ISSN 2455-4782

RESTITUTION OF CONJUGAL RIGHTS – AN ANALYSIS

Authored by: Arsheya Chaudhry*

* 3rd Year BA LLB Student, Vivekananda Institute of Professional Studies, New Delhi
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Hindu law has been wedded on the notion that after marriage, husband and wife become one.
Marriage is an important institution and has been accepted in the personal laws of all the
religions. The only negative aspect of this notion was that the spouses could not sue each other.
However, as times changed, complexity increased and the concept of divorce, judicial
separation and conjugal rights arose. It became compulsory to codify these laws relating to
marriage. The result was that the only remedy available to a deserted spouse against the other
was the petition for the restitution of conjugal rights. The remedy of restitution of conjugal
rights is a positive remedy that requires both the parties in marriage to live together.

Marriage under all matrimonial laws imposes certain marital duties and gives the spouses
certain legal rights as well. The important implication of marriage is that the parties will live
together. After the solemnization of marriage, both husband and wife are legally bound by the
law to maintain their conjugal rights. If any one of the spouse’s departs or deserts the other,
then the aggrieved spouse is guaranteed matrimonial relief under the codified personal law to
restore their status. This can be done by filing a petition in the court seeking for resumption of
marriage. This is called Restitution of Conjugal Rights.

HISTORICAL BACKGROUND

The concept of Restitution of Conjugal Rights owes its origin to the ancient times when
institution of marriage was based on the proprietary rights of the husband. It is a very old
concept which was practiced in the ancient times as well.

The concept of Restitution of Conjugal Rights originated from the Jewish laws. It was adopted
into the Indian legal system neither from the dharma shastras nor from any personal laws but
it was adopted through the English Common Law of the British Raj. It was enacted in India for
the first time in the year 1866 by the Privy Council and through the means of judicial
interpretation and legislative actions found its way into the Hindu Marriage Act 1955, Special

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Marriage Act 1954, Parsi marriage and Divorce Act 1988, Divorce act 1869 and Muslim
personal laws.

MEANING OF RESTITUTION OF CONJUGAL RIGHTS

The concept of Restitution of Conjugal Rights comprises of two major words. These are
‘Restitution’ which means restoration of something and ‘Conjugal Rights’ which means
matrimonial rights. Therefore, it means restoration of the matrimonial rights of the aggrieved
in case these rights have been violated.

Hence, if either of the party to a marriage withdraws from the society of other without any
reasonable cause, the aggrieved party has a right to file a petition in the court claiming the relief
of restitution of conjugal rights. The court will grant relief if there is no legal bar to such a
decree.

The legal definition of restitution of conjugal rights is given under Section 9 of the Hindu
Marriage Act. The conditions to be satisfied for obtaining a decree are as follows -

1. The other spouse has withdrawn from the society of the petitioner
2. There is no reasonable excuse for such a withdrawal. Should the respondent allege
reasonable excuse, the burden of proof lies on the him/her
3. The court is satisfied with the statements made in petition
4. No legal grounds exist for refusing the decree

This right is only given when a legal and valid marriage exists between the husband and wife
and there has been a withdrawal from the society of the other without a reasonable excuse.

In the case of Ranjana Kejriwal v. Vinod Kumar Kejriwal1, petitioner wife alleged that the
husband was already married and had suppressed this fact from her. The court held that petition
for restitution of conjugal rights is not maintainable since a valid marriage does not exist
between the two. Thus, the relief was not granted by the court.

1
AIR 1997 Bom 300, 1998 (1) BomCR 268, II (1997) DMC 523

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BURDEN OF PROOF

Burden of proof is a legal standard that requires the parties to demonstrate that a claim is valid
or invalid based on the facts and evidence presented. In a case of restitution of conjugal rights,
the initial burden of proof lies on the petitioner. The petitioner has to prove that the respondent
has withdrawn from the society of the petitioner without any reasonable excuse or cause. If the
petitioner is able to discharge its burden, then the burden of proof shifts onto the respondent to
prove that the withdrawal from the society of the petitioner was for a reasonable excuse or
cause.

WHY HAS THIS LAW BEEN CHALLENGED?

This law has been challenged on the ground that it violates the right to privacy which is a
fundamental right and must be guaranteed to all. A petition had been filed in the court arguing
that restitution of conjugal rights is a coercive act on the part of the state which forces the
aggrieved spouse to cohabit with the other spouse. Therefore, it violates the Article 14 of the
Indian Constitution which guarantees equality to all and also is violative of Article 21 of the
Indian Constitution which guarantees the right to live with dignity. It is violative of Article 21
since it forces the spouse to live with the other.

Another reason as to why this provision has been challenged is because it is not in consonance
with the other previous judgements of the Supreme Court. The Apex Court in the case of
Josephine Shine v. Union of India, held that marriage cannot take away the right to privacy
and bodily autonomy of a married women. However, this law states otherwise. If everyone is
given the right to privacy and bodily autonomy then how can a court order two adults to live
together if one of them does not wish to do so.

Although, this law is ex-facie gender-neutral as it allows both the wife and the husband to seek
restitution of conjugal rights and approach the court for the same, the provision
disproportionately affects women. Women are often called back to marital homes as per this
provision, and given that marital rape is not a crime, leaves them susceptible to such forced
cohabitation. Several arguments have also been put up by legal experts stating whether the state
can have such a compelling interest in the protection of the institution of marriage that it allows
a legislation to enforce cohabitation of spouses.

