Write an essay on the Restitution of Conjugal Rights Hindu Marriage Act, 1955.
Is it violative of the right of the personal liberty under Art. 21 of the Constitution ?
What defences may be taken in answer to a petition for the restitution of Conjugal Rights.
Or
What is Restitution of Conjugal Rights ?
What changes have been made by the Amendment Act, 1976 ?
Give the remedies which have provided by the court to the aggrieved party ?
Ans. Restitution of Conjugal Rights—According to S. 9 of the Hindu Marriage Act, 1955, “where either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the District Court for restitution of conjugal rights and the court, on being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.” By the Marriage Laws (Amendment) Act, 1976, CI (ii) of S. 9 has been omitted and an explanation has been added to it, which provides that where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. Thus, under S.9 the Court may grant a decree for restitution of conjugal rights, when
(a) Either of the party has without reasonable excuse withdrawn from the society of the other;
(b) The court is satisfied of the truth of the statements made in the petition for restitution of conjugal rights; and
(c) There is no legal ground why the application should not be granted. In Shand Devi Vs. Ramesh Chandra, A.I.R. 1964, Pat. 27 it was held by Patna High Court that in an application for the restitution of conjugal rights, the court must give serious consideration to the evidence of the wife and her parents and cannot refuse to do so on the ground of their being interested witnesses. In Smt. Shanti Devi Vs. Balbir Singh, A. LR. 1971, Delhi, the court held that in a petition for restitution it has to be seen whether the husband or wife as the case may be, has withdrawn from the society of the other without reasonable cause or excuse. The second requirement is that the court must be satisfied as one of the statements made in the petition. Thirdly there should be no legal ground why the relief should not be granted. In this case the petition of restitution of conjugal right against the wife failed on the ground that the behaviour of the husbands has been cruel, tort tiresome to her. Moreover, the husband was having love affairs with a girl. The court held it to be a reasonable excuse for her 1() live apart from the husband. In Tularant Vs. S,nt. Mishri, 1979, M.P. High Court, held that the plea that the marriage was in contravention of the provisions of S.5
(iii) Of the Hindu-Marriage Act, was not found to be a just excuse and it was held that decree of restitution of conjugal rights could not be refused.
Grounds on the basis of which a Decree for restitution of conjugal rights cannot be Granted—The courts in their decisions have held the following to be valid grounds for separate living disentiding the other spouse to a decree for restitution of conjugal rights—
(i) Grossly indecent behaviour,
(ii) Extravagance of living on the part of wife affecting the financial position and prospect of the husband,
(iii) Excessive drinking carried to such a degree as to render it impossible for the duties of married life to continue or to be discharged,
(iv) Persistence in a false charge against the respondent of having committed an unnatural offence,
(v) Refusal of marital intercourse without sufficient reason,
(vi) Apprehension of violence due to development of insanity in the petitioner,
(vii) Agreement to live separate,
(ix) Misconduct approaching cruelty but falling short of it. (Mst. Gurdev V.s. Sarwan Singh, AJ.R. 1959, Punjab 162).
(x) Imputation of unchastity persistently by the husband. (Sarah V.s. Pyli Abraham, A.I.R. 1959, Ker.)
Grounds on the basis of which restitution of conjugal rights can be defended ?-The decisions of the courts have also declared some excuses in the case of restitution of conjugal rights as unreasonable. Thus, under the following pretexts no spouse is allowed to withdraw from the society of the other spouse —I. Mere frivolity or even impropriety falling short of adultery and giving no reasonable ground for belief that it has been committed.
2. Mere frailty of temper and habits which are distasteful to the other spouse.
3. Habits of intemperance even if prolonged and accompanied by untrue accusations and hysterical outbursts.
4. Existence of differences on account of the wife’s inability to agree with the step children.
5. Discovery of pre-marital misconduct which has not resulted in pregnancy with another man at the time of the marriage.
6. Development of insanity after marriage which does not give rise to reasonable apprehension of violence. In Smt. Suntanbai Vs. Anandrao Onkar Panpatil, A.I.R. 1976, Bonn. 212, the court held that there can be no more insulting injury to wife than her own husband doubting her chastity. If such allegations are lightly made and persisted in filing petition, the husband is not entitled to any relief under S. 9 of the Act.
Right of restitution of conjugal right violative of Art 21 of the Constitution? In T Sareetha Vs. Venkat Subbaih, A.I.R. 1983, A.P. 356, it has been observed that a decree of restitution of conjugal rights deprived a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be served. It constitute the grossest form of violation of any individual’s right to privacy. The remedy provided under S. 9 of the Act is savage and barbarous remedy violating the right to privacy and human dignity guaranteed under Art 21 of the Constitution. It was arbitrary and void as offending Art. 14 of the Constitution. But this view was dissented in Smt. Harivindu Kaur Vs. Harmandar Singh, A.I.R. 1984, Delhi 66. This view was expressed by their Lordship that S.9 of the Act was not violative of Art 14 and 21 of the Constitution. The remedy of restitution aimed at cohabitation and consortium. It was a fallacy io hold that the institution of conjugal rights constituted the starkest form of governmental invasion on marital privacy.
Effect of Decree for Restitution of Conjugal Rights–A decree of restitution of conjugal rights, if passed, makes it obligatory for the respondent to resume cohabitation with the plaintiff. Under the Law, as now in force if this is not done within one year from the date of the decree; either party is entitled to seek divorce.