Restitution of Conjugal Rights

INTRODUCTION

Conjugal rights refer to the entitlement of spouses to engage in sexual relations within
marriage. This right is conferred as a consequence of marriage and is recognized under
various personal laws such as the Hindu Marriage Act, the Muslim Marriage Act, and the
Special Marriage Act.

In the Indian context, Hindu marriage is regarded as a sacred institution wherein two families
unite to form a relationship. It is generally assumed that in marriage, husband and wife are
obligated to reside together. Additionally, marriage grants spouses the legal entitlement to
anticipate a reasonable sexual relationship or the right to cohabit.

Frequently, challenges arise concerning the restitution of conjugal rights, particularly

regarding the potential infringement of fundamental rights such as privacy and autonomy.
This includes concerns about individuals' decision-making autonomy regarding their dignity.
Questions also arise about whether the decision to enforce restitution of conjugal rights has a
positive impact on society and women's lives, or if it instead exacerbates mental health issues
by compelling women to return to the same environment they left for their betterment.

HISTORY OF RESTITUTION OF CONJUGAL RIGHTS

Earlier woman were expected to live a chaste life to maintain social hygiene and moral
hygiene, the notion of marriage was onto woman, Christabel Pankhurst said that, marriage is
dangerous institution until man change their lifestyle and conduct a chaste life. 1 Lady
Florence Dixie wrote in the Women’s Herald criticising the institution of marriage and its link
to reproduction that ‘She is looked upon as a mere breeding machine for the creation of the
so-called dominant sex… plaything and slave of man’2

1
Christabel Pankhurst (1913) The Dangers of Marriage, reprinted in Marie Mulvey Roberts & Tamae Mizuta
(Eds) Perspectives on the History of British Feminism – The Wives: the rights of married women
(Routledge/Thoemmes Press 1994) 5
2
Florence Dixie, ‘A Woman's Plan of Campaign” Women’s Herald (London 24 January 1891) 211.
The idea of restitution of conjugal rights in Hindu law traces its roots back to the colonial era,
primarily originating from English common law and introduced to India during British rule.
Restitution of conjugal rights have no history from Manu smriti or dharmashashtra for Hindu
law or history from Koran for Muslim law, it came to India because of colonisation, it is now
part of Indian personal laws but our ancestors never practised it.

In English law, the concept of RCR was operational within ecclesiastical courts, also known
as Christian courts. Before the 1800s, desertion was not considered one of the matrimonial
offenses. The decree for restitution of conjugal rights could be granted and this decree
compelled the spouse to return to their partner and resume cohabitation. Failure to comply
with the decree could result in excommunication.

The Ecclesiastical Courts Act of 1813 replaced the practice of excommunication with
imprisonment. Subsequently, the Matrimonial Proceedings and Property Act of 1970
abolished the concept of Restitution of Conjugal Rights (RCR) as it was deemed outdated.
However, by the time of its abolition, very few cases had been decided under RCR. Initially,
suits of RCR were considered as a subset of ecclesiastical law, primarily applicable to
Christian marriages. However, in India the application of RCR became problematic,
especially concerning polygamous relationships because of various religions and British law
was made with Christians in mind.

A significant turning point occurred when a Muslim man approached the court seeking RCR,
to take her to matrimonial house against his wife's will as seen in the case of Moonshee
Buzloor Ruheem v Shumsoonnissa Begum.3 This case marked a shift in the applicability of
the doctrine to various religious cases, challenging its Christian-centric origins.

In the significant legal case of Dadaji Bhikaji v Rukhmabai, 4 the marriage occurred when the
girl was a minor. Subsequently, the husband pursued a Restitution of Conjugal Rights (RCR)
suit in court, aiming to gain access to her wealth. But, Rukhmabai, the wife, opted for legal
punishment instead of being compelled to live with the husband.

During the period of the Divorce and Matrimonial Causes Act of 1857, divorce proceedings
were financially burdensome for most individuals, making them largely inaccessible. Also,

3
Moonshee Buzloor Ruheem v Shumsoonnissa Begum (1867) 9 MIA 551 (PC)
4
Dadaji Bhikaji v Rukhmabai (1885) ILR 9 Bom 529.
the custody of children was typically awarded to fathers, making divorce an even less feasible
option for women. Consequently, many spouse resorted to living separately as the only
practical solution to marital unhappiness, given that obtaining a divorce was often out of
reach for the majority.

