Restitution of Conjugal Rights; A Constitutional Dillema and the Gendered Shadows of Inequality

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Author: Brajeshna Snehadarsinee Guru, a student of SOA National Institute of Law, Bhubaneswar

Abstract

“A great marriage is not something that just happenes, it’s something must be created”

The marriage in Hindus is known as an institution which believed to be an attempt to get salvation or ‘moksha’. It is a sacrament rather than having any contractual obligations. The marriage being an institution plays a very crucial role in the society. The society is `formed by families and families get constituted from the solemnisation of marriages. But the world is dynamic, like the coin has two sides, everything has its pros and cons. Due to even mild inconvenience, lack of harmony among the parties to the marriage, feud and conflict amplifies. As a consequence, there arises bitterness in relationship.

It is seen that; rate of matrimonial dispute is exceeding. Back then, these disputes were not given much exposer. But nowadays, many ways have come into prevalence to settle down the same. Most importantly, families being social groups, the communication and togetherness plays a key role, where people are bonded with the ties of marriage and get united.

So, this article is a strive to analyse one of the remedies for disputes to marriages- ‘Restitution of Conjugal Rights’ as per Hindu Marriage Act, 1955. Also, to scrutinize its sanctity as to whether it is violative of Constitutional Provisions; The Fundamental rights per se.

Key words

Restitution of Conjugal Rights, Constitutional Provisions, Hindu Marriage, Violation

Introduction

In the context of Hindu marriage, it is totally contemplated as a sacrament which has been completely derived from the words of gods and by the scriptures and sacred texts, books written by sages since the time immemorial. The marriages in Hindus lies in cultural, traditional and religious aspects. Society believes the marriage is such a union which is permanent and eternal which is not only valid in the present life but also in subsequent lives. The marriage is considered to be in-dissolvable union of flesh and flesh, bone with bone and soul to soul.

In the Hindu religion a man, without wife is considered incomplete. Sometimes, he is prevented to perform certain religious ceremonies without wife. Being with a wife he is complete hence wife is regarded as “Ardhangini” means the other half of a man. Marriage is a Sanskar, which is given importance and value in virtue of tradition and moral and to fulfil the religious duties that is Dharma, Artha, Kaam, Moksha. So, the ties are eternal which is immortal never could be dissolved. But sometimes those ties get entangled. The rights and obligations which should be performed between the parties to marriage ultimately collapsed.

“यथा ह्यल्पेन यत्नेन च्छिद्यते तरुणस्तरुः । स एवाऽतिप्रवृध्दस्तु च्छिद्यतेऽतिप्रयत्नतः ॥

एवमेव विकारोऽपि तरुणः साध्यते सुखम् । विवृध्दः साध्यते कृछ्रादसाध्यो वाऽपि जायते ॥ “

Just like a tender plant is easy to cut down when it grows fully, it requires much efforts to cut. Similarly, any disease is manageable in early stages but it becomes all most incurable when it grows. Likewise, in the Hindu marriage act 1955 remedy is given to restore the rights and liabilities which was been breached. As, everything is controllable at early stages, in the dispute is prescribed to be dissolved at the ground stage by cohabiting and communication.

Restitution of Conjugal Rights

The restitution of conjugal rights means, to restore the mutual rights which were enjoyed previously by the parties to marriage. This remedy provided under section 9 of Hindu marriage act 1955.

The section States, the court to grant a decree under the below mentioned circumstances:

One party withdraws from the matrimonial home or seizes to cohabit with spouse without any reasonable cause.

One of the spouses withdrawn from society of the petitioner. ‘Society’ here refers to the home to reside and to take care of the spouse and withdrawn from society means, terminating bond without any reasonable cause, with the intention of abandoning permanently or indefinitely. Exception: If husband and wife leave apart but maintain the marital obligation that would not constitute withdrawing from the society.

In the case of R. Natarajan v. Sujatha Vasudevan wife was living apart from her husband and matrimonial home, as she found it was difficult to live with her in-laws. It was held that, only the above statement is not a ‘reasonable cause’.

Reasonable excuse should not be there: If someone has withdrawn from the society of the other, the border of prove lies on the defendant who has withdrawn. Article 19 (1)(g) of Indian Constitution mentioned about the freedom of practicing any profession, occupation, trade or business inducing some restriction.

