The basic premise of marriage is that husband and wife should live together and respect each other’s rights. Both husband and wife have some mutual obligations towards each other which cannot be ignored at any cost. 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[1] [2]. 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[2] [3]. In Moonshee Buzloor Ruheem v. Shumsoonissa Begum[3] [4] the idea of RCR came in India. The only remedy is under The Hindu Marriage Act (HMA),1955
THE RESTITUION OF CONJUGAL RIGHTS ,SECTION 9, HMA ,1955 : –
The requirements of the provision: –
1. Withdrawal of Respondent from the society of the Aggrieved.
2. Withdrawal is without any reasonable cause or excuse or lawful ground.
3.There should be no other legal ground for denying relief.
4.The court should be satisfied as to the truth of Allegations made in the petition.
1.1 What Conjugal Rights means?
The Term “conjugal rights” means matrimonial rights i.e. the rights of the parties towards society and comfort of each other. the word “society” means companionship, cohabitation i.e. consortium (living together as husband and wife).
Various personal laws have provisions regarding RCR: –
Section 9, HMA,1955
Section 22,Special Marriage Act,1954
Section 36, the Parsi Marriage and Divorce Act,1936
Section 32,33, The Divorce Act 1869
1.2 What ‘WITHOUT ANY REASONABLE EXCUSE’ Means?
Without any reasonable excuse includes:
1)High standard of living is not maintained by husband,
2)The husband refuses to live with her in her paternal place, or
3)There is an agreement between the parties(ante-nuptial/postnuptial) and it is opposed to the public policy etc.
CASES
In Sushila bai v. prem narain rai [4][5] the husband deserted his wife and thereafter was totally unresponsive towards her. This conduct was held to be sufficient to show that he had withdrawn from his wife’s society, and the wife’s application for restoration of conjugal rights was therefore allowed. The defense of this principle lies in the concept of “reasonable excuse”. If the respondent resigned from her husband’s company for a legitimate reason, this is a complete defense of the restitution petition.
In Swaraj Garg vs. K.M Garg [5] [6]the court held that if a husband and wife are gainfully employed and the wife is earning more than the husband, then there are sufficient reasons for the wife to live separately. So, in this case, the court didn’t grant the petition for restitution of conjugal rights in favor of the husband. The court also said that there is nothing in Hindu Law saying that the wife has no right in choosing the place of a matrimonial home.
1.3 What ‘WITHDRAWN FROM THE SOCIETY’ Means?
It includes:-
1. Refusal to stay together ,or
2.Refusal to give comfort to each other ,or
3.Refusal to have marital intercourse, or
4.Refusal to discharge matrimonial obligations.
In the case of Shanti Nigam vs. Ramesh Chandra the court observed that withdrawal from the society of the husband may be physical but without any intention to leave his company. So as long as wife completely cut herself and decided not to go to her husband and she breaks all marital ties with him then only that will be the reason for the RCR decree. Refusal to leave employment at the husband’s command is not grounds for a RCR decree. The court also said that it will not follow the old concept and rules, its decision will be based on considering the present-day situations.
The constitutional validity of the restitution of conjugal rights provision has been questioned and challenged time and time again. First in 1983 before the Andhra Pradesh High Court inT Sareetha v. T. Venkatasubbaiah [6] [7]where the Honorable High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh [7] [8] though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan [8] [9]eventually gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the HMA, 1955 and over-turned the decision given in T. Sareetha v. T. Venkatasubbaiah.
If the court passes a decree of restoration of conjugal rights, the respondent is required to resume cohabitation with the plaintiff, and if he does not do so within one year, it becomes a ground for divorce for both.
In the case of Sushil kumari dang v. prem kumar , it is the wife’s appeal against the district court’s decision to restore conjugal rights. The husband filed an application for restitution of conjugal rights because the wife left his matrimonial home against his will and consent and lives separately and is not ready to return. However, based on the facts of the case, the court found that the husband’s intention behind this proposal was not genuine. The court therefore granted the wife’s appeal.
In Shanti Devi vs. BalbirSingh , the court ensured the requirements for filing a petition for the restoration of marital rights. The court said it had to be seen
(i) whether one of the spouses withdrew from the company of the other without a reasonable excuse.
(ii) the court must be satisfied with the facts stated in the petition.
(iii) there should be no legal ground for rejecting the petition. But if the husband has an affair with a girl or his behavior towards his wife is torturous, these will be considered reasonable excuses.
1)The Aggrieved spouse files petition before district court where they were married or last resided together .
2) the petitioner must state that the respondent withdrew from the petitioner’s company without reasonable excuse.
3) The parties are summoned before the court with their respective counsel and attempts to reconcile the parties through counselling or mediation.
4) )If conciliation fails and the court is satisfied with the petitioner’s claim, a decree for RCR may be issued.
5)once the decree is passed, the respondent is given a specific period to comply, failure to which can led to legal actions.
Although this provision is gender neutral , we must note that women in India still face discrimination in society and this provision takes advantage of it. For example, women are often emotionally and mentally abused and tortured for dowry, and dowry killing is still common in society. A decree of RCR is a belt around the neck of those exhausted and broken spouses who have to leave their husband’s house. How can our courts, which promise to protect the three pillars of justice, equality and conscience, decide that a woman who is already on the verge of collapse will return to the place of her abuse? This position needs to be reconsidered in the light of recent progressive decisions of the Supreme Court. In Navtej Singh Johar v. Union of India, the Supreme Court held that Article 21 of the Constitution of India must be recognized to protect the absolute autonomy of every person over intimate decisions concerning his personal life. The Supreme Court mentioned in K.S. Puttaswamy v. Union of India [9] [10] that the “individual’s right to privacy” should be interpreted through an individualized lens that includes the right to complete autonomy over one’s own body. The court mentioned that to exercise any fundamental right in Part III of the Constitution, the right to privacy must be given. Moreover, the court in Navtej Singh Johar emphasized that “choice and dignity” are related and that it is very difficult to conceive of dignity in its sanctified entirety when the right to freedom of choice is curtailed. We need to move towards more progressive views on marriage in the judiciary and society in India. The RCR as a provision must be declared invalid in the shadow of the Puttaswamy and Joseph Shin judgments which spoke of the right to privacy as a fundamental right under Article 21. The 2017 Right to Privacy ruling opened the way for many existing laws to be challenged, which now violate the right to privacy. In February 2019, a proposal was submitted to the Supreme Court for the constitutional validity of the decree on the restitution of conjugal rights. The petitioner challenged Section 9 of the HMA, 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 was filed by the students of GNLU on behalf of Ojaswi Pathak v. Union of India [10] [11]
The term “divorce” has not been defined in any legal authority or legal act, but refers to the legal dissolution of a marriage through court proceedings and legal mechanism. The term divorce was not known in ancient and medieval period With time, need to include divorce in marital rights arose due to increased awareness regarding human rights and individuality. Before 1955, divorce was not included , as marriage was considered a sacred institution , which continued till seven janams.However with changing societal needs place for divorce was created in the Hindu Marriage Act, of 1955
Grounds for divorce available to both husband and wife
(i)Talks about ADULTERY- done by either of the spouse
(ia) Talks about CRUELTY– treating petitioner with.
(ib)Talks about DESERTION– not together for a period of a continuous period of not less than two years immediately preceding the petition
(ii) Talks about Person who ceased to be Hindu and converted to another religion.
(iii)Talks about person of incurably of unsound mind-(a) