The restitution of conjugal rights is a matrimonial remedy that requires spouses to live together and cohabit in order to survive and sustain the marriage. The primary object of showing proof or onus rests with the petitioner. Once the petitioner has proved his or her case, the burden of proof then shifts to the other party to prove the defence of ‘reasonable cause’. This must be voluntary act of the respondent. If the respondent has withdrawn from the society of his or her spouse for a valid reason, it is a complete defence for their act.
This principle has been subject to the deliberations and its validity has been questioned in many cases. The parties are given this right because marriage implies that the parties shall live together till death or until it is irretrievably broken down. However, this is the only remedy for a party whose spouse has deserted them. Even after the court has granted a decree, cohabitation cannot be assured until the execution proceedings initiated by the decree holder under Order XXI of the Code of Civil Procedure.
In India, remedy for the restitution of conjugal rights is available to:- • Hindus under Section 9 of the Hindu Marriage Act, 1995 • Muslims under general law • Christians under Section 32 and 33 of the Indian Divorce Act, 1869 • Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 • Those married according to the provisions of the Special Marriage Act under Section 22 of the same.
In India, this concept was introduced in Moonshee Bulzoor Raheem v. Shumsoonissa Begum. The Privy Council held that a suit for restitution of conjugal rights by a Muslim husband was rightly filed as wife had withdrawn from his society without any reasonable cause.
Under Hindu law, reasonable cause includes all those grounds under which one might have asked for a decree of divorce or judicial separation and under Muslim law cruelty by the husband, failure of the spouse to perform marital obligation and even failure to pay prompt dower by the husband is considered as a reasonable cause.
In Abdul Kadir v. Salima Bibi, the court held that the wife can refuse to cohabit if the prompt dower had not been given and the court did not grant the decree of restitution of conjugal rights as the wife had a reasonable cause to do so. The petition for restitution of conjugal rights is maintainable only when there is a valid marriage. Under Muslim law, a husband can defeat wife’s petition for restitution at any time by pronouncing talaq on her.
This remedy of restitution of conjugal rights has been criticised a lot. Huge criticism about this remedy arose after the decision given by the Punjab High Court in Tirath Kaur v. Kripal Singh. In this case, at the instances of the husband the wife took up training and succeeded in obtaining a diploma in tailoring. Thereafter she got a job at a place which was at some distance from the husband’s house and the parties cohabited for some time at each other’s residences. Differences arose between them on some matter and the husband asked the wife to resign her job and join him at his house. On wife’s refusal to do so, the husband filed a petition for restitution. The court held that the refusal by the spouse to give up his or her job and live with the other does amount to ‘withdraw from the society of the other’. This attracted a lot of criticisms as the court granted a decree of restitution of conjugal rights on the ground that the wife’s first duty is to submit herself to the authority of her husband and remain under his roof and protection. The question of its validity arises as it deprives a wife from her personal liberty and employment of her choice. Also, many argued that this remedy was unfair to women.
In T.Sareetha v. VenkataSubbiah, Sareetha was living away from her husband continuously for five years. Sareetha lived with her parents in Madras and was busy making her way as a South Indian actress. Venkata Subbiah filed a complaint under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The court held that Section 9 of the Hindu Marriage Act is null and void. The Andhra Pradesh High Court held that the life of a wife after restitution will vary to a great extent and a man’s life can remain almost the same. The court also held that she will beget a child and this inevitable consequence of this remedy will cripple her future plans of life. Thus, this section is one sided and the pledge of equal protection is being violated. This section violates the rights of a wife and hence is not constitutional.
Despite the controversy this remedy has been continuously upheld by the judiciary. It is considered as one of the most misunderstood parts of matrimonial law. Especially in Hindu, Christian and Parsi law where marriage is a holy sacrament, preserving the marriage is of utmost importance. Only if there is no reasonable cause for withdrawing from the society of the spouse, the court grants a decree of restitution of conjugal rights. Also, it is said that in Sareetha’s case the concept of marriage is pictured as if it consists of nothing except sex. The fundamental fallacy in the judgement of T. Sareetha’s case was that it did not grant restitution only on one ground, that his the women’s life will change as she will have a child after marriage and it will alter her life but it failed to consider other elements of a marriage. After one year of the decree of restitution of conjugal rights, if the spouse refuses to cohabit, the aggrieved party can file for divorce. This law provides for a reconciliation and cooling-off period to prevent breakups. If the marriage cannot be saved even after passing of this decree it can be dissolved. Therefore it provides a second chance to protect the marriage and allows them to break up the marriage if it doesn’t work out even after one year after passing of this decree. It is stated that the grounds and arguments are baseless and they do not sufficiently prove that the remedy of restitution of conjugal rights is out dated, unsophisticated and violative of personal rights. The remedy is not unconstitutional. It is believed that this remedy safeguards the institution of marriage and promotes reconciliation between parties.
The best suited alternative to put an end to this unsophisticated remedy is reconciliation. This is more mild, requesting and inoffensive. It might not only lead to cohabitation but even clear the existing misunderstanding. If the alternative is reconciliation the burden on the courts also reduces and puts an end to the cumbersome process involved. Courts interference in a person’s personal life will also reduce and such matrimonial matters are better solved by private parties than the State power. It is also beneficial for the parties as they are not necessarily forced into it and also given a second chance to preserve their marriage. Reconciliation attempted in divorce cases has proved satisfactory, and useful according to a socio-legal data study made in many western countries.