Historically, social conventions frequently restricted women to the parameters of matrimony,

irrespective of their personal preferences. Women who wanted to end a marriage were
frequently shunned by society, which fueled a destructive cycle of control and repression.
Restitution of marital rights developed as a tactic of patriarchal control, limiting women's
freedom of movement and compelling them against their will to return to their husbands. In
the end, the restoration of conjugal rights acted as a means of preserving patriarchal ideals,
impeding women's independence and the advancement of gender parity.

By the late 1890s, the concept of Restitution of Conjugal Rights (RCR) had waned in
England, particularly highlighted by the case of R v Jackson, where the court ruled that a
husband cannot compel his wife to return against her will. 5 However, this notion faced
opposition, notably in the case of Russell v Russell, where the relief provided by RCR was
criticized as a mere pretext for seeking financial gain or pursuing a divorce.

Throughout the 19th century, RCR gradually fell out of favor and usage, eventually being
formally abolished in 1970. However, in India, it remains entrenched within personal laws. In
some of the cases husbands may face criminal charges such as dowry demands, in order to
get a divorce as the court push people into restitution which other spouse does not want.6

In Canada, Restitution of Conjugal Rights (RCR) was initially adopted from English law.
However, due to similar conflicts and controversies surrounding its application, RCR was
abolished by the Family Relations Act RXBC in 1979. Subsequently, other provinces such as
Alberta, New Brunswick, and others followed suit by abolishing RCR through legislation like
the Family Law Act of 2005. Similarly, in Australia, the last recorded use of RCR was in
1978 before it was phased out.

5
Russell v Russel [1880] LR 14 Ch D 471
6
Puspa Kumari v Parichhit Pandey (2005)
 PERSONAL LAWS IN INDIA AND RESTITUTION OF CONJUGAL
RIGHTS

1. HINDU PERSONAL LAW

Under Section 9 of Hindu Marriage Act, 1955, If either the husband or the wife leaves the
company of the other without a valid reason, the aggrieved party has the right to petition the
district court for the restitution of conjugal rights. If the court is convinced of the truthfulness
of the claims made in the petition and finds no legal basis to deny the application, it may
decree the restitution of conjugal rights accordingly. The responsibility to demonstrate a valid
cause for leaving the company of the spouse lies with the individual who moved away

2. PARSI PERSONAL LAW

Section 36 of Parsi Marriage Act, 1936 states that, if a husband deserts his wife or ceases to
live with her without lawful cause, or if a wife deserts her husband or ceases to live with him
without lawful cause, the deserted party can seek restitution of conjugal rights through legal
action, and the court can intervene accordingly.

3. SPECIAL MARRIAGE ACT

Section 22 of the Special Marriage Act, 1954 states that if either the husband or the wife
withdraws from the company of the other without a valid reason, the aggrieved party can seek
restitution of conjugal rights by petitioning the district court. Upon satisfying the grounds of
the petition, the court may grant the decree for the restitution of conjugal rights. The
individual who has withdrawn from the company of their spouse bears the burden of proving
a reasonable excuse for their action.
 4. MUSLIM PERSONAL LAW

In the Abdul Kadir v Salima case7, the Allahabad High Court decided that the matter of
compensation should be determined according to Islamic law rather than principles of justice,
fairness, and morality. Under Islamic law, Muslim men have the right to engage in
polygamous relationships and can enforce conjugal rights to compel their wives to live with
them, they also retain the authority to issue a divorce (talaq) unilaterally at their discretion. 8
Other personal laws require petitions to be filed when seeking relief but in Muslim personal
law suffered party is required to file a lawsuit.

5. CHRISTIAN PERSONAL LAW

Under Sections 32 and 33 of The Divorce Act, 1869, if either the husband or the wife leaves
the company of the other without a valid reason, the aggrieved spouse can file a petition in
the district court seeking restitution of conjugal rights. The court, upon hearing the petitioner
and being convinced of the validity of the statements in the petition, and after considering
various legal grounds, may issue a decree for the restitution of conjugal rights.

Section 33 specifies that in response to a petition for restitution of conjugal rights, no

argument shall be raised that would not constitute grounds for a suit for judicial separation or
a decree of nullity of marriage.

