India is a country that houses a multitude of cultures. Majorly, there are Hindus, Muslims, Christians, Jews and Parsis. To govern the population, there are laws which are generally applicable throughout the subcontinent of India, while there are few laws which are only applicable to a certain group of people in the country, these few laws are generally related to the personal matters of the individual i.e., marriage, divorce, inheritance, and succession.

In India, there are multiple laws governing marriage. These laws are based on the religion of the person marrying. There is the Hindu Marriage Act, 1955; separate laws governing Muslim Marriages in the country, Indian Christian Marriage Act,1872; Parsi Marriage and Divorce Act, 1936. In addition to the same, there also exists a civil marriage law, Special Marriage Act, 1954, which is available for all religions who wish to register their marriage under the same, the notable feature of the said act is its validation of interreligious marriages, which under some personal laws is not allowed. Divorce of a marriage registered under this act is also governed by the same.

The Hindu Marriage Act, 1955

This act governs the varied aspects of marriage among Hindus. For Hindus, the concept of marriage is sacred. Since the ancient times marriage was not seen as something which is temporary, and consequently, divorce was not recognized. Even today, in some Hindu communities, divorce is still considered as taboo. It is also not uncommon to see some gender discriminatory laws in the Act, some of which have been examined by the court and then later amended. This Act is not exclusive for people following the Hindu religion but includes other religions as well.

In the Hindu Marriage Act, 1955, the term Hindu is defined under section 2. It includes Hindus, Buddhists, Jains, Sikhs, and any other person who is not a Muslim, Christian, Jew or Parsi, or, until proven otherwise.

Section 4 of the Act gives it the power to override any other custom that existed before or after the commencement of the Act or any custom which is inconsistent with the Act.

The Hindu Marriage Act, 1955, provides not only for provisions of marriage but also for divorce proceedings (Sections 13-15), judicial separation (Section 10), and restitution of conjugal rights (Section 9) for individuals married under this act.

Restitution of Conjugal Rights

Section 9 of the Hindu Marriage Act 1955 entails restitution of conjugal rights. It is presumed by the Act that after a marriage is solemnized and is valid, the husband and wife are obligated to stay together in their matrimonial home if there is no justifiable reason for not doing the same. This has been observed by the High Courts as well as the Supreme Court in many of their judgements. In cases where the spouses have refused to cohabit with the other, the court had granted the right to the abandoned spouse to mandate the abandoning spouse to return to the matrimonial home.

In literal sense, the term 'Restitution of Conjugal rights' translates to 'Right to Co-habit.' On the plea of one of the spouses the petition can be filed in the court and on examining the reasons, a mandate can be granted by the court to the abandoning spouse to resume cohabitation with the abandoned spouse.

To execute the decree of restitution by the court there are few conditions that need to be fulfilled.

Firstly, it is mandatory that the marriage between the concerned parties is valid and existing. The validity of a marriage as per the Hindu Marriage Act, 1955, is examined by perusal of Sections 5, 11, and 12. In cases where the parties are legally divorced the marriage ceases to exist and restitution cannot be granted.

Secondly, the petitioner in the court should have been abandoned by his/her spouse.

Thirdly, this abandonment or 'withdrawal from the society' of the spouse should have been on unreasonable and unjustifiable grounds. In the case of Manjula Zaverilal v Zaverilal Vithal Das[1], the court had clarified that on the petition of restitution of conjugal rights the defendant has the onus to prove that he/she had a reasonable excuse to not cohabit with the aggrieved spouse. However, initially is the petitioner's responsibility to prove the withdrawal of the defendant from the 'matrimonial society' of the petitioner after which the burden shifts to the defendant, as was held in the case of Aruna Gordon v Mr. G.V. Gordon[2].

Lastly, the court should be satisfied that the fact stated by the petitioner are true and there is no legal ground that hinders the passing of the decree of restitution.

One of the many landmark judgements on this topic, in the case of Sushila Bai v. Prem Narayan[3], after leaving his wife, the husband became uncooperative and refused to re-establish cohabitation with her. This conduct was considered adequate to demonstrate that he had isolated himself from his wife, and the spouse's plea for the restoration of their conjugal rights was approved.

The idea of a "reasonable cause" serves as the defense against this law. It is a valid defense to a decree of restitution if the respondent withdrew from his spouse's company for a justifiable cause. In many landmark cases, the courts have held that such an action, inaction, or behaviour that renders the petitioner's ability to cohabit with the defendant incredibly difficult or any other ground of a matrimonial relief will amount to a reasonable excuse for abandonment.

Although the court has the authority to issue a judgement restoring marital rights, no statute has the authority to make such decree really be carried out. If the issued decree is not followed, the offending spouse faces constructive penalties, for instance, fines and sanctions. According to the rules now provided under Indian personal law, the injured party may present a request for a divorce after passing of one year following the date the decree of restitution was issued, as was held in the case of Saroj Rani v Sudarshan Kumar Chadha[4], and the appropriate court may grant the petition.

