FAMILY LAW- I

RESTITUTION OF CONJUGAL RIGHTS

SUBMITTED BY
SNEHA
BALLB, 5TH SEM

SUBMITTED TO
ASST. PROF PRIYANK JAGAWANSHI

DATE- 5TH OCTOBER, 2020

1
 CONTENTS

1. ABSTRACT…………………………………………………..3

2. INTRODUCTION……………………………………………

3. CONSTITUTIONAL VALIDITY……………………………9

4. PROVISIONS UNDER PERSONAL LAW………………….12

5. PROVISIONS UNDER SPECIAL MARRIAGE ACT………15

6. RELEVANCE…………………………………………………17

7. CONCLUSION………………………………………………..17

8. REFERENCES……………………………………………….18

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ABSTRACT

This article aims to shed light on the issue of Restitution of Conjugal rights and strive to
present the reality of the concept in modern times.

In Hindu tradition, marriage is treated as a sacramental union and the related sanctity is given
in different personal laws too. Since the time the legislation with regard to restitution of
conjugal rights has been enacted, it has been widely debated and discussed. The main theme
of our article is to highlight the very nature of this legislation and how from being initially
prescribed as remedy it now serves as an ultimate destructor of an already crumbling
marriage. In this article, we have discussed about the constitutionality and the pattern of the
precedents set by the Indian Courts on this remedy.

Also in this article, we have highlighted that with evolution of time and thought restitution of
conjugal rights does not hold much water in the present times as it has been replaced by other
remedies with greater flexibility and feasibility, rendering this “remedy” obsolete.

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 INTRODUCTION

“I hold your hand for Saubhagya that you may grow old with your husband, you are given to
me by the just, the creator, the wise and by the learned people.” 1

The above passage in the Manu Smriti confirms that marriage was considered as a
sacramental union not only in Rig vedic period but also in contemporary times. The
relationship by marriage not only enjoins certain rights but also various obligations. One of
the obligations is to cohabit with each other and as one of the express conditions in the
nuptial vow of the Hindu system.2 This mutual fidelity shall continue till death and man and
woman should beware of anything which may violate such fidelity 3. Hindu laws since the
time being have always relied upon the concept of woman being subversive to man and the
wife’s obedience to her man’s words and actions. And this was very beautifully put by
Bentham as “In his hands the power maintains itself. Give the authority to the woman, and
every moment a revolt would break out on the part of her husband”4.

The remedy of Restitution of conjugal rights though not recognized in ancient Hindu texts
and laws- Dharamshastras and Vedas but still was considered as powerful weapon to catch
hold the losing threads of this pious relationship. Conjugal Rights are the marital rights and
obligations of the spouses towards one another and are of a great importance in a marriage
union.

Restitution of Conjugal Rights is a remedy which centres upon restoring or reinstating one’s
marital rights (like, comfort and consortium of one another) 5 to which he /she is entitled by
the marital bond. It is an order of the Court6, providing the parties to continue living together
and directing the respondent, the deserter, to perform his requisite marital obligations towards
the petitioner.

1
Manu Smriti, VIII, 227.

2
Asiatic Researches, VIII, 303.

3
X Manu, 102-103.

4
BENTHAM, THEORY OF LEGISLATION 230.

5
Ela Dasu v. Ela Lachamma, (1990) 2 HLR 249 (Ori).

6
District Court of Competent Jurisdiction.

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This concept was an alien concept which got infested in the legal roots of the Indian
subcontinent. It is a borrowed concept from the British, where marriage was considered
equivalent to a property deal and the children and wife of a man merely his possessions like
chattels. The British Law Commission7 in its 1969 report recommended that this remedy be
abolished from the English law, leading to enactment of Section 20 of the ‘Matrimonial
Proceedings and Property Act, 1970’ which provided for the abolishment of a spouse’s
right to claim restitution of conjugal rights in the English Courts.

The applicability of this remedy was first observed in Monshee Buzloor v. Shumsoonissa
Begum8 where the wife was considered as the property of the husband and was thus,
required to live forever with him. Moreover during its application, the court directed the
delivery of wife’s bodily into her husband’s hands.9

Even after the abolishment of this remedy in England, from where India had borrowed it, this
remedy continued to be in operation in the Indian legal system. After independence of India
in 1947, this remedy found its place in the Hindu Marriage Act, 195510 and various other
personal law codes which will be discussed further in the essay.

