Conjugal rights refer to the right to stay together as a married couple. According to Section 9 of the Hindu Marriage Act (1955), it's unlawful for either spouse to exclude the other from social circles without justification. The aggrieved party can seek court intervention to restitution of the conjugal rights.

Restitution of Conjugal Rights is a legal claim under Section 9 of the Hindu Marriage Act. If one partner unjustifiably withdraws from the other's company, the affected party can apply to the district court for the restoration of conjugal rights. In simple terms, it's about re-establishing the companionship of a spouse who has left the relationship without a valid reason.

Restitution of conjugal rights is a legal remedy historically available in some jurisdictions, compelling a spouse to return to cohabitation if they have left the marital home without reasonable cause.

Restitution of conjugal rights

Restitution of conjugal rights means resuming the marital relationship between both spouses. The main objective is to consummate the marriage and get along with each other's society and comforts. The petition for restitution of conjugal rights is filed to make the court intervene between the parties to decide the case and grant the decree of restitution to preserve the marriage union.

Restitution of conjugal rights is a relief or remedy available to either of the parties to the marriage who got abandoned by the other spouse without explaining or giving any just and reasonable grounds for abandonment.

Section 9 of Hindu Marriage Act

In cases where a spouse withdraws from society without reasonable cause, the other spouse can file a petition for restitution of conjugal rights with a district court. If the court finds the petition's statements true and there's no legal barrier, the court can grant the restitution decree.

This Section states that the court may grant a decree for the restitution of conjugal rights under the following conditions:

Essential elements of Section 9 of Hindu Marriage Act, 1955

• The marriage between the applicant and defendant is legal, valid, and existing.
• The defendant should withdraw from the society of the applicant. Such withdrawal from society should be unjust and unreasonable.
• The court should be satisfied that the petition and the facts stated by the applicant are true.
• The court should be satisfied that there is no legal ground to refuse the decree.

Provisions for restitution of conjugal rights in other statutes

Section 32 of Indian Divorce Act, 1869:
Section 32 of the Indian Divorce Act, 1869 allows a spouse who was deserted without reasonable cause to file a petition for restitution of conjugal rights. If the court finds no legal grounds for refusal, it may grant the decree for cohabitation. This section aims to protect marriages from breaking for minor reasons and restore marital harmony. However, mandating cohabitation may conflict with personal freedom and privacy. Section 32 reflects the traditional view of marriage as a sacred tradition and emphasizes the importance of the marital bond through judicial intervention.

Section 33 of Indian Divorce Act, 1869:
Section 33 of the Indian Divorce Act, 1869 allows respondents to resist court decrees for restitution of conjugal rights, providing evidence to prove the petitioner's guilt of cruelty, desertion, adultery, or other acts that would entitle them to judicial separation or divorce. The Act ensures equal opportunity and balanced rights for both spouses, protecting them from forceful or against their will cohabitation. Restitution of conjugal rights is not absolute and must be exercised with dignity for both parties involved. The main aim is to protect respondent from forceful cohabitation and ensure fair and reasonable court reductions.

Section 36 of Parsi Marriage and Divorce Act, 1936:
Section 36 of the Parsi Marriage and Divorce Act, 1936, provides financial support to a wife during divorce or restitution proceedings. This section is crucial as it helps alleviate emotional and financial burdens for the wife, who may face emotional and financial challenges in restitution conjugal rights. Section 36 aims to protect the wife's rights, dignity, and sustenance during the marital dispute, ultimately preserving the sanctity of marriage.

Section 22 of Special Marriage Act, 1954 Section 22:
Of the Special Marriage Act, 1954 allows spouses to petition for restitution of conjugal rights if another spouse withdraws without reasonable cause. The court reviews evidence and circumstances, deciding if the separation was justified. This mechanism aims to preserve marriage sanctity and encourage continuity. However, it raises legal questions about privacy and autonomy. Section 22 plays a crucial role in promoting marital unity and structured processes in separation, safeguarding the institution of marriage in India.

Case laws that govern Restitution of Conjugal Rights:

• Saroj Rani vs. Sudarshan Kumar Chadha (1984)

  • Facts: Saroj Rani and Sudarshan Chadha got married in 1971. After some time, Sudarshan withdrew from the marriage without any reasonable cause. Saroj Rani filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Sudarshan contested the petition, citing various reasons for separation, which included allegations of cruelty and his inability to live with his spouse.
  • Issue: Whether the decree of restitution of conjugal rights could be granted?
  • Judgment: The Supreme Court upheld the validity of Section 9 of the Hindu Marriage Act, highlighting that the provision serves an important purpose in protecting and preserving marital bonds. The court held that the respondent must cohabit with Saroj Rani since there was no reasonable reason for the separation. Additionally, the court stated that if the respondent did not comply with the decree passed by the court within one year, then the petitioner could file a petition for divorce under Section 13 of the Hindu Marriage Act.
     

