Restitution of Conjugal Rights

Conjugal Rights
• Primary duty of the parties to live together 
• Performance of their marital obligations
• Right to cohabit with each other is called the right to ‘consortium’-
with time the concept evolved- How?
• Conjugal rights cannot be enforced by the act of either party and a
parties to the marriage cannot seize and detain each-other by force.
Conjugal Rights
• When a spouse makes a breach of these obligations without any
justifiable cause, the other can go to the court for the restoration of
his conjugal rights.
Object

Harvinder Kaur v. Harminder Singh (AIR 1984 Del. 66)

• It aims at the stability of marriage.

• bring about cohabitation between the estranged parties.
• Facilitate the parties to live together in the matrimonial home in
amity.
Legal Framework
• HMA- Section 9
• SMA- Section 22
• Christian Law- Section 32 of Divorce Act
• Muslim Law- Uncodified
Constitutional Validity
T. Sareetha v. T. Venkatasubbaiah (AIR 1983 AP 356)
• Court Held that Sec.9 of HMA, 1955 is violative of Article 21 of Indian
Constitution.
Harvindar Kaur v. Harmander Singh (AIR 1984 Del.66)
• Strong dissent from T. Sareetha, opined that Sec. 9 was valid and not
unconstitutional.
Constitutional Validity

• Saroj Rani v. Sudershan (AIR 1985 SC 1562).

• Section 9 is not in violation of Article 14 or Article 21 of the
Constitution. As the section serves a social purpose which is
prevention of breaking of marriage in the society.
When can a decree of RCR be granted?

• Withdrawal from the society of others- Without any reasonable cause

• Evidence/proof of ‘Withdrawal of society’
• Satisfaction of the Court as to the truth of the statements.
• Non-existence of Legal ground as to why it should not granted.
Withdrawal of Society

• Withdrawal from sexual Intercourse.

• Living separately.
• Non-cooperation in the performance of Marital obligations.
• Intention of abandonment- indefinitely.
Without Reasonable Cause

• Existence of Reasonable Excuse is a Defense available to the

Respondent.
• A cause/reason which can justify the act of withdrawal from society of
other.
• Excuse must be reasonable.
Dadaji Bhikaji v Rukhmabai (1886)10 Bom 301

• The parties to the case went through the religious ceremony of

marriage when the defendant was a child of eleven years of age. They
have never cohabited. 
• The defendant at the time of suit was 22years old, the plaintiff
requested the Court to compel her to go to his house, that he may
consummate the marriage.
• The defendant, objects to going to live with the plaintiff, objects to
allowing him to consummate the marriage, objects to ratifying and
completing the contract entered into on her behalf by her guardians
while she was yet of tender age.
Dadaji Bhikaji v Rukhmabai (1886)10 Bom 301

• Court stated that there is not an instance, where it has compelled a

woman, who has gone through the religious ceremony of marriage
with a man, to allow that man to consummate the marriage against
her will.
• The court stated that it is not obliged to grant the plaintiff the relief
which he seeks, and to compel this young lady of twenty-two to go to
the house of the plaintiff in order that he may consummate the
marriage arranged for her during her helpless infancy.
• Thus the Plaintiffs’ claim was rejected.
Tirath Kaur vs Kirpal Singh
• According to the husband, Wife deserted him without any reasonable
cause.
• Due to husband’s financial situation, wife took tailoring diploma and
started working in a school in Hoshiarpur. After sometine she got a
job with a better salary under the Block Development Officer, Una,
and was posted at village Rainsari.
• Later, she asserted that the husband came to see her and demanded
more money from her but as she expressed her inability to give him
anything, he got annoyed and filed the present petition for restitution
of conjugal rights.
Tirath Kaur vs Kirpal Singh
• Husband admitted that the wife visited his village to cast her vote in
the Gurdwara elections and she had lived there for about 7 days.
• The husband was examined further and he took up the position that
he did not want his wife to remain in service and he wanted her to
come and stay with him and cook his meals and serve his aged
parents.
• Husband has a claim?
Tirath Kaur vs Kirpal Singh
• The Court was of the view that the Husband was justified in asking
the wife to live with him even if she had to give up service but as she
was not prepared' to do so and the Conjugal duties could not be
performed by living at such a distance, the husband was entitled to
the restitution claim.
Gaya Prasad vs Mst. Bhagwati, 1965 AIR
1966 MP 212
• The husband filed the petition for a decree for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act, 1955.
• The wife resisted the petition. She pleaded that the petitioner had no
income and had no immovable property. The petitioner was living in
very adverse financial circumstances.
• The wife applied for being appointed as gram sevika in order to carve
out a decent living.
• For this, she was required to execute a bond in the sum of Rs. 1,000
to the Government for serving at least for three years.
Gaya Prasad vs Mst. Bhagwati, 1965 AIR
1966 MP 212
• The wife urged husband to live with her at the place where she was
required to live in connection with her service but he refused and, on
the other hand, tried to coerce her to give up the service.
Gaya Prasad vs Mst. Bhagwati, 1965 AIR
1966 MP 212