According to Section 9 of the Hindu Marriage act, 1955-

“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
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 shouldn’t 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.]11

7
23rd Law Commission of England.

8
Monshee Buzloor, (1867) II Moo IA 551.

9
Hurka Shunkur v Raeejee Monohiir, 1 I.L.R. 353 (Bom.).

10
PARAS DIWAN, LAW OF MARRIAGE AND DIVORCE (3rd ed. 1999).

11
Inserted by Act 68 of 1976, Section 3.

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A petition for restitution of conjugal rights can be filed by the aggrieved party of a marriage
in a District Court. Section 9 of the Hindu Marriage Act is unique in the way as it also
provides within its ambit, an opportunity to the aggrieved party to apply for maintenance
under Section 25 of the Hindu Marriage Act without actually separating (judicial separation)
or obtaining a divorce from their spouse.

Also it is to be observed that the mentioned section also acts as a basis for filing and
obtaining a decree of judicial separation under Section 13(1-A) provided that the court is
convinced that there has not been any restitution of conjugal rights between the parties for a
period of one year or more after the passing of the decree for restitution of conjugal rights.

Under all personal laws, the remedy of restitution of conjugal rights requires the following
conditions to be fulfilled-

1. The respondent has withdrawn from the society of the petitioner.

2. This withdrawal of the respondent was without any reasonable excuse or cause.
3. The court is satisfied with the truth of the statement made in such petition and that the
petitioner is not taking advantage of his own wrongs.
4. There is no legal ground why the relief should not be granted.

So, this relief expressly mentions the terms “withdrawal from the society” and “without any
reasonable excuse”. The concept of marriage implies consortium, i.e., both husband and wife
are entitled to each other’s company and comfort12. The word “society” has the same meaning
as that “cohabitation”. The issue of withdrawal from the society of other arose in many
cases13and later on in Tirath Kaur v. Kirpal Singh14 the court relied on Section 555 in
Mulla’s Hindu Law and said that “a wife’s first duty is to submit herself obediently to his
authority and remain under his roof and protection” but the passage in Mulla’s Hindu Law
did not define cohabitation.

But fortunately, Justice Katju directed the train to the right path and held that “the mere
refusal of the wife to resign job or wife taking up a job even contrary to the wishes of her

12
PARAS DIWAN, MODERN HINDU LAW 189, (23rd ed., Allahabad Law Agency) (2016).

13
Tirath kaur v. Kirpal Singh, 1964 Punj 28 ; Surinder v.Gurdeep, 1973 P & H 134; Kailashwati v. Ayodhya
Prakash, (1977) ILR 642 (P&H).

14
1964 Punj 28.

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husband does not amount to withdrawing from the society” 15.In our modern society, women
is no longer a burden or dependent on her husband or his household. It is open to both
husband and wife to get an employment or job and if the husband and wife, owing to the
exigencies of their employment cannot live together, it cannot be said that it amounts to
withdrawal from the society of the other16.

The Indian Courts have been puzzled for a long time with the question of as to what qualifies
as a reasonable cause or reasonable excuse?

It can be any matrimonial misconduct which is grave and weighty. With regard to
“reasonable excuse”, if there is reasonable apprehension with the wife that it is unsafe to stay
with her husband17, husband forcing an educated Brahmin wife to eat meat 18 would serve as a
sufficient reasonable cause and the decree of restitution of conjugal rights will fail.

A peculiar aspect about this remedy is that the onus of proof shifts in two stages. The initial
onus of proof that the respondent has withdrawn from the society of the petitioner is on the
petitioner, and once that is established, it is for the respondent to prove that there is a
reasonable excuse to do so.19

On its very face, the legislation may appear as remedy but it has certain fallacies too which is
continuously trying to weaken our cultural and moral system. This remedy was enacted for
the purpose of safeguarding the sacramental nature of marriage and upholding the Indian
culture and traditions, where marriage is considered to be a very pious and an emotional
bond.

But there has always been a difference in opinions when it came to the interpretation of the
Section 9 of the Hindu Marriage Act, 1955 and the constitutional validity of the said
provision.

