Jus Corpus Law Journal

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Restitution of Conjugal Rights: Retain or Remove

Keerthi Gandretia

a
Damodaram Sanjivayya National Law University, Visakhapatnam, India

Received 25 September 2021; Accepted 16 October 2021; Published 20 October 2021

__________________________________

A legal reunion by a man and woman is called marriage and this marriage is considered as one of the basic elements in the
society as it is the reason for the existence of a family and also the survival of the race. Merely, under Indian tradition marriage
is not about bringing the relation between male and female together but also uniting and merging their families as one. The
interpretation of the term marriage can differ from person to person, region, religion, and traditions. The existence of marriage is
in various forms in India such as it is very sacramental to Hindus, whereas it is a contract to Islams and a holy union for
Christians. There are times when there are misunderstandings and disagreements between the husband and wife, and further, it
reaches an extent where the partners do not want to be together any longer. However, it should be admitted that the ending of the
relationship is not the only way to resolve the disagreements. So, Law stipulates and provides various matrimonial remedies to
married couples to resolve their dispute and to behold the sacred relationship of marriage. One such remedy is the Restitution of
Conjugal Rights, which is dealt with under section 9 of the Hindu Marriages Act, 1955.

Conjugal rights are the rights accompanied by the persons, who are married. If due to some reasons these married couples want
to end their relation then what happens to these conjugal rights, are they restituted? Restitution is nothing but whether these
conjugal rights are restored or applied even though the marriage is dissolved. The restitution of conjugal rights is a topic that is
constantly debated. We must first understand the constitutional legality of the restitution of marital rights to understand the
debate. When it comes to the recovery of marital rights, there are a few basic aspects to consider. If one of the party's rights or
fundamental aspects is violated, it must be proven that the other party is also violating these rights. This means that neither the
husband nor the wife should be able to take away the other's rights without good reason. It is guaranteed that one of the persons

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will force his or her partner to stay with him or her against their will. Because there has been a violation of a person's will, there
is a continuing discussion about the constitutionality of conjugal rights and the restitution of such rights. Initially, the article
deals with the introduction, historical background of conjugal rights. Later, it focuses on legal provisions involving conjugal rights
and the need for a conjugal right. The next half of the article deals with how conjugal rights are striving for a balance between
accepting morality and violation of fundamental rights.

Keywords: rights, conjugal rights, marriage.

INTRODUCTION

According to Hindu Law, marriage is a notion of sacred wedlock between male and female,
and through marriage, they became one. Marriage is considered an important institution in
society and has also been accepted in every religion and under all personal laws. Under
matrimonial law, marriage imposes certain marital responsibilities and duties and further
legal rights are imposed on each other. Living together is an essential implication of marriage,
and one spouse has the right and authority to console the other. One spouse should not sue the
other after marriage, according to the doctrine of the law of the unity of personality.

Because of the complications among married people in previous generations, personal laws
such as divorce, judicial separation, and conjugal rights were created. Restitution of conjugal
rights is one of the remedies allowed by our legal system. A separated spouse has the right to
sue the other under this provision. This restoration or return of conjugal rights is an extremely
positive and beneficial remedy since it encourages and forces both parties to live together and
cohabit. After the separation of married persons or solemnization of marriage, the law binds
legally both the husband and wife to maintain both of their conjugal rights together. If a
spouse leaves the other, then the aggrieved spouse can claim for conjugal right. The aggrieved
spouse can be guaranteed statutory matrimonial relief through personal laws and the spouse
can restore the conjugal rights from the other through validation and attestation of certain
facts. The aggrieved spouse can initiate this process by submitting a petition in court
requesting the restoration of conjugal rights. Restitution of conjugal rights is the term for this.

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The provisions related to restitution or restoration of conjugal rights after separation of

spouses are stipulated in section 9 of the Hindu Marriage Act. This very existence of this idea
of giving courts the power to provide relief in this regard is taken from English Law. The
interpretations of Indian Courts while giving judgments in matters related to the restitution of
conjugal rights deliberately shows that in some cases the principles and statutes borrowed
from the English Law were explained as barbaric by Lord Herschell but since the law have
been affected by considerable changes and the provisions and rules stipulated under latest
legislation have the effect of the abolition of remedy1 of restitution or restoration of conjugal
right.

HISTORY OF RESTITUION OF CONJUGAL RIGHTS

The Conjugal Rights has its origin traced back from the Jewish personal law but this Jewish
personal had borrowed mostly its laws from Indian personal laws. Under General Law, this
remedy of restitution or restoration of Conjugal rights is considered as only matrimonial relief
in the British area but later this relief faced many criticisms from the past few years. At the
initial stage of making the Hindu Marriage Act, there had been huge arguments and debates
between the makers and drafters of the act regarding the matters of this relief of marriage. It
was opposed by Mr. Khardekarhad by stating that this ideology or principle of restitution or
restoration of conjugal rights is barbaric, vulgar, and uncivilized. Further, this concept was
opposed in the case Russell v Russel2. In this case, this relief was criticized by stating that it is
nothing but a device either for claiming money or to get a divorce.

