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Is Still There Is A Need For Restitution Of Conjugal Right? Analysis Of The Judgment Of T.Sareetha

The historical understanding of marriage in many religions is that it is a sacred and a irresistible bond. Ancient Hindu writings had the concept of marriage, as a union of the opposite sex between a man and a woman, once performed in accordance with customs and traditions, was understood to be irreversible and would constitute a basic unit of family and community institutions.

According to Cambridge Dictionary ,conjugal is defined as something i.e. connected with marriage or the relationship between two married people , especially their sexual relationships .

Restitution of conjugal rights under Hindu Marriage Act 1955
As mentioned above, marital rights are sexual rights and responsibilities that are part of marriage. Under Hindu law, Restitution of Conjugal Rights (ROCR) is governed by Section 9 of the Hindu Marriage Act. Section 9 of the Hindu Marriage Act reads as follows:

" When either the husband or the wife has without reasonable excuse , withdrawn from the society for the other , the aggrieved party may apply , by petition to the district court for restitution of conjugal rights and the court , on being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".

Fundamentals of Section 9 of the Hindu Marriage Act

Section 9 of the Hindu Marriage Act can be termed as the "Savings of Marriage" clause. When a spouse or partner is guilty of living away without any reasonable clause, Section 9 of the Hindu Marriage Act can be invoked. Under this section, if certain conditions are met and the action is successful, the court can order the couple to stay together. There are three important requirements that must be met in order to invoke and succeed under Section 9.

These are set out below:
  1. Spouses may not live together: The essence of section 9 is that one of the partners must withdraw from the company of the other.
  2. Withdrawal must be without reasonable cause: The second essential thing is that the partner's withdrawal from the other's company must have occurred without any reasonable excuse or explanation.
  3. The aggrieved should apply for the restoration of conjugal rights: The third and last necessary condition for obtaining the restoration of conjugal rights is to apply for them by filing a petition with the competent court.

Restitution of Conjugal Rights under Muslim law
Restoration of conjugal rights is one of the reliefs given to spouses who are in agony in the institution of marriage when either of them fails to fulfill this obligation or deliberately avoids cohabitation, the other party can go to court. The restoration of conjugal rights is also known as "the right to remain together".

Muslim law, if a husband either deserts his wife or neglects to fulfill his marital duty without any proper reason, the wife can go to court. The husband can apply to the court for the restoration of conjugal rights.

Jani and another V. Mohammed Khan (AIR 1970 J&K 154), in this case the court held that the husband is entitled to a decree of marital restitution if the wife refused to live with him.

If a person wants to file a lawsuit for the restoration of conjugal rights, either the husband has excluded him from the company of others without giving a reason.

In a case of Moonshee Bazloor V. Mohammed Khan ( 1867)MIA55 , the court ruled that if the wife stops living with her husband without legal reasons, she cannot sue the wife for the restoration of conjugal rights.

When can restoration of conjugal rights be refused under Muslim law?
A defense to a petition for restoration of conjugal rights could be the grounds of invalid and irregular marriages and other provisions under the Muslim Marriage Dissolution Act, 1939. A suit for restoration of conjugal rights fails when the marriage has avoided the exercise of the option of puberty under section 2 (vii) the Dissolution of Muslim Marriage Act 1939.

Regulated polygamy is permitted under Muslim law, so the consortium of the husband's convenience cannot be refused by the Muslim wife because the husband has taken a second wife. Although in specific situations, a husband's second marriage may involve cruelty to the first wife, which then justifies her refusal to live with him.

Along with all other cases of cruelty, legal cruelty as well as physical cruelty is also included in the definition of "cruelty" under Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939. If any of these cases of cruelty as provided in this particular section , are proven against the husband, then exemption from the restitution of conjugal rights may be denied to the husband by the court.

In the case of Itwari Vs. Asghari, where a Muslim husband filed a petition for restitution against his first wife, the Allahabad High Court held on 29 August 1959 that it could not compel the wife to live with the husband and could refuse relief if the court felt that it would not reasonable and just or that the adoption of the ordinance would be unjust. Some High Courts have rejected relief from restitution of conjugal rights on the ground that the above have been regarded as cruelty by the husband to the wife.

Restoration of Conjugal Rights under the Special Marriage Act, 1954
A special marriage law is a law that applies to interfaith marriages or marriages in court. Section 22 of the Special Marriage Act 1954 states that if a spouse withdraws from the society of the other party without reasonable excuse, the aggrieved party may apply to the District Court for restoration of conjugal rights.

If the Court is satisfied with the truth of the representations made in the petition and is satisfied that there is no legal reason why such petition should be dismissed, it shall issue a decree for restitution of conjugal rights.

On whom burden of proof lies
If a question arises as to the existence of a reasonable excuse for the withdrawal of one partner from the company of the other, the burden of proving that such a reasonable excuse exists rests on the person who withdrew from the company of the other.

