RESTITUTION OF CONJUGAL RIGHTS:

A COMPARATIVE STUDY AMONG

INDIAN PERSONAL LAWS






By
Anuja Aiyappan
anujaaiyappan@gmail.com

Restitution of Conjugal Rights: Concept and
Origin

RCR neither recognized by the Dharmashastra nor did
the Muslim law made any provisions for it.

It came with the Raj

The concept of restitution of conjugal rights was
introduced in India in the case of Moonshee Buzloor
Ruheem v. Shumsoonissa Begum, (1867) 11 MIA 551,
where such actions were regarded as considerations for
specific performance.

contd.


Hindus under Section 9 of the Hindu Marriage Act,
1955,

Muslims under general law,

Christians under Section 32 and 33 of the I ndian
Divorce Act, 1869,

Parsis under Section 36 of the Parsi Marriage and
Divorce Act, 1936

Persons married according to the provisions of the
Special Marriage Act, Section 22 of the Special
Marriage Act, 1954.
contd.


Under all personal law, the requirements of the
provision of RCR are the following:

1. The withdrawal by the respondent from the society of
the petitioner.
2. The withdrawal is without any reasonable cause or
excuse or lawful ground.
3. There should be no other legal ground for refusal of the
relief.
4. The court should be satisfied about the truth of the
statement made in the petition.

contd.



The court will normally order restitution of
conjugal rights if:

1. The petitioner proves that the respondent spouse has
without reasonable excuse withdrawn from his/her
society
2. The statements made by the aggrieved spouse in the
application are true, and
3. There is no legal ground why the petitioners
prayer should not be granted

contd.




The court has held in various cases that the
following situations will amount to a reasonable
excuse to act as a defence in this area

1. A ground for relief in any matrimonial cause.
2. A matrimonial misconduct not amounting to a
ground of a matrimonial cause, if sufficiently
weighty and grave
3. Such an act, omission or conduct which makes it
impossible for the respondent to live with the
petitioner.




Constitutionality: Relief of Restitution of
Conjugal Rights

The constitutional validity of the provision for RCR has
time and again been questioned and challenged.
In 1983 before the AP HC in T.Sareetha v. T.
Venkatasubbaiah AIR 1983 AP. 356 where the Court
held that the impugned section was unconstitutional.
Supreme Court in Saroj Rani v. Sudharshan AIR. 1984
SC 1562 upheld the constitutional validity of the
Section 9 of the Hindu Marriage Act, 1955

Application of the Provision in Different
Communities
Hindus :

Any ground on which the respondent could have asked for a
decree for judicial separation or for nullity of marriage or
for divorce;

Reasonable excuse for withdrawing from the society of the
petitioner;

Any conduct on the part of the petitioner or fact tantamount to
the petitioner taking advantage of his or her own wrong or
any disability for the purpose of such relief;
contd.

Muslims :
Cruelty by spouse or in-laws
On the failure by the spouse to perform marital obligations
On non-payment of prompt dower by the husband

Christians :
Cruelty of husband or wife
If either of the spouse is insane
If any one of the spouse marries again

contd.

Parsi :
Where a husband/wife shall have deserted or without
lawful cause ceased to cohabit with his/her spouse, 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 RCR accordingly.

Provisions under Hindu, Christian and Muslim Law


A petition for RCR is maintainable only when there is a valid
marriage.

A Hindu and Christian can file a petition for RCR while under
Muslim law a suit in a civil court has to be filed.

The concept of gender discrimination has not been incorporated
in the Hindu and Christian Marriage but a Muslim husband can
defeat wifes petition for restitution at any time by pronouncing
talaq on her

contd.


A decree for RCR cannot be refused in a marriage in violation of
the age under Hindu and Christian law while in Muslim law
under Section 2 (vii) of the Dissolution of Muslim Marriage
Act, 1939 when the marriage has been avoided in the exercise of
option of puberty the suit for RCR fails

Under Hindu and Christian law polygamy not allowed while
under Muslim law controlled polygamy is allowed

Hindu law as well as Christian law the courts have the wide
power and discretion to decide what constitute cruelty. While in
Muslim law, Section 2 (viii) of the Dissolution of Muslim
Marriage Act, 1939, both physical cruelty as well as legal
cruelty together with all instances of cruelty is included under the
definition of cruelty.


contd.




Under Hindu and Christian law separation agreements are not
allowed while under Muslim law valid separation agreement is a
good defence to a suit for RCR


The concept of dower is specific to Mohammedan law only. A
Muslim wife living separate from the husband on account of non
payment of prompt dower, RCR cannot be granted subjected to
certain conditions.




Steps for filing a suit/petition for RCR

1. Decide the appropriate court and its location having
jurisdiction to adjudicate the case
2. Drafting the Plaint
3. Remitting the Court fees into the Court and filing the Plaint
4. Getting process served to the respondents
5. Initial hearing
6. Filing of written statement by the respondents
7. Framing of Issues by the Court
8. Posting of the suit for evidence
9. Filing documents & Leading Evidence
10. Evidence by the respondents
11. Posting for Final Arguments
12. Posting the case for Pronouncement of the decree & Passing
of Decree
Conclusion

It is a remedy that is aimed at preserving the marriage and not at
disrupting it as in the case of divorce or judicial separation

The court cannot compel the defaulting spouse to physically
return to the comfort-consortium of the decree-holder spouse

You can take a horse to the water, but you can't make him
drink