in the rural population also. Therefore the possibility of mis-
chievous or unjust interference by relatives or failure of mutual commu-
nication between the spouses, isa problem more of the past than of the

22. Code of Civil Procedure, 1908 o. XXI, r. 32.

23. Duncan Derrett, op. cit . supra note 1 1 at 197.

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262 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 12 : 257

present or the future. Remedy for restitution can be as useful or n

useful in the Hindu society as in any other civilized society. It is
matter of grave doubt if this remedy can be of any value or use in any
other society than that of the cave-man.
It is the most tricky and deceptive matrimonial remedy and operate
on extremely slippery premises. In appearances though harmless, it
capable of causing serious trouble and torture. A slightly wrong dia
nosis, and if administered in the wrong place, it can become the de
liest of legal medicines. Most of the modern legal systems have ho
ever taken out most of its venom by eliminating any compulsion o
sanction for the execution of the restitution decree.

II

A pertinent question can be raised, that if the remedy for restitution

is so ineffective why does it not die a natural death i.e. by disuse ?
In actual practice, inspite of its inherent incapacity to effect a recon-
ciliation, the remedy is most popular in use. It is used to achieve
other goals than reconciliation. Restitution petitions are invariably
spurious. In England, where till 1949 a married woman's claim to main-
tenance could only be sustained if she had already applied for some
other matrimonial relief, almost every restitution petition made by
the wife was to prepare ground for the claim of maintenance. This is
aptly proved by the fact that when the law was changed 2 4 and main-
tenance could be claimed without any previous claim to some other re-
lief, the number of wives' restitution petitions fell by more than sixty-
three per cent within a couple of years. 2 5 Bromley rightly suggests that
restitution is rarely the aim of the petitioner in restitution petitions. 26
Sir J. Hannen long ago said that he had not once known a restitution
petition to be genuine, that these were merely a convenient device either
to enforce a money demand or to obtain divorce. 2 7
In India the situation is not any different. A survey of the reported
cases between 1954 and 1969 also shows that restitution petitions are
as a rule made with ulterior motives. The facts and trend of the cases
show that the petitioner invariably neither desires nor expects a recon-
ciliation with the respondent, his (in India it is mostly his) objective being
either to foil the maintenance or any other claim made by the wife or
to pave his own way for divorce. There is a string of cases where the
petitioner husband's aim is obviously not reconciliation but to frustrate
the wife's claim for maintenance. 2 8 There is a consistent pattern of

24. Law Reform (Miscellaneous Provisions) Act, 1949.

25. Quoted per Bromley, op. cit. supra note 11 at 168.
26. Ibid.
27. Marshall v. Marshall , supra note 11 at 23.
28. Smt. Venkatamma v. Venkataswamy, A.1€R. 1963 Mys. Ilo; varalakshmi v.

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 1970] RESTITUTION OF CONJUGAL RIGHTS 263

conduct on the part of the petitoner in these cases, viz., th

bothered to restore the severed relations with the responde
time, but as soon as the wife started maintenance proceedin
obtained a maintenance order, he filed his petition for
conjugal rights. Further, practically in each case th
accused the respondent for her unchaste conduct, and
tances he even had another wife living with him. The t
of the restitution petition, the petitionner's lack of faith i
of the wife, his past detached attitude towards the severed r
lead to one inference, that he was not in the least intereste
the relationship but that he wished to shirk his liabilit
his legally wedded spouse.
Again, there are cases where the petitioner started restit
ceedings, with no hope or wish for restitution but merely
the wife's claim for judicial separation or divorce. In An
v. Appa Rao ,29 a daring wife started divorce procee
ground that the husband suffered from leprosy.30
answered the divorce petition with a restitution petitio
His conduct would have looked normal if he had only de
vorce proceedings, but it is quite different to desire or rea
to reconcile with a wife whoisbent upon getting divorce du
band's leprosy. The restitution petition was meaningless
frustrate the wife's claim for divorce, or at least to harass
ing unnecessary dalay in her divorce proceedings. In K
Kampta Prasad,*1 the husband had continuously and for
neglected the wife, but as soon as she moved the cour
separation, he met it with a petition for restitution of con
Both the petitions were rejected. Perhaps the husband
appeal against the rejection of his claim for restitution
was served the moment wife's claim for judicial separation
ever, there are not many instances of this nature on r
Hindu wives seldom come to the court to claim a matrimonial relief
like judicial separation or divorce.
Some cases also point out that the petitioner paves his own way
for divorce by first presenting a restitution petition. Where there has
been no restitution after a decree for restitution of conjugal rights, for
two years or more, either party to the decree is entitled on this ground