History of ROCR
How Conjugal Rights came to India
In the late nineteenth century, suits for the restitution of conjugal rights were transferred to the marriage laws of indigenous religions in India from English church law and quickly gained popularity. Such lawsuits were mainly filed by abandoned wives who hoped that the courts would allow them to regain access to their marital homes or compel the husband to provide some maintenance, or by husbands who wanted their wives to return home. Since there was no divorce in Hindu marriages at the time, and both Hindu and Muslim personal laws allowed polygamy, these suits often exacerbated legally sanctioned inequalities between the sexes.

Restitution of conjugal rights ceased to be "alien" when, in post-independent India, such suits were given a statutory basis under Section 9 of the Hindu Marriage Act, 1955. Section 13 of the same Act introduced divorce within a Hindu marriage. The HMA was one of four laws grouped together as the Hindu Code which sought to reform Hindu personal laws in India.

Sec 9 is one of the many ways in which the reform failed to achieve its goal of empowering Hindu women.

The first case where this law was applied was Moonshee Bazloor vs Shamsoonaissa Begum which was decided by Privy council . In this case the husband disposed of the property of the wife and misbehaved with her . The wife was compelled to withdraw from the society and space of the husband . The husband claimed for the recovery of wife before the court under Specific relief act , but the wife denied saying that there is no such law where custody of wife is permitted . In appeal the husband stated that under Muslim law the wife cannot desert her husband or leave him even if he mis-behaved or ill treated his wife . So , the court decided that under the Islam law the restitution of marriage can be carried out .

Violation of fundamental rights in the name of personal laws
Section 9 of the Hindu Marriage Act, 1955 allows a court to grant restitution of conjugal rights on the application of a husband or wife when the other party to the marriage has withdrawn from the society of the other party without reasonable excuse. A similar remedy is also available under the Special Marriage Act and the provisions of the Muslim, Parsi and Christian Personal Laws.

At first glance, the idea that a court could legally require an unwilling spouse to live in the same house as his/her partner seems absurd, not to mention a violation of the fundamental rights to privacy, freedom of movement, dignity and equality guaranteed Indian Constitution. However, this provision was upheld by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha (1984) as constitutionally valid on the ground that it serves an important social purpose of preserving marriage. This antiquated notion, which prioritizes the so-called sanctity of marriage over individual rights and liberties, especially the rights and liberties of the wife, is in keeping with the Indian social and legal tradition, which has long been reluctant to admit that fundamental rights apply in the home.

For a very long time, the remedy of restitution of conjugal rights was considered perverse. In Russell v. Russell, Sir Hannen observed that: "I have never once known a petition for restitution to be genuine, that it was merely a convenient instrument to enforce a demand for money or to obtain a divorce." In the Indian context, as shown by survey of cases from 1954 to 1969, was primarily used to facilitate a divorce that was otherwise difficult to obtain, to prevent the wife from claiming maintenance.

The trend shows that restitution of conjugal rights is used to deny the wife's right to employment in a location outside the husband's home. This is because the socio-cultural changes brought about by the constitutional era provided women with better education and employment opportunities. While women's aspiration was readily accepted for jobs performed near the matrimonial home, it was allowed as an exception only in limited cases where the job was taken by the wife at a place far from the matrimonial home and she did not usually live in the matrimonial home.

Restitution of conjugal rights is highly undesirable because it disproportionately affects the wife by potentially putting her at risk of marital rape and depriving her of the right to employment in a place of her choosing. Her rights are subject to the "consent" of her husband. On the other hand, there is no such restriction on the husband because he is the 'bread' in the marriage.

Restitution of conjugal rights can also be a means of forced marital rape. This concern was also raised in Parliament during the enactment of the Hindu Marriage Act 1955. However, the then Law Minister pointed out that restitution of conjugal rights had no enforcement mechanism and therefore posed no real danger. Procedural laws are said to have a mechanism to enforce restitution of a decree of conjugal rights. According to Order XXI Rule 32 of the Code of Civil Procedure of 1908, if the restitution of conjugal rights is willfully disobeyed, the property may be attached.

As women began to gain more independence, there was a marked shift in RCR claims, where men began to initiate significantly more cases of restitution of conjugal rights than women. Many of these cases focused on "weekend marriages" where the couple lived apart due to work constraints.

For example, in Tirath Kaur versus Kirpal Singh (1964), when a woman after marriage took up a job in another city to support her family, she found herself facing a suit for RCR. The lower court found that: "the husband was justified in asking the wife to live with him even if she had to give up service". The decision was reinforced by the Punjab High Court which held that "the first duty of a wife towards her husband is to submit obediently to his authority and remain under his roof and protection".

