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Restitution of conjugal rights

Introduction:Section9oftheHinduMarriageAct,1955embodiestheconceptof

Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. This right can be granted to any of the spouse. This section is identical to section 22 of the Special Marriage Act, 1954.[2] TheprovisionisinslightlydifferentwordingsintheParsiMarriageand Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different under the section 32 Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. The provision under Muslim law is almost the same as under the modern Hindulaw,thoughunderMuslimlawandundertheParsiMarriageand Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws. Lawful wedlock between two persons imposes an obligation on both the spouses to cohabit with each other and to live with each other. The expression withdrawal of society means cessation of cohabitation, to bring an end the consortium. The cessation of cohabitation or bringing to end of consortium should be the act of the respondent. The word "society" here means the same thing as cohabitation. Refusal to live with other spouse,
1

refusal for marital intercourse, refusal to give company and comfort to each other, all amounts to withdrawal from society. In a petition for restitution of conjugal rights, it is not required to show that the parties were cohabiting earlier. If the parties were not staying together earlier, the petition would lie when one of the parties intends to cohabit with

earlier, the petition would lie when one of the parties intends to cohabit with the other. This petition can be presented even if the marriage is not consummated and the other party wants to consummate the marriage from
English law. InEnglishlaw,wifeandhusbandweretreatedasasingleentityand therefore a wife could not sue her husband or vice versa From England these rightspassedontohervariouscoloniesontowhichherAnglo-Saxon jurisprudence was grafted and India was no exception in this regard. The provision was never a part of Hindu, Sikh, Muslim or Parsi Law, but the British imported it into India, through judicial pronouncements.

Thus in the absence of any statutory law the Indian courts passed decrees for restitution of conjugal rights for all religious communities. There is no

warrant in authority extending over 150 years in England from where we haveborrowedthismatrimonialremedy.Section9inasenseclearlyis inconsistent with the law as expounded in England and India in a stream of authorities. As long ago as 1866 the Privy Council in Moonshee Buzloor
Ruheem v. Shumsoonnissa Begum, (1867) 2 Moo IA 551 applied to this country the English remedy of restitution. In Indian legislature in 1955

codified this remedy. Section 9 had merely aped the British and

mechanically re-enacted that legal provision of the British ecclesiastical origin."

Restitution of Conjugal Rights.

The withdrawal is unreasonable or unlawful (ie it has not. been covered under the grounds for divorce, or judicial separation or nullity of marriage). However, if the reason for withdrawal is reasonable or lawful, a decree for restitution would be given. 1.Either spouse has withdrawn or refused to cohabit with the other spouse. When discussing restitution, one must look at what constitutes withdrawal from society.

from society. In England, in the case of Wilkies v. Wilkies (which was a case for divorce) the court held that even though the husband and the wife were living under the same root, they were living in separately. The provision in the Hindu Marriage Act and the Special Marriage Act has the same wordings. S.32 of the Indian Divorce Act is similar and in addition s.33 gives the grounds which would be considered in denying a decree for restitution of conjugal rights. The Parsi Marriage Act also, in sum and substance has similar provision relating to restitution of conjugal rights. The main ingredients of the various provisions relating to restitution of conjugal rights are: Ss. 32 and 33 of the Indian Divorce Act, 1860. There is no legal ground which prevents the decree from being passed.
Withdrawal From Society

Factum of Marriage

Restitution of Conjugal Rights

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