INTRODUCTION – CONJUGAL RIGHTS
In the marriage there are ups and down and the problems exist. These problems and intricacies have been addressed by the marriage act. And to maintain the relation in the matrimony the law also provides relief. Restitution of conjugal rights is one of those reliefs. This relief of restitution of conjugal rights has been made available in the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1936, the Specific Marriage Act, 1954 and the Indian Divorce Act, 1869.
The restitution of conjugal rights has been defined under the section 9 of the Hindu marriage act, 1955. According to the sec. 9 “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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 petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly”.
Meaning there must have been withdrawal of one spouse from the society of another spouse and the burden of proving the excusable reason lies on the respondent. The provision of restitution of conjugal rights is substantially the same in the special Marriage act, 1954 under sec. 22 as under Hindu marriage act. It is also the same in the section 36 of the Parsi Marriage and Divorce Act but worded differently. And sec. 32 of the Indian Divorce act enacts the relief of restitution of conjugal rights which is again similar as provided under the Hindu Marriage Act.
MODE OF EXECUTION
The question of execution of decree for restitution of conjugal rights has been provided in the code of civil procedure, 1908, order 21, rules 32, and rule 33.
In this, there can be no sanction or procedure as compulsion by the court to force a party to return to the other spouse against his or her will. The more modern procedure has now also been laid down in the said provisions.
Under order 21, rule 32 – if the respondent in whose favor the decree has been passed willfully fail to obey such a decree even after being given the opportunity to do so, the court taking the cognizance may attach the property of the respondent, and if the decree has not been complied within one year, the attached property may be sold. And the sale benefit can be compensated to the petitioner as the court may deem fit.
Rule 33 – If the petitioner is the wife and not the husband, then under this rule, the court may pass such an order that if the decree is not complied with within a specified time, the respondent shall make periodical payments to the petitioner as asked by the court.
The conditions which is a must for obtaining such decree are:
- Withdrawal of one spouse from other’ society.
- No reasonable excuse for the withdrawal. Burden of proof lies on the respondent.
Case law – kailashwati v. Ayodhia Prakash, 1977 – In this case, wife went away for employment from the matrimonial home and unilaterally withdraws therefrom. The full bench held that she would be violating the mutual obligation of husband and wife to live together.
- Court’s satisfaction as to the truth of the statements made in the petition.
- No legal grounds exist for refusing the decree.
Case law- Ranjana kejriwal v. Vinod Kumar Kejriwal, 1997 – Petition filed by wife for the restitution of conjugal rights, she herself alleged that the husband has suppressed his earlier marriage, which was subsisting. The court held that the petitioner Marriage is illegal and her petition was not maintainable.
The idea behind the awarding of the decree is to preserve the Marriage as far as possible, the court intervention is to enjoin the withdrawn party to each other to achieve that idea.
CONSTITUTIONAL VALIDITY
In the year 1983-1984 the constitutional validity of the section 9 of the Hindu marriage act, 1955 became a matter of debate. It was the result of the Andhra Pradesh High court judgement. In the case of T Sareetha v. T Venkatta Subaiah, 1983, Justice Choudhary J termed the provision as “uncivilized, barbarous, engine of oppression” and assailed this sec. 9 as being violative of Articles 14, Article 19 and Article 21 of the constitution of India.
The high held” A decree for restitution of conjugal rights is the grossest form of violation of an individual’s right to privacy, the decree denies the woman her free choice whether, when and how her body is to become the vehicle for the procreation of another human being”.
But in the case of Harvinder kaur v. Harmendar Singh, 1984, the Delhi High Court upheld the validity of sec. 9 and also discussed its advantages. The court held that the restitution aims at cohabitation and consortium and not merely sexual intercourse, and that there is nothing barbarous about it.
One needs to reflect on the efficacy of such decrees. A mere paper decree cannot compel parties to live together in a conjugal relationship. However, it provides an easier and additional ground of divorce.
