Marriage is a ritual that brings two people together and links them to one another legally. When two people join together and are married, the result of that marriage necessitates that both people live together. Couples that marry each other are entitled to each other's company, cohabitation, and companionship.

It is possible, nonetheless, for one person to decide against being in the other's company and to withdraw from society for no apparent reason. An order of restitution of conjugal rights is then issued in favour of the party who has been wronged at that point if the party whose company has been terminated is able to convince the court of the veracity of his or her claims.

History
Comfort consortium, which gives the parties a right to one other's cooperation, company, and assistance, is the fundamental tenet of marriage. However, this rule was initially intended to benefit the husband because it was thought that since he worked and provides for the family, the wife was inferior to him. A wife was unable to seek compensation for the loss of consortium as a result.

The idea of restitution of conjugal rights was first foreign to Indian society because it was not referenced anywhere in the Dharamshastra or in Muslim law. In actuality, the Jewish laws are where it all began. The church required two people who did not want to be in each other's company to remain together as a condition of particular performance via the process of restoration of conjugal rights.

It was believed that protecting the sanctity of marriage inside the confines of marriage was vital. From there, it was introduced in India as well as many other British Colonies. In effect, Moonshee Buzloor Raheem v. Shumsoonissa Begum (1867) 1 MIA 551 was the first case to use Restitution of Conjugal Rights. It's interesting to note that the British government introduced the idea of restitution of conjugal rights to India, although it was repealed in the UK in 1970.

Restitution of Conjugal Rights

Section 9 of the Hindu Marriage Act of 1955, Section 22 of the Special Marriage Act of 1954, Section 36 of the Parsi Marriage and Divorce Act of 1936, Section 13 of the Matrimonial Causes Act of 1965, and Section 32 of the Divorce Act of 1869 all contain provisions relating to the restitution of conjugal rights.

Simply put, Section 9 of the Hindu Marriage Act states that if either of the two parties to a marriage withdraws from the other's society, the aggrieved party is free to petition the district court for the restitution of conjugal rights. If the court is convinced of the petitioner's veracity and finds no irregularities, the court may issue a decree restoring the conjugal rights.

Essentials:
The spouse's exclusion from society:
The word "society" in this context refers to the place where a married couple resides together, often known as their "matrimonial house." One party is considered to have withdrawn from the other party's society when they no longer reside in their matrimonial house.

The two requirements for withdrawal from the spouse's society are Animus and Factum, and they cannot both be met if one party is only residing away from his matrimonial house due to his job (G vs. G (1930) P 72, Hill J). Factum refers to the actual physical movement, whereas animus refers to the desire to migrate to and remain in a particular location permanently. Even if a party intends to leave the marital home, unless it is included in the factum, it would not be considered a withdrawal from society.

In Sushila Bai vs. Prem Narain Rai, AIR 1964 MP 225, the husband severed all relations with the wife and abandoned her at her father's house. This was viewed as the man retreating from society. As a result, the wife was granted a decree of return of conjugal rights.

Without reasonable cause:
When one party leaves the other's society, the aggrieved party must first show that the respondent has left the petitioner's society. The burden of proof shifts to the person leaving the other's company after the petitioner has shown the same, and the respondent must have a valid basis for doing so.

A decision of restitution of conjugal rights may be issued in favour of the party who was wronged if the respondent does not give a plausible explanation for such withdrawal.

However, there are a few reasons why such a petition could be rejected, and they are as follows:

• Cruelty
• Adultery, and
• any other type of marital wrongdoing

The petitioner's request for the restoration of conjugal rights will be unsuccessful if any of the aforementioned charges against him are upheld.

The respondent wife in Mohammad Rustam Ali v. Husaini Begam (1907) ILR 29 All 222 claimed she was the victim of mistreatment and did not want to return living with her husband because she thought her safety would be at risk. It was deemed a viable defence against Section 9 of the Hindu Marriage Act, 1955 by the Hon'ble Allahabad High Court.

In Hamid Husain v. Kubra Begum (1918) ILR 40 All 332, the wife refused to resume cohabitation on the grounds of cruelty despite the husband filing a suit for the restoration of conjugal rights. The husband's request for the restoration of conjugal rights was denied in this instance.

It was determined in R. Natarajan v. Sujatha Vasudevan C.M.A. Nos. 3769 and 1775 of 2010 and M.P. Nos. 1 and 2 of 2011 in C.M.A. 1775 of 2010 that a wife's decision to leave her husband's society because she finds it difficult to live with his parents does not constitute a reasonable reason to do so.

Does a decree under Section 9 grant the right to consummation as well

The matter came up in the landmark decision T. Sareetha vs. T. Venkata Subbaiah AIR 1983 AP 356, when P.A. Choudary, J. declared that Section 9 of the Hindu Marriage Act, 1955 is unconstitutional since it violates the rights to privacy and equality. As a result, this part was invalidated. However, in Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66, Rohatgi, J. took the opposite stance and defended the legality of Section 9 of the HMA, 1955. The T. Sareetha decision received harsh criticism from Rohatgi, J., who claimed that Section 9 was intended to preserve a marriage.

A major tenet of matrimonial law is that a spouse has a right to comfort consortium; denying that right by using constitutional standards would seriously undermine the marriage. He also criticised Section 9 of the HMA from 1955 for placing too much emphasis on sexual relations during cohabitation.

He based his argument on Lord Stowell's ruling in Forster v. Forster (1790) I. Hag. Con. 144 (3), which said that "the court cannot compel married intercourse though it may matrimonial cohabitation." He was of the opinion that cohabitation under Section 9 does not constitute coerced sex.

The Hon'ble Supreme Court then became aware of the argument about Section 9 of the HMA, 1955's constitutionality. The Supreme Court maintained the constitutionality of Section 9 of the HMA, 1955 after deliberating on its legality in the case Saroj Rani vs. Sudarshan Kumar Chadha 1984 AIR 1562. According to the Hon'ble Apex Court, "the decree's sole purpose was to provide an enticement for the couple to cohabitate, and it does not compel an unwilling wife to engage in sexual relations with the husband."

Conclusion
By overcoming the obstacles in their way, restitution of conjugal rights gives the couple a chance to mend their relationship and enjoy each other's presence again. The sacredness of the marriage institution is upheld and attempted to be protected under Section 9 of the HMA, 1955.

But it ignores the fact that, if the parties have reached a stage in their relationship where they are unwilling to give each other the consolation required, forcing them to live together under Section 9 will just make their suffering worse.

It is incredibly hard for the withdrawing party to live with someone they don't care about or have any affection for. In this view, rather than safeguarding the sanctity of marriage, section 9 actually undermines it. In the case of Ojaswa Pathak v. Union of India WP(C) 250/2019, the Supreme Court of India is once again examining the constitutionality of Section 9, HMA, 1955.

Reference Links:

• https://www.thelawcodes.com/divorce-lawyers-in-chandigarh/
• https://www.thelawcodes.com/what-is-restitution-of-conjugal-rights/

Written By: Ameesha Goel