CONSTITUTIONAL VALIDITY OF RESTITUTION OF CONJUGAL

RIGHTS

Written By: Pratishtha Diwanji

Email ID: pratishthadiwanji04@gmail.com
First Year, National Law University, Mumbai.
 ABSTRACT
A recourse which effectively recovers a person's marital rights to which he or she is eligible as a
result of marriage or marital union. This provision's constitutionality has been debated several
times. Moreover, the clause was said to be in violation of the Right to Equality. Consequently,
the Honorable Andhra Pradesh Court ruled that Section 9 of the Hindu Marriage Act violated
Articles 14 and 21 of the Indian Constitution. Following that, the issue was raised from before
Delhi High Court and the Supreme Court of India, who clarified that such intention was to
establish "interdependence" between spouses and therefore it was only based on "coalition."
However, the Supreme Court and the Delhi High Court might not have recognized that domestic
rape is still lawful in India .Synchronously, it can be argued that certain laws are out of step with
the present and do more harm than benefit. Though England, the nation from which we adopted
the definition, has scrapped this solution, whether we should follow suit is subject to more
discussion and study.
 INTRODUCTION

Marriage is a sacred commitment in which spouse is required to guarantee the harmony of

opposing parties. For the sake of simplicity, every woman has the right to the other's coalition. It
is a lifetime alliance wherein the partners choose to coexist peacefully for the rest of their lives.
Each party is entitled to some benefits from the other. To confirm that these rights are universal,
such law has been codified as the Hindu Marriage Act of 1955. As a result, it is a solution.

Marital relationship is a sacred responsibility of every citizen in India, and every individual must
wed because the priests strongly claimed that marriage concludes the man, and it is a well-
established law that with marriages comes certain privileges and responsibilities that normally
exist between husband and wife after the consummation of union. In all of the privileges and
responsibilities, there is a privilege and also a duty for all parties to be with each other, known as
Conjugal Rights. Marriage creates a rather delicate but dynamic correlations between the parties,
through which a myriad of rights and obligations flow. These rights and responsibilities are
referred to collectively as 'conjugal rights,' and they are the foundation of the marriage union.
Marriage has three things, according to Hindu philosophy: (1) the dharma (justice) (2) praja
(procreation) (3) the rati (pleasure or sex). There are two requirements for marital happiness.
They are virtue and passion, respectively. In this context, virtue refers to dharma or
righteousness.
 MEANING

Man, and a woman are legally obligated to maintain their family life jointly and are allowed to
the benefits of rights and the responsibility of duties after their marriage. If either partner leaves
the other, the aggrieved person can receive a marital relief guaranteed through personal laws so
that he or she can regain his or her status to the other partner pursuant to verification of such
evidence. This can be accomplished by submitting an appeal to the courts in order to re-establish
reconciliation. This is referred to as Conjugal Rights. This are known as "common law"
privileges. In general, the word conjugal refers to ‘matrimony.' If any partner or individual has
withdrew from community without sufficient justification, the aggrieved party may seek a
remission of marital rights through an appeal to the district court, and the Judge, if persuaded by
the validity of the claims made in the lawsuit, and there is no legitimate purpose why the demand
must not be granted, can reclaim the injunction.
 THE CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS

In India, there are numerous privileges and responsibilities under marital law, and certain
alternatives are open if such privileges and responsibilities are not satisfied. Restitution of
conjugal rights is one of alternative. This solution was first acknowledged in colonial England,
and it was made applicable to all cultures in India under British rule. As a result, this recourse
would be not only feature of Indian personal law, but also that of English common law.

Typically, after certain provisions are met, the court issues a declaration of restitution of conjugal
rights, which means that the offending party is required to remain with the wronged partner.
Mostly on the appeal either of partner does the court issue an order of restoration of conjugal
privileges.

When we glance at the clauses, we see that section 9 of the Hindu Marriage Act, 1955 and
section 22 of the Special Marriage Act, 1954 are both associated with the restoration of conjugal
rights, and they are both very nominal. These clauses state that if either of the partners, either
husband or wife, abandons the other person without a plausible justification or purpose, the
victimized member has the right to appeal the lowest civil court for the restitution of conjugal
rights, and it is also stated in the statutes that the courts will issue the injunction for such appeal
whenever it is convinced about the truth.

If we examine the literature in this way, we can clearly see that the majority of the authors
mention this intervention as if it is only applicable to the man and not to the woman. The
explanation for such an author's presumption is because they thought about the possibility that in
most circumstances, the claim for restoration of conjugal rights is submitted by the man. If we
look at Muslim law, we can see another explanation for such a presumption among authors, and
that is the husband's right to leave his wife at any moment, which would undoubtedly aggravate
the wife's demand for restoration of conjugal rights.