The provision relating to restitution of conjugal rights has been enacted in section 9 of the Hindu Marriage Act. The way it has been worded has led to some controversy. Sub-section (1) lays down that a petition for restitution may be made on the ground that the respondent has without reasonable excuse withdrawn from his or her society and the court may pronounce the decree for restitution ‘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’. Sub-section (2) then lays down that ‘Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce’. Subsection (2) has now been repealed by the Marriage Laws (Amendment) Act, 1976.
In Sukram vs. Mishri Bai AIR1979M.P. 144. The Court may refuse to grant a decree for restitution of conjugal rights to the petitioner on the ground that the marriage of the parties was in violation of the Child Marriage Act. The position, however, can be different if after attaining full age the wife had lived with the husband and had withdrawn from his society without reasonable cause.
In Shanti Nigam vs. Ramesh Chandra (1971) All. L.J. 67. The court held that the position would be different if circumstances compel the spouse to live in different places and furnish a reasonable excuse or just cause to the wife to live in a different place. The Court will not be guided in such a case by any rigid or old concepts of marital duties and will prefer to take into account present day conditions.
In T. Sareetha vs. T. Venkata Subbaih 1983 AP 356, constitutional validity of Section 9 came for consideration and the court held that section 9 being violative of right of privacy and human dignity guaranteed by Article 21 of the Constitution is ultra-virus of the Constitution. In Saroj Rani v/s Sudarshan, S.C. 1984 The Court held the provisions of sec. 9 as constitutionally valid and said that the object of sec. 9 is to bring about cohabitation between parties so that they can be asked to live together in matrimonial home.
Sec. 9 is neither unconstitutional nor barbaric. Sec. 9 not violative of Art. 14 & 21 as the object of restitution decree is to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity i.e preserve the marriage. The remedy of restitution is aimed at cohabitation and consortium and not merely at sexual intercourse. Sec. 9 is a kind of inducement by the court in appropriate cases. When the court has decreed under Sec. 9 to offer inducement for Husband-wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to prevention of break-up of marriage.
It is a fundamental aspect of family that when home is broken beyond all possibilities of repair, where it has become an arena of bouts between spouses, neither restitution nor constitutional law can help. Such a union should be broken with maximum fairness and minimum bitterness, distress, and humiliation. Only merit, is that one year’s non-compliance can lead to divorce under Section 13 (1-A) (ii). This is hardly a consolation
Sec. 9 decree can be executed under Order 21 Rule 32 of CPC that provide if party against whom such decree has been passed had an opportunity of obeying the decree and has willingly failed to obey it, and then the decree may be enforced by the attachment of his property. Thus it is in form of financial sanction for the wrongdoer.
LIVE IN RELATIONSHIP
In Lata Singh vs. State of U.P. (AIR, 2006, SC 2522), it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. Tulsa and other vs. Durghatia and others (2008 SC) In case of live in relation or long cohabitation presumption of Sec. 114 Indian Evidence Act may be raised in favour of valid marriage as the court is tilted towards such wife to prevent destitution and vagrancy. Such presumption is rebuttable by husband to prove non-existence of marriage. This case does not legalize live-in relationships.
Indra Sarma vs. V.K.V.Sarma, AIR 2013 SC Parties in the present case are Hindus by religion and are governed by the Hindu Marriage Act, 1955. The expression “marriage”, as stated, is not defined under the Hindu Marriage Act, but the “conditions for a Hindu marriage” and the “Ceremonies for a Hindu marriage” are dealt with in Section 5 and Section 7 of the Hindu Marriage Act respectively. Entering into a marriage, therefore, either through the Hindu Marriage Act or the Special Marriage Act or any other Personal Law, applicable to the parties, is entering into a relationship of “public significance”, since marriage being a social institution, many rights and liabilities flow out of that legal relationship. The concept of marriage as a “civil right” has been recognized by various courts all over the world.