QUESTION SHOULD BE RAISED

If one spouse has withdrawn from the company of the other without a valid reason, the
aggrieved party may seek restitution of conjugal rights by filing a petition with the district
court. If the court is convinced of the truthfulness of the statements in the petition and finds
no legal basis to deny the application, it may decree restitution of conjugal rights accordingly.
Additionally, in cases where the reasonableness of the withdrawal from society is in question,
the burden of proving a valid excuse lies on the spouse who has withdrawn from the
company.
7
Abdul Kadir v Salima (1886) 8 All 149.
8
'Changing Concept of Cruelty in Respect of the Restitution of Conjugal Rights in Mahomedan Law' (Family
Law 1961) accessed 19 February 2023
Courts have the authority to enforce restitution of conjugal rights if they determine that one
spouse has completely abandoned the other without any valid justification. However, the
question arises: what constitutes a reasonable excuse? When the provision states "withdraws
from the society of the other without reasonable excuses," the term "reasonable excuse"
remains ambiguous.

Hypothetically, if the husband has deserted the wife and she subsequently demands
Restitution of Conjugal Rights (RCR), but the husband does not wish to continue with living
with the wife, and if the court is not convinced with the grounds presented and instead deems
the case as one of total abandonment without reasonable grounds, ordering RCR, then this
could be considered court-mandated RCR. This action potentially violates the husband's
fundamental rights provided under Articles 14 and 21 of the Constitution. It also encroaches
upon his right to privacy and sexual autonomy by compelling him to live with the wife
against his wishes. But when court grant RCR then parties have no option but to resume
living together or cohabitation, if they fail in one year then it becomes ground for divorce for
the plaintiff.

In this situation what should be the reasonable grounds?

The choice one of the spouses make to live or not live with another person should be a
reasonable ground.

JUDICIAL INTERVENTIONS

The Andhra Pradesh High Court heavily criticized the doctrine of Restitution of Conjugal
Rights (RCR) in the case of T. Sareetha v T. Venkatasubbaiah, Justice Pinhey argued that this
outdated remedy, originating recently in India, is entirely illegitimate. 9 The court held this
doctrine unconstitutional, as it violated the rights guaranteed under Articles 14, 19, and 21 of
the Constitution. However, in the case of Saroj Rani v Sudharshan, the Supreme Court

9
T Sareetha v T Venkata Subbaiah (1983) AIR AP 356
overturned the ruling of the Andhra Pradesh High Court and ruled in favor of restitution of
conjugal rights.10

In the case of Smt. Kailash Wati v Ayodhia Prakash 11, the court ruled that when the economic
status of a couple is stable and there is no financial necessity for the wife to work or live
separately, insisting on her not to continue employment creates discrimination against
women. Despite being a gender-neutral doctrine, this judgment was deemed biased against
women, as similar statements would unlikely be made regarding men.

In the case of T. Saritha Vengata Subbiah v. State 12, the court deemed Section 9
unconstitutional as it mandates one spouse to live with the other against their will, leading to
a violation of the spouse's privacy. However, in the subsequent case of Harvinder Kaur v.
Harminder Singh13, the judiciary reverted to its previous stance.

In the case of Huhhram Vs. Misri Bai14, the court compelled the wife to live with her husband
against her will, thereby infringing upon her fundamental right of freedom of association as
guaranteed under Article 19(1)(c) of the Constitution. Despite the wife explicitly expressing
her stance to the court, the decision was made in favor of the husband.

In the Puttuswamy case15, the court determined that the decree of restitution or restoration of
conjugal rights constitutes a violation of an individual's fundamental rights, even though the
decree does not explicitly reference or highlight a fundamental right protected under Article
21.16

In the case of Josephine Shine v. Union of India 17, the court emphasized that marriage does
not diminish a married woman's entitlement to privacy and bodily autonomy. The court
further stated that any law that discriminates against women based on gender stereotypes
undermines their dignity.

10
Saroj Rani v Sudharshan, AIR 1984 SC 1562
11
Smt. Kailash Wati v Ayodhia Prakash
12
T. Saritha Vengata Subbiah v. State
13
Harvinder Kaur v. Harminder Singh
14
Huhhram Vs. Misri Bai
15
Puttuswamy case
16
Article 21
17
Josephine Shine v. Union of India
 ANALYSIS OF RESTITUTION OF CONJUGAL RIGHTS

The infringement upon the rights of the party seeking separation is evident in the court's
insistence on providing time for reconciliation, which can be perceived as a wastage of time
for that partner. This violates their right to privacy and sexual autonomy. Advising restitution
of conjugal rights to married parties, particularly in cultural contexts, can essentially force
reconciliation, as the court makes it difficult for the other party to disregard the advice. This
can lead to situations of imposed, unwanted physical and emotional intimacy, emotional
distress, marital rape, or instances of domestic violence, encompassing both physical and
mental cruelty.

