The Restitution Of Conjugal Rights Under Hindu Law: It’s True Nature Revealed
Section 9 of The Hindu Marriage Act, 1955 unleashes the concept of restitution of conjugal rights. We shall look into what in reality it provides and how it is applied in the real life in this post. Section 9, can be called to be means of saving the sanctity of a marriage, it can be read as an extension of sub-sections (2) and (3) of section 23 which roots for reconciliation by the court. Restitution Of Conjugal Rights and It’s Execution
Under Hindu Law, marriage is considered to be the most sacred ceremony. The ceremony of Saptapadi imposes certain rights and duties upon both the husband and the wife which they are bound to execute in their married life. These rights and duties are called conjugal rights such as to reside as husband and wife under the same roof, procreation, raising a family, among others. Restitution Of Conjugal Rights and It’s Execution
The Section 9 of the act enshrines that when either the husband or the wife, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights at their will.He can file a petition to the district court and if satisfied of the truth of the statements made in that petition and no legal ground exists as to why the application should not be granted, the district judge may pass a decree of restitution of conjugal rights.
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After filing of the petition, a copy of the petition will be sent to the other party along with the hearing date; thereafter both the parties should appear before the court on the mentioned dates and will be sent for counselling sessions by the court. Usually, the court recommends three sessions every twenty days between sessions which continues for four months. The judge then finally passes a decree depending on the statement provided by the parties and on the counselling held. Restitution Of Conjugal Rights and It’s Execution
In the case of Sushila Bai v. Prem Narayan, AIR 1986 MP 225, the court gave an order of restitution of conjugal rights and laid down certain situations which could be taken as a defence in a suit of restitution which is as follows – Restitution Of Conjugal Rights and It’s Execution
- The respondent can claim a matrimonial relief against the suit.
- The facts shown are proven that the petitioner is guilty of misconduct.
- Due to certain acts or omissions it becomes impossible for the spouses to live together.
Only under these the suit for restitution is vitiated and the court gives a decree for a judicial separation.
Also, if the parties do not abide by the decree for cohabitation after the passing of this decree, for one year at a stretch, it becomes a ground for divorce under Section 13 of the Act. Restitution Of Conjugal Rights and It’s Execution
The grounds for rejection can be summed as:
- Matrimonial misconduct
- Cruelty
- Remarriage of either spouse
- Delay of institution of proceedings for no legitimate cause
If the Court comes to a conclusion that one’s own conduct debars him/her from seeking the relief of the company of their spouse; thereby the court can dismiss the petition with reference to section 23 of the Hindu Marriage Act. The court can also dismiss the petition if the petition is found to be untrue and filled with redundant statements. If Court finds that the spouse has reasonable excuse in withdrawing from society, or any other legal grounds even then the petition stands dismissed.
Coming to the burden of proof, it is on the aggrieved party who claims for the restitution, he needs to prove that the respondent has withdrawn from their society. After such statements are found to be true by the court, the onus shifts on the respondent to prove that there exists a reasonable excuse for the withdrawal as held in the case of P. Rajesh kumar Bagmar v. Swathi Rajesh kumar Bagmar, (2008) 4 CTC 338.
In the case of Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 9, the Supreme Court validating the constitutionality of Section 9 of the Hindu Marriage Act dealing with restitution held that in cases of restitution of conjugal rights the respondent spouse becomes liable as per court’s order should cohabit with the aggrieved petitioner and fulfil the marital obligations.
By Section 9 of the Hindu Marriage Act, 1955 apart from carrying out of restitution of conjugal rights; in addition, provides for an opportunity for the petitioner to seek maintenance under Section 25 of the Act. Such maintenance under these provisions can be claimed in the cases where the action concerning maintenance remains pending. Thus, a wife who denies the disruption of her marriage can get maintenance from her husband within the umbrella of the aforementioned provision of law.
In the case of Seema v. Rakesh Kumar, (2000) 9 SCC 271, the Supreme Court held that for a claim of decree of restitution of conjugal rights, the petitioner is entitled to receive maintenance from the husband if they are living with each other and the wife is unable to live a decent life on her own.
In Jagdish Lal vs Smt. Shyama Madan And Ors., AIR 1966 All 150 the husband filed restitution of conjugal rights. The wife proved that the husband is impotent and so the court had rejected the restitution suit on reasonable ground. Restitution Of Conjugal Rights and It’s Execution
Execution of Decree of Restitution of Conjugal Rights
When any spouse obtains a decree from a trail court, his/her next step is to get the decree satisfied by filing its execution petition before the trail court. Execution is the proceeding by which Decree Holder moves to the trial court for the satisfaction of decree is called execution. Execution empowers the decree holder to recover the decreetal amount or relief granted under the decree from the judgment debtor.