Viramulu, A.I.R. 1956 Hyd. 75; Teja Singh v. Sarjit Kawr, A.I.R. 1962 Punj.
195 ; Tarak Nath v. Sneharani, A.I.R. 1949 Cal. 87 ; G ur char an Singh v. Smt. Waryam
Kaur, A.I.R. 1960 Punj. 422; Kamala Bai v. Rathnavelu, A.I.R. 1965 Mad. 88;
Jinarthanammal v. P . Srinivasa, A.I.R. 1964 Mad. 482.
29. A.I.R. 1963 Andh. Pra. 312.
30. The Hindu Marriage Act, 1955§ 13, cl. (1) sub. cl (4) permits incurable and
virulent leprosy to be a ground for divorce.
31. A.I.R. 1965 All. 280.

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264 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 12 : 257

to claim divorce under the Hindu Marriage Act.32 This change was
inserted by the Hindu Marriage (Amendment) Act of 1964. Formerly,
the right to obtain divorce on this ground was only available to the
judgement creditor but now law entitles the judgement debtor also
to make use of this ground. More often than not it is seen that where a
spouse (in India usually the husband) finds no other ground available to
get divorce, he first obtains a restitution order then tries to put obs-
tacles in its being satisfied and after two years of such careful planning
moves for divorce. In both, Ishwar Chander v. Pomilla Ahluwalia, 3 3
and M.P . Shreevastava v. Mrs. Veena 34 the husband secured the res-
titution order and deliberately made the satisfaction of the decree im-
possible. In the first case he filed a petition for nullity of his marriage
immediately after receiving the decree for restitution, during the penden-
cy of which there could be no question of restitution. After two years of
this deadlock he petitioned for divorce on the ground of non-satisfac-
tion of the restitution award. The Court however dismissed his peti-
tion saying that in computing two years of time the duration during
which nullity petition was in action, had to be eliminated; therefore
two years legally had not elapsed between the restitution order and his
divorce petition. In the latter case when the husband foiled all at-
tempts of the wife to return to him after obtaining the decree for resti-
tution, she requested the court to note the fact that the restitution order
had been complied with on her part. The husband objected to it on
the ground that in procedure no such power has been given to the
court. 3 5 The inference is irresistible that in both the cases restitution
decree had been obtained for being used as a springboard for divorce.
The cases discussed above are but examples to illustrate the insin-
cerity of the petitioner in restitution petitions. The exact ratio of
insincere petitions cannot be calculated until all the court records arę
checked up. The law reports only mention some important decisions
that come in appeal upto the High Court, but restitution cases originate

32. §13(lA)ofthe Hindu Marriage Act, 1955, as amended by the Hindu

Marriage (Amendment) Act No. 44 of 1964 reads :
Either party to a marriage, whether solemnized before or after the com-
mencement of this Act, may also present a petition for the dissolution of
the marriage by a decree of divorce on the ground

(i) that there has been no resumption of cohabitation as between the

parties to the marriage for a period of two years or upwards after the
passing of a decree for judicial separation in a proceeding to which
they were parties; or
(ii) that there has been no restitution of conjugal rights as between the par-
ties to the marriage for a period of two years or upwards after the pas-
sing of a decree for restitution of conjugal rights in a proceeding to
which they were parties.
33. A.I.R. 1962 Punj. 432.
34. A.I.R. 1965 Punj. 54.
35. The Court held that in procedure there is nothing to stop it from recording
such satisfaction of the decree on the part of the wife.

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 1970] RESTITUTION OF CONJUGAL RIGHTS 265