Under all personal laws, there are specific basic requirements that must be met, and these
circumstances are as follows:

1. The accused partner must have removed from the aggrieved partner's social structure.
2. The exclusion must be for a fallacious explanation or justification, and
3. There is no legitimate reason to deny the aggrieved partner this legal recourse.
When any of the above provisions are met in front of the judge, the court agrees that all of the
claims contained in the request are valid, and that there is no basis for rejecting the appeal.

Meanwhile, one may wonder what constitutes a valid justification. In this case, a valid
justification or justification would be marital wrongdoing by the complainant on the respondent,
an act or negligence by a partner that renders it difficult for the other partner to remain united, or
some other infringement base for separation. Fair reasons or circumstances can also be used to
deny an appeal for restoration of conjugal rights.

Though Muslim law includes few additional reasons for rejecting the claim for restoration of
conjugal rights, they are as described in the following:

1. If the union is invalid, abnormal, or has been discontinued for any legitimate reason, the
court will dismiss the motion for restoration of conjugal rights.
2. When the plaintiff is an atheist, the appeal is made null and void.
3. The woman has the freedom to live independently as a result of the husband's failure to
pay timely farthing, and the appeal for restoration of conjugal rights will be denied as a
result.
4. If the appeal for restoration of marital privileges is filed with a hidden agenda, the claim
would be dismissed as not being genuine.
5. Any other grounds for dismissing such a petition that the court deems appropriate will be
recognized.
 CONSTITUTIONALITY OF RESTITUTION OF CONJUGAL RIGHTS

The enactment of the law of restoration of conjugal rights under the Hindu Marriage Act, 1955,
and the Special Marriage Act, 1954 was very challenging, as there were irascible discussions in
the parliament at the time of the implementation of the legislation of restitution of marital rights
under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. As the clause of
restoration of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 went into effect,
its constitutional legitimacy was questioned on the grounds that it violated a basic right granted
by the Indian Constitution. It was also claimed that the restoration of matrimonial privileges
declaration robs the partner of his or her freedom of option.

The statutory legitimacy of Section 9 was first challenged in T Sareeta v Venkatasubbiah, in

which the Andhra Pradesh High Court ruled that Section 9 of the Hindu Marriage Act violated
the Constitution and was unlawful. Section 9 was deemed a "vicious and ruthless solution
breaching the right to privacy and human decency granted by Article 21 of the Constitution, and
thus void" by Justice Chaudhary. In presenting the decision, Justice Chaudhary traced the origin
and utility of the solution and noted that: "Section 9 supports no valid intent dependent on any
understanding of the common good." It does not contribute to any public good.”

When Justice Chaudhary's assertion was challenged in Harvinder Kaur v Harminder Singh, the
Delhi High Court rejected it. “The fundamental absurdity in his perception is that Justice
Chaudhary in the case of T. Sareetha has excessively placed reliance on intercourse,” Justice
Rohtagi hypothesized. According to J. Rohtagi, “J. Chaudhary only appears to say that the
restitution of conjugal rights order has a feminine intent, which is to induce the completely
unwilling wife to engage in sexual intercourse with her husband.”

The case was eventually heard by the Supreme Court in Saroj Rani v Sudarshan Kumar Chadha,
in which the Supreme Court overturned T Sareeta, based on Justice Rotagi's decision in
Harvinder Kaur. “It cannot be interpreted in the way in which the experienced single Judge
bench of the Andhra Pradesh High Court has perceived it, and we are unwilling to hold that S.9
is contrary to the provisions of Article 14 and Article 21 of the Constitution,” Justice Sabyasachi
Mukarji observed. The Supreme Court ruled in lieu of Section 9 of the Hindu Marriage Act of
1955 in the judicial realm, and the concept of restoration of conjugal rights is constitutional in
the Indian legal system.

Concerning the violation of Article 14 of the Constitution, the Court held that there is total
equality of all sexes and fair protection of the laws in terms of redress, and thus Section 9 should
not be held to be in infringement of Article 14 of the Constitution therefore by amending Act 44
of 1964, “either side to a matrimony” is allowed to address a claim on the basis of givability (I-
A).

Concerning the infringement of Article 21 of the Constitution, the Court found that the remedy's
sole object is "cohabitation," and it does not compel sexual contact between the reluctant partner.
The court condemned the incorporation of Constitutional Law into family law as a relentless
destroyer of the sanctity of marriage.

The Restitution Decree's sole purpose was to foster a single marriage and to keep a reluctant wife
from involving in sexual relations with her husband. Since the only goal was to establish
‘cohabitation' among partners, ‘coalition' was only focused.