The RCR, long regarded as toothless, was completely abolished in England through the Matrimonial Procedure and Property Act, 1970. Meanwhile, it went from strength to strength in India. As middle-class Hindu women became more independent and often had careers before marriage, courts ordered them to give up their jobs if their husbands so desired. For example, in Kailash Wati v. Ayodhia Parkash (1977), the court held that "The actual legal position appears to be that every working woman who enters into marriage by necessary implication agrees to the obvious and well-known marital duty to live with her husband as a necessary nuptial event." And in case the woman was in doubt, the court reiterated that only the husband has "the right to select and establish the matrimonial home."

Several cases in the mid-1970s across India found in favor of a working wife who wished to live away from her husband, but this depended on whether she was still willing to let her husband exercise his "conjugal rights" if he so wished so [Mirchumal vs Smt. Devi Bai (1977)] .

The case of T Sareetha and Interpretations of J.Choudhary

In this case, Sareetha married the respondent Venkata Subbaiah in 1975 at the age of 16 years. However, they immediately stopped living together and lived separately for five years. Consequently, Venkata filed an application for restitution of conjugal rights to compel her to live with him under Section 9 of the Hindu Marriage Act, 1955 ("the Act").

Sareetha argued that Section 9 of HMA is a complete violation of the fundamental rights enshrined in the Constitution of India. She claimed that the Section, by legally imposing the cohabitation of two spouses without their mutual consent, violates the right to human dignity and decency, personal freedom and the right to life.

The court examined the validity of restitution of conjugal rights by citing several case laws and arguments of prominent scholars and lawyers. The core of these problems is related to the legal support of violent sexual intercourse between two spouses.

The purpose of obtaining a decree of restitution of conjugal rights is to force an unwilling legally wedded spouse to cohabit with the other spouse. It would violate the sanctity of the bond of marriage by infringing on privacy, integrity and stifling the voice of the individual. The state intervenes in an individual's domestic privacy and commits an act of coercion.

However, according to Judge Choudhary's interpretation, this would subsequently lead to violent intercourse between the two spouses. It highlights the unequal balance maintained by the family and the psychological and physical pressures a woman must endure; and how she doesn't even get any form of protection from her own family. He questioned how Section 9 supersedes the fundamental rights enshrined in the Constitution of India.

A significant difference between humans and animals, as the Court pointed out, is sexual autonomy. A sexual relationship between a man and a woman is believed to be based on mutual consent and free will. There can be nothing humiliating for a person to be subjected to violent intercourse by the 'long arm of the law'.

Justice Choudhary interprets privacy as an individual right involving bodily autonomy and not limited to a space whose doors are closed by the state. He emphasized that citizens' claims to privacy should not be suppressed by the prevailing interests of the state. In this section, the woman is completely excluded from the microscope and deprived of a voice in the most intimate decisions. Her privacy and bodily integrity were not taken into account by the legislators at all.

The connection between cohabitation and violent intercourse lies in the unbalanced rights given to individuals. The husband remains in the same place even after the decree is enforced, but the wife has to conceive and give birth to a child, killing her future ambitions. If a woman is thinking of divorcing her husband, this section could bring violent intercourse and then a violent conception.

Her mind, body, life would be destroyed and it would be a complete violation of her dignity. He concluded by calling the remedy "an engine of oppression to be operated by the husband for the benefit of the husband against the wife." The court therefore ruled that Section 9 of the Act is invalid.

However, the very next year, the constitutionality of Sec 9 was upheld by the Delhi High Court in Harvinder Kaur Vs. Harmander Singh Choudhry in 1984, where Justice Rohatgi criticized any attempt to make personal laws accountable to the Constitution: "To bring constitutional law into the home is most inappropriate. It's like introducing a bull in china. He will prove to be a ruthless destroyer of the institution of marriage and all that it stands for. In the privacy of home and married life Article 21 and Article 14 have no place." This interpretation of Article 9 was upheld by the Supreme Court of India a few months later in Saroj Rani vs Sudarshan Kumar Chadha (1984).

Since the 1980s, RCR suits have continued to be popular with Indian men. As noted by renowned Indian lawyer and women's rights activist Flavia Agnes, as divorce and separation have become more socially acceptable, men are increasingly filing RCR suits in retaliation against wives seeking divorce, legal separation and annulment.

Conjugal rights and Indirect Discrimination
The main argument relied upon by the proponents of the restitution of conjugal rights is that this provision cannot be discriminatory against women because the remedy is equally available to both husband and wife.

The Andhra Pradesh High Court in T Sareetha v T Venkatasubbaiah sought to refute this argument as early as 1983 by holding that social reality meant that the remedy of restitution of conjugal rights was largely used as "an engine of oppression to be driven by the husband . in favor of the husband against the wife". The court saw this remedy as a form of indirect discrimination against women and struck down Section 9 of the Hindu Marriage Act as unconstitutional. Unfortunately, this landmark judgment was overturned by the Supreme Court in Saroj Rani v. Sudarshan in short order without the Supreme Court giving substantive consideration to the considerations of equality raised in the Sareetha case.