in the district courts and all the cases do not go in appe

a detail data collection i n the lower courts alone can
ratio. An exhaustive data study shall be very use
the reported cases amply prove the point that restit
as a rule not genuine.
It is also quite immaterial that under Hindu law th
used by the man alone. This is purely due to the loc
climate. If the Hindu woman was in a position to b
she would also have had no qualms to use the remed
motives. It has been noted already that under Englis
useful to them, the women did use the restitution
other ends. It is therefore submitted that a remedy wh
dy in itself but only serves as a stepping stone for so
or convenience, hardly deserves a place in the matrim
country. It is inequitable to preserve a remedy that
further to be appreciated that the concept behind the le
restitution appears to be quite unnatural and is abhorren
era. Amongst the rights and duties of spouses, the ri
to the society of the other is basic, natural, and most im
right of society is one of the express conditions of mar
not be waived without sufficient reason. Yet, the qu
legal process can or should interfere if such a br
is plain that law, until it attempts to be cruel cann
breach. Nor does it appear to be desirable to permit l
such an intimate and personal sphere of human rel
to fulfil the marital obligation of giving company to th
undoubtedly a matter falling in the area of personal mo
The question of the desirability of legal control in
sonal morality cannot be categorically answered one
Sometime back Lord Devlin and Hart thoroughly disc
versial issue, viz., the extent to which law should interf
life. 3 7 Should law be concerned only with actions
of doing harm to individuals, or that it may also b
morality and sanctity of essential social institution
is prepared to give ample scope to the state to legisla
private morality, but Hart refuses to accept that law
mental in enforcing morality. However, Lord Devli
thing that the modern 'paternalism of law' should no
vacy of the individual and that law ought to show maxi
of such individual freedom which is not inconsistent wi

36. Binda v. Kaunsilia, (1891) 13 All. 126.

37. See : Lord Devlin, The Enforcement of Morals chapter on "Morals and
the Criminal Law" based on his lectures in jurisprudence delivered at the British
Academy on 18 March 1959. And the reply to Lord Devlin's thesis by H.L.A.
Hart in the course of his lectures delivered at Stanford University in 1962 and pub-
lished in his book, Law, Liberty and Morality (1963).

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 266 JO U RN AL OF THE INDIAN LA W INSTITUTE [Vol. 1 2 : 257

of society. He proposes that law should concern itself with a minimum

and not a maximum standard of behaviour. Hart also makes some com-
promise on the issue by saying that though law should never enforce
morality as such, sometimes it may be used to protect "utilitarian
morality." He does not particularly elaborate his concept of utilitarian
morality. Whether one is inclined to agree with Lord Devlin's "limited
legal paternalism" or with Hart's view that has faith in "free choice of
action of the individual in spheres of personal morality," human ex-
perience shows that function of law cannot be entirely limited to
the protection of individuals from positive harm. Law has to be ex-
tended to control and protect the essential institutions in society also.
Individual harm and social institutions are very closely inter-related, pro-
tection of one automatically leads the protector to involve itself with
the other. Individuals do not exist in society like scattered islands upon
an ocean that never touch each other, they live like ships that pass, touch
and salute each other each day inlife. Social institutions plan and approve
or disapprove rules for such contact or communication. These rules
are understood to be the social values or morality by the individual. 38
It is obvious, therefore, that individual harm, social, institutions, and
morality are all inter-related and that it is futile to hope that law can be
allowed to control one but may be stopped at touching the other. It is
a different matter that the grip of law may be kept absolute in case of
individual's harm whereas it may be kept limited and restricted in case
of institutions or in case of morality.
Marriage is one of the most essential social institutions. Emotional
stability of society depends upon this institution. Concepts underlying
matrimonial relations concern both social expediency and morality.
Thus institution of marriage is public as well as private in nature. It is
also very difficult to draw a line between public and private morality
or between general and utilitarian morality. It may be conceded that
sphere of matrimonial relations though personal in nature but being
the foundation for social solidarity, may be brought within the sphere of
control of law. Even Hart admits legal encroachment in areas of mora-
lity justifiable for purposes of utility. Yet, the onus ought to be heavily
upon law while it interferes in such intimate spheres. While law oper-
ates in such areas it should aim at respecting individual's privacy, ought
to refrain from making rules whose enforcement might be impossible
or even difficult, should keep in viw the rational public opinion, should
avoid rules that will fail in their object or produce a great deal of suffer-
ing, and ought not to put to task people for behaviour that they cannot
help.39
In view of the above observations it is submitted that matrimonial

38. Basil Mitchell observes : Institutions so understood are essential to

people's living together in a satisfactory fashion and so contributing to 'cohesion*
in his Law Morality and Religion in a Secular Society 33 (1967).
39. Lucas J.R., Principles of Politics 347 (19 66).

