Restitution of Conjugal Rights

Restitution of Conjugal Rights

As an institution, marriage creates a relationship between two partners, the husband and the wife, which leads to further relations, and gives rise to different rights and obligations. The concept of ‘Conjugal Rights’ in its literal sense refers to the right to stay together in the marriage relationship. The rights and obligations collectively constitute the ‘Conjugal Rights’.

Each spouse should be there to comfort and love the other in hard times. An aggrieved party can seek justice in the court if any partner leaves the other without reasonable and sufficient cause. Conjugal rights are the only matrimonial remedy.

The Hindu Marriage Act, 1955, Section 9:

Divorcees who withdraw without reasonable reason may petition for restitution of conjugal rights. A court may reclaim conjugal rights if the statements in the petition are true and there are no legal reasons not to grant the application.

As a result of a spouse’s stay away without any reasonable or just cause, the couple is required to stay together if the lawsuit for restitution of conjugal rights succeeds. Hence, section 9 appears to be the marriage saving clause. Moonshee Bazloor v. Shamsoonaissa Begum is the first case in which this remedy was implemented by the privy council in India. Restitution of conjugal rights was removed in England in 1970.

Section 9 requires three important requirements:

  • Couples must not stay together.
  • Parties must withdraw from each other without reasonable grounds.
  • Conciliation should be sought by the aggrieved party

Section 9 of the Constitution is constitutionally valid:

The Right to Privacy of the wife is clearly violated by restitution of conjugal rights. According to the Supreme Court in Kharak Singh vs. State of UP, privacy is an integral part of personal liberty. The Supreme Court had to revisit the Kharak Singh issue again in Gobind v. State of M.P. The honorable Supreme Court determined that right to privacy -among other rights- is part of right to liberty.

Taking a judicial approach:

Specifically, Section 9 of the Hindu Marriage Act, which pertains to the restitution of conjugal rights, violates the Constitution since it takes the wife’s privacy by making her live with her husband. It emphasized the validity of Section 9 in Harvinder Kaur v. Harminder Singh

Conjugal Rights are infringed by restitution

  • Article 19 (1) (c) Freedom of Association
  • Residence and settlement in any part of India – clause 19(1) (e).
  • Practice of any profession – 19 (1) (g)

Associational freedom infringement:

The right of citizens to associate with anyone according to their wishes is violated by the matrimonial remedy of restitution of conjugal rights, which obligates a wife to associate with her husband against her will. In Huhhram Vs Misri Bai, the court ordered restitution. Even though the wife was clearly stating that she did not wish to live with her husband, the court still ruled in his favor. However, the reverse happened in Atma Ram. v. Narbada Dev.

Violations of the right to reside and to practice any profession:

As a society, we have complete freedom as to which career to pursue. Sometimes, under the restitution of conjugal rights, a person is forced to live with his or her partner without a general interest. A remedy has been sought several times in the past by courts to restore freedom to reside and practice any profession one desires. “Introducing Constitutional Law in the home is most inappropriate, like introducing a bill in a China shop,” the apex court said in Harvinder kaur v. State.

Recommendations for improvement:

In addition to preserving marriages, others argue that forcing one party to stay with an aggrieved party is pointless. A number of opinions surround the issue of restoring conjugal rights. Some argue that preserving marriages is all about it, while others argue it makes no sense to force one party to remain with an aggrieved party. Nonetheless, there’s always room for improvement.

As opposed to rigid conjugal rights, reconciliation may be helpful. However, restitution is harsh and barbaric as it forces either party to compromise. Although the tone of reconciliation is mild and requesting, it is likely to turn ugly once both parties are forced to live together. If the remedy is reconciliation, no party will offend each other or cause confusion.

Disputes should not be resolved by the judiciary because their function is to resolve them not to reconcile them. In this case, a separate committee should be formed whose sole function is to resolve matrimonial disputes. As it is fast, effective, and practical, reconciliation is also very effective.

Final thoughts:

In a matrimonial case, restitution requires the couple to save their marriage, but can’t guarantee its success. It is difficult to reunite emotionally separated people. In addition, some people claim it violates the natural law theory.

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