This article has been written by Yash Dodani, a second-year student at NALSAR University of Law. He has tried to explain the implications if restitution of conjural right has been denied by any of the spouse.
Marriage is a very important ritual in the Indian society. It is said that everyone should marry in order to attain Moksha. In Hindu society, marriage is considered to be a sacrament. However, in other personal laws, the marriage is considered as a civil contract including that of the secular Act governing the institution of Marriage.
There are various provisions in all the Acts which allow the couple to get divorced from each other on various grounds. However, before granting divorce to the couple, the courts generally ask the couple to either judicially separate or pass the decree of restitution of conjugal rights. This is done by the courts in order to create some possibility in the couple to resolve the differences between them. However, this article is restricted to the restitution part only. However let’s assume that the court has in a case ordered restitution of conjugal rights and if one of the spouses has denied to cohabit with the other, then what will and can the other spouse do? This article will deal with that part.
Meaning and Various Provisions
The Merriam-Webster Dictionary defines conjugal rights as “the sexual rights or privileges implied by, and involved in, the marriage relationship; the right of sexual intercourse between husband and wife.” In other words, it can also be said as the right of the spouse to live together with his/her companion. Various provisions are written in various personal and secular legislations like
- Section 9 of the Hindu Marriage Act, 1956
- Section 22 of SMA, 1954
- Section 32 of the Indian Divorce Act, 1869
These legislations have a very general words saying that if the spouse withdraws from the life of another without a reasonable reason, then the courts by the order of restitution of conjugal rights may ask them to co-habit. This provision is also followed in the Muslim Personal Laws.
Generally in customs of India, the wife lives with the husband in his household. Although it is not the case always but the majority of the Indian customs do follow it. When the wife leaves the household of the husband without reasonable ground, the husband can file a plea of restitution of conjugal right in the court seeking the court to order the wife to cohabit with the husband.
The question of what is ‘household’ needs to be answered first before discussing further. To withdraw from the household is not always meant to live separately or desert another spouse completely. It may also mean-
- Desertion from the sexual intercourse.
- Not performing the marital obligation.
The petitioner in this case needs to prove two things. Firstly, that the respondent has withdrawn from the household of the petitioner and secondly there was no reasonable cause to do so. If the petitioner has is not able to prove these things, the court can pass the decree of restitution of conjugal rights.
However, there are various reasonable causes which are set by the courts-
- When the petitioner remarries with any other person.
- When the petitioner makes it difficult for the respondent to live.
- When the spouse in need of finance joins a job.
What is the procedure to file a plea of Restitution of Conjugal rights?
The petition is filed first in the district court. The copy of such petition must be given to the respondent and the date of the hearing must also be stated. The date of hearing is generally after 3 months of filing the petition. After such hearing, the courts generally ask the parties to go in the counselling or as we say a mediation. The counselling process is taken by the person who is appointed by the courts. They try to resolve the differences between the parties, if the differenced are sorted out, the petition is dropped by the parties and if not, the application is sent back to the courts. If the application is sent back, the court proceedings go on as normal and based on the evidence, the courts can order.
How it is ensured that the decree is enforced?
The decree of restitution of conjugal rights is a paper of decree and is not a binding document on any of the parties. So to enforce it, order 21 rule 32 of the CPC says that with the decree of restitution of conjugal rights, there will be some property of the respondent attached to it, which can be used by the petitioner if the respondent does not abide by the decree. If after one year if the parties do not abide by the decree, the property attached to the decree can be claimed by the petitioner and this can also become the ground for divorce.
If the spouse is not allowing to have sexual intercourse for a long period, this will amount to cruelty and the husband can file a petition seeking divorce. The plea of judicial separation can also be filed if not divorce. The courts also have powers to turn a decree of divorce into the decree of judicial separation if it doesn’t find merit in the petition of divorce. Not allowing restitution of conjugal rights is a valid ground for the parties to the divorce. If the court is satisfied that the other spouse alone can’t live alone due to financial reasons, then the courts can allow maintenance from another spouse. The right to maintenance is generally allowed in the cases of divorce and is also allowed when the spouse can’t live in a judicial separation alone due to financial reasons.
Hence the denial of restitution of conjugal rights may lead to the filing of the decree of divorce and to co-habit is the best option to support the institution of marriage. To file a plea of divorce it brings a lot of challenges to both the parties in terms of time, money and most importantly their mental state.