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Analysis Of The Concept Of Restitution Of Conjugal Rights In Indian Laws And Judicial Precedents On The Indian Legal Setup

Family is a group of persons united by the ties of marriage, blood or adoption; constituting a single household, interacting and intercommunicating with each other in their respective social roles of husband and wife, mother and father, son and daughter, brother and sister creating a common culture.~ Burgess and Locks

In India marriage and saptapadi is a sacrament. Due to this, it is a common practice and accepted notion to preserve and continue the marriage. However, when such a marriage results in absolute catastrophe in which cruelty and suffering becomes a daily concern then it is better to end the marriage. Restitution of Conjugal Rights (RCR) is a way to preserve marriage.It can be said that it is against the Concept of Natural Law Theory. Marriage is not built upon the ceremonies but upon the autonomy and freedom of two individuals who agree to share them with each other.

Legal Provisions:
  • Restitution of Conjugal Rights claimed by either party in a marriage. Since it is an object of marriage, it is governed by personal law. Currently, Hindu Marriage Act,1955 and Special Marriage Act,1954 under Section-9 and Section-22 respectively deal with Restitution of Conjugal Rights.
  • According to the prosecution, when either party to a marriage leaves the company of another without any justified reason, then the court may grant a decree of Restitution of Conjugal Rights. Then the other party is bound to come back and live with the spouse.
  • Although the provision is gender neutral, however in its application it is mostly used against the wife.
  • Similar provisions exist in Muslim Personal Law as well as the Divorce Act,1869 which governs Christian Family Law.

For example
Husband                                                        Wife
||                                                                       ||
||                                                                Separate
||                                                (Withdrawn form society of
||                                                   her husband without any
||                                                     reasonable excuse)
District Court -
Petition for RCR

-If Court satisfy-
(There is no legal ground that RCR should not be granted)
Order - RCR - Allow

(Burden of proof is on the party who has withdrawn from another's society. Here the burden of proof is on the Wife.)
  • The term Conjugal Right in literal sense means Right to stay together.
    Conjux-(Latin Word - Husband & Wife)= Relationship between a married couple (especially sexual relationship)
  • The Object behind this provision was to uphold and continue marriage and reduce marital dispute and divorce. Although, the object and purpose seems to be welfare in nature, however, in reality these are generally misused.

Critical Analysis
The Decree of Restitution of Conjugal Rights is useful in order to preserve marriage. It is through authority of court that unjustified abandonment of either spouse is presented. However, today this provision faces a lot of criticisms.

Results in unnecessary harassment and penal liability:
The consequence of not following the decree results in civil contempt under Contempt of Courts Act,1971 & also a ground for decree of divorce under Section 13(1A) of Hindu Marriage Act,1955. Hence, due to the provision the person gets exposed to penal liability and court litigations.

Misuse of provision against the wife
Although the provision is gender neutral however, in reality it is mostly used by husbands against the wives. Due to this, on one hand Section 498A of Indian Penal Code,1860 tries to present cruelty against the wife but on the other hand Section 9 of Hindu Marriage Act,1955 is used to force the wife to cohabit with the husband.

Further, in Joseph Shine v. Union Of India on 27 September, 2018 Adultery (Section-497 IPC) was declared unconstitutional unanimously by a five judge bench as the husband is not a master of the wife (CJI Dipak Misra). However, by Section-9 HMA the new idea of choice of wife is taken away. It's time for the Indian judiciary and society to shift to more progressive views starting with the progressive theory of marriage.

Decree of Restitution of Conjugal Rights is judicial overreach over one's personal life
The decision of Justice K.S. Puttaswamy v. Union of India 24th August, 2017 a 9 Judge Bench of the Supreme Court delivered a unanimous verdict that Right to Privacy was recognised as a Fundamental Right under Article-21 of our Constitution.

Then from this new ideas and changing notions recognised freedom of choice and say accession as an important aspect of one's right to enjoy his life. This lead to allowing Homosexual Intercourse (Navtej Singh Johar v. UOI on 6 September, 2018) and Right to Remarry as a Fundamental Right (Shafin Jahan vs Asokan K.M. on 8 March, 2018). Here cannot and should not intrude into the personal life. In the Shafin Jahan Case the decision of Kerala High Court was severely criticized by Justice D.Y. Chandrachud for overstepping its limit.

Restitution of Conjugal Rights is against Article-14 & Article-21
As it is practically against the wife hence it is against the principle of equality.

The Constitutional validity of the provision of Restitution of Conjugal Rights has time and again questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T. Sareetha vs T. Venkata Subbaiah where the High Court held that the Section was unconstitutional. The Delhi High Court in Harvinder Kaur vs Harmander Singh Choudhry though and non-conforming views said Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bill in a China shop.

Ultimately Supreme Court in Saroj Rani vs. Sudarshan Kumar Chadha (1984) gave a judgement which was in line with the Delhi High Court views and upheld the constitutional validity of Section-9 of the HMA,1955 and overruled the decision given in T.Sareetha Case.

In this era of transformative constitutionalism the provision against the reformative social norms are declared unconstitutional. Through this, constitutional morality and not social morality prevails. Now it is time to do away with the provision of Restitution of Conjugal Rights. RCR was adopted from English Common Law. This remedy is not only violative of Article-14 & 21 but also does not fit with the changing times.

Moreover, such a remedy is against the ideas of human dignity, individual autonomy and the right to privacy given by the judiciary in recent judgements. Hence in my personal opinion, there is no place for such legal remedies in our legal system. Written by Shashwata Sahu, Advocate

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