Regrettably, it is possible that the Supreme Court and the Delhi High Court were oblivious that
marital rape was legal in India. But for a lengthy motion for divorce centered on abuse or an
appeal for domestic abuse associated with sexual harassment, the husband can very well compel
his wife to engage into sexual relationships without consequences. In reality, by subjecting an
unwilling wife to "forced reunification" and "conglomerate," the statute effectively places a wife
under the burden of coercive intercourse with her husband while also robbing her of physical
liberty, privacy, and the fundamental right to make her own decisions pertaining to her own body
and life.
 ARTICLE 14 OF THE INDIAN CONSTITUTION

Both man and woman can seek redress of conjugal rights, but when contemplating the solution
from a socio-legal context, the underlying distinctions between a man and a woman must be
considered. There are just not enough remedies to go around in society, and we shouldn't forget
that most women already have a lower societal and economic standing in the community than
men.

Restitution of conjugal status is a violation of the rights to liberty and to life. Equality means
equality of speech, behaviour, and self-awareness. The persistence of the intervention results in
unintended births, and the plaintiff claims that it contradicts their sense of self-respect and
reputation.

The recourse for Restitution of Conjugal Rights contradicts an individual's own being by
predetermining who he lives with. In our extremely patriarchal societies, all married spouses are
not always equal, and the woman is often economically and socially reliant on the man.

Due to various indifference, financial difficulties, and other causes, men typically enjoy the
benefits of various laws and solutions in a man-dominated culture. There is only one apparent
quality since the wife is usually placed in an unfortunate condition.

ARTICLE 21 OF THE INDIAN CONSTITUTION

The right to privacy (Article 21 of the Constitution) is not explicitly assured. There is no single
concept of privacy. The trial of Kharak Singh v State of UP was the Supreme Court's first on the
right to privacy. “Any concept of the privacy rights shall include and preserve the private
intimate details of the household, families, marriages, parenthood, sexual activity, and child-
rearing,” said Justice Subba Rao.

The Court ruled that the right to privacy is a constitutional right in Govind v State of MP, but,
like its American equivalent, it was contained in the liberty clause. According to Justice Mathew,
“any right to privacy shall encircle and preserve the personal intimacies of the household,
relatives, marriage, motherhood, procreation, and child-rearing.”
It is a normal requirement for a person to set tolerance levels and restrict the entrance of others
through this field. Privacy is a difficult concept to identify as a privilege whose outlines are still
unclear. It is not an unification concept, but it is more susceptible to invocation than a
multifaceted description.
 CONCLUSION

Analysis: Why should it be abolished?

1. Deception by the petitioner: The main explanation for the restitution of conjugal rights is
compromise between the married couple in order to preserve their life. People that file for
the same, on the other hand, often have other nefarious intentions. Furthermore, section
13 (1-A) of the Hindu Marriage Act, 1955 specifies that if it is not followed, it may be
used as a basis for divorce. This contradicts Section 9's own aim, which is to prohibit
divorce.
2. Difficulties in enforcing the decree: If a person fails to comply, the Court may impose the
decree. Formalized paraphrase According to Rule 32(1), the Court can connect the decree
holder's estate by trading it within 6 months. However, if the woman does not own land,
which is common in India, this becomes a problem. Then there is a formula for
determining her proportion of her husband's wealth.
3. Interference by the courts: Marriage is an intimate relationship. The desire of the
withdrawn partner is ignored. How will the desire and intimacy that a marriage can have
be carried on if all of this is done by coercion?

Love is a crucial element in any human society. The organization is well-known and well-
respected. There has never been a more lasting institution than marriage. Marriage is a personal
union between men and women, but it also has a social component. The continuity of marital
relations is always the priority, regardless of the mode of marriage.

The solution is based on an English concept for restoring conjugal rights. It was made possible
by the British Raj. Both advances in the concept of English law were considered. However, the
recourse was repealed in England under Section 20 of the Matrimonial Procedure Act of 1970.
However, the sooner Indian society eliminates this fallacious clause, the healthier, instead of
moving towards a suffocating decree.

Restitution of Conjugal Rights is founded on a good cause, but it has lost relevance in light of
changing conditions and societal circumstances, and it does not have the desired effect.
The number of incidents of violence and deterioration is rapidly increasing. Regardless of the
Supreme Court's decision, the amendment contradicts Articles 14, 19, and 21 of the Constitution.
A clause that is inconsistent with turbulent world is harmful and should be repealed. The cure
should be scrapped, and the worthy cause underlying it should be abandoned.

The Restitution Decree's sole purpose was to foster a single marriage and to keep an undesirable
wife from participating in sexual relations with her husband. Since the only goal was to achieve
‘cohabitation' between partners, ‘coalition' was only concentrated. Living together as married
couple is what cohabitation entails. However, since marital rape is not a crime in India, forcing a
woman to live with her husband is a breach of her freedom choose whether or not to to have sex,
because her husband will have sex with her without facing legal consequences. Thus, even
though Section 9 of the Hindu marriage law does not make sexual intercourse compulsory,
requiring a woman to stay in her marital home puts her at risk of marital rape and denies her
freedom over her own body, infringing on her right to privacy. A restitution order is extremely
difficult for a woman who is forced to return to her marital home and responsibilities, just as it is
for a man.