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Restitution of conjugal rights

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Shivani Sharma
Shivani Sharma

The slides discuss in detail the concept of Restitution of Conjugal Rights in Hindu, Muslim, Christian, and Parsi laws. Useful for Law Students and professionals.

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RESTITUTION OF CONJUGAL RIGHTS -SHIVANI SHARMA, ASST PROF. -SARDAR PATEL SUBHARTI INSTITUTE OF LAW
INTRODUCTION ◦ A husband has the right to require his wife to live with him wherever he may choose to reside. ◦ On the other hand, it is corresponding duty of the wife to live with her husband. ◦ However, there may be circumstances which compel the spouses to live in different places. ◦ These circumstances may furnish reasonable or just excuse to the wife to live at a different place. ◦ It is for the Court to decide as to whether the circumstances permit the wife to reside apart from her husband. ◦ Law provides that when either husband or the wife withdraws from the society of the other, the aggrieved party may apply to the Court for a direction that the other party should live with him or her. (Section 9 of the Hindu Marriage Act). ◦ Such a petition is to be filed before the District Judge
SECTION-9, HMA ◦ When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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. [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
When the other party would have reasonable excuse to withdraw from the society? ◦ In this respect, it is to be remembered that if your wife withdraws from your society and she alleges that she withdrew from your society for a reasonable excuse, it is for her to prove that she withdrew for a reasonable excuse. ◦ If it is proved that your conduct as a husband is grave and weighty matter which gives the wife good cause for leaving you, you as husband would not be entitled to obtaining a decree for restitution of conjugal rights. ◦ On the other hand, if your husband withdraws from your society and he alleges that he withdrew for a reasonable excuse, it is for him to prove it.
LEGAL SIGNIFICANCE UNDER VARIOUS LAWS ◦ This section is identical to section 22 of the Special Marriage Act, 1954. ◦ The provision is in slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. ◦ However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. ◦ The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws
CONSTITUTIONAL VALIDITY ◦ The constitutional validity of the provision has time and again been questioned and challenged. ◦ The earliest being in 1983 before the Andhra Pradesh High Court where the Hon'ble High Court held that the impugned section was unconstitutional. ◦ The Delhi High Court in Harvinder Kaur v Harminder Singh, though had non- conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan, gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the section 9 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah ◦ It is a sad commentary that despite various courts including the Apex Court of the Country upholding the validity of section 9. ◦ Many jurists still have doubts with respect to the soundness of this section and demand its abolishment.
ABOLITIONIST'S VIEW ◦ The abolitionists argue that it is a remedy that was unknown to Hindu law till the British introduced it in the name of social reforms. ◦ Even when the Hindu Marriage Act, 1955 was being passed in the Parliament, there were voices of scepticism regarding the efficacy of this remedy. ◦ Sir J. Hannen in Russell v. Russell also vehemently opposed the remedy. ◦ Further, they are of the view any law that forces any person to live with another person is contrary to the value of the society. ◦ The remedy openly violates the fundamental right to life, privacy and equality hence is unconstitutional. ◦ Further more, there is frequently insincerity in the petitioner's intention. The remedy is blatantly misused to achieve ulterior purposes other than reconciliation, the root cause being S.13 (1-A)(ii) of the Hindu Marriage Act, 1955 and has created an additional ground of divorce. ◦ Yet another major problem with restitution petitions is that it is used as a defence for maintenance suits. This remedy has been repeatedly misused, abused and exploited.
CONT… ◦ Adding more, the procedure prescribed to enforce this decree under Order 21 Rule 32 of Civil Procedure Code, 1908 is also criticized on the ground that in India, where most of the population and especially women (wife) do not have actual possession over any property. ◦ In such cases, if a restitution decree is not complied with, then the court is required to ascertain the share of the wife in the property of her husband, when it is not divided and arrive at her share in the property, but this involves cumbersome procedures. Difficulty also arises if the husband does not have a property in his name. ◦ Further, it is not correct to think that coercing a person that his property would be attached and sold away can change the attitude of the adamant spouse and make him obey the decree.