CONSTITUTIONAL VALIDITY OF SECTION 9 OF HINDU MARRIAGE ACT, 1955

15
Shanti v. Romesh, (1971) ALJ 67.

16
PARAS DIWAN, MODERN HINDU LAW 190 ( 23rd ed., Allahabad Law Agency) (2016).

17
Jogindra v. Shivacharan, 1965 J & K 95.

18
Shakti v. Balbir, 1971 Del 294, Pramod Naik v. Sukanti Naik, 2004 Ori. 72.

19
Atma Ram v. Narbada, (1980) AIR 35 (Raj).

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At the time of enactment of the provisions holding the “remedy” of restitution of conjugal
rights in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were a lot
of heated discussions and conflicts in the view of the law makers in the Parliament in favour
and against the enactment of such a provision.

The abolitionists argued that according to the ancient texts under the Hindu Law, the
institution of restitution of conjugal rights has neither been explicitly established nor has been
recognized and rather it was something that was considered to be more of an informal
obligation or duty than an actual rule.20

“Hindu law itself, was focused on the duty of the wife to live with and obey the husband. Yet
it did not provide for a procedure of enforcing this by compulsory action of the courts, or
otherwise.”21

The main argument of the abolitionists is that this remedy which was introduces as a resort
for tying together the crumbling marriage of a husband and wife has been blatantly abused,
exploited and misused. The law makers had enacted Section 922 as a gender neutral provision
where the aggrieved party be provided with best possible measures to save his/her crumbling
marriage and to safeguard the interests of the family.

Earlier the Hindu law emphasized on the wife’s implicit obedience to her husband, as she is
considered as the “ardhangani” of her husband with him being her protector and guiding
light. However it does not lay down any straightjacket rule for compelling her to return back
to her husband against her wishes and will. However the Indian Courts through their various
judgements have altered the fundamental crux and idea of this provision to meet with the
demands of the patriarchal Indian society.

Once such noticeable judgement passes by the Punjab and Haryana High Court can be
referred to as an illustration as the how this provision has been misinterpreted and misused
and till what extreme ends. The Court in Kailash Walti v. Ayodhia Prakash 23 held that “a
wife is expected to forfeit her employment”. This judgement found its basis from an earlier

20
MONMAYEE BASU, WOMEN & LAW IN INDIA—HINDU WOMAN AND MARRIAGE LAW.

21
Bai Jiva v. Narsingh Lalbhai, (1927) AIR 264 (Bom).

22
Hindu Marriage Act, 1955.

23
(1977) 1 ILR 642 FB (P&H).

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judgement given by the same court in which it held that “wife’s employment away from the
husband amounted to desertion, with a remedy under section 9 of the Hindu Marriage Act.”24

However a fresh wave to quash such stale and retrograde statements of the courts were
brought after 1975 when the Madras High Court took a fresh look at the provision provided
under Section 9 of the Hindu Marriage Act combining it with the prevailing socio-economic
condition and noted that “with the changing times, it is not feasible to enunciate or enforce an
unconditional concept of obedience to and a duty to reside, with the husband”.25

Despite such a fresh and progressive perspective of the Indian Courts, it is ironic that there
still exist so many grievances as against this “remedy”

The constitutional validity of Section 9 has been repeatedly challenged the earliest one dating
back to 1983 in T. Sareetha v. T. Venkatasubbaiah26. The court in its judgement opined
that Sec 9 of the Hindu Marriage Act was violative of Article 21 27 and being violative of Part
III of the Indian Constitution it ought to be quashed.

According to Justice Chowdary, marital rights under section 9 of the Hindu Marriage Act
connoted two formulations, first that parties to the petition had marital rights for each other
and marital obligations against each other and second, marital intercourse as a marital right of
the petitioner and marital obligation of the respondent. He held that “enforcing this right
would amount to transfer of the right of the individual over her body, to the state”. He opined
against the continued usage of the above mentioned section to enforce unwilling sexual
intercourse over a partner as a misuse and tyranny of the law, which infringed upon the
privacy of the citizens.

Justice Chowdary gave refreshing statements quashing the patriarchal shackles in which this
provision was held captive since a long time. He contradicted and criticized the views held by
the courts till date that “the place of the wife is at the feet of the husband and under his
roof.”28

24
supra at 14.

25
Radhakrishna v. Dhanalakshmi, (1975) AIR 331 (Mad).

26
(1983) AIR 356 (AP).