It is important to emphasize that, unlike a directive of performance of contractual obligations, the court will impose sanctions for not following a decree of restitution when such noncompliance is purposeful, or deliberate, and occurs despite opportunities for such compliance. If the abandoning spouse still refuses to cooperate, the Court may penalize him or her for being in contempt of court. The decision of restitution of conjugal rights may also be implemented by the attachment of property. But the court cannot ever compel a spouse to consummate the said marriage.

Historical Background
Restitution of conjugal rights does not find its roots in neither the Dharma shastra nor the Muslim law[5]. It was brought during the colonization of British Raj. In the case of Shakila Bano v Gulam Mustafa[6] the Hon'ble Supreme Court held that this law was formed during the ancient times when the concept of rights of women was non-existent, and slavery and forms of slavery were not illegal and widespread.

The concept of restoring conjugal rights has its origins in feudal England when marriage was viewed as a property transaction and the wife as a piece of property[7]. As in case of Moonshee Buzloor Ruheem v Shumsoonissa Begum[8], the idea of restitution of marital rights was brought to India.

Restitution of Conjugal rights and Right to privacy of the spouses
In many cases filed in the courts, it has been argued that section 9 is in violation of the right to privacy of the spouses. In many high court judgements this notion was examined and upheld. The case of K.S. Puttaswamy v Union of India[9] introduced the concept of right to privacy in India. There has been difference in the interpretation of the courts regarding the same. The courts have differing views on whether 'a person's autonomy over their own body' is covered by the right to privacy.[10]

In an earlier case of Gobind v State of Madhya Pradesh[11] it was observed that albeit the right to privacy could be applied to domestic and marital intimacies, the Supreme Court ruled that these are still personal matters that should remain outside the scope and reach of the state.

The High Court of Andhra Pradesh in the year 1983, passed the judgement of T. Sareetha v T. Venkatasubbaiah[12]. This judgement came as a progressive judgement in times of staunch patriarchy and dogmatism. Among other observations, the court held that a decree of restitution of conjugal rights makes sexual cohabitation of the spouses, an inevitable aspect. By issuing a decree of restitution, participating in marital intercourse becomes more of a state mandate than a choice of the spouses.

Additionally, in the current scenario since marital rape is still not recognized, this aspect proves to be a handicap for the women who are forced to cohabit with their husbands on a decree of restitution of conjugal rights. The court also observed that there is always a possibility of producing an offspring in this setup of cohabitation and in some cases with or without the consent of the woman. The court in this case included the element of reproductive freedom as a part of right to privacy.

Therefore, the court held that, since Article 21 provides for the right to privacy, a decree of 'restitution of conjugal rights constitutes the grossest form of violation of an individual's right to privacy' and observed that section 9 of the Hindu Marriage Act, 1955 violative of right to privacy and hence, unconstitutional.

However, in the case of Harvinder Kaur v Harmander Singh Chaudhary [13] the Delhi High Court did not concur with the Andhra Court. The judges for this case examined the intention with which the section was created by the framers. It was held by the court that Section 9 was only to conserve the concept of marriage as an institution.

The judges aimed at distinguishing cohabitation with marital intercourse between the spouses living under a decree of restitution of conjugal rights. It observed that 'merely imposes cohabitation upon spouses and does not compel sexual relations in a marriage.' As a consequence of this judgement the extent of the right to privacy was limited. The court further held that fundamental rights cannot be applicable in the private sphere of the citizens as that would threaten the very fabric of social structures in India.

While the court complied with the intention of the framers and upheld the existing law, it has failed in recognizing the need for some improvement in the existing laws in the context of today's situation. In a state where marital rape is not recognized as an offence in the Indian Penal Code, 1860 and is a mere ground for divorce under cruelty, mandated cohabitation is a violation of the right of privacy of the individuals under the decree of restitution of conjugal rights. Article 21 of the Indian Constitution guarantees right to privacy to the citizens and a decree of restitution puts a spouse at position where this right is breached.

The judgement passed in 2017 regarding right to privacy opened the way for challenging many existing laws that are now in violation of the right to privacy. In the month of February 2019, a petition was filed in the supreme court regarding the constitutional validity of a decree of restitution of conjugal rights. The petitioner has challenged Section 9 of the Hindu Marriage Act 1955, Section 22 of the Special Marriage Act, 1954 and Order 21 Rules 32 and 33 of the Code of Civil Procedure, 1908. This petition is filed by the students of GNLU by the name of Ojaswa Pathak v Union of India[14].

The petition was filed on the following grounds. Firstly, the petitioner argued that a decree of restitution of conjugal rights is in violation of the rights of the individuals that are under the said decree. It was also argued that this decree is a part of the 'coercive act' of the state as this breaches the reproductive and decisional autonomy of the spouses. By forcing a person to return to their spouse their right of choice and their freedom is violated. The petitioner observed that the choice to cohabit and to have intercourse is a personal right and state's interference is unconstitutional.