So, the section 9 does not imply to resign from the work and to continue living with the spouse, if the work places are different until the maintenance of social and mutual rights and interaction.

Mirchumal v. Devi Bai it was held in this case that; wife is refusing to stay together in matrimonial home just because she has to quite her job is not a valid reason for filing appeal for Restitution of Conjugal Right. The demand was considered as unreasonable. The wife still was willing to perform her marital obligations. So, her interest to continue the job and her willingness to maintain the marital rights were given importance.

There should not be any legal ground due to which the petition could be declined.
The court must be satisfied with the facts of the petition.

Manjula Zaverilal Kothari vs Zaveriial Vithaldas Kothari (1973), Hon’ble Court stated, if aggrieved party filed a petition for restitution of conjugal rights and also has proven that the defendant has withdrawn from society, the defendant has the prove that there was a reasonable cause of abandoning their spouse.

Marriage must be valid. The wedding must be carried out as per the statute of Hindu Marriage Act,1955 and must fulfil the essentials of valid marriage, mentioned in section 5 & section 7.

Section 5 states about requisites of a valid marriage. If spouse is living at the time of marriage, the consent is obtained by fraud of at the course of insanity, the age if bridegroom is not 21 or above and bride is not 18 or above, the marriage is done between sapindas or prohibited relationship, the marriage will not be considered as valid unless the costom and usage allows the same.

Section 7 mentioned the marriages to be solemnised according to customary rites and ceremonies and performance on of Saptapadis ; 7 steps around the sacred fire.

Burden of proof

The burden of prove operates at two levels.

On the petitioner who needs to prove that defendant has withdrawn from the society without any reasonable cause. Then it will fall on the defendant to prove that there is an underlying reasonable cause of their act.
In case of the decree passed in the favour of petitioner, the defendant ought to restore the rights and live within the petitioner’s society and to cohabit with their spouse.

What exactly lies within conjugal rights:

when it is referred to conjugal rights, it means all the marital liability. The breach of conjugal rights doesn’t only include the abandoning the cohabitation with spouse but also, conjugal rights include taking care of each other, decision making, management of matrimonial home, the future plans, looking after child or the future of child etc., which are essential to be performed for the well-being of each other and to have a good marital life.

Constitutional validity of restitution conjugal rights

In one hand where marriages among Hindus is said to be eternal and unbreakable. So, the remedy arised to restore the rights and resolve the inconvenience and dispute by companionship and communication. On the other hand, the restitution of conjugal rights somehow forces the defendant, if the decree is passed in the favour of petitioner, to cohabit with them.

In T. Sareetha vs T. Venkata Subbaiah, 1983, the constitutional validity was challenged. Where the wife sees to cohabit with her husband, even after 5 years of their marriage. The husband filed a petition for restitution of conjugal rights under section 9 of Hindu marriage act 1955.

The defendant argued that, she is been forced to live with the petitioner and the article 21 ‘Right to Life and Liberty’ of her is being violated.

Also, she stated that, the petition is violation of her fundamental rights that is article 14 and article 19.

The Andhra Pradesh court then passed the judgement in favour of the dependent and held that, it is violative of fundamental rights of a person, which is can’t be overruled. Compelling anyone to cohabit with someone is against the right guaranteed by Constitution of India.

In the case of Smt. Harvinder Kaur vs Harmander Singh, 1984, the Delhi High Court rescinded the judgement which was stating that the section 9 violets the constitutional provisions and ruled, it is not so and stated the objective of section 9 acts as a good faith and moral, it is meant to conceal the problem and for reconciliation of the couples through arbitration with a good note. Also, to promote the wedlock to be carried out immaculately.

Article 14 guarantees the equality before law and equal protection of law. This article promotes and is the foundation of the just and fair judicial system.

Article 19 grands the freedom of speech, action and expression, to the citizen of India. Article 21 safeguards the rights to life and liberty and ensure that no person should be deprived of their life and personal liberty.

The discussion and criticism between article 21 and section 19 display the correlation of privacy and autonomous rights within the ambit of marital aspects and law. The section 9 of Hindu Marriage Act which protects the marital bond and preserves the marriage and its continuity, must be set in equilibrium with the fundamental rights, particularly, the Right to Life and Right to Liberty, which is granted by the Constitution of India, virtue of Article 21: that is the personal dignity and autonomy to be precise. The concession of the fundamental rights must not be performed only two pursuit the upholding the cultural and believes.

