Restitution Of Conjugal Rights: An Overview
Marriage is believed to be the most important institution that has been accepted in the personal laws of all religions. Over a period of time, complexity among the matrimony increased with areas of divorce, judicial separation and conjugal rights came up in personal law and the then government find it necessary to codify the laws relating to marriage in India. And it came into the knowledge of the government that the only remedy that a deserted spouse had against the other was to file a petition for restitution of conjugal rights. Further, the remedy of restitution of conjugal rights is known as a positive remedy. And, it requires both the parties to the marriage to live together and cohabit.
Marriage under all kind of matrimonial laws whether Hindu Marriage Act, 1955, Special Marriage Act,1954, Parsi Marriage and Divorce Act, 1969 or Muslim Marriage Act, 1939 all of them impose certain marital duties and gives certain rights to both the parties, certain legal rights. It is a necessary implication of marriage that parties will live together. Each spouse is entitled to comfort the other.
After the solemnization of marriage, both husband and wife are legally bound to maintain their conjugal life together. If either of the spouses deserted the other then the aggrieved spouse may get hold of a statutory matrimonial relief guaranteed under the codified personal law to restore their status of the other subject to corroboration of certain facts. The aggrieved party can avail the right by filing a petition in Family Court seeking for the resumption of cohabitation. And, It is known as Restitution of Conjugal rights.
Meaning
Restitution of conjugal rights mainly comprises of two words. Where Restitution means the restoration of something lost, and conjugal right means rights relating to marriage or the relationship between husband and wife. When either party to a marriage withdraws or deserted from the society then the other aggrieved party has a statutory right to file a petition to claim relief for restitution of conjugal rights before the court of law. The court will grant the relief if there is no legal bar to such decree.
History
If we dig history about the origin of this right then we will find that Indian matrimonial jurisprudence finds its origin in the Jewish laws. This cure was unknown to Hindu law till the British introduced the same among the Indian society. In fact, it is the only matrimonial remedy that was made available to the aggrieved spouse under the British rule to all communities in India under the general personal law. After independence when the legislature codifies The Hindu Marriage Act, 1955 then this remedy made its place in the Act.
Some of the thinkers had also opposed this concept stating the reason that a petition for restitution of conjugal rights is not a genuine petition and that these petitions were merely a convenient device either to enforce a money demand or to obtain a divorce.
Another Jurist stated that the remedy of restitution of conjugal rights was neither recognized by any Hindu mythological Shastra nor did the Muslim law made any provisions for it. Restitution of conjugal rights has its roots in middle age England, where a marriage was considered as a contract and wife was part of man’s possession like other movable properties belonging to him. This concept was introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum in the year 1867, where such actions were regarded as considerations for specific performance that are to be fulfilled as in a contract.
Under the Hindu Marriage Act, 1955
In modern India, all the laws related to matrimony cover the concept of restitution of conjugal rights specifically. The remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, for the Muslims it is available under the general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsi’s under Section 36 of the Parsi Marriage and Divorce Act, 1969 and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.
However, when a husband and wife might be living apart at times, but both are maintaining a frequent social and conjugal relationship, in that case, it would not be so that there is a withdrawal from the society by either of the party, which further implies that after the solemnization of the marriage if any of the spouses without any reasonable ground withdraw himself or herself from the society then, in that case, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights.
However, in the case of Ranjana Kejriwal vs Vinod Kumar Kejriwal, where the petitioner is the Wife, alleged that the husband was already married and had concealed the fact about his marriage from her. The Court in the given petition Observed that restitution of Conjugal Right is not maintainable since their marriage is not legally valid.
Read more blogs @ advocatetanwar.com