According to Paras Diwan, neither the Dharmashastras nor the requirements of Muslim law
address nor identify this idea of alleviation and restitution of conjugal rights. Furthermore, the
origins of restitution of conjugal rights can be traced back to Feudal England, where marriage
was viewed as a property transaction and a woman's possession was treated similarly to other
chattels. Moonshee Buzloor Ruheem v Shumsoonissa Begum3 was the first case in India to

1 Matrimonial Proceedings and Property Act 1970, s 20

2 Russell v Russel [1880] LR 14 Ch D 471
3 Moonshee Buzloor Ruheem v Shumsoonissa Begum [1867] 11 Moo Ind App 551

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introduce this relief of restitution of conjugal rights, in which the court decided that these
actions of restitution of conjugal rights are considered particular performance.

INDIA'S LEGAL PROVISIONS RELATING TO THE RESTITUTION OF CONJUGAL

RIGHTS

The purpose of section 9 of the Hindu Marriage Act, 1955 is to maintain the sacrifice aspect of
marriage by eliminating disparities that arise between spouses. This can be accomplished by
granting section 9 relief of restitution of marital rights. This remedy of restitution of conjugal
rights is a beneficial privilege because it allows divorced spouses to be together and cohabit.
However, it is also used incorrectly in several instances. Over the past few years, the concept
of restitution is dealt with by section 13 4 of the Hindu Marriage Act is considered a major
problem as the section itself is complicated. Section 13 provides the right to married couples to
claim for divorce within one year of the passing of a decree of restitution if the couple can’t
comply with the decree.5 This remedy is also used as a defense in maintenance cases regarding
section 1256 of the Cr.p.c.

Other than the Hindu marriage act, there are special provisions in other personal laws in India
dealing with the restitution or restoration of conjugal rights. Under these personal laws, either
the husband or wife who has been separated from society can petition the court for restitution
of conjugal rights judgment. The following are the provisions:

 S.22 of Special Marriage Act, 1954

 S. 32 of Indian Divorce Act, 1869
 S.36 of Parsi Marriage and Divorce Act, 1936.

RESTITUTION OF CONJUGAL RIGHTS: NEED AND IMPORTANCE

4 Hindu Marriage Act 1955, s 13

5 Ibid
6 Criminal Procedure Code 1973, s 125

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The need for “Restitution of Conjugal Rights”7 is a challenging issue that has been facing many
contentions for the past few years. On one hand, it is regarded as positive tight as it is useful
for trying to unite the separated spouses and also to protect the sacred institution of marriage
which plays important role in a traditional and sacramental country like India. On the
contrary, this relief is considered negative because it forcing the person to stay with the spouse
against the will of the person. This relief is can also be considered as a tool to bring people who
are withdrawing from society i.e. from his or her partner, back to their senses and also to
cohabit by performing the marriage rights and obligations. Therefore, there is a need for this
remedy to restitution or restoration of conjugal rights until there is the formation of a new
right for preserving marriages of people with more efficacies.8

JUDICIAL PERSPECTIVE: STRIVING FOR BALANCE BETWEEN FUNDAMENTAL

RIGHTS AND MORALITY

Marriage gives rise to a very sensitive but complicated relationship between the spouses and
also imposes some rights and responsibilities on each other. These obligations and rights are
constituted as conjugal rights and are also regarded as the quintessence of the marital union 9.
In general, each spouse is obligated to comfort and care for the other. If one spouse abandons
the other for no reason, the aggrieved spouse can petition the court for restitution or
restoration of conjugal rights ruling.10 In Hindu, Christian, and Parsi law, this remedy is
usually governed by particular regulations, however, in Muslim law, it is used based on
justice, equity, and good conscience, as adopted from British common law.

In T. Sareetha v T. Venkata Subbaiah11, the court observed the facts and passed a decree
granting the relief of restitution or restoration of conjugal rights by the civil court was not only
mentioning cohabiting together but also forcing the separated spouse to perform marital

7 Agrim Jain & Abhinav Aggarwal, ‘Restitution of Conjugal Rights: Is it still relevant?’ [2018] International Journal
of Law Management & Humanities ISSN: 2581-5369
8 Ibid
9 M Gangadevi, ‘Restitution of Conjugal Rights: Constitutional Perspective’ (2003) 45 Journal of the Indian Law

Institute 453
10 Ibid
11 T Sareetha v T Venkata Subbaiah AIR 1983 SC 356

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intercourse with the other party. The decree is undoubtedly interfering in the choices of either
to have or not to have marital intercourse with the other person and also by enforcement of
decree the person should surrender his rights by allowing his or her body as a tool for the
usage of another person.12 So, the enforcement of this decree of restitution or restoration of
conjugal rights is no doubt an infringement and violation of the fundamental rights of a
person. This decree leads to invasion of marital privacy and further offends the integrity of the
persons. No person should be forced against his will to perform the act of sex if forced so then
nothing is more outrageous and degrading to the human spirit and dignity of humans. No
person is subjected to a positive sex act under the order of law. So, the Honorable high court of
A.P ruled that the decree restitution or restoration of conjugal rights is no doubt but This relief
was also struck down as a blatant breach of Article 2113 of the Indian Constitution since it
infringed on the right to privacy and human dignity.