27
Article 21 of the Indian Constitution- Right to Life and Personal Liberty.

28
supra at 26.

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Section 9 of Hindu Marriage Act, 1955 is constitutionally unsound as it violated the right of
Privacy which is implicitly provided to the Indian citizens under Article 21 of the Indian
Constitution.

It was observed in Shakila Banu v. Gulam Mustafa29, Justice Vaidya opined, “(The concept
of restitution of conjugal rights) is a relic of ancient times when slavery or quasi-slavery was
regarded as natural. This is particularly so after the Constitution of India came into force,
which guarantees personal liberties and equality of status and opportunity to men and
women alike and further confers powers on the State to make special provisions for their
protection and safeguard.”

In Govind v State of M.P30, the Supreme Court relied on the American Judgment in Roe v.
31
Wade to hold the test of right to privacy under Article 21. It was held that the right of
Privacy should “encompass the right to personal intimacies of home, family and marriage”.
The court observed that the right to privacy is available to every person irrespective of their
marital status. Justice Chowdary with reference to Govind v. State of M.P. observed in T.
Sareetha v. T. Venkatasubbaiah that “there could be no legitimate grounds for the
withdrawal of this right to privacy, by state sanction.”32

33
The Bombay High Court in Bai Jiva v. Narsingh Lalbhai observed that “If the right of
privacy means anything, it is the right of the individual married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person.”

On the basis of the interpretation and comment on the constitutionality of Section 9 of the
Hindu Marriage Act given by the courts in their earlier decisions as discussed above, the
Delhi High Court in Harvinder Kaur v Harminder Singh34 reopened the interpretation and
test of constitutionality of the provision. In the instant case the wife (respondent) challenged
the decree for restitution granted to the petitioner by the district Court. The High Court held
that section 9 of Hindu Marriage Act was constitutionally valid on the ground that the

29
(1971) AIR 166 (Bom).

30
(1975) AIR 1378.

31
(1973) 2 L Ed. 147.

32
supra at 28.

33
supra at 21.

34
(1984) AIR 66 (Del).

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objective of the section was ‘to restore amity in marital life through a legally enforced
rapprochement’. The court supported its reasoning by emphasizing on the different spheres of
constitutional law and personal laws and how Article 14 and Article 21 of the Indian
Constitution had no applicability within the four wall of the house of the married couple.

The Court redefined the tenets of marital relationships and how right of Privacy could not
pave its way through the holes formed in this marital relationship. Further, the court
considered marital intercourse as a vital element of marriage, however at the same time
holding that it is not necessarily the sole motive behind the petitions of restitution. The Delhi
High Court took a much narrow view of the proviso of restitution provided in contrast to the
earlier precedents set by the courts.

Another issue is the implementation and viability of the practical application of the decree of
the restitution of conjugal rights. The decree of restitution of conjugal rights, in majority of
cases, is used for meeting some other ulterior motive other than reconciliation. This is due to
the lack of safeguards of misuse of Section 13(1-A)35. Section 13(1-A) provides that if a
restitution decree has not been complied with for a period of one year then the parties can file
for a divorce. The general trend however in such restitution claims is that the so called
“aggrieved party” files a restitution petition and would then himself/herself not comply with
the decree passed and after the completion of the statutory requirement of a period of one
year, files for divorce under S. 13 (1-A) (ii) on the ground of non-compliance of the decree.
There are a number of cases showcasing this ongoing trend highlighting the blatant misuse of
the law.36 In Harvinder Kaur v Harminder Singh37  the court recognised that “the
legislature has created restitution of conjugal rights as an additional ground for divorce”.38

The problem does not just end here. Enforcement of such decree by the court is a major
hardship faced by the Indian Courts. When any party to such decree fails to comply with it,
the Court has a power to enforce such decree under Order 21 Rule 32 of Civil Procedure

35
Hindu Marriage Act, 1955.

36
Jaswider Kaur v Kulwant singh, (1980) AIR 220 (P&H), Santosh Kumari v Mohan Lal, (1980) AIR
325(P&H), KS Latitamma v NS Hirianniah, (1983) AIR 63 (Kar),  Saroj Rani v Sudarshan Kumar, (1984) AIR
SC 1562, Harvinder Kaur v Haminder Singh, (1984) AIR 66 (Del),  Banti Devi v Moti Ram, (1990) AIR 35
(HP),  Murlidahr Rao v Vasantah Rao, (1984) AIR 54 (AP), T Sareeta v Venkatasubbiah,(1983) AIR 356 (AP).
37

supra at 34.
38
Ibid.