• The husband contented “In the Hindu society, wife's first duty to her
husband is to submit herself obediently to his authority, and to
remain under his roof and protection. She is, therefore, not entitled to
separate residence and maintenance unless she proves that, by
reason of his misconduct or by his refusal to maintain her in his own
place or residence or for other justifying cause, she is compelled to
live apart from him” (Principles of Hindu Law by Mulla, 12th Edn., at
p. 706 para 555)
Gaya Prasad vs Mst. Bhagwati, 1965 AIR
1966 MP 212
• Tirath Kuar’s case was mentioned, the court relied on:
• Where the wife refuses to resign from her job which compels her to
live away from her husband, it cannot be said that she has not
deserted him or has not withdrawn from his society without a
reasonable cause.
• Further the application of the husband for restitution of conjugal
rights cannot be dismissed merely because she has expressed a desire
that the marriage should continue and that the husband could visit
her occasionally.
Gaya Prasad vs Mst. Bhagwati, 1965 AIR
1966 MP 212
• The wife is expected to perform the marital obligations at her
husband's residence.
• She can accept service at a different place but not so as to clash with
the husband's marital rights which she is duty-hound to render.
• The attitude taken by the wife in the case amounts to withdrawal
from the society of the husband.
• A decree of restitution of conjugal rights was issued in favour of the
husband against the wife
Kailashwati v. Ayodhiya Prakash
• The Appellant Kailash Wati was married to the Respondent Ajodhia Parkash, both
of them were employed as village level teachers. The Appellant at her parental
village of Bilga in Phillaur and the Respondent at his village.
• After the marriage, the Appellant was transferred to the station of her husband's
posting and in all they stayed together in the matrimonial home for a period of 8 to
9 months.
• The allegation of the husband was that the wife manoeuvred to get herself
transferred again to village Bilga and has been residing there with her parents
against his wishes.
• Ajodhia Parkash, therefore, filed an application for the restitution of conjugal rights,
the wife took up the plea that she had never refused to honour her matrimonial
obligations but was firm in her stand that she was not prepared to resign her job. 
Kailashwati v. Ayodhiya Prakash
• It was observed that Wife had unilaterally withdrawn from the
matrimonial home for a continuous period of six years. Husband
claims to be in a position to maintain his wife in dignified comfort at
his place of posting with his salary, income from agricultural land and
also from other sources.
• Therefore, wife should return to live with him in the conjugal home.
The court ordered in favour of the husband.
Swaraj Garg vs K.M. Garg AIR 1978 Delhi
296
• When the husband and the wife are both gainfully employed at two
different places from before their marriage, where will be the
matrimonial home after the marriage?
• The wife, Swaraj, was the Headmistress of Government High School.
The husband was abroad for some years and later settled in Delhi in a
rented house.
• The wife regularly visited the husband in Delhi, but did not live with
him continuously due to her work.
Swaraj Garg vs K.M. Garg AIR 1978 Delhi
296
• The husband filed a petition for the restitution of conjugal rights
against the wife on the ground that she had withdrawn herself from
the society of the husband without reasonable excuse.
• Choice of Matrimonial home: in the present scenario of the society
the wife cannot be prevented from taking up employment and cannot
be forced to reside in the same place her husband is living.
• Neither party has a casting vote and the matter must be settled by
agreement between the parties, by a process of give and take and by
reasonable accommodation
Swaraj Garg vs K.M. Garg AIR 1978 Delhi
296
• There is no warrant in law to regard that wife has no say in choosing
the place of matrimonial home. 
• Art. 14 of the Constitution guarantees equality before law and equal
protection of the law to the husband and the wife. Any law which
would give the exclusive right to the husband to decide upon the
place of the matrimonial home without considering the merits of the
claim of the wife would be contrary to Art. 14 and unconstitutional for
that reason.
• Between the husband and the wife, the decision as to the
matrimonial home has to be taken on the balance of circumstances.
Conjugal Right
• The Madras High Court in Radhakrishna v Dhanalakshmi AIR 1975
Mad 331, stated 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”.
• Further, in a progressive move, it was opined that “husbands do not
enjoy an exclusive privilege to unilaterally decide residence, as this is
in violation of Article 14.”
Kay v Kay 1904 p.382 at pp. 389
• Cohabitation does not necessarily mean that the parties are living
together under the same roof, but that there may be cohabitation
where they see as much of each other as they can and yet are not
separated.