COUNTER VIEW ◦ However, in my opinion, section 9 of the Hindu Marriage Act is one of the most misunderstood sections of the Matrimonial law. ◦ Despite the controversy it has continuously been upheld by the Judiciary. ◦ Even the legislature through various committees and its reports has supported this section. ◦ All the reasons so stated by abolitionists can be easily encountered if this socially benefiting section is read in the right light and its essence is understood. ◦ It is imperative that a clear understanding of the section 9 is required because it is often invoked. ◦ First of all, it cannot be said that the concept of conjugal rights and that its embodiment in section 9 is foreign to the Indian culture and society. ◦ It may be borne in mind that conjugal rights,s uch a right is inherent in the very institution of marriage itself. ◦ The only thing is new is the embodiment of this concept which has been prevailing since antiquity.
CONT… ◦ The prime objective of section 9 is to preserve the marriage. ◦ According to the Hindu Marriage Act marriage is a civil contract and a religious ceremony. ◦ It is a contract of the greatest importance in civil institutions, and it is charged with a vast variety of rights and obligation, cohabitation being one of them. It is the very soul of marriage and this section enforces the right of cohabitation. ◦ If there is no reasonable ground for living apart, the court orders for cohabitation and enforces the Contract there is nothing wrong as the parties had voluntarily stipulated this at the time of entering into the marriage bond. ◦ Section 9, in actuality, is a means of saving the marriage, it is in a sense an extension of sub- sections (2) and (3) of section 23 of the Act which encourage reconciliation by the court. ◦ It is the policy of the Act that the parties should live together and assist in the maintenance of marriages. ◦ By enforcing cohabitation, the court is serving this purpose of the Act.
CONT… ◦ Further, it is criticized on the ground that it allows the withdrawing spouse to take an advantage of his own wrong, which is against the scheme of section 23 and allows him/her to apply for a decree in case of non consummation of the marriage within one year of passing of decree. ◦ However in Dharmendra Kumar v. Usha Kumari, the Hon'ble Court clearly stated that The expression "in order to be a wrong" within the meaning of section 23(1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to. ◦ It is also often claimed to be gender discriminatory and violative of Article 14.
CONT… ◦ T. Sareetha case confirmed this view. ◦ It is obvious that the judge considered the entire question of restitution from the point of view of the woman. ◦ It seems that it has been overlooked that restitution of conjugal rights can also be claimed by the wife. ◦ It is relevant to state that the section is gender neutral as by the Amending Act 44 of 1964 either party to a marriage has been allowed to present a petition for divorce on the ground given in section 13(1-A). ◦ Even the party found guilty in restitution proceedings is entitled to petition for divorce under section 13 (1-A)(ii). ◦ There is complete equality of sexes here and equal protection of the laws. ◦ Therefore this claim of abolitionist is incorrect.
CONT… ◦ Section 9 is also criticized for being an instrument of forced sexual relation and hence being violative of right to privacy guaranteed under Article 21. ◦ But much contrary is its purpose, the remedy of restitution aims at cohabitation and consortium and not merely at sexual intercourse. ◦ In Halsbury's Laws of England it is observed: (cohabitation) aces not necessarily mean serial intercourse, which the court cannot enforce, so that refusal of sexual intercourse by itself does not constitute refusal to cohabit." ◦ In support of this proposition the high authority of Lord Stowell in Forster v. Forster, Orme v. Orme, and Rowe v. Rowe may be cited. ◦ One thing is clear from Lord Stowell's decision in Forster v. Forster and Halsbury's statement of law that the Court does not and cannot enforce sexual intercourse.
CONT… ◦ Further, recognizing non-consumption of marriage after 1 year of passing of Restitution Decree as a ground of divorce enables the aggrieved spouse to apply to the court for maintenance under section 25; and maintenance pendente lite may also be claimed by making out a case for the same as provided in section 24. ◦ This enables a wife, who does not desire disruption of the marriage or even judicial separation from the husband, to secure provision for her support by an order of the court under the matrimonial jurisdiction conferred on it, instead of filing a suit for maintenance under the law relating to maintenance now embodied in the Hindu Adoptions and Maintenance Act 1956.