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Code, 1908. Under Rule 32(1)39, if the party wilfully does not comply with the decree, then
the Court can order the attachment of the property of the decree- holder.

Under Rule 32(3)40 the Court has the power to sell such attached property if the decree holder
has not complied with the decree for six months.

The difficulty sets in when such decree holder has no actual property in his possession. In a
country like India, majority of the population is below the poverty line or is living with the
basic amenities so needed for their survival. Holding the title over any property is a
farfetched dream of majority of such population. In such cases it is impossible to even think
that the enforcement of such decree will bring peace in the matrimonial lives of the party as
the court forcefully attaches the property of a person for compliance to such decree and such
coercion by the court creates further bitterness in the already bitter relationship between the
parties and the whole purpose of this remedy gets frustrated.

The apex Court in Saroj Rani V. S.K Chadda41 clarified its position and interpretation on
Section 9 of Hindu Marriage Act. The court observed that marriage was a society-sanctioned
practice and centred around family as its axis, provided both the husband and the wife
inherent rights over each other’s society. The Supreme Court expressed its need and duty to
protect these codified as well as un-codified personal laws and apart from judicial function
also perform a social function of saving marriages from breaking down through the judicial
remedies so provided in the personal laws of various religions.

The Supreme Court also held that how this provision had enough inbuilt safeguard to prevent
exploitation and oppression of a party to the marriage. Furthermore the court held that rule 32
of Order 21 was not stringent in its nature. Rather it was only a financial instrument
(attachment of property) so as to help in enforcement of the decree of restitution passed by
the court. So the Hon’ble court through its judgement upheld the decision of the Delhi High
Court in Harvinder Kaur v Harminder Singh.
39
Rule 32(1) “Where the party against whom a decree of restitution of conjugal rights has been passed, has had
an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of
a decree of restitution of conjugal rights by the attachment of the property…”.

40
Rule 32(3) “Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if
the judgment –debtor has not obeyed the decree and such decree holder has applied to have the property
attached property sold, such property may be sold; and out of the proceeds the Court may award the decree
holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment –debtor on his
application.”

41
(1984) AIR SC 1562.

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 LEGISLATIONS ON RESTITUTION OF CONJUGAL RIGHTS UNDER OTHER
PERSONAL LAWS

Muslim Law

The remedy for restitution of Conjugal Rights is also available under Muslim Law under
Tayabji’s formulation which reads as:

“where either the husband or the wife has, without lawful ground withdrawn from the
society of the other, or neglected to perform the obligations imposed by the law or by the
contract of marriage, the court may decree restitution of conjugal rights ,may put either
party on terms securing to the other the enjoyment of his or her legal right.”42

The expression “without lawful ground” has the same meaning as “without reasonable
excuse” as contemplated under the Hindu Law.

A unique feature about this remedy so provided under the Muslim Law is that unlike any
other personal law of the country, under Muslim law a suit in a civil court is to be filed and
not a petition. A petition for restitution of conjugal rights is maintainable only when there is a
valid marriage. By a bare reading of the above provision, it is very interesting to note that by
providing this remedy to both the husband and the wife, Muslim Personal Law has somewhat
elevated the status of its women, on paper. But the sad reality is that this provision falls short
from its unbiased applicability as it is overshadowed by the unlimited power conferred in the
husbands in the form of pronouncing triple talaq (talaq-ul-biddat) on their wives. A husband
in order to defeat his wife’s petition for restitution can pronounce talaq on her at any time
during the pendency of the suit.

Under Muslim law, lawful defences which can be undertaken by the respondent against a
petition of restitution filed by the petitioner are grounds of void and irregular marriages
between the parties, marriage avoided by either one of them by exercising option of puberty
and many other provisions under the Dissolution of Muslim Marriage Act, 1939,

As Muslim Law allows controlled polygamy upto four wives, however if the trend of the
precedents set by the courts is seen, a husband’s second or subsequent marriage may amount
42
TAYABJI, MUSLIM LAW 103 sec 87 (1968).