• A man may be cohabiting with his wife even if he is away on a visit or

on business, because the conjugal relationship is not determined in
any shape or form.
Class view?
• If Rustom Pavri travels for more than 6 months in a year because of
his posting by the navy to different places for discharging his duties as
a commander. Does it mean that he is withdrawing from the society
of Rita Pavri (Wife) ?

• Can she claim for RCR?

G v. G (1930) P.72
• It has been held that a husband is not to be taken as having deserted
his wife without reasonable cause because his work life compels him
to live away from her.
Conjugal Rights
• The Constitution of India gives an equal status to both the sexes, thus
both have an equal right to pursue their career. The choice of
matrimonial home is not with the husband or wife but it is a matter,
which has to be decided amicably between them.
Burden of proof
upon the Petitioner
• That the wife/husband has withdrawn from his/her
company, without reasonable cause
• A negative burden
• that his/her own conduct is free of blame
• that he/she has not done any act that would justify the
spouse’s withdrawal from his/her company
Class View?
Ranveer and Deepika are both Bollywood actors. They got married in
2016 but soon after their marriage Deepika got an offer from Hollywood
and shifted her base to USA.
Ranveer could not move with her because he had signed up for 3
Bollywood movies back to back. For a period of one and a half year
both met only for holidays.
Ranveer was not happy with this arrangement. He wants Deepika to
move back to Bombay and start a family as he is financially in a position
to her in utmost luxury.
Deepika refused to shift.

What can Ranveer do in this case? Can he file for RCR? Will he succeed?
Shanti Nigam v. Ramesh Chandra, AIR 1971
All 567
• It was observed that withdrawal from the society of the husband may
merely be physical without any intention to shun his company.
• So long as the wife does not cut herself from the husband, i.e. refuses
to go, refuses his martial rights or refuses him to allow to live with
him, the mere fact that she is herself working even contrary to the
wishes of the husband, will not furnish a good ground for decree of
restitution.
• Mere refusal to quit job at the instance of the husband is not a
ground.
Ramesh Chandra v. Prem Latha, 1979 M.P.
15
• The expression withdrawal from the society of the other involves a
mental process besides physical separation. The act of temporarily
leaving matrimonial home would not amount to withdrawal from the
society of the other, when there is not intention to withdraw
permanently.
• Withdrawal does not necessarily mean living separately. A
couple may be living under different roofs but fulfilling mutual
obligations.
Class View?
• Husband is residing and working in Bangalore. Wife does not
like Bangalore because she has no friends or family there. She
feels lonely as she is home whole day and has no one to talk to.
Reasonable excuse to leave him and go back to Mumbai?
• Husband’s insists that the wife must live with his parents
• Husband is a CEO of a company. Usually works late, comes home
late- after wife and children are asleep. Travels a lot and is not
present for birthdays, festivals or any other gathering.
Order 21 Rule 32 of C.P.C.
Decree for specific performance for restitution of conjugal rights
• "Where the party against whom a decree for the specific performance
of a contract, or for restitution of conjugal rights or for an injunction,
has been passed, has had an opportunity of obeying the decree and
has willfully failed to obey it, the decree may be enforced in the case
of a decree for restitution of conjugal rights by the attachment of his
property or, in the case of a decree for the specific performance of a
contract, or for an injunction by his detention in the civil prison, or by
the attachment of his property, or by both."
Order 21 Rule 32 of C.P.C.

• Where any attachment of property has remained in force for (six

Months) if the Judgment-debtor has not obeyed the decree and the
decree-holder has applied to have the attached property sold, such
property may be sold; and out of proceeds the Court may award to
the decree-holder such compensation as it thinks fit, and shall pay the
balance (if any) to the judgment-debtor on his application.