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Restitution of conjugal rights

  • 1. RESTITUTION OF CONJUGAL RIGHTS -SHIVANI SHARMA, ASST PROF. -SARDAR PATEL SUBHARTI INSTITUTE OF LAW
  • 2. INTRODUCTION ◦ A husband has the right to require his wife to live with him wherever he may choose to reside. ◦ On the other hand, it is corresponding duty of the wife to live with her husband. ◦ However, there may be circumstances which compel the spouses to live in different places. ◦ These circumstances may furnish reasonable or just excuse to the wife to live at a different place. ◦ It is for the Court to decide as to whether the circumstances permit the wife to reside apart from her husband. ◦ Law provides that when either husband or the wife withdraws from the society of the other, the aggrieved party may apply to the Court for a direction that the other party should live with him or her. (Section 9 of the Hindu Marriage Act). ◦ Such a petition is to be filed before the District Judge
  • 3. SECTION-9, HMA ◦ 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. [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
  • 4. When the other party would have reasonable excuse to withdraw from the society? ◦ In this respect, it is to be remembered that if your wife withdraws from your society and she alleges that she withdrew from your society for a reasonable excuse, it is for her to prove that she withdrew for a reasonable excuse. ◦ If it is proved that your conduct as a husband is grave and weighty matter which gives the wife good cause for leaving you, you as husband would not be entitled to obtaining a decree for restitution of conjugal rights. ◦ On the other hand, if your husband withdraws from your society and he alleges that he withdrew for a reasonable excuse, it is for him to prove it.
  • 5. LEGAL SIGNIFICANCE UNDER VARIOUS LAWS ◦ This section is identical to section 22 of the Special Marriage Act, 1954. ◦ The provision is in slightly different wordings in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. ◦ However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. ◦ The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws
  • 6. CONSTITUTIONAL VALIDITY ◦ The constitutional validity of the provision has time and again been questioned and challenged. ◦ The earliest being in 1983 before the Andhra Pradesh High Court where the Hon'ble High Court held that the impugned section was unconstitutional. ◦ The Delhi High Court in Harvinder Kaur v Harminder Singh, though had non- conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan, gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the section 9 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah ◦ It is a sad commentary that despite various courts including the Apex Court of the Country upholding the validity of section 9. ◦ Many jurists still have doubts with respect to the soundness of this section and demand its abolishment.
  • 7. ABOLITIONIST'S VIEW ◦ The abolitionists argue that it is a remedy that was unknown to Hindu law till the British introduced it in the name of social reforms. ◦ Even when the Hindu Marriage Act, 1955 was being passed in the Parliament, there were voices of scepticism regarding the efficacy of this remedy. ◦ Sir J. Hannen in Russell v. Russell also vehemently opposed the remedy. ◦ Further, they are of the view any law that forces any person to live with another person is contrary to the value of the society. ◦ The remedy openly violates the fundamental right to life, privacy and equality hence is unconstitutional. ◦ Further more, there is frequently insincerity in the petitioner's intention. The remedy is blatantly misused to achieve ulterior purposes other than reconciliation, the root cause being S.13 (1-A)(ii) of the Hindu Marriage Act, 1955 and has created an additional ground of divorce. ◦ Yet another major problem with restitution petitions is that it is used as a defence for maintenance suits. This remedy has been repeatedly misused, abused and exploited.
  • 8. CONT… ◦ Adding more, the procedure prescribed to enforce this decree under Order 21 Rule 32 of Civil Procedure Code, 1908 is also criticized on the ground that in India, where most of the population and especially women (wife) do not have actual possession over any property. ◦ In such cases, if a restitution decree is not complied with, then the court is required to ascertain the share of the wife in the property of her husband, when it is not divided and arrive at her share in the property, but this involves cumbersome procedures. Difficulty also arises if the husband does not have a property in his name. ◦ Further, it is not correct to think that coercing a person that his property would be attached and sold away can change the attitude of the adamant spouse and make him obey the decree.
