CRITICAL ANALYSIS OF RESTITUTION OF CONJUGAL

RIGHTS UNDER VARIOUS PERSONAL LAWS

FAMILY LAW – I

Submitted By

Rohan Dua

Division B 17010224134 BBA.LL.B 2017-22

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune.

In August, 2018

Under the Guidance of

Mrs. Srishty Banerjee

Assistant Professor, Family Law

CERTIFICATE:

The project entitled “CRITICAL ANALYSIS OF RESTITUTION OF CONJUGAL

RIGHTS UNDER VARIOUS PERSONAL LAWS“ submitted to the Symbiosis Law
School, NOIDA for Family law as part of Internal Assessment is based on my
original work carried out under the guidance of Mrs. Srishty Banerjee from July,
2018 to August 2018 . The Research work has not been submitted elsewhere for
award of any degree. The material borrowed from other sources and incorporated
in the research paper has been duly acknowledged. I understand that I myself
would be held responsible and accountable for plagiarism, if any, detected later
on.

Signature of the Candidate :

Date:
INDEX:
1. ABSTRACT
2. KEYWORDS
3. INTRODUCTION
4. JURISPRUDENCE BEHIND THE REMEDY
5. RESEARCH ANSWERS
6. CONCLUSION
ABSTRACT:
Family and marriage are the fundamental organizations of any general public. Each general
public has certain standards and tenets which have prompted the improvement of key
ideas, for example, use and custom. Marriage as a critical organization has been perceived
in the individual laws of the considerable number of religions. With the progression of time,
the complexities expanded with territories, for example, separate, legal detachment and
matrimonial rights came up in individual law and it ended up important to systematize the
laws identifying with marriage in India.

In English law, restitution of conjugal rights was an action in the ecclesiastical courts and
later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating
to marriage, over which the ecclesiastical courts formerly had jurisdiction.

This could be brought against a husband or wife who was guilty of "subtraction"; that is,
living away from their spouse without a good reason. If the suit was successful, the
married couple would be required to live together again.

Restitution of Conjugal Rights is a relief, which basically infers recovery or restoration of

one's marital rights or advantages which the marriage or the matrimonial bond qualifies
him/her for. There is a uniform course of action as for Restitution of Conjugal Rights in
most of the individual laws. Section 9 of the Hindu Marriage Act, 1955 makes this fix open
to the Hindus.

KEYWORDS:

1. Ecclesiastical
2. Consortium
3. Reconciliation
4. Divorce
5. Personal Liberty

INTRODUCTION:
Marriage is a holy formation of society and ought to be ensured by every single individual
law and the possibility of marriage ought to be secured by law. In any case, this ought not
be manhandled to such a degree, to the point that damage of any sort: physical or
legitimate is as a result of the marriage itself.

Every party to the marriage is qualified to the association of the other. So after the
solemnisation of the marriage if both the companions without sensible reason pulls back
himself or herself from the general society of the other then at that point aggrieved party
has a legitimate reason to file a petition in a district court for passing of matrimonial rights
such as restitution and such declaration might be passed, yet can't be implemented under
Indian Law. Arrangements are accessible to seek for a divorce if the pronouncement for
restitution of conjugal rights isn't complied with, for the bothered party.

S.9 of the Hindu Marriage Act gives numerous matrimonial reliefs to the distressed parties
to a marriage. Nonetheless, if the non-aggrieved party is a lady, she is as yet qualified for
maintenance under S.125 of the Code of Criminal Procedure and furthermore under S.25
of the Hindu Marriage Act. S.25 likewise gives support under the same in the event that
she doesn't need legal division. She can likewise look for divorce under S.13(1) if
compensation has not yet occurred.

LEGISLATIVE PROVISIONS:

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage
Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the
Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce
Act, 1936 and to persons married according to the provisions of the Special Marriage Act,
Section 22 of the Special Marriage Act, 1954.

For the Christian Community, a Christian husband and wife can also apply for an order of
restitution of conjugal rights. The Court cannot pass the decree for following reasons:

• Cruelty of husband or wife

• If either of the spouse is insane
• If any one of the spouse marries again

Also used mentioned is Section 7 of Hindu Marriage Act, 1955 as well as Article 13 and
14 of the Constitution of India.

