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SOCIOLOGICAL STUDY OF RESTITUTION OF CONJUGAL RIGHTS

Socio Legal Corp

Written Vaishnavi K

The word “restitution” means to restoration of something that has been stolen or lost and in terms of personal relationships refers to compensation for loss through recovery of the relationship while the word “conjugal” refers to issues regarding marriage or marital relationship between a husband and wife. The main goal and essence of marriage is both the spouses living together, carrying out their social as well as economic responsibilities and offering companionship to one another. But if any one of the spouses leaves the other without any the aggrieved party can seek justice through restitution of conjugal rights.

The concept of restoration of conjugal rights is to give relief to a spouse that has been abandoned by their significant other. It aims to provide remedies to a spouse whose other half has withdrawn from his or her company and society without a reasonable cause or justification to those who suffered from the unwilling separation. It does so by giving the aggrieved party the right to file a petition claiming relief for restitution of conjugal rights. The court will grant the relief by ordering the guilty party to live with the aggrieved party by issue decree only if some conditions are fulfilled. They are:

  • One of the spouses must have withdrawn from the society of another;
  • The withdrawal must be without any reasonable excuse;
  • The aggrieved party must file a petition for obtaining the relief of Restitution of Conjugal Rights;
  • The court must be satisfied in the statements made by the petitioner.

The concept of restitution of conjugal rights first originated in England in their Ecclesiastical Courts where if a spouse was abandoned by their partner without any justification they could go to court and obtain orders from the court which would require the spouse to cohabit with the aggrieved spouse. In India marriage is considered to be a sacred bond and union between two individuals where separation was considered to be a sin and thus there were no laws in ancient India regarding separation. The concept of restoration of conjugal rights was brought to India through the British and found its way into the Indian legal system under section 9 of the Hindu Marriage Act of 1955 which states that:

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being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”

 There are similar provisions in Chapter VII, of the Muslim Personal Law (Shariat) Application Act, 1937 , 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, 1969 and  in Section 22 of the Special Marriage Act, 1954 to inter-caste marriages. This right was for the very first time was implemented by the Privy Council in India, in the case of Moonshee Bazloor v. Shamsoonaissa Begum.

The constitutional validity of the provision for restitution of conjugal has been a matter of debate and discussion for a long time. For instance, it was challenged before the Andhra Pradesh High Court in Sareetha v. T. Venkatasubbaiah. In this case Sareetha claimed that section 9 of the Act is liable to be struck down as it violates Article 14 and 21 of the Constitution .Justice Choudary held that section 9 is unconstitutional as it violates the right to privacy and human dignity guaranteed by Article 21 of the Constitution.  But the case of Saroj Rani v. Sudharshan changed this as the Supreme court of India gave a judgment which upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in Sareetha v. T. Venkatasubbaiah giving the justification that the main purpose of this right was “to offer inducement for the husband or wife to live together” and to settle their differences amicably.”

In conclusion, it can be agreed that this right was introduced with the noble intentions of preserving the value of the scared institution of marriage by promoting reconciliation between the couple. But this varies from case to case, and more often than not it hasn’t had the desired effect as it violates the basic fundamental liberties of an individual.

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