Numerous provisions of Indian personal law recognise the significance of conjugal rights in a marriage. In the strictest sense, marriage rights refer to the freedom to cohabit and have a sexual relationship with one's spouse. The wife and husband must respect each other's rights and live together, one of marriage's most basic obligations. "Restitution of Conjugal Rights" is a legal provision that enables the offended party to restore cohabitation against a spouse who withdrew without cause. This is frequently considered a strategy to keep a marriage intact. This article will discuss the restitution of conjugal rights, meaning restitution of conjugal rights filed by the husband, restitution of conjugal rights filed by the wife, Section 9 of the Hindu Marriage Act, 1955, its constitutional validity, limitations and international perspective.
Restitution of conjugal rights section 9
Talking about What is the restitution of conjugal rights under Hindu law? When either the husband or the wife withdraws from the other's social circle without justification, as per Section 9 of the Hindu Marriage Act of 1955, the person that has been mistreated may apply to the district court for the restitution of their conjugal rights, the court may proclaim restitution of conjugal rights if it determines that the representations provided in the petition are effective and that there is no valid defence.
The constitutional validity of Section 9 Hindu Marriage Act
There were intense debates in the Parliament for and against including the provision for the restoration of conjugal rights in the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955. Notably, these case laws led to a controversy in 1983–1984 about whether Section 9 of the Hindu Marriage Act of 1955 was constitutional. Now, let's discuss the restitution of conjugal rights case laws.
- In Sareetha v. T. Venkatasubbaiah, the constitutionality of the provision for conjugal restitution was challenged before the Andhra Pradesh High Court. In this case, Sareetha argued that Section 9 of the Act should be declared unconstitutional because it infringes on Articles 14 and 21 of Part III of the Indian Constitution. According to Justice Choudary, section 9 is a brutal and barbaric remedy that violates the right to privacy and the dignity of all people protected by Article 21 of the Constitution. It denies women the freedom to decide whether, when, and how their bodies will be used to carry out human evolution. It denies women the freedom to determine whether, when, and how their bodies will be used to carry out procreation. Her ability to manage her most personal choices is lost. Therefore, it is evident that a decree of restitution of conjugal rights blatantly violates the right to privacy protected by Article 21. Section 9 of the Hindu Marriage Act of 1955 was unconstitutional.
- Justice Rotagi acknowledged that "the law has created restitution of conjugal rights as an additional reason for divorce" in Harvinder Kaur v. Harminder Singh.
- "The concept of recovery of marital rights is a vestige of ancient times when slavery or quasi-slavery was seen as natural," the Hon'ble High Court stated in Shakila Banu v. Gulam Mustafa. It is undoubtedly salient that India's Constitution has come into effect, which grants the State the authority to enact special measures for protecting and safeguarding women's rights and personal liberty and equality of opportunity for men and women.
- In the end, the Supreme Court overturned the ruling in Sareetha v. T. Venkatasubbaiah. It issued a verdict in Saroj Rani v. Sudharshan consistent with the Delhi High Court's views and upheld the constitutional validity of Section 9 of the Hindu Marriage Act, 1955. Here is a judgement from the Saroj Rani case:
- The learned Judge acknowledges in para. 87 that restitution of conjugal rights is an ancient remedy: "I cannot accept that S. 9 is unconstitutional, regardless of how outdated or out of step the remedy maybe with the times. If the parties cannot reconcile, the restitution decree functions like a divorce decree under the Act's overall system.
- The judge's true objective is revealed in paragraph 91, when he states, "At the end, I will reiterate what I have already said: It is for the government to abolish the remedy of restitution, not for the courts to declare it unconstitutional. I believe S. 9 to be entirely valid. The judge appears to wish to abolish the remedy but is powerless due to the current legal framework.
The court pointed out that the section's goal is to encourage cohabitation between estranged people so they can coexist. Neither Article 21 nor Article 14 have any place in the privacy of the home or marital life.
Limitations of restitution of conjugal rights
- The offended spouse must wait for a year even if they reject the decree of restitution of conjugal rights.
- Alternatively, the divorce petition cannot be filed with the petition for the return of conjugal rights (RCR). These prayers are thought to be mutually destructive of one another and must thus be said after the previous one fails.
International perspective
United Kingdom
According to English law, the only marriage-related subject the ecclesiastical courts had jurisdiction over was the decree for restitution of conjugal rights. If either the husband or wife left the other's company without justification because it was said it might be used against a person, the parties would be compelled to remain together. It has been adhered to for quite some time. The Matrimonial Proceedings Act of 1970 dealt directly with the Act, as recommended in a report the Law Commission mission filed in Beirut in 1969.
Canada
The majority of Canadian law that governs the restitution of conjugal rights is derived from English law. Family law in the nation has evolved and is changing rapidly. The Decree for Restitution of Conjugal Rights was recognised as a legal document in Canada, although only in a few provinces. The restitution of Conjugal Rights was only recognised as a valid statute in Canada after the twentieth century when Family Law became standardised.
Australia
The ability of courts to issue judgments ordering the restoration of marital rights was eliminated by the Family Law Act of 1975. According to Section 114(2) of the Family Law Act of 1975, the court may require a party to provide for conjugal rights or matrimonial services. However, it was last used in 1978 and is now outdated. The Australian Law Commission agreed with this approach in 2010, stating that Section 114(2) is inconsistent with family law principles and ought to be repealed.
Conclusion
Restitution of conjugal rights is a remedy intended to preserve the marriage rather than end it, unlike divorce or judicial separation, which is a significant element that must be underlined. It helps to prevent marriage breakdown and is a way to keep a marriage together. If the order of restitution of the conjugal right or the right to remain married is not followed for more than one year after the order's date, it can be used as a valid reason for divorce.