JURISPRUDENCE BEHIND THE REMEDY:

Hindu marriage is viewed as a sacrosanct. It has both contractual, as well as sacrament
aspects.1 The smritis, which comprise a major source of Hindu law, traditionally regard
marriage as an essential samskara or religious obligation. 2 This aspect of Hindu law can
be noticed in the stipulations like satpadi or sacred fire, that are essential to constitute a
valid marriage as elucidated in section 73. The courts expect that in exchange for the rights
conferred by the personal laws on the parties to the marriage, they fulfil the marital
obligations imposed on them by the provisions of the act. In this context, the performance

1 A. Jayachandra v Aneel Kaur , AIR 2005 SC 534

2 Flavis Agnes, . Family Law and Constitutional Claims. Oxford University Press. (2011).

3 Section 7 Hindu Marriage Act, 1955

of religious ceremonies and rituals are deemed mandatory and the sacrosanct marital bond
as eternal and in dissolvable.4

When the remedy was first introduced in India during the British rule in the pre-
independence period, many argued that it was based on the notion of sound public policy
and natural justice.5 The relief originates from the concept of 'consortium'6 and was
extended to both spouses7, though in actual practice it is the husband who in most of the
cases appears as plaintiff or petitioner in his attempt to secure the society and company
of his wife.8

The courts throughout India have construed that marriage, as a socially sanctioned
practice and family as its essential structure, provided husband and wife inherent rights
over each other’s society. The Supreme Court expressed its motivation to protect these
uncodified laws towards, the social function of preventing the breakup of the marriage.

In Hindu Law, there there was never a clear recognized institution of restitution of conjugal
rights; rather it was something that was considered to be more of an informal obligation
or duty than an actual rule.9 In the case of Bai Jiva v Narsingh Lalbhai, the court held
that “Hindu law itself, was focused on the duty of the wife to live with and obey the
husband. Yet it did not provide for a procedure of enforcing this by compulsory action of
the courts, or otherwise.”10 The rights of the husband in the marriage according to English
jurisprudence, as against his wife, should be that the wife shall not deprive him of her
society, failing which he can petition for ‘restitution of conjugal rights’, and that she shall
not commit adultery, but in this case he may, at his own discretion, by obtaining a divorce,
deprive her of any claim to his society or support. He might formerly have chastised her
for levity of conduct, and in quite recent times restrain her personal liberty.

The majority of court rulings in India have held that Hindu marriage is reparation of sorts
with the implied function of the consort to “follow, cohabit with the husband, wherever he
may desire to do so”. 11
In the case of Ram Prakash v Savitri Devi, the court implied

4 Arushi Nayar, (n.d.). "RESTITUTION OF CONJUGAL RIGHTS - PRESERVING A SACRAMENT OR CREATING A

LIABILITY. "JCIL, 11.

5 R.K. Agrawala, Matrimonial Remedies Under Hindu Law. (1974)

6 A.A.A Fyzee, (n.d.). Outlines of Muhammedan Law p.121.
7 K. Saksena, Muslim Law as Administered in India and Pakistan. p.207 (1954)
8 Kateeram Dokanee v. Mst. Gendhenee, (1875) 23 Soth WR 178.
9 M. Basu, (n.d.). Women & Law in India – Hindu Woman and Marriage Law
10 Bai Jivi vs Narsing Lalbhai, (1927) 29 BOMLR 332, 101 Ind Cas 403
11 Flavis Agnes, . Hindu Women and Marriage Law . (2004)
that “the chosen abode of the husband was the sanctioned locus of performance of duties,
under holy matrimony”.12

What were the circumstances that led to the central government to

include section 9 when formulating the Hindu marriage act, 1955 ?
What was the need to have section 9 in the act ?

Firstly, the origin of this remedy of restitution has been derived from the Ecclesiastical
courts of the west, which are part of the larger spectrum of the English Law. These courts
were set up by religious authorities to deal with disputes among clerics or with spiritual
matters involving either clerics or laymen. Such courts by this decree of restitution forced
the obstinate spouse to discharge due obligation towards the aggrieved spouse. Later in
England the remedy was recognized by the various Matrimonial Causes Acts which passed
from time to time. The provision was never a part of any of the personal laws existing at
the time, but the British rulers introduced it in India, through judicial pronouncements.

When the act was being formulated, there was constant debate amongst the legislators
over the inclusion or exclusion of divorce in the statute. This took up a lot of time and as
a result the remaining remedies never got their due discussion and examination. Moreover,
the legislators were very much influenced by the provisions of matrimonial remedies which
were available under English law and which were in operation in British India. So, the
legislators, especially the Congress, which had tremendous majority in the Parliament at
the time of its formulation, completely overlooked the majority of the remedies and didn’t
even think to experiment with them within the Indian landscape thereby overzealously
supporting the idea to include and adopt matrimonial remedies of English law into the act.