Marital rape remains a contentious issue in India, lacking recognition in legislation. The
argument in favor of restitution is centered on preserving marriages and ensuring
cohabitation, which unfortunately exposes women to the risk of rape and trauma. In these
situations, compelling women to return to their matrimonial homes infringes upon their rights
to sexual and reproductive autonomy.18

This doctrine restricts the future right of the spouse to marry. Rather than using the
unenforced decree of Restitution of Conjugal Rights (RCR) as a basis for divorce, the court
should prioritize respecting the choices of both spouses. RCR prevents both parties from
enjoying their lives and exercising their right to marry the person of their choosing for an
extended period.

While marriage is often regarded as an institution, the enforcement of Restitution of Conjugal

Rights (RCR) was seen as fostering toxicity. In marriage, both partners are deemed equals
with equal rights, and compelling them to live together goes against the principles of
partnership and mutual respect, undermining the sanctity of the marital bond.

18
Australian Feminist Law Journal (2021), published by Taylor and Francis.
https://doi.org/10.1080/13200968.2021.1923252 Governing Conjugality: Social hygiene and the doctrine of
restitution of conjugal rights in England and India in the nineteenth century Laura Lammasniemi (University of
Warwick) and Kanika Sharma (SOAS University of London
How not ordering RCR in cases benefits both the parties. Hypothetically, if the wife wants a
way out of marriage because of marriage burnout and emotional exhaustion, and court does
not consider it a reasonable ground to order divorce or judicial separation and rather order
restitution, this is indeed violative of her rights but also leave her with a very few options in
order tom come out of marriage, using provisions like domestic violence becomes her last
resort.

When we call deserted party victim of injustice, then forcing other party to live with the
spouse, have their marital rights resorted, is also injustice by court without taking his/her
choice into consideration.

CONCLUSION

In conclusion, this matter is sensitive and complex so the courts should look into the matter
carefully and the courts should maintain the balance between morality and individual rights.
The implementation of this doctrine has disproportionately affected women, who should not
be compelled to reside with their husbands against their will. Even if we perceive this section
as a gender-neutral principle, it fails to uphold the rights of both spouses adequately.
Consequently, women bear a heavier burden and face greater obligations compared to men
due to this doctrine.19

Elevating the court's role in marriages is unwarranted. The choice to remain in or terminate a
marriage should be a matter of personal discretion. Being mandated by court into
cohabitation against their wishes, the enforcement of conjugal rights leads to discontentment
within marriages. The court should not play a part in violation of spouse’s fundamental right
to sexual autonomy, privacy etc.

BIBLIOGRAPHY

19
Balasubrahmanyan V, 'Conjugal Rights vs Personal Liberty' (Andhra High Court Judgment, 1983) [
Christabel Pankhurst (1913) The Dangers of Marriage, reprinted in Marie Mulvey Roberts &
Tamae Mizuta (Eds) Perspectives on the History of British Feminism – The Wives: the rights
of married women (Routledge/Thoemmes Press 1994) 5
Florence Dixie, ‘A Woman's Plan of Campaign” Women’s Herald (London 24 January 1891)
211.
Moonshee Buzloor Ruheem v Shumsoonnissa Begum (1867) 9 MIA 551 (PC)
Dadaji Bhikaji v Rukhmabai (1885) ILR 9 Bom 529.
Russell v Russel [1880] LR 14 Ch D 471
Puspa Kumari v Parichhit Pandey (2005)
Abdul Kadir v Salima (1886) 8 All 149.
'Changing Concept of Cruelty in Respect of the Restitution of Conjugal Rights in
Mahomedan Law' (Family Law 1961) accessed 19 February 2023
T Sareetha v T Venkata Subbaiah (1983) AIR AP 356
Saroj Rani v Sudharshan, AIR 1984 SC 1562
Smt. Kailash Wati v Ayodhia Prakash
T. Saritha Vengata Subbiah v. State
Harvinder Kaur v. Harminder Singh
Huhhram Vs. Misri Bai
Puttuswamy case
Article 21
Josephine Shine v. Union of India
Australian Feminist Law Journal (2021), published by Taylor and Francis.
https://doi.org/10.1080/13200968.2021.1923252 Governing Conjugality: Social hygiene and
the doctrine of restitution of conjugal rights in England and India in the nineteenth century
Laura Lammasniemi (University of Warwick) and Kanika Sharma (SOAS University of
London
Balasubrahmanyan V, 'Conjugal Rights vs Personal Liberty' (Andhra High Court Judgment,
1983) [