RESTITUTION OF CONJUGAL RIGHTS (B. P. S. WOMEN UNIVERSITY) BY:CHARU BHATT Introduction: Family and marriage are the basic institutions of any society. Every society has certain norms and rules which have led to the development of key concepts such as customs and usages. Marriage as an important institution has been recognized in the personal laws of all the religions. With the passage of time, the complexities increased with areas such as divorce, judicial separation and conjugal rights came up in personal law and it became necessary to codify the laws relating to marriage in India. The Hindu law recognized the sacredness of the marriage tie. The wife was given an honoured position as “women is half her husband and completes him”. Hindu law enjoined on the spouses to have the societies of each other. After the marriage bride becomes the member and backbone of the groom’s family. The remedy of restitution of conjugal rights was not recognized in the DHARMASHATRAS. As the phase changed with globalization and modernization the Jewish law provided the remedy of restitution of conjugal rights. From Jewish law the remedy was adopted in English law and latter it came to Indian law. Marriage is the existence of rights between spouses. These rights may also be called restitution of conjugal rights, offered to the disadvantaged party. The guarantee given by the Indian Constitution to every citizen with respect to the protection of fundamental rights has left some scope for ambiguity in this provision. This has led in recent times to a heated debate as to the constitutional validity of the concept with regard to the personal laws existent in the society. Meaning of Restitution Restitution basically means restoring to a party to its original place. RESTITUTION OF CONJUGAL RIGHTS: MEANING AND SCOPE: The institution of Marriage is often regarded as a primary institution in this society of ours. An individual's existence in the society is guided by institutions which are often regarded as established forms of procedure characteristic of group activity. Later on, a marriage between two individuals creates a set of rights and obligations between the parties involved. These rights may be called as “conjugal rights”. CONJUGAL RIGHTS are rights which husband and wife have to each other’s society. So now we need to ask ourselves as to what exactly do we mean by the restitution of these conjugal rights? Restitution of Conjugal Rights under 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. The texts of Hindu law also recognized the principle “let mutual fidelity continue until death”. Hindu law enjoined on the spouses to have the society of each other. According to sec. for restitution of conjugal rights 3 conditions must be satisfied: 1. The respondent has withdrawn from the society of the petitioner without any reasonable excuse. 2. The court is satisfied about the truth of the statement made in such petition and 3. There is no legal ground why the relief should not be granted. There are several grounds of restituion of conjugal rights. They are: 1. Either spouse: There should be valid marriage acc/to sec. 5 of Hindu marriage act 1955 If either spouse having unsoundness of mind. Suffering from mental disorder Child marriage and many more grounds are there on which the marriage can be held invalid. b If the marriage is being valid proof then when either spouse withdraws from the society then the aggrieved party can go to the district court for the restitution of conjugal rights. c If the aggrieved party proofs himself/herself rightly then the court grants decree in his/her favour. CASE Parbia Ram vs. Thopali Held: if the marriage isn’t valid then the decree of restitution of conjugal rights will not arise. CASE Ranjana Vinod Kumar vs. Vinod Kumar Held: the petitioner wife alleged that the husband was already married and had suppressed the fact from her. The court held that the petition for restitution of conjugal rights is not maintainable since there's no legal marriage. 2. No legal excuse No legal excuse means the aggrieved party can file a petition against his/her spouse on the condition that the accused party doesn't have legal excuse. On legal excuse restitution of conjugal rights is not valid and if the excuse is already legal then there's no proof required. Eg. Divorce, judicial separation or any of the grounds of divorce (in case of divorce there is no RCR). There is no legal ground which prevents the decree from being passed. CASE Gauri Shankar vs. Gayatri Devi Held: the court said recent view seems to be that the excuse may be sufficiently grave and weighty; it may be distinct from cruelty to the extent it falls short of legal cruelty. 3. No reasonable excuse Unless the withdrawal by one spouse from the society of the other is founded on a reasonable excuse, no decree can be passed under sec. 9 of the act. What is ascertaining reasonable or just ground for withdrawal from the society? The reason "must be grave and weighty" and it maybe distinct from a matrimonial offence. Reasonable excuse cannot be reduced to a formula and would vary with time and circumstances and will have to be determined by the court. In the modern matrimonial law, it will amount to reasonable excuse: 1. If there exists a ground on which the respondent can claim any matrimonial relief. 2. If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him. It seems that here also the reason should be grave and weighty. CASE Mohinder Singh vs. Preet Kaur Held: In this case after 6months of marriage, the husband became blind and the wife withdrew from his society, it was held that she had a reasonable excuse (because of his blindness)to withdraw. The husband's petition of restitution of conjugal rights was accordingly refused. NOTE: Apart from cruelty a reasonable excuse may cover a whole lot of other grounds, for ego the husband practicing bestiality or indulging in sexual intercourse outside wedlock or impotence. CASE Jagdishlal vs. Shyama Held: In this case the court held that because the husband was impotent the wife had a reasonable excuse to withdraw from his society. NOW IT'S WORTH TURNING TO CASES IN WHICH RESTITUTION OF CONJUGAL RIGHTS WAS GRANTED: CASE Puspa Devi vs. Vijay Pal Singh Held: It was held that the wife was unable to proof the charges of cruelty and hence the court granted a decree of restitution of conjugal rights in favour of the husband. NOTE: The burden of proof so much lies on the accused party to proof him/her. 4. Withdrawal Withdrawal from the society means that it is a withdrawal from the totality of conjugal relationship, such as refusal to live together, refusal to have marital intercourse and refusal to live in company and comfort. It is intention of the spouse which really matters. For eg. if a husband in spite of living under same roof with wife don't maintain any kind of relation with his wife, it is withdrawal. On the other hand husband and wife living separately due to their respective jobs without any kind of intention of living apart, it would not amount to withdrawal. Physical: In case of physical relation withdrawal from the society means spouses living under the same roof but do not accept each other, there's no matrimonial physical relation between both of them, they withdraw the society physically. CASE Venugopal vs. Laxmi Held: it was held that in a petition for restitution, it was not required to show that the parties were cohabiting earlier and spouses had not cohabited at any time after the marriage, a petition for restitution would lie if intention not to cohabit was established. CASE Sushila vs. Prem Held: When a husband dumped his wife in his father’s house and thereafter showed totally unresponsive attitude towards her it amounted to withdrawal from the society of the husband. Mental: In this case, when the parties are legally spouse but due to some reason they are far away from each other. CASE Narender Kumar vs. Chander Prathna Held:The court held that the behavior of the husband and his parents had resulted in mental torture and harassment. CASE Shanti vs. Ramesh Held: It was held that mere refusal of the wife to resign her job at the nstance of the husband is not a sufficient ground for granting a decree of restitution in favour of the husband, a wife's taking up a job even contrary to the wishes of the husband would not amount to withdrawing from the society. Constitutionality of Sec. 9 of the Hindu Marriage Act, 1955 Which Deals With the Restitution of Conjugal Rights As states earlier, to judge the constitutional validity of a section or act, we must compare it with the fundamental rights mentioned under Part III of the Indian Constitution. Over the course we shall compare section 9 of the Hindu Marriage Act with the fundamental rights that may be incongruent with this section and give a better understanding as to why and how the principle is or isn't in violation of that particular article. There have also been many cases in this regard. The Constitution of India is based on the principles of human dignity, equality and personal liberty. The marital relations are very intensively concerned with these fundamental rights. Our founding fathers drafted the Constitution keeping in mind the welfare of the people and saw to it that there were appropriate provisions such that a law was not misused so as to affect the people. Right to Equality and Restitution of Conjugal Rights: The Indian society is often regarded as one with wide spread discrimination based on gender. More often than not, there have been instances where women have been subdued to violence and injustice because of their gender. CASE T. Sareetha vs. T. Venkata Subbaiah. Held: The court held that though sec. of the act applied to the spouses the remedy actually worked to the disadvantage of the wife whose life pattern is altered, whereas the husband can remain almost as it was before. The court further observed that since sec. 9 violates the rule of equal protection of laws contained in article14, sec. 9 of the act doesn't sub serve any social good and must therefore held to be arbitrary and void offending article14. the court dismissed the petition filed by T. Venkata subbaiah against his wife T. Sareetha sine actress of south india. CASE Saroj Rani vs. Surdarshan Kumar Held:In this case the SC overruling the decision of the above case and finally held that sec. 9 of the act is not violative of article14 and 21 of the constitution. How to File a Case? The aggrieved party may apply to the district court by way of petition for restitution of conjugal rights. The person seeking restitution must establish: ? the other spouse has withdrawn from his or her society ?such withdrawal is without reasonable excuse ?there is no legal ground disentitling the petitioner from the relief of conjugal rights. The burden of proof lies on the person who has withdrawn from the society of his/her spouse to prove that he/she had reasonable cause to withdraw from the society of his/her spouse. The person who has withdrawn from the society of his/her spouse may prove that it has become impossible to live with spouse. Persistent demand for dowry or causing physical and mental torture was held to be reasonable cause for the wife to withdraw from the society of the husband. EXECUTION OF DECREE The decree of restitution of conjugal rights will be executed as per the CIVIL PROCEDURE CODE. Appeal may be made to the high court challenging the lower court order. ALTERNATE REMEDY: The legal services authority may be approached for legal aid any voluntary organization may also be approached for support. CONCLUSION AND SUGGESTIONS: It is thus understood from our discussion that the concept of Restitution of conjugal Rights has left enough ambiguity as to whether it is in violation of any of the fundamental rights guaranteed under part III of the Indian Constitution. It can be noticed that this provision is violative of articles 19 and 21 of the Constitution and not violative of other articles. After Sareetha & Saroj Rani's cases, the issue of constitutional validity has taken a new dimension. Today, one views this as a highly volatile area where there is a clash between personal laws and fundamental rights altogether. As mentioned earlier, personal laws do not come under the ambit of Constitutional Review, but we have used as in argue do in stating that even if they do come, they are not violative of some provisions of the Constitution. As we understand, this concept introduced in England now stands abolished. In India also, some jurist opined that the concept of restitution of conjugal rights is a farce and must not exist in India. They hope, in the near future, India too will progress towards realization. Realization that the rights of an individual are important and must be protected at all costs and the Courts must detach themselves from considering preservation of marriage as a social obligation which the law executors must protect. But in our opinion, it is not a coercive mean rather an effort to harmonise the conflict between the spouses that have arisen for one reason or other and therefore it should be retained . We have done our best to present this paper in the best manner possible and deeply regret if any loop holes arises in the same.
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