“Motto for a bride and groom; we are a work in progress with a lifetime contract” is quoted by Phyllis Koss. It is very important that we understand the definition of conjugal right before we get deep into the topic. According to Webster Dictionary Conjugal rights means, the sexual rights or privileges implied by and involved in the marriage relationship: the right of sexual intercourse between spouses, in other words Conjugal rights means Right to stay together. Now, these conjugal rights are being deprived in various ways; there are many circumstances that we come across through our friends and family members that, there is a lot of misunderstandings between the married couple, thus they are living apart from each other.
There was an observation carried out by Burgess and Locke, they stated that “In Indian Society Marriage and Family are two strong pillars; marriage and family are two most important words when it comes to Indian society. Marriage is a religious institution, which plays an important role in shaping the society, but in the present as we live in a generation where life is too fast due to which there are too many feuds as well. Due to all this there is a lack of harmony and peace between the married couple.
So in this topic I will be discussing about various aspects of Conjugal rights, we will concentrate on questions such as:
- What is the restitution of conjugal rights?
- What are the qualifying criteria?
- What are the grounds for rejection?
- Where the aggrieved party can file a complaint and what are the other steps he will carry forward?
- What is the difference between Conjugal rights and divorce and also what is meant by judicial separation?
Right to stay together
Marriage as a religious and social institution gives rise to a relationship between two partners: the husband and wife, this relationship in future will be giving rise to many other relationships, and it is important to note that with a new relationship there arise new obligations and rights as well. These Rights are known as Conjugal Rights in terms of marital union. It is very certain that during the course of staying together each spouse will be a moral support to another spouse and they will be living their life in a peaceful and pleasantly manner, but for an instance due to some unreasonable problem if one partner leaves another, then the aggrieved party can move to the courts of law for seeking justice. In India Restitution of Conjugal rights is the only remedy available.
Section 9 of Hindu Marriage Act
Restitution of Conjugal rights is stated under Section 9 of the Hindu Marriage Act as follows, When either the husband or the wife has, without reasonable excuse, withdrawn from the society of 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.
The suit for restitution of conjugal rights can be filed if the spouse is found guilty of staying away without any reason or just cause, in this scenario if the suit has been filed and if the conjugal rights has succeeded then the married couple have to stay together, referring to this instances the Section 9 of Hindu Marriage Act is also known as saving clause or Section. Monshee bazloor vs Shamsoonaissa Begumwas the first case of India where this remedy was first implemented.
Ingredients for Restitution of Conjugal Rights
There are specific grounds to be satisfied for restitution of conjugal rights
- The marriage must be valid.
- Spouse must be staying away.
- There must be no reasonable ground for staying away.
- Aggrieved party must apply for restitution of conjugal rights.
Grounds for Rejection
- If the respondent is getting ant matrimonial relief.
- If the petitioner has done any marital misconduct.
- If the action of the petitioner is found not suitable for the marital relationship.
Burden of Proof under Section 9 of Hindu Marriage Act
As always the Burden of Proof lies initially on petitioner to prove that respondent has moved away from him / her anyway once the petitioner succeeds in this, the burden of proof now shifts on to the respondent to state what made respondent to move away from the petitioner.
What can be done by the aggrieved party?
Usually, the aggrieved party will be filing a petition in the District court, once it is done when the court is satisfied with the petition of the aggrieved party, the court shall pass the decree of restitution of conjugal rights in favor of the aggrieved party. The action will be taken according to the provision of Civil Procedure Code, after the lower court’s judgment if the aggrieved party is not convinced he can appeal to the High Court challenging the lower court’s decision. It is to be noted that, the wife can claim the maintenance during this period according to Section 25 of Hindu Marriage Act.The Court will attach judgment -debtor properties if the said decree is not obeyed and if the decree is not observed for the period of one year then it automatically sets the ground for divorce.
Constitutional Validity of Section 9 of Hindu Marriage Act
It is to be taken note that, the privacy of the wife is violated during restitution of conjugal rights. In the judgment of Kharak singh vs State of UP the Hon’ble Supreme Court has held that, Right to Privacy is a fundamental right, but again in the case of Gobind vs State of MP, when the question was raised regarding the problem of Kharak Singh case, the Supreme court held that, Right to Privacy is a part of other Rights of liberty.
The Court has upheld that, Section 9 of Hindu Marriage Act is unconstitutional as it forces the wife to stay with her husband even when she is unhappy with him, this was held in the case of T. Saritta Vengata Subbiah vs State, but again Section 9 of the Hindu Marriage Act was restored back to its original position i.e. it was held that Section 9 is Constitutional in the case of Harvinder Kaur vs Harminder Singh.
An effective alternative
In the present world , the restitution of conjugal rights is highly debatable topic, according to some it is all about preventing the marriage but rest it doesn’t make sense, making two parties to stay together who aren’t happy with each other will give rise to more problems, an effective alternative would be concept of Reconciliation, the main idea behind it is ,that it doesn’t forces parties to stay together , rather it is very mild and just requesting and giving them ample time to figure out ,whether if they stay together will it be giving rise to new problems or what. If courts of law could look into the benefits of reconciliation and if a separate committee would be formed to resolve the marriage disputes via reconciliation then, there might be chances that both the parties could figure out and can think about measures of staying together as it isn’t hard and fast rule to always stay together as in the case of restitution of conjugal rights.
Most of the times, the concept of restitution of conjugal rights paves way for couples for leading a good life, but it does not serves it purpose all the time, because when one of the party parts himself from another party partially or totally and they find no reasons to compromise and to stay together then the purpose of restitution won’t be effective.
- The Hindu Marriage Act 1955, sec 9.
- Monshee bazloor vs Shamsoonaissa Begum 1866-67 (11) MIA 551.
- The Hindu Marriage Act 1955, sec 25.
- Kharak singh vs State of UP ,AIR 1963 SC 1295: (1964) 1 SCR 332.
- Gobind vs State of MP, (1975) 2 SCC 148; AIR 1975 SC 1378.
- T. Saritta Vengata Subbiah vs State AIR 1983 AP 356
- Harvinder Kaur vs Harminder Singh AIR 1984 Delhi 66.
This article has been written by Dhaaranee Karunagaran from Saveetha School of Law.