Many British legal scholars had declared the remedy of restitution as outdated and called
for its complete abolishment. Its ineffectiveness and futility have long back been
appreciated and brought to light by experts of English family law. Because of the criticism,
the Hindu Marriage Act, 1955 became one of the most controversial acts passed after
independence.

In the past, both under English Law and Hindu Law, the decree for restitution was
accompanied by some positive sanction for its enforcement. For E.g., In case of non-
compliance of the decree, the defaulter’s properties could be attached or he/she could be
imprisoned. But Soon it was realised that this was not fruitful nor convenient for both
parties. Therefore, these sanctions were done away with.

12 AIR 1958 P H 87
In the Parliament, during the debate of the Hindu Marriage Act, 1955, Mr. Khardekar
strongly opposed the remedy by saying that it was crude, uncouth, barbaric and vulgar
and that it was completely against right to liberty of the individual by having a brutal or
forced reconciliation of the parties. In response, the then law minister H.V. Pataskar said
that the procedural laws existing in the country cannot allow for forced execution and
forced reconciliation so there was no reason to say that the remedy is ineffective.

Q.2. Restitution of Conjugal Rights is aimed at preventing the

disruption of a marriage between the parties, not its dissolution.
But in recent years this remedy has come under criticism for giving
the parties the opposite of what it’s meant for ,i.e., Divorce or
Separation. How can this remedy be modified and utilised in order
to make it work effectively for its original purpose ?

This question was partially answered by the supreme court case in Saroj Rani vs
Sudarshan Kumar13 and the Delhi High court case in Harvinder Kaur vs Harminder
Singh14 when the court uphold the constitutional validity of Section 9 of the Hindu
Marriage Act, 1955. The constitutional validity of the remedy of restitution partially
dovetails with its effective utilisation and purpose. Both of the aforementioned cases
looked upon the flawed Andhra Pradesh High court judgment in T.Sareetha v. T.
Venkatasubbaiah.15

But before we delve into the other half of the answer, we can safely discuss the status of
the restitution remedy in the present scenario and in the contemporary times in order to
conveniently arrive at the answer. It has long been held by jurists and legal scholars that
in the contemporary times reconciliation has barely been the aim of the petitioner in
restitution petitions. Presently, in spite of its incapacity and incapability to really effectuate
a genuine restitution amongst the spouses, it still remains a much frequently used
matrimonial relief from either spouses both in England and India. In India, according to a
survey of reported cases between 1954 and 1969, it has been surmised that restitution
petitions are as a rule made with ulterior motives. The facts and trend of the cases show
that the petitioner has never, from the beginning itself, never desired any sort of
reconciliation with the spouse, the main aim of the petition being to either frustrate his
wife’s claim for maintenance or to evoke a ground for divorce.

13
AIR 1984 SC 1562
14
AIR 1984 Del 66
15
AIR 1983 AP 356
In Annapuranamma vs. Appa Rao (APHC, 1963)16, a daring wife started divorce
proceedings on the ground that the husband suffered from leprosy. The husband retaliated
in the form of a restitution petition. Before the restitution petition, we could have safely
assumed that it would have been normal or prudent for him to defend the divorce
proceedings, but it showcased a different intention on the part of the husband to reconcile
with the wife who is bent upon getting a divorce due to the husband’s leprosy. The
restitution petition here clearly was meant to frustrate the wife’s claim for divorce, or to
unnecessarily prolong the divorce proceedings against him.

Restitution petitions were being frequently and consistently used as a springboard to

obtain divorce. Up until the Hindu Marriage(Amendment) Act, 1964, only the decree holder
was entitled to initiate divorce proceedings after one year of non-compliance of restitution
decree. After the amendment, both the judgment debtor and the creditor were entitled to
make use of the ground of non-compliance of restitution decrees to obtain divorce.

In Ishwar Chander vs Pomilla Ahluhwahlia 17

, the petitioner filed a petition for nullity
of his marriage immediately after receiving the decree for restitution, during the pendency
of which there could be no question of restitution. After two years of this strain in the
relationship between the parties, he petitioned for divorce on the ground of non-
compliance with the restitution decree. The court rejected the petition stating that in
computing two years of time during which nullity petition was pending before the court,
had to be eliminated; therefore two years had not legally elapsed between the restitution
decree and the petition for divorce. In this case, it can be safely be assumed or inferred
from the facts and circumstances that the restitution decree had been obtained for being
used as a springboard for divorce.

