An Overview
Restitution of conjugal rights is used as leverage by a partner against their partner who has abandoned him/her. A proper judgment may need the at fault spouse to stay with the distressed spouse. This is a process used in both courts and religious tribunals for divorce and matrimonial issues.
Each party receives legal rights under this law. According to the clauses under the restitution of conjugal rights, if either the husband or the wife ever failed or refused to carry out the mandatory duties without justifying, the aggrieved party could obtain legal assistance from the appropriate district court. It is widely regarded as a matrimonial remedy too.
Restitution Of Conjugal Rights – A Detail Study
Marriage creates a relationship between two humans: the husband and the wife. Additionally, this relationship gives rise to entirely new sets of rights and obligations. These obligations and rights all make up “conjugal rights” and could be considered the foundation of a marriage. In its literal definition, the word “Conjugal Rights” refers to the “Right to stay together.”
It is a widely accepted standard that every better half or spouse equivalent should support the other person, when they are struggling and should be there to comfort and love the partner. However, if one of the partners leaves the other without good reason, the victimized party can seek help from the court for justice. The only legally available remedy for married people is the restitution of conjugal rights.
The Hindu Marriage Act of 1955, Section 9, makes it illegal for either the husband or the wife to exclude the other from their respective social circles without cause. The victim of injustice could ask the court to reinstate their conjugal/legal rights.
The only remedy available to the left-behind spouse against the other is the restitution of conjugal rights. A husband or partner will submit a petition to have their right to cohabitate with the other better half restored. However, it is very difficult to carry out the court’s decree of restitution of conjugal rights.
Although the court has the authority to order the restitution of a conjugal right, it lacks the power to enforce that order. The erring spouse suffers constructive destruction because they fail to comply with the decree that was imposed.
The compensation of matrimonial rights has its origins in the social structure of feudal England, where wedding was viewed as a property transaction and the wife as an item was to be owned by the man, much like other possessions. However, in England, this matrimonial remedy of restitution of conjugal rights was abolished in 1970. This idea of restitution of conjugal rights, initially introduced in India during the case of Shumsoonissa Moslem vs Moonshee Buzloor Ruheem, where such actions were issues for carrying into action.
In modern India, the remedy is available under –
- Section 9 – Hindu Marriage Act, 1955
- General law for Muslims
- Sections 32 and 33 – Indian Divorce Act, 1869 for Christians
- Section 36 – Parsi Marriage and Divorce Act, 1936 for Parsees
- Section 22 – Special Marriage Act, 1954
The Hindu Marriage Act 1955 – Section 9
Under Section 9 of the Hindu Marriage Act of 1955, a decree restoring conjugal rights may also be granted and will not be void. It becomes final at that point if no objections are made by an appeal or another legal means. A directive of this nature cannot go unnoticed, but if it does, Section 13 (1A) of the Hindu Marriage Act of 1955 allows it to be used as a ground for divorce.
A legal notice requesting that a spouse who has abandoned the other without a good reason is issued under Section 9 of the Hindu Marriage Act. If the wronged party did not receive legal notice of the marriage issues as required by Section 9 of the law, they may petition the court for restitution of their conjugal rights.
According to current procedures available under Indian personal law, the aggrieved party may file for a divorce one year after the decree’s issuance, at which point the competent court will grant the petitioner’s request for a divorce. If the party complained against still refuses to comply, the Court may punish him or her for contempt of court.
The restitution of conjugal decree may also be implemented by the attachment of property. Under no circumstances, however, will the court compel the erring spouse to consummate the marriage. Only in cases of valid marriages can a decree of restitution of conjugal rights be passed.
Infringement of Freedom
The court determined that Section 9 of the Hindu Marriage Act, which addresses the restitution of conjugal rights, is unconstitutional since it compels a wife to stay with her husband against her wish. This means the wife’s privacy has been violated.
Every citizen in our country has the fundamental right to choose their partner or whoever they want to associate with. The marital remedy of restitution of conjugal rights violates a wife’s freedom because she is compelled to accompany her husband against her will.
In Huhhram Vs. Misri Bai, the court decided against the wife’s wishes and ordered restitution.
The restitution of conjugal rights is a sensitive and disruptive issue. Some people argue that it is to keep the marriage in place, while others claim that it serves no use to make the unhappy individual stick with the other party because they aren’t even really interested. However, there is always room for improvement through tweaking.
The idea of reconciliation can be considered instead of strict marriage privileges. Restitution is a difficult and harsh concept because it calls for compromise on the parts of all parties. On the other hand, the plea for reconciliation is made in a very subdued way. Restitution is a challenge because it is likely to become contentious once each party is compelled to live against their will.
Is It Remedy or Disaster
Although it appears to be gender-neutral, this clause is incredibly discriminating toward women and has drawn heavy criticism for reducing a married woman to nothing more than “chattel.” The spouses who want employment opportunities separated from their marital houses are discouraged by this purported legal option. To prevent spousal maintenance claims made against them, husbands take advantage of this remedy. Finally, the courts may put a woman at great risk of violence and marital status rape if they order her to live with her husband.
Based on its alleged violation of women’s rights, efforts to invalidate this provision have been made for a long time. They have already been challenged in the case of T Sareetha v. T Venkata Subbaiah (AIR 1983 AP 356), the Andhra Pradesh court stated that Section 9 of the Hindu Marriage Act was a “machine of cruelty to be operated by the husband for the betterment of the husband against the wife” and that it violated the right to privacy and bodily integrity guaranteed by Article 21 of the Indian Constitution. The Court added that it robs a woman of her ability to make reproductive decisions.
- Hari Shankar High Court judge of Delhi made the statement while choosing not to overturn the married rape exception. According to him, ” even if there isn’t always a necessity for connection, consent is given as a means of spousal closeness. He disagreed with the claim that marriage changed nothing and that consent alone mattered. He pointed out that in addition to financial obligations, sexual expectations, and parental duties, marriage imposes additional obligations on the partners.
Justice Shankar emphasized the significance of legal rights in marriage and said that a similar recognition was made in the Hindu Marriage Act that provides for the recovery of legal rights. Denial of sex by either spouse is viewed as harsh and is therefore a basis for divorce. The remedy is available to all domestic partners.
Chance of Improvement
In the context of the strict conjugal right, the concept of reconciliation is also tried. Restitution is an idea that is exceedingly harsh and cruel since it demands either party to make a concession. The tone of reconciliation, on the other hand, is exceedingly soft and requesting. The problem with restitution is that once all parties are compelled to comply with their choice, there is a strong chance that something bad will happen. However, if reconciliation is the chosen course of action, it will not offend either party and will also help to clear up any confusion.
Since the Court’s function is to resolve disputes rather than to promote reconciliation, therefore the court should not be involved in implementing this. Instead, a separate committee would need to be formed, and its primary responsibility would be to handle and settle marital status disputes. Because reconciliation is quick, efficient, and sensible, it is also incredibly effective.
The restitution of conjugal rights may be governed by a person’s privacy laws, which are inspired by values like faith, tradition, and custom. Cruelty doesn’t always have to be physical. It can also be mental. The legal remedy for conjugal right restitution attempts to maintain the marriage by encouraging communication between the parties. It tries to protect society from defamation. However, whether to modify the restitution of the conjugal right decree and go ahead with the marriage is ultimately up to the parties.
