RESTITUTION OF CONJUGAL

RIGHTS
A COMPARATIVE STUDY AMONG
INDIAN PERSONAL LAWS

RESEARCH PAPER
CIA 3

- By Shivangi Paisal
2ND yr BBA-LLB A
1116244
INDEX

1.
2.
3.
4.
5.

Introduction
Issues Raised
Origin
Specific Provisions
Application of the Provision in Different Communities

6. Constitutionality of Provision Relating to Restitution of Conjugal

Rights.
7. Conclusion

TABLE OF AUTHORITIES

LEGISLATION:
1. The Hindu Marriage Act, 1955.
2. The Indian Divorce Act, 1860
3. Parsi Marriage & Divorce Act. 1936
4. Special Marriage Act, 1954

CASES
1.
2.
3.
4.
5.
6.
7.

Moonshee Bazloor Ruheem v. Shumsoonisa Begum and Suryamoni v. Kalikanta.

T.Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356
Saroj Rani v. Sudharshan
Shakila Banu v. Gulam Mustafa
Raja @ Rajendra v. Pushpa Devi II (1999) DMC 32
Chand Narain v. Saroj AIR1975Raj89
Shanti Devi v. Balbir Singh,

INTRODUCTION
LITERAL INTERPRETATION
RESTITUTION: The restoration of something lost
CONJUGAL RIGHTS: rights relating to marriage or the relationship between
husband and wife
What Restitution of conjugal rights legally means?

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withdrawn from the society of the other, the aggrieved party may apply, by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excuse shall be on the person who has withdrawn from the society.
The restitution of conjugal rights is often regarded as a matrimonial remedy
but at the same time, it has faced a lot of criticisms. In majority cases the
question which arises is regarding the constitutionality of this very provision.
Therefore, in this paper appropriate conclusions shall be drawn about
restitution of conjugal rights based on the provisions mentioned in different
Indian personal laws.
The restitution of conjugal rights is often regarded as a matrimonial remedy.
The remedy of restitution of conjugal rights is a positive remedy that requires
both parties to the marriage to live together and cohabit.

ISSUES RAISED
The aim of this paper is to analyze the core issues related to restitution of
conjugal rights with regard to different personal laws applicable in India.
Therefore, in this paper the main argument shall be with regard to the
constitutionality of restitution of conjugal rights under the personal laws and
also regarding Art. 14 and 21 of the constitution.

Following are the main issues raised:

1. Why is being this concept criticized?
2. Whether the restitution of conjugal rights is violative of article 14 and
article 21 of the Constitution of India?
3. Is restitution of Conjugal Rights just, fair and reasonable towards the
society?

ORIGIN
The principle of restitution of conjugal rights has been borrowed into Indian
laws from English law. In English law, wife and husband were treated as a
single entity and therefore a wife could not sue her husband or vice versa. 1
11.Paras Diwan, Peeyushi Diwan, Family Law, Allahbad Law Agency, Faridabad, 1998,
113.
2. (1901) 18 Cal 37, cited from supra n.

p.

From England these rights passed on to various colonies onto which AngloSaxon jurisprudence was grafted and India was no exception in this regard.
The provision was never a part of Hindu, Sikh, Muslim or Parsi Law, but the
British imported it into India, through judicial pronouncements. Thus in the
absence of any statutory law the Indian courts passed decrees for restitution
of conjugal rights for all
religious communities.
The introduction of this concept of Restitution of Conjugal Rights was by the
case Moonshee Bazloor Ruheem v. Shumsoonisa Begum and Suryamoni v.
Kalikanta. 2

SPECIFIC PROVISIONS
The provisions dealing with RESTITUTION OF CONJUGAL RIGHTS in the
various
personal laws, the remedy is available under
1.

S. 9 of the Hindu Marriage Act, 1955.

2.

for Muslims under general laws

3.

Ss. 32 and 33 of the Indian Divorce Act, 1860, for Christians

4.
5.
marriages

S. 36 of the Parsi Marriage & Divorce Act. 1936

S. 22 of the Special Marriage Act, 1954, in case of inter-caste

In order to get the decree of Restitution of Conjugal Rights, the either party
has to file for the decree under the above mentioned provisions and then it
will not be obligatory on the parties to cohabit after such decree.

APPLICATION
OF
THE
DIFFERENT COMMUNITIES

PROVISION

IN

The restitution of conjugal rights is one of the reliefs that are provided to the
spouses in distress in the institution of marriage by law. Decree of restitution
of conjugal rights could be passed in case of valid marriages only. Apart from

legislation relating to matrimonial law, courts in India in case of all

communities have passed decrees for restitution of conjugal rights.

Hindu
Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the
conjugal rights. The aggrieved party may apply, by petition to the District
Court, for the restitution of conjugal rights. One of the important implications
of Section 9 of the Hindu Marriage Act, 1955 is that it provides an
opportunity to an aggrieved party to apply for maintenance under Section 25
of the Hindu Marriage Act, 1955. Maintenance can also be obtained by the
party in case when the action is pending under Section 25 of the Hindu
Marriage Act, 1955. So, a wife who does not want a judicial separation or
disruption of marriage can attain maintenance from her husband without
filing a suit for the same under the Hindu Adoptions and Maintenance Act,
1956. Another important implication of the section is that it provides a
ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955 on
a condition that there has been no restitution of conjugal rights between
them for a period of one year or more after the passing of a decree for
restitution of conjugal rights. The legal grounds for refusing to grant relief
are:
For instance, 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;
Unnecessary or improper delay in instituting the proceeding.