• Harvinder Kaur vs. Harmander Singh Choudhry (1983)

  • Facts: The petitioner and respondent got married under the Hindu Marriage Act. Later, a conflict arose between the couple, which led to Harvinder Kaur filing a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Harvinder Singh argued that the restitution of conjugal rights was unconstitutional as it violated Article 21 of the Constitution, which guarantees the fundamental right to privacy and personal liberty.
  • Issue: Whether Section 9 of the Hindu Marriage Act is constitutionally valid?
  • Judgment: The court highlighted that Section 9 of the Hindu Marriage Act is constitutionally valid and held that the provision did not violate Article 21 of the Constitution. The court encouraged cohabitation between the spouses but also emphasized the importance of personal liberty. Although the court acknowledged Article 21, it upheld the state's interest in preserving the institution of marriage. The decree of restitution of conjugal rights acts as an inducement for couples to live together.
     

• Seema vs. Rakesh Kumar (2000)

  • Facts: Seema and Rakesh Kumar got married under the Hindu Marriage Act. After the marriage, Seema filed a petition under Section 9 of the Hindu Marriage Act, seeking court intervention, stating that Rakesh Kumar had withdrawn from the marriage without any reasonable reason and that he had not been cohabiting with her.
  • Issues:
    • Whether the petition filed under Section 9 of the Hindu Marriage Act is valid?
    • Whether the court can pass a decree in cohabitation?
  • Judgement
    The Supreme Court upheld Seema's petition, acknowledging that the petition filed under Section 9 of the Hindu Marriage Act is valid. Also, the court highlighted the importance of continuity of marriage, held that the decree of restitution could grant conjugal rights and said that the petitioner is entitled to receive maintenance from the respondent if she is facing emotional or financial challenges.
     

• Babita vs. Munna Lal (2022)

  In this case, Babita filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights, which was granted by the court. Despite this decree, Babita filed a petition to seek maintenance from her husband Munna Lal under Section 125 of the Code of Criminal Procedure, 1973 (CrPC). Munna Lal opposed this petition, stating that the court had given a decree for the restitution of conjugal rights, so Babita should not be entitled to another maintenance.
  
  Issue:
  • Whether a decree from the court for restitution of conjugal rights under Section 9 of the Hindu Marriage Act limits the wife from seeking maintenance under Section 125 of the Code of Criminal Procedure (CrPC)?
  • Judgement
    The court ruled in favour of Babita, stating that a decree from the court for restitution of conjugal rights will not bar the wife from seeking another maintenance under Section 125 of Code of Criminal Procedure (CrPC). Also, the court highlighted that the spouse seeking maintenance must be protected irrespective of the restitution of the conjugal rights decree.

Legal Principles Underpinning Restitution of Conjugal Rights

The legal principles that underpin restitution of conjugal rights are based on the traditional view of marriage as a legally binding contract with corresponding rights and duties, particularly cohabitation and consortium. The following key principles shape the remedy:

• Cohabitation as a Duty: Restitution of conjugal rights emphasizes that both spouses have a duty to live together, provide companionship, and maintain the marital home. The non-cohabitation by one spouse, without reasonable cause, is seen as a violation of marital obligations.
  
  This principle is rooted in the idea that marriage is not just a personal relationship but a societal institution that carries legal duties.
   
• Preservation of Marriage: The remedy was historically viewed as a tool to preserve marriages, encouraging reconciliation and deterring desertion. By restoring conjugal rights, courts aim to save the marriage and avoid divorce, which was considered a last resort in many legal systems.
   
• Reconciliation Over Divorce: Restitution of conjugal rights often acts as a prelude to divorce, but its primary objective is to promote reconciliation between estranged spouses. The court grants this decree as a final attempt to reunite the couple before granting a divorce based on non-compliance.
   
• Defense of Reasonable Cause: Spouses can defend against a petition for restitution by demonstrating a "reasonable excuse" for their withdrawal from cohabitation. Grounds like cruelty, adultery, or desertion can serve as valid defenses. This ensures that the remedy is not granted where one spouse's actions make cohabitation untenable.
   
• Application in Practice:
  • India: Despite its continued presence in Indian personal laws, the remedy is infrequently used. The Saroj Rani case established the validity of the remedy, but subsequent cases have highlighted its practical limitations, especially in cases involving cruelty or strained marital relations. In many cases, non-compliance with a restitution decree serves as a ground for divorce.
  • UK and Canada: The remedy has been abolished due to concerns about personal autonomy and its incompatibility with modern legal principles.
  • South Africa: While still recognized in principle, its use in practice has diminished, with a focus on divorce as the primary remedy for marital breakdown.

Conclusion
The remedy of restitution of conjugal rights is a relic of historical family law systems, with roots in the traditional view of marriage as a contract with enforceable obligations. While it is still present in jurisdictions like India and South Africa, its relevance and utility are diminishing. Modern family law tends to prioritize personal liberty, privacy, and equality in marriage, and the remedy of restitution is increasingly viewed as incompatible with these principles. The move toward more progressive divorce and separation laws reflects a shift away from enforcing marital cohabitation, focusing instead on mutual consent and the autonomy of individuals within marriage.