The supreme court affirmed the judgement which was passed by the Delhi High Court. The landmark case of Saroj Rani vs Sudarshan Kumar

The Supreme Court held that the decree passed under section 9 of Hindu Marriage Act is not violation of the fundamental rights.

The issue raised:

If the petitioner succeeds but the defendant disobey the decree i.e. one year noncompliance can lead to divorce under section 13(1A)(ii)
Section 19 weather violates the constitutional provision.
Separate maintenance order for wife and daughter.

In the pending case of Ojaswa Pathak vs Union of India, was displayed that, section 9 of Hindu Marriage Act section 22 of Special Marriage Act 1954 and order 21, rules 32 and 33 of civil procedure code 1908 which together provides the restitution of conjugal rights are violative to the personal liberty, privacy and autonomy.

If the case referred to a committee formed by ministry of women and child development. As, the petitioner argues the conjugal rights discriminate women. The committee noted and stated that, the conjugal rights preserve the integrity of family. It should not be taken down unless, the conjugal rights no longer serve the best interest of family and misused.

Discrimination towards women

The law in India said to be ex-facie means on the face of it. It is neutral for all. The section allows both husband and wife to seek decree. But, somewhere, this effects the women immensely. The women called pack and as marital rape is not criminalised. So, they often become the victim of it.

With the cap of restitution of conjugal rights, woman often compelled to have sexual intercourse with spouse, even forcefully and unwillingly.

In the case of Govind vs state of MP, the Supreme Court held that the right to privacy include and preserve the personal home affairs, also, procreation, personal intimacy, motherhood etc., are personal family matter which law should not be imposed and should not interfere.

According to the Delhi High Court justice Shankar, the rights and remedy is for both the parties to marriage and one of them can deny for any physical intimacy, if the other partner acts opposite, then that will be considered as cruelty and will constitute a ground of divorce.

In India 32% of women have experienced violence, even aged 15 years, in a domestic extend. Mostly prevailed the physical 28%, emotional 14%, sexual 6%. Among all married women 4% of them are victim of violence committed by their husbands.

Suggestion

The restitution of conjugal rights, is a very controversial and debated concept. That has two-sided value, first, it is meant to rehabilitation of spouse and restoration of obligations. Conversely, the one party is compelled to stay in marital liabilities. Nevertheless, there is a potential to enhance and improve it.

Adoption of few merely cultured stapes would be a great attempt to improve the system and the concept of Restitution of conjugal rights. Instead of the rigid conjugal rights restoration, there should be the concept of reconciliation tried out. In the substitute of harsh and compromising legal order, there should be given the scope to clear communication to vanish out the misunderstandings.

Additionally, there should be created an unbiased community to resolve and assist such family crisis. The judicial bodies should not fully interevent the matter and should not impose on someone and interfere into the autonomous personal life. These methods might be more logical and practical and would be more effective.

Conclusion

There is a proverb “one can led a horse to the river but can’t compel it to drink”. By referring to above statement, it might be easy to impose but it is difficult to be exercised. Even if the superiority of law and judicial bodies compel one to cohabit with another, they can’t connect or unite them emotionally.

On critical evaluation it can result to many unavoidable and impactful consequences. Human has various stimuli to react upon the situation. If the cohabitation is imposed by laws and the one party is compelled to restore the liability, then, according to psycho analytical theory, men may possess their hyper masculine tendency, aggression. Also, the marital life would be driven into stressful and anxious ambience, which ultimately will amplify toxicity, grief, low- esteem, emotional imbalance and insecurity, anti-social tendencies and impulsive nature, which will gradually impact upon the lives, mental condition and even serious effects on the children. So, the restitution of conjugal rights may restore the marital rights in a good faith but it can never guarantee healthy and happy married life.

Although, the restitution of conjugal rights stives to keep the society from being deteriorated by promoting the scope of Restitution of reconciliation and by providing stability. But the party to marriage should thoroughly examine and should try to indicate the subsequent issues or misunderstanding rather than being separated but exceptionally some unavoidable circumstances.

References