The constitutional validity of the provision has been frequently debated. The bare reading
of the provision of section 9 makes it open to various interpretations. The Saroj Rani case
and the T. Sareetha case offer conflicting opinions from the judges. Each judge having
their own views and relying on their own understanding of jurisprudence to decide the
provision’s constitutional validity.

Many people have advocated for the abolition of the remedy of restitution in spite of it
being held constitutionally valid as pronounced in the Saroj Rani Supreme court case.
This maybe because the judgment in the aforementioned case relied upon the judgment
of Harvinder Kaur vs Harminder Singh (Delhi HC, 1983) which was given by Justice
Rotagi. Justice Rotagi, while upholding the constitutional validity of the provision wants to
do away with provision itself by saying that the remedy is outdated for the modern age,

16
AIR 1963 AP 312
17
AIR 1962 P H 432
but the existing law restricts him from doing so. He reasons that it’s the duty of the
legislature to intervene and abolish the restitution remedy and do away with the provision
of Section 9 itself because the judiciary cannot. The judiciary can merely strike it down
and recommend its abolishment based on valid and reasonable reasons. In the
aforementioned case, the hon’ble judge couldn’t find any valid reason from either the
party’s pleadings or the facts and circumstances of the case for it to declare the provision
as invalid. Therefore, by the existing law he could only uphold its validity.

One of the most revolutionary and out of the box judgments in contemporary times which
vehemently criticised the remedy of Restitution was the judgment rendered by Justice P.
Chaudhary in T.Sareetha v. T. Venkatasubbaiah. Justice Choudary held that “a decree
of restitution of conjugal rights thus enforced offends the inviolability of the body and the
mind subjected to the decree and offends the integrity of such a person and invades the
marital privacy and domestic intimacies of such a person.” According to him, at the heart
of the issue was the fact that the law, essentially, was a law compelling sexual intercourse.
“The consequences of the enforcement of such a decree”, he observed, “are firstly to
transfer the choice to have or not to have marital intercourse to the State from the
concerned individual and secondly, to surrender the choice of the individual to allow or not
to allow one’s body to be used as a vehicle for another human being’s creation to the
State.” This out of the box thinking presented a major break with traditional notions of
privacy. Justice Chaudhary held Section 9 of HMA, 1955 to be void on grounds of violation
of the rights of equality and privacy. While this was eventually overruled party because of
Saroj Rani but mostly because of Harvinder Kaur, it still remains a focal point for other
cases that might attempt to shape equality and privacy in an uninhibited, free-spirited and
liberal way, perhaps to do away with this remedy of restitution altogether and come up
with a more equality-oriented, progressive and a dignified remedy for reconciliation in a
strained marriage.

The alternative to this remedy should be a more progressive one which safeguards the
rights of both the parties in dispute. Over the years, the remedy of restitution has strongly
come to favour the petitioners by denying the right to personal liberty to the women( it
has been mostly women). The court should order an arbitration like proceedings between
the parties wherein they could argue amongst themselves before a neutral party, the cause
for their strained relationship and then steps could further be taken by all three parties to
reconcile the marriage. In this process, if the parties can clearly make out a scenario
wherein they can let go of their troubles and can have sufficient cause to continue living
under the same roof, then only the court should be allowed to pass a decree for the same.
Otherwise, the court can order a decree for separation.
CONCLUSION:

After all this discussion, I can fully agree with Justice Chaudhary’s ruling in T. Sareetha.
The case took a different outlook towards the remedy and objectively criticised it for its
violation of personal liberty. To a certain extent, I also agree with the decision in Saroj
Rani. Justice while saying the remedy is outdated, could not strike it down because it was
the job of the legislators. But I personally believe that this remedy should never have been
instituted in the first place. A party should never be in a position to compel the other party
to let him/her be part of his/her society. But this remedy, being part of HMA, 1955 could
not be subject to the constitution because personal laws in India are generally held to be
outside the purview of Article 13(2) of the Constitution. So, the supreme court couldn’t
anyway hold it violative of fundamental rights. The parliament should think long and hard
about the negative consequences of this regressive remedy. If India really wants to
strengthen and enforce women empowerment, then it really needs to repeal this remedy
and do away with it completely and let the parties harmoniously resolve their matrimonial
disputes without any judicial interference.
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