Secondly, the petitioner argued that this decree, though seemingly gender neutral, on application, is biased against women who are forced to cohabit with their husbands under a decree of restitution of conjugal rights. These women, who are cohabiting with their husbands and their families, against their will on a court mandate, are at risk of marital rape, mental trauma at the hands of the husband's family, and forced pregnancies.

The petitioner also argued that the section is no longer benefitting the family as such an interference by the courts leads to irretrievable breakdown of a marriage and it is no longer a fitting home for the spouses as well as the progeny of these couples.

Further, as argued in the court, this section is misused as a protection against divorce and avoiding payment of maintenance and alimony as one spouse files for divorce while the other files for a decree restitution of conjugal rights. it is quite apparent that in such cases there is clearly a breakdown of the harmony that is requisite between a married couple.

However, the Union Government on this matter, supported the validity of the section 9 of the Hindu Marriage Act,1955, by issuing an affidavit signed by the Joint secretary of the ministry of law, stating that the intention is to avoid the irretrievable breakdown of marriage and is therefore, protecting the institution of marriage.[15] The Union Government in the affidavit also stated that the law is gender neutral and there is no concrete evidence of lacuna in its operationality. The case still ongoing in the supreme court and a judgement is awaited.

Conclusion
Restitution of conjugal rights is a relief intended to preserve the marriage rather than end it, unlike divorce or legal separation. It works to save marriages by helping them stay together and prevent divorce. This decree acts as a request and a helpful solution to keep the marriage together.

Nonetheless, the ultimate choice of whether to abide by the decree and carry on with the marriage rests with the parties. Moreover, since the application cannot be requested against any other members of the respondent's family, there must be a relationship between the two parties to initiate a lawsuit. If an order of restoration of conjugal rights or the obligation to stay together is not abided by for more than a year from the date of the decree, it becomes a ground for divorce.

As per Indian society, a couple should make a concerted effort to get along and maintain their relationship. This Part gives these civilizations a legal foundation, yet on the other hand, it forces two people to live together even when they do not want to, because a marriage that is forced into existence cannot last.

This gives way to the theory of irretrievable breakdown of marriage. It is a concept that delves into understanding that even though there is no wrong committed by both parties the marriage is no longer sustainable and for the peace of both the marriage should be dissolved as any effort that is put into saving such a marriage is merely causing more hurt and difficulties rather than any benefit to the couple. Currently, this is not a ground for divorce, but has been acknowledged by courts in their judgements.

The Indian judicial system must adopt a more progressive perspective of matrimony and more progressive attitudes. The courts instead of mandating the cohabitation, could arrange for a dialogue between the parties and try for a reconciliation so as to avoid any scope of misuse of the provision.

Furthermore, rather than issuing a court decree of restitution and putting sanctions on noncompliance by the parties, the court could try to urge the parties to cohabit and include an aspect of maintenance by the abandoning spouse to the abandoned spouse in cases where such abandoned spouse has not been able to lead a decent living without the other spouse.

Bases on the facts and circumstances of the case the court could try to determine whether restitution is a viable alternative or not, but they should not impose their choice on the spouses. It is the two people's agreement to share their freedom and independence that constitutes marriage, not the rituals.

The Ojaswa Pathak case's petition against Section 9 is still up for debate at the court, which has not yet reached a conclusion. It is however expected that the courts will be able to establish middle ground between the rights of the people and the customs of the institution of marriage that forms an integral part of Indian society.

References:

1. Manjula Zaverilal v Zaverilal Vithal Das AIR 1975 Guj 158
2. Aruna Gordon v Mr. G.V. Gordon 2000 (56) DRJ 370
3. Sushila Bai v Prem Narayan AIR 1986 MP 225
4. Saroj Rani v Sudarshan Kumar Chadha 1984 AIR 1562
5. Paras Diwan, Family Law: Marriage and Divorce in India 1st Ed. New Delhi: Sterling, 1983
6. Shakila Bano v Gulam Mustafa I (2001) DMC 457
7. Section 9 of the Hindu Marriage Act, 1st February 2022
   https://www.juscorpus.com/section-9-of-the-hindu-marriage-act/
8. Moonshee Buzloor Ruheem v Shumsoonissa Begum 11 Moo Ind App 551
9. K.S. Puttaswamy v Union of India (2017) 10 SCC 1
10. Ruchitha Devu and Ananya Mohapatra, 'Limitations of Restitution of Conjugal Rights,' https://articles.manupatra.com/article-details/limitations-of-restitution-of-conjugal-rights>
11. Gobind v State of Madhya Pradesh AIR 1975 SC 1378
12. T. Sareetha v T. Venkatasubbaiah AIR 1983 AP 356
13. Harvinder Kaur v Harmander Singh Chaudhary AIR 1984 Delhi 66
14. Ojaswa Pathak v Union of India, Writ Petition (Civil) No.250/2019 the Supreme Court of India
15. Union Government defends restitution of conjugal rights before the Supreme Court,' The Leaflet, September 5, 2022
    https://theleaflet.in/union-government-defends-restitution-of-conjugal-rights-before-the-supreme-court/