This antiquated notion, which prioritizes the so-called sanctity of marriage over individual rights and liberties, especially the rights and liberties of the wife, is in keeping with the Indian social and legal tradition, which has long been reluctant to admit that fundamental rights apply in the home.

The doctrine of indirect discrimination articulated in Sareetha (where a gender-neutral law that operates to have a disparate impact on a particular group can be held unconstitutional) is slowly gaining favor in constitutional equality jurisprudence, most recently in Navtej Johar. Justice Chandrachud's concurring opinion in this case specifically states that Section 377, while facially neutral in its application to certain acts, targets particular communities in terms of impact. As such, conduct that results in the imposition of burdens or disadvantages on a particular class violates constitutional rights to equality and non-discrimination.

As Sareetha acknowledged, the remedy of restitution of conjugal rights actually disadvantages women. In the past, it has been used by the courts to deny women the right to take up employment of their choice in places outside their marital homes. Husbands consistently use it to avoid alimony claims filed by the wife. Crucially, in today's patriarchal Indian society, where violence against women is rampant, especially within the family, a court decree requiring a woman not to live with her husband leaves her vulnerable to unwanted intercourse. Or, as a lawmaker who opposed the concept put it during parliamentary debates leading up to the passage of the Hindu Marriage Act in 1955, shockingly makes the government [and the courts] "promoters of legalized rape".

The restitution of conjugal rights survived its basic rationale because it was aimed at enforcing the subordination of the wife to the husband and the division of "public and private"; to prevent the dissolution of a marriage where the marriage was indissoluble. However, divorce is now permissible for husbands and the wife is to be equal to the husband and no longer remain in the private space or be subordinate to the husband. Restitution of conjugal rights disproportionately affects the wife through potential marital rape, disruption of life, denial of employment, and so on.

These aspects are highly undesirable in a society which aims to establish a constitutional vision of social transformation and equality .

Justice Choudary's views are relevant to the ongoing fight against the decriminalization of marital rape, against the numerous unfair provisions in personal codes, and the ongoing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, unsuccessful, effort was made in the Naz Foundation ). At the very least, Sareetha should not be forgotten, she should remain in historical memory as a landmark of Indian constitutional law, taught and debated as a brilliant - albeit failed - attempt to radically transform our constitutional jurisprudence on privacy and equality.

You can lead a horse to water, but you can't make him drink, is a very popular provrb , and the provision for restitution of conjugal rights under the Indian Personal Laws seems to be similar. The court may issue a decree of restitution of conjugal rights and order the erring spouse to live with the aggrieved spouse. Also under Indian law, a decree for restitution of conjugal rights can be enforced by attaching the property of the respondent. However, it should be noted that the court cannot compel the defaulting spouse to physically return to the decree-holder spouse's consortium of comfort.

It can be suggested that the term reconciliation can be used instead of the term restitution because it sounds mild and convincing. In conciliation matters, the court may appoint a committee instead of taking matters into its own hands. This leads to a non-offensive approach and resolves misunderstandings. However, if the commission fails in a particular case, it can appoint an expert in that particular field as its guide.

This procedure can be called counseling. The chances of success of reconciliation are higher than the chances of court intervention. Perhaps this will lead to a reduction in the burden on the courts, as it is not a cumbersome procedure. In fact, reconciliation can be considered a quick, practical and effective solution to the restitution of conjugal rights.

In my opinion the concept of restitution of conjugal rights is absurd in its nature and must not exist in India. However, we hope that India will also foresee and realize that the rights of the individual are important and must be protected at all costs, and the courts must move away from seeing the preservation of marriage as a social duty to be protected by law enforcers.

  1. See M.N.Das, Marriage and Divorce, (6th ED : 2002), (Eastern Law House New Delhi) at p.91
  2. See Dr.Paras Diwan, Law of Marriage and Divorce, (5th ED. : 2008), (Universal Law Publishing Co., New Delhi ) at p.302
  3. See Aditya Swarup, Constitutional Validity of Restitution of Conjugal Rights: Scope and Relevance,
  4. See Paras Diwan, Supra n.iii, at P.306
  5. T.Sareetha v. T. Venkatasubbaiah, AIR 1983 AP. 356
  6. Harvinder Kaur v Harminder Singh, AIR 1984 Del. 66
  7. Itwar v Asghari , AIR 1960 All 684
  8. S. R. Myneni. Muslim Law, Asia Law House, 5th Edition.
  9. Gautam Bhatia, T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision, Experts and Views, 13/01/2016,
Written By: Kaushiki Singh

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