13
to cruelty on his first or earlier wives which will justify her leaving the matrimonial house
and this will be considered as a “lawful ground” under the provision.43

The passing of the decree of restitution of conjugal rights can be refused by the courts on the
following grounds:

 Wife subjected to cruelty by her husband and her in-laws.

 Failure of the husband to perform his marital obligations towards his wife.
 Non-payment of dower by the husband.

Christian Law

The provision of Restitution of Conjugal Rights is also available to a Christian husband and
wife and they can file a petition for the same under Section 32 and 33 of the Indian Divorce
Act, 1869. They run as:

Section 32: Petition for restitution of conjugal rights.- “When either the husband or the
wife has without reasonable excuse, withdrawn from the society of the other, either wife or
husband may apply, by petition to the District Court (or the High Court) 44, for restitution of
conjugal rights, and the Court, on being satisfied of the truth of the statements made in such
petition, Hand that there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly.”

Section 33: Answer to petition. - “Nothing shall be pleaded in answer to a petition for
restitution of conjugal rights, which would not be ground for a suit for judicial separation or
for a decree of nullity of marriage.”

The concept of restitution of conjugal rights can be seen rising from the meaning and sanctity
of Christian marriage and the status of the partners as observed in Hyde v. Hyde and
Woodmansee 45, “Marriage has been well said to be something more than a contract, either
religious or civil – to be an Institution. It creates mutual rights and obligations, as all

43
Itwari v. Asghari, (1960) AIR 684 (All).

44
Words “or the High Court” were removed by Act 51 of 2001.

45
{ L.R.} 1 P.&D. 130.

14
contracts do, but beyond that it confers a status. The position or status of “husband” and
“wife” is a recognised one throughout Christendom: the laws of all Christian nations throw
about that status a variety of legal incidents during the lives of the parties, and induce
definite lights upon their offspring.”

As discussed before, there must exist a valid marriage as for passing of a decree of restitution
of conjugal rights by the district court. Section 60(1) of the Indian Christian Marriage Act,
1872 which governs the Indian Christians, provides for the minimum age requirement of the
parties to enter into a valid marriage. As per this provision, the bride should not be less than
eighteen years of age and the bridegroom should not be less than twenty- one years of age at
the time of marriage. Non-compliance of this provision does not render the marriage void or
voidable. Hence the marriage remains valid and on that basis a decree for restitution of
conjugal rights cannot be refused by the courts.

Also since Christian Law recognizes only monogamy so the wife leaving the matrimonial
home due to presence of another wife of her husband is a reasonable excuse and in such a
case the court shall not allow the petition of the husband for restitution of conjugal rights.

According to Section 33 of the Indian Divorce Act, 1869 which is applicable for Christians,
no defence can be pleaded against a petition for restitution of conjugal rights which is not be
a ground for judicial separation or for a decree of divorce.

Christian law is similar to Hindu law on the front of Separation Agreements. These are not
part of the matrimonial statutes and are regulated under the general Law of Contract. It is to
be noted that a valid separation agreement under the Christian Law is a good defence to a suit
for restitution of conjugal rights.

On these stated grounds the court cannot pass a restitution decree:

 When the respondent has been subjected to cruelty by the petitioner.

 If either the respondent or the petitioner is of an unsound mind. This is a valid reason
for refusal of granting a decree under the said provision as the petitioner who has
filed the petition is not competent to do so due to the reason of unsoundness of mind
and if it is the respondent who is of unsound mind then the court shall generally
refuse to grant the decree as it is a disability rather than a fault on part of the
respondent.
 If either of the spouses has remarried.

15
Parsi Law

Section 36 of the Parsi Marriage and Divorce Act gives the provision for restitution of
conjugal rights. It runs as:

“Where a husband shall have deserted or without lawful cause ceased to cohabit with his
wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her
husband, the party so deserted or with whom cohabitation shall have so ceased may sue for
the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the
allegations contained in the plaint, and that there is no just ground why relief should not be
granted, may proceed to decree such restitution of conjugal rights accordingly.”

Provision for Restitution of Conjugal rights under the Special Marriage Act, 1954

 Section 22, of Chapter V of the Special Marriage Act, 1954, lays down the provision for
restitution of conjugal rights.