Order (21) rule (32) of C.P.C deals with execution of decree passed for restitution of conjugal rights. It reads as under:
“Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, stay has been passed, has had an opportunity of obeying the decree and if he has wilfully failed to obey it, the decree may be enforced, in the case of a decree for restitution of conjugal rights”
- By the attachment of his property, or in the case of a decree for specific performance of a contract or for an injunction.
- By his detention in Civil Prison.
- By his detention in Civil Prison.
- By the attachment of his property.
Does non compliance of RCR order lead to contempt of court order
Decree older cannot force judgment debtor to stay with him/her in the execution of decree of restitution of conjugal rights. It is the only remedy available with decree holder that in case despite the decree passed for the restitution of conjugal rights if spouse does not come back and not compliance the order than after one year decree holder may file the divorce petition against the judgment debtor. No any Contempt of Court is made out for the non compliance of order.
Under clause (ii) of sub-sec. (1A) of S. 13 of Hindu Marriage Act either party to the marriage may present a petition for divorce on the ground that there has been no resumption of Conjugal Rights for a period of not less than one year after the passing of a decree to that effect. The court before granting a decree for divorce on this ground may be satisfied that the petitioner is not disentitled to this right by reason of any bar laid down in s. 23 of the Act After a decree for restitution of conjugal rights obtained by the wife under s.9 of the Act the husband is not entitled to the relief under s. 13( lA) of the Act if he fails to comply with the decree and also acts positively by ill-treating her and driving her away from the house.19 There are, however, conflicting decisions on the question of application of s. 23(1 )(a) of the Act. The Punjab High Court, the Mysore High Court and the Bombay High Court’ were of the opinion that the petitioner in divorce proceedings cannot take the advantage of his or her own wrong for the purpose of this relief by non-compliance with the decree of restitution of conjugal rights.
A non-compliance with the decree for restitution of conjugal rights by the Spouse would not constitute ‘wrong’ within the meaning of s. 23(1)(a) of the Act. Judgment-debtor and the Decree-holder for making a petition under this provision have no bearing on the conduct of either party after the decree is passed but the court in divorce proceedings may consider the conduct of the parties not considered in the proceedings leading to the decree. It is submitted that the plain wordings of s. 13(1A) have made no distinction between the parties to the marriage and hence any contrary holding would impute super added idea in the intention of the Legislature making the amendment for insertion of sub-sec. (1A) of s. 13 of the Act. Further, where the language is plain and simple without any ambiguity, s. 13(1)(a) should not restrict and control the application of s. 13(1A) of the Act. In a case where a consent decree for restitution of conjugal rights was passed, it would form the basis for divorce for non-compliance. It is to be noted that if a decree for restitution of conjugal rights is complied with, there is no scope for a petition of divorce.
All the controversies on this issue have come to rest on the decision of Saroj Rani v Sudarshan Kumar, where it has been held by Hon’ble Supreme Court of India that after a decree for restitution of conjugal rights the husband is entitled for a decree of divorce under s. 13 of the Act and his failure to resume cohabitation would not amount to “wrong” within the meaning of s. 23(1 )(a) of the Act. But where the husband has obtained a decree for restitution of conjugal rights, only for the purpose of seeking a divorce under s. 13(1 A)(ii) of the Act and preventing the wife from performing her conjugal duties by driving her away from the house, this constituted misconduct under s. 23(1)(a) of the Act as the husband was taking advantage of his own wrong and hence he was not entitled to any relief under s. 13(1A) of the Act.
Striking of RCR Provision from Hindu Marriage Act
In the current year, in the month of January 2020, a Supreme Court bench took a response from the Attorney General, regarding a prayer to strike down the restitution of conjugal rights provision. There is a possibility that the provision may be quashed since the petition has been filed and reference has been sought; however, the matter still remains pending for further consideration by the Apex Court. This if quashed shall be a turning point in the history of personal laws and will be worth the time to follow upon its advancements.
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While concluding, it is noteworthy to mention here that the husband has the right to live with his wife and her to live with him wherever he chooses to reside. Having said that, there may be circumstances which further compel the spouses to live in different places. These circumstances be just for the wife to live at a different place. It is for the Court to adjudge as to whether the circumstances permit the wife to live at such place.
Note: This article was written by Ms. Richaa Mukhopadhyay, 4th Year Student of B.A. L.L.B, Amity Law School, Amity University, Kolkata. For more information or Query you may contact us.