  • 9. COUNTER VIEW ◦ However, in my opinion, section 9 of the Hindu Marriage Act is one of the most misunderstood sections of the Matrimonial law. ◦ Despite the controversy it has continuously been upheld by the Judiciary. ◦ Even the legislature through various committees and its reports has supported this section. ◦ All the reasons so stated by abolitionists can be easily encountered if this socially benefiting section is read in the right light and its essence is understood. ◦ It is imperative that a clear understanding of the section 9 is required because it is often invoked. ◦ First of all, it cannot be said that the concept of conjugal rights and that its embodiment in section 9 is foreign to the Indian culture and society. ◦ It may be borne in mind that conjugal rights,s uch a right is inherent in the very institution of marriage itself. ◦ The only thing is new is the embodiment of this concept which has been prevailing since antiquity.
  • 10. CONT… ◦ The prime objective of section 9 is to preserve the marriage. ◦ According to the Hindu Marriage Act marriage is a civil contract and a religious ceremony. ◦ It is a contract of the greatest importance in civil institutions, and it is charged with a vast variety of rights and obligation, cohabitation being one of them. It is the very soul of marriage and this section enforces the right of cohabitation. ◦ If there is no reasonable ground for living apart, the court orders for cohabitation and enforces the Contract there is nothing wrong as the parties had voluntarily stipulated this at the time of entering into the marriage bond. ◦ Section 9, in actuality, is a means of saving the marriage, it is in a sense an extension of sub- sections (2) and (3) of section 23 of the Act which encourage reconciliation by the court. ◦ It is the policy of the Act that the parties should live together and assist in the maintenance of marriages. ◦ By enforcing cohabitation, the court is serving this purpose of the Act.
  • 11. CONT… ◦ Further, it is criticized on the ground that it allows the withdrawing spouse to take an advantage of his own wrong, which is against the scheme of section 23 and allows him/her to apply for a decree in case of non consummation of the marriage within one year of passing of decree. ◦ However in Dharmendra Kumar v. Usha Kumari, the Hon'ble Court clearly stated that The expression "in order to be a wrong" within the meaning of section 23(1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to. ◦ It is also often claimed to be gender discriminatory and violative of Article 14.
  • 12. CONT… ◦ T. Sareetha case confirmed this view. ◦ It is obvious that the judge considered the entire question of restitution from the point of view of the woman. ◦ It seems that it has been overlooked that restitution of conjugal rights can also be claimed by the wife. ◦ It is relevant to state that the section is gender neutral as by the Amending Act 44 of 1964 either party to a marriage has been allowed to present a petition for divorce on the ground given in section 13(1-A). ◦ Even the party found guilty in restitution proceedings is entitled to petition for divorce under section 13 (1-A)(ii). ◦ There is complete equality of sexes here and equal protection of the laws. ◦ Therefore this claim of abolitionist is incorrect.
  • 13. CONT… ◦ Section 9 is also criticized for being an instrument of forced sexual relation and hence being violative of right to privacy guaranteed under Article 21. ◦ But much contrary is its purpose, the remedy of restitution aims at cohabitation and consortium and not merely at sexual intercourse. ◦ In Halsbury's Laws of England it is observed: (cohabitation) aces not necessarily mean serial intercourse, which the court cannot enforce, so that refusal of sexual intercourse by itself does not constitute refusal to cohabit." ◦ In support of this proposition the high authority of Lord Stowell in Forster v. Forster, Orme v. Orme, and Rowe v. Rowe may be cited. ◦ One thing is clear from Lord Stowell's decision in Forster v. Forster and Halsbury's statement of law that the Court does not and cannot enforce sexual intercourse.
  • 14. CONT… ◦ Further, recognizing non-consumption of marriage after 1 year of passing of Restitution Decree as a ground of divorce enables the aggrieved spouse to apply to the court for maintenance under section 25; and maintenance pendente lite may also be claimed by making out a case for the same as provided in section 24. ◦ This enables a wife, who does not desire disruption of the marriage or even judicial separation from the husband, to secure provision for her support by an order of the court under the matrimonial jurisdiction conferred on it, instead of filing a suit for maintenance under the law relating to maintenance now embodied in the Hindu Adoptions and Maintenance Act 1956.