(..7 D..)
RESTITUTION OF CONJUGAL RIGHTS[1].
QUESTION BANK.
Q.1. What is a restitution of conjugal rights.
Q.2. On what ground restitution of conjugal rights is sought?
Q.3. Discuss fully Restitution of Conjugal Rights and Judicial Separation.
SHORT NOTES.
- Restitution of Conjugal Rights.
SYNOPSIS
- INTRODUCTION.
- WHEN PETITION IS FILED.
“Withdrawal from society”.-
“Without reasonable excuse”.
III. CONSTITUTIONALITY OF THE DECREE.
- EXECUTION OF DECREE.
I. INTRODUCTION.
Peaceful cohabitation of husband and wife is the main purpose of marriage. Restitution of conjugal rights is the legal device through which parties to marriage leaving separately are ordered to resume their marital cohabitation. In other words, it is an order of the court to restore marital rights. In this sense, the ‘restitution of conjugal rights’ is the remedy contrary to ‘divorce’ or ‘nullity of marriage’ or ‘judicial separation’. Though this remedy is not traditionally recognised under Muslim Law, it is available to Muslims under general law. This remedy is available to Hindus under S. 9 of the Hindu Marriage Act, to Christians under S. 32 of the Indian Divorce Act, and to Parsis under S. 36 of the Parsi Marriage and Divorce Act. Under the Special Marriage Act, S. 22 provides this remedy to those who marry under this Act.
II. WHEN THE PETITION IS FILED[2].
When either the husband or the wife has withdrawn from the society of the other without reasonable excuse, the other party may apply to the court for restitution of conjugal rights. If the court is satisfied with the truth of the statement made in such a petition (and if the court does not think of any grounds to reject the petition), it may grant a decree of restitution of conjugal rights.
In Sameersingh Suryawanshi v. Sou. Savita Suryawanshi
[2008 (2) All MR 130]
Facts:
The wife had filed a number of cases against her husband, showing she did not have any trust or any confidence in him, and she was not desirous of cohabiting with him.
Held:-
In such circumstances, it is impossible for both husband and wife to stay together.
Under all personal laws, the following conditions are to be satisfied for the decree of ‘restitution of conjugal rights’. Viz-
- a) That one spouse has withdrawn from the ‘society of the other’[3].
- b) Such withdrawal is ‘without any reasonable cause and excuse’[4].
- c) The court is satisfied with the truth of the statement made in such a petition.
- d) That in the opinion of the court, there is no ground for refusing relief of ‘restitution of conjugal rights’.
“Withdrawal from society”.-
The expression ‘withdrawal from society’ implies the cessation of cohabitation as a voluntary act of one of the spouses. It means withdrawal from the totality of conjugal relationship, such as refusal to live together, refusal to accompany the other spouse, or refusal to have marital intercourse etc.
In Forster v. Forster
Court Held-
that mere refusal to have sexual intercourse does not amount to withdrawal from the society of others if they are living together. It further held that the courts have the power to order cohabitation but have no power to enforce marital intercourse.
“Without reasonable excuse”.
Mere ‘withdrawal from the society of others’ is insufficient to grant a decree of restitution of conjugal rights unless it is coupled ‘without reasonable excuse’. In other words, ‘withdrawal’ from another’s society is excusable or can be pleaded as a good defence if the ground on which the withdrawal is made is reasonable. According to S. 33 of the Indian Divorce Act, those grounds can be called a ‘reasonable excuse’, which is pleaded for ‘nullity of marriage’ or ‘judicial separation’. Any other ground cannot be pleaded as a ‘reasonable ground of excuse’ to withdraw from the society of others.
In Smt. Ratna Prabha V. Dulal Chaudhari
[AIR 2004 Jharkhand 24.]
Facts- Husband had filed the petition for ‘restitution of conjugal rights’. It was proved that his wife had withdrawn from his society without reasonable cause and excuse. In defence, the wife pleaded the grounds of assault, abuse and cruel treatment, a demand of Rs. 1 lakh and an attempt to cause the death of their child. But none of these allegations she could prove. Even her brother could not support these allegations. Her parents were not examined; hence, her allegations were not proven.
Held –
The Court passed an order of ‘restitution of conjugal rights’. It further held that the wife has the burden of proof to give just and reasonable cause for withdrawal from her husband’s company.
The following grounds can be called ‘reasonable excuses-
- a) Adultery, b) cruelty, c) desertion for two or more years, d) impotency, e) prohibited degree of consanguinity, f) Lunacy or idiocy, g) marriage contracted during the lifetime of the former spouse, h) consent obtained by force or fraud.
III. CONSTITUTIONALITY OF THE DECREE[5].
The decree for restitution of conjugal rights is held constitutionally valid and does not violate any of the fundamental rights granted under the Indian constitution (e.g., the Right to life and personal liberty under Art. 21, the Right to freedom under Art. 19, etc.).
IV. EXECUTION OF DECREE[6].
The decree for ‘restitution of conjugal rights’ cannot be executed by specific performance. Forcible cohabitation cannot be ordered by the court. No arrest of the disobedient spouse is to be ordered by the court. However, an order for attachment of the property of such spouse or an order of payment of a certain periodical amount is to be made by the court to enforce its decree.
*****
[1] वैवाहिक हक्क पुनस्र्थापना [दांपत्य अधिकारों की बहाली]
[2] याचिका कधी दाखल करता येते
[3] एक जोडीदार दुस-या बरोबर राहत नसेल [एक जीवनसाथी ‘दूसरे के समाज’ से हट गया है]
[4] कोणत्याही योग्य कारणाशिवाय [बिना किसी उचित कारण और बहाने के]
[5] हुकूमाची संवैधानिकता [डिक्री की संवैधानिकता]
[6] हुकूमाची अंमलबजावणी [डिक्री का निष्पादन]