22. Restitution of conjugal rights. - “When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to
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 following conditions are to be present and established by the petitioner as for obtaining
the decree of restitution from the court.

 The respondent has withdrawn from the society of the petitioner.

 The respondent has withdrawn without any reasonable excuse.
 The burden of proof of establishing that there existed a reasonable excuse as for the
withdrawal from the society of the spouse is on the respondent.

16
  The petition for restitution of the conjugal rights is to be filed in the district court.
 The court should be satisfied with the truth of the statement as told by the petitioner
and there should be no other ground for the denial of this relief.46

PRESENT RELEVANCE OF PROVISION OF RESTITUTION OF CONJUGAL

RIGHTS

The concept of marriage in the early ages was purely sacramental and this union between a
husband and a wife was considered to be a union of eternity, lasting for the present life and
the next lives to come. A lot of attention was given to the religious rituals and rites and how
the society reminder the couple of the indissoluble nature of their relationship. With the
evolution of time and thought, this sacramental character of marriage gradually started
diminishing, rather moulding, and marriage rather than a straightjacket “procedure” became a
little flexible and the individual liberty of the spouses also was considered to be blended with
their marital obligations towards one another. One can say that marriage acquired a
contractual nature from a sacramental one. Various matrimonial remedies came into
existence. These earliest remedies were of divorce and nullity of marriage but with various
amendments in various personal laws these remedies expanded its ambit and introduced fresh
and much feasible remedies of Judicial Separation and Divorce by Mutual Consent.

As the remedy of Restitution of Conjugal Rights was based on the sacramental character
which focused on preservation of marriage of the parties, with this shift to contractual nature,
the foundation of this remedy has been massively shaken. This can be very well observed
with the diminishing number of petitions filed for the decree of restitution of conjugal rights
due to the inflexibility and unfeasibility of this provision. So it can be well inferred that this
draconian remedy’s popularity has substantially reduced due to the evolving time and minds

If one makes a thorough note of the interpretations given by the courts for this provision, one
may observe that this remedy was for fulfilment of a noble cause, i.e. reconstructing breaking
marriages. However its consequences proved to be highly detrimental and it failed to bring
the desired effect and meet upto the purpose for the enactment of such provision in various
personal laws. Rather with each passing day, misuse and exploitation of this provision is
increasing rapidly.

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DR BASANT K. SHARMA, HINDU LAW 64 ( 3rd ed., Central Law Publications, Allahabad) (2011).

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CONCLUSION

From all the above mentioned points and opinions of the Learned Jurists and Judges, we feel
that Restitution of conjugal rights provides an “Apparent Relief” and instead of serving as a
curative remedy, it has widened up the existing gap in a matrimonial relationship. The
legislation no more serves as a sacramental tool. Even the final stand taken up by the apex
court does not take into consideration the antiquated nature of this legislation and need for
reforms in the present times. Moreover, this law is a transgression against the individual
rights of liberty as it compels one person to save a frail relationship and allowing the courts to
interfere into the personal lives of the people. The Supreme Court may term the legislation
valid but still it violated the very right to privacy of both the parties to the suit. A provision
which is so incompatible with recent time, is obsolete and therefore should be done away as
fast as possible.

The recommendations we would like to make through this article are-

 The restitution of conjugal rights no more serves as remedy to cure the matrimonial
illness rather it has become the apple of discord between the two parties.
 By attaching the property with the enactment, the value of relationships is now
measured in terms of money and human emotions and feelings are reduced to mere
chattels .So, distinction should be made between the persons and property based
relationships.
 Setting up of a reconciliatory body consisting of learned and qualifies professionals
by judiciary seeking to preserve the sanctity in the matrimonial relationships and
promoting the environment for culturing love and affection in this delicate
association.

REFERENCES

1. William Blackstone (1753), Commentaries on the Laws of England, Book 3, Chapter

VII "Of the cognizance of private wrongs", Section 1.2
2. ^ The Law Commission (Law Com. No. 23) Proposal for the abolition of the
matrimonial remedy of restitution of conjugal rights'

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3.  "Family Law Act, SA 2003". Retrieved 2020-02-10.
4. ^ "The Family Maintenance Act, SS 1990-91, c F-6.1". 
5. Paras Diwan, family law, 2020 (reprint)

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