On the contrary, Delhi made its emphasis on the importance and morality of marriage and
opined that sacred marriage is only preserved through the restitution of conjugal rights.
Hence, in Harvinder Kaur v Harmander Singh Choudhry14, the court viewed that the
preservation of marriage is only done through the relief of restitution or restoration of conjugal
rights dealt with under section 9. The decree was enforced only for cohabitation of spouses but
not the sexual intercourse as the respondent only agreed to live together and cohabit with the
appellant but not agreed for marital intercourse.15 Further, the court stated that section 916 is
the extension of subsection (2)17 and (3)18 of section 23 of the act. The principle behind the
Hindu Marriage Act is for the maintenance of marriages but not to dissolve marriages. Hence,
the Delhi High court further observed that this legislation has its purpose to serve and has an
important role to play. The court finally held that the legislature has to strike down legislation
but not courts on the ground as it is constitution so Section 9 is constitutionally valid.

12 Ibid
13 Constitution of India, art 21
14 Harvinder Kaur v Harmander Singh Choudhry AIR 1984 SC 66
15 Ibid
16 Hindu Marriage Act 1955, s 9
17 Hindu Marriage Act 1955, s 23(2)
18 Hindu Marriage Act 1955, s 23(3)

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Further, to resolve the conflicting views in this regard by the High courts, the Supreme Court
looked into the matter of constitutional validity of section 9 in Sudharshan Kumar v Saroj
Rani19. In this case, the Supreme Court stated that conjugal rights are rights or the
responsibilities imposed on either husband or wife to look after their spouses. The court
further held that passing a decree or judgment granting the relief of restitution or restoration
of conjugal rights is to give a chance to separated wife and husband to live together and to
settle up their inequalities. The aim and purpose of this section are to serve and preserve the
sacred institution of marriage and this section is serving its purpose. 20 The court further stated
the High court of A.P regarded interpreted this section 9 incorrectly as the section is
constitutionally valid and is no violation under article 1421 and article 21 if this section is
utilized properly.

Further in Booz Allen and Hamilton Inc. v SBI Home Finance Ltd. and Ors22, the honorable
supreme court stated that the marital disputes in matters of judicial separation, divorce, and
restitution of conjugal rights are “non-arbitrated disputes” so it is solely on the parties
concerned to resolve and settle the dispute among themselves. If the recent judicial decisions
are taken into consideration, then the Supreme Court is giving more importance to the
fundamental rights of the persons and also interpreting cases based on the ground of
morality.23 In one of the recent case laws Shafin Jahan v Asokan24, the supreme court viewed
that the choice of a partner of his own choice exclusively lies under the domain of an
individual. The interests or intimacies of marriage lies within the matters of right to privacy
and should not be violated under any circumstances.

Further in Justice K.S. Puttaswamy and Ors. v Union of India (UOI) and Ors25, The court stated
that a person's right to privacy is safeguarded and protected by Article 21 of the Indian
constitution, which guarantees and protects the right to life and personal liberty. It is the

19 Sudharshan Kumar v Saroj Rani AIR 1984 SC 1562

20 Ibid
21 Constitution of India, art 14
22 Booz Allen & Hamilton Inc v SBI Home Finance Ltd & Ors AIR 2011 SC 2507
23 Ibid
24 Shafin Jahan v Asokan AIR 2018 SC 1933
25 K S Puttaswamy & Ors v Union of India & Ors AIR 2017 SC 4161

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choice of an individual to choose regarding matters involving with whom to live and to be in
what relationship.26 The right to privacy of a person must be protected by family; procreation
and sexual intercourse as these all are the important aspects and features of human dignity. So,
it was finally interpreted that the choices made by the individuals should have prevailed over
the societal interests. Therefore, the view in Puttuswamy’s Case 27 is again the same view of the
T. Sareetha case28. The court came to the same conclusion that the decree of restitution or
restoration of conjugal rights is nothing more than a breach of a person's basic fundamental
rights, although the decree does not mention or underline a basic fundamental right covered
by article 21.

CONCLUSION

The utmost propriety of the restitution or restoration of conjugal rights is to save and preserve
the broken marriages and also to preserve the sanctity of the marriages. The intentions behind
passing the decree or judgment of granting relief of restitution or restoration of conjugal rights
are positive and good faith. But on the contrary, it should not intrude the privacy of a person
by forcing them to act against their will. Therefore, this matter is sensitive and complex so the
courts should look into the matter carefully and the courts should maintain the balance
between morality and individual rights. So, the courts should not follow any strict approach
leading to the imbalance either to an individual or a society. Thus, it is solely left to the
discretion of courts to decide whether the restitution of conjugal rights is relevant or not.

26 Ibid
27 Puttuswamy (n 24)
28 Sareetha (n 11)

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