Muslim
If the husband either deserts a wife or neglects to perform his marital
obligations without any proper reason, then the wife can apply for restitution
of conjugal rights. Even husband can apply for restitution of conjugal rights.

But the court can refuse to grant order of restitution of conjugal rights for
following reasons:
Cruelty by husband or in-laws
On the failure by the husband to perform marital obligations
On non-payment of prompt dower by the husband

Christian
A Christian husband and wife can also apply for an order of restitution of
conjugal rights. The Court cannot pass the decree for following reasons:
Cruelty of husband or wife
If either of the spouse is insane
If any one of the spouse marries again

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 restitution of conjugal rights accordingly.

SITUATIONS WHEREIN COURT SHALL GRANT RESTITUION

OF CONJUGAL RIGHTS:
1. When there is a reasonable excuse for withdrawing from the society
2. Statements made by the aggrieved spouse in the application are true

3. No legal ground which prevents the decree from being passed

WIDE PERSPECTIVE OF REASONABLE EXCUSE

The next question that arises is what constitutes a 'reasonable excuse'? A

reasonable ground need not be equivalent to a matrimonial cause. Any
matrimonial conduct which is grave and weighty will amount to a 'reasonable
excuses in short the following will amount to a reasonable excuse:
1. A ground for relief in any matrimonial cause like judicial separation,
divorce etc. 3
2. A matrimonial misconduct not amount to a ground of a matrimonial
cause, yet
sufficiently weighty or grave
3. Such an act or omission which makes it impossible to live with the
petitioner.
In cases of restitution of conjugal rights, naturally, it must first be
proved that the marriage was a legally valid one.
In Raja @ Rajendra v. Pushpa Devi the court held that in suing
maintenance and restitution, the factum of marriage has to be proved. 4
In another case of Chand Narain v. Sarojthe husband had applied for
restitution of conjugal rights. The wife alleged that the husband had
treated her cruelly. He had forced her to cook fish and meat and to
drink alcohol. This was against her religious beliefs. He tried to drag
her brutally in a public place.
The court held that the wife had been treated cruelly and the court
did not grant a decree of restitution of conjugal rights to the husband.5
3 Supra n. 3, p 117
4 II (1999) DMC 32
5 AIR1975Raj89

 In case of Shanti Devi v. Balbir Singh, the husband and wife lived in
Delhi. The wife alleged that the husband had been treating her with
cruelty. He at times used to lock her up in her room; he would pick
quarrels with her frequently. The husband used to abuse her and he
even abused her before her father. He even abused his father-in-law.
Further, the husband told her that he would release her only if she
gave him a divorce. The wife in these circumstances left the
matrimonial home and the court disallowed a petition for restitution of
conjugal rights to the husband holding that the wife had a reasonable
excuse to withdraw from his society.6

CONSTITUTIONALITY OF PROVISION RELATING

TO RESTITUTION OF CONJUGAL RIGHTS.
During the time of introducing the provision for restitution of conjugal rights
in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there
were debates with regard to for and against it.
In Shakila Banu v. Gulam Mustafa , the Honble High Court observed:
The concept of restitution of conjugal rights is a relic of ancient times when
slavery or quasi-slavery was regarded as natural. This is particularly so after
the Constitution of India came into force, which guarantees personal liberties
and equality of status and opportunity to men and women alike and further
confers powers on the State to make special provisions for their protection
and safeguard.7
In T.Sareetha v. T. Venkatasubbaiah8, the Andhra Pradesh High Court
held section 9 of the Hindu Marriage Act to be violative of the
6 AIR 1971 Del 2913
7 Tuteja, Saloni. Restitution Of Conjugal Rights: Criticism Revisited. Accessed on 28
December 2010 at http://www.legalserviceindia.com/articles/abol.htm

8 AIR 1983 AP 356

constitution the impugned section was unconstitutional. The court

indicated that:
''the consequences of such a decree are firstly to transfer the choice to
have marital intercourse to the state from the concerned individual and
secondly to surrender the choice of the individual to allow or not to allow
one's body to be used as" a vehicle for another human being's" .
Court also stated that the section assailed on the touchstone of minimum
rationality. It promotes no legitimate public purpose based on any
conception of the general good and hence is arbitrary and void
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 of the Hindu Marriage Act, 1955
and over-ruled the decision given in T. Sareetha v. T.
Venkatasubbaiah .
The court observed that, the object of the section is to bring about
cohabitation between estranged parties so that they can live together.
That in the privacy of home and married life neither Article 21 nor
Article 14 has any place.

CONCLUSION
Under the Indian law a decree of restitution of conjugal rights can be
executed by attachment of the respondents property. But it is to be noted
that the court cannot compel the defaulting spouse to physically return to
the comfort-consortium of the decree-holder spouse.
As understood, the restitution of conjugal rights is a part of the personal laws
of the individual, thus they are guided by ideals such as religion, tradition
and custom. A very important feature of restitution of conjugal rights to be
emphasized is that it is a remedy is aimed at preserving the marriage and
not at disrupting it as in the case of divorce or judicial separation. It serves to
aid prevention of the breakup of marriage, thus is a means of saving the
marriage.
So the restitution of conjugal rights remedy tries in promoting reconciliation
between the parties and maintenance of matrimonial. It tries to protect the
society from denigrating. But the final decision is that of the parties whether
to obey the decree of restitution of conjugal rights and to continue with the
matrimony or not.