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1970] RESTITUTION OF CONJUGAL RIGHTS 267

laws can only be justified to exist till they do not overs

limits. Laws establishing monogamy or not permit
solution of marriage, or insisting upon fidelity of sp
generally accepted without quarrel in most of the civili
is true that in the process, law shall be laying down standa
for the individual but the process need not be condemned
the aim is social interest, and in Hart's terminology one m
"interference in the field of utilitarian morality"which is
But if a matrimonial rule affects the essential privacy of
becomes overbearing. To illustrate, it is one thing to say
not terminate the marital union easily, but it is quite diffe
that you are compelled to perform your marital obligation
with the other spouse. In the first instance you are restrain
a wrong thing (according to law) in the second ins
compelled to do a right thing (according to law).
law of conditional divorce and the latter is that of restitution
of conjugal rights. Whereas conditional divorce merely forbids you
to do something, the law for restitution forces you to act in a positive
fashion, and such interference in your privacy is unjust. It is really un-
seemly to allow law to be operative in affecting such privacy. What can
be more private than your decision to join the other spouse or not ?
Such choice shoud not be left to be decided by law. Law may determine
the conditions of entering into marriage or walking out of it, but it need
not force you to enjoy the marital status. If your refusal to enjoy the
marital status causes pain or harm to yur partner, law may legitimately
provide him with some remedy like right to divorce. Once the pained
spouse is supplied with an appropriate remedy the matter ought to end
there. Therefore, it may be said that law may control matrimonial
relations to the extent that sex may not become licentious in order to
promote stability in marriage and in society, yet law may not move
further. Establishment of monogamy or penalising adultery are e.g.,
ways by which law attempts to stabilise or channelise sex in the proper
direction; therefore such laws are proper. On the other hand where
the conduct of the spouses is not becoming licentious legal control
should be avoided. Refusal to cohabit is bad policy but is not licentious
conduct, therefore legal control should not be permitted here.
Ill

A member of Indian Parliament once suggested that the remedy for

restitution may be substituted by the remedy of reconciliation.40 This
seems to be sound suggestion. While order for restitution of conjugal
rights sounds harsh and is capable of further irritating and provoking

40. See Mrs. Renu Chakravarty's observation on the deletion of § 9 from the
Hindu Marriage Bill (as it was then). Lok Sabha Debates, pt. 2, session 9th 1955
vol. 4. p. 7625.

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268 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 12 : 257

the deserting spouse, the idea behind reconciliation seems to be in-

nocent and has a connotation of sympathy and understanding. The
severed and strained relations can only be mended by subtle, psycho-
logical and sympathetic approach. Cajoling and not judgment can
heal the hurt in a matrimonial rift. If the remedy is for reconcilia-
tion and not restitution the entire tone of the petition changes,
by becoming more amicable. In reconciliation the petitioner seems to
be requesting the court to patch up the misunderstanding, in restitution
the petitioner looks like demanding the rightful claim to consortium.
At present the judge is obliged to pin-point that one of the spouses is in
the wrong, in the remedy for reconciliation court shall not be obliged
to do so, which may in itself mean a lot. In tortious, contractual, or
criminal proceedings determining the guilty party can be useful but
in matrimonial causes this does not always serve a useful purpose. If
the remedy can be thus made to be inoffensive it might achieve the
desired result. It is submitted that the details could be drawn out as
for the actual working of the substitutive remedy of recociliation some-
what on the following lines :
(i) the court may be authorized to appoint a committee for recon-
ciliation consisting of the judge himself, the spouses, and one or
two relatives or friends selected according to the choice of the
spouses, on each side.
(ii) The committee should not sit as a court to condemn or adjudge
but as a conciliator.
(iii) If the committee fails in its purpose, but it feels that reconci-
liation might be attained through the help or guidance of an
expert, e.g., a psychiatrist, it may take such help.
(iv) This procedure should be termed as, counselling.
(v) The failure of this procedure should not bar the claim for
maintenance.
(vi) Further, the failure of such counselling need not be considered
as a ground for divorce.
It is reasonable to assume that if the above processes do not suc-
ceed then reconciliation is impossible. Whatever may be the short-
comings of this suggestion, but it appears to be decidedly more humane,
practical and utilitarian a procedure, than the present one i.e., a resti-
tution petiton. Perhaps the suggestion is relevant not only in case of
Hindu law, but in case of all civilized legal systems. Reconciliation
attempted by court in divorce cases proved to be quite satisfactory and
useful according to a socio-legal -data study made in Poland.41 This
method of meeting matrimonial friction therefore seems to be quite
hopeful in achieving the desired result i.e., healing of the rift between
estranged spouses. All rational argument seems to favour the suggestion
of substituting the remedy of restitution by remedy for reconciliation.

41 . Jan Górecki, "Divorce in Poland - A Socio-Legal Study," published in

Sociology of Law 109-1 11 (Vilhelm Auburted 1969).

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