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This provision acts as shield against divorce proceedings and alimony. When an aggrieved
spouse files a petition for divorce, the other spouse retaliates by filing a petition of restitution
of conjugal rights. Thus, this provision has been misused several times.

CONSTITUTIONAL VALIDITY

During the time of introducing the provision of restitution of conjugal rights in the Special
Marriage Act and Hindu Marriage Act, there were heated debates in the parliament for and
against this concept.

 The constitutional validity of restitution of conjugal rights was challenged in the case
of Sareetha v. T. Venkatasubbaiah2, in which the petitioner claimed that this remedy
is violative of the fundamental rights given in the Constitution specifically Article 14
and 21 and is therefore, liable to be struck down. Justice Choudary held that section 9
is barbarous and savage which violates the right to privacy and the right to live with
dignity given under Article 21.
 In case of Harvinder Kaur v. Harmander Singh3, it was held that Section 9 is not
unconstitutional since the aim of this section is to preserve the marriage.
 Ultimately, the Supreme Court in Saroj Rani v. Sudarshan4 gave a judgment which
upheld the constitutional validity of section 9 of the Hindu Marriage Act. The court
observed that the object of this section is to bring together the estranged parties so that
they can live together. The privacy of home and married life had nothing to do with
Article 14 and 21 of the Indian Constitution.

THE NEED FOR RESTITUTION OF CONJUGAL RIGHTS

The need for Restitution of Conjugal rights is an issue which has come into contention year
after year. Some people consider it as a negative relief while some consider it to be a positive
remedy. It is a mix of both. It is a negative relief since it forces a person to stay with the other

2
AIR 1983 AP 356
3
AIR 1984 Delhi 66
4
1984 AIR 1562

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person without his/her will, while on the other hand it is considered to be a positive relief as it
is a tool which is used to protect marriages which is considered to be more sacramental than a
contract or any other thing in countries like India. Marriage is seen as an eternal, unbreakable
and indissoluble bond which is formed in heaven and cannot be broken by humans. This
remedy brings the people withdrawing from the society of each other closer and allows them
to live peacefully.

INTERNATIONAL SCENARIO

The concept of decree of Restitution of conjugal rights is an issue which has been observed in
the whole of the world. Several countries have framed laws and made provisions to protect the
institution of marriage.

1. United Kingdom – In English law, there was a common belief that the decree for
restitution of conjugal rights was the only matrimonial matter over which the
ecclesiastical courts had jurisdiction. It could be issued against the person, either the
husband or wife, who withdraws from the society of other without any good ground
and if successful, the parties would be forced to stay together. It was followed for a
long period of time until a report was published by the law commission in Beirut in
1969 which recommended the abolition of this relief and as a result it was abolished by
the Matrimonial Proceedings Act, 1970.
2. Scotland – The term used for restitution of conjugal rights in Scotland was “adherence”
and it was abolished by Section 2(1) of Law Reform Act 1984.
3. Ireland – In Ireland, it was abolished by Family Laws Act, 1988 as it was considered
unconstitutional by the courts in a number of cases.
4. South Africa – It is also one of those countries which has got rid of restitution of
conjugal rights is as early as 1799 through the Section 14 of the Divorce Act,1979.
5. Canada - The family law in this country has varied from time to time, and till now it is
continuously evolving but it is somewhat based on the common English Law. The
Decree for Restitution of Conjugal Rights was considered in law. However, it was
present in only a few provinces of Canada. It was after the 20th century only that
standardisation of Family Law has taken place and after that only Restitution of
Conjugal Rights has been considered as a valid law in whole of Canada.

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CONCLUSION

Restitution of conjugal rights means restoration of the matrimonial rights. This concept is given
in the Section 9 of the Hindu Marriage Act. According to the section, if any person withdraws
from society of his or her spouse without any reasonable cause, the aggrieved party can file
petition in the court of law asking for the restoration of the matrimonial rights. The
constitutional validity of this section was upheld by the court in the case of Rani v.
Sudharshan5 in which the court observed that restitution of conjugal rights is not
unconstitutional as it brings together estranged parties so that they can live peacefully and in
harmony together. However, many PILs and petitions have been filed in the court claiming this
concept to be unconstitutional as it violates the right to privacy as well as the right to life given
in the Constitution. Under the existing laws of India, a spouse seeking restitution of conjugal
rights can get a degree directing his other spouse to live together and also to take part in sexual
intercourse. The spouse can also seek coercive measures in the form of attachment of property
in case the other spouse willfully disobeys to the degree of restitution.
Also, while we talk about gender equality and the gender-neutral quality of the law, women
are still at a disadvantage in the Indian scenario and this provision capitalizes on it. Dowry
deaths are a plague in our society and women being emotionally and mentally manipulated
and tortured for dowry are aplenty. When these wives, tired and broken by cruelty, leave the
husband's house, a decree of restitution of conjugal rights is a noose around their necks. It's
time for the Indian judiciary and society to shift to more progressive views starting with the
progressive theory of marriage. Marriage is not built upon the ceremonies but upon
the autonomy and freedom of two individuals who agree to share them with each other6.

This law is, therefore, unconstitutional and it violates the right to privacy as well as the right
of an individual to live with dignity. Thus, it should be struck down.

5
1984 AIR 1562
6
Available at https://www.drishtiias.com/daily-updates/daily-news-analysis/challenge-to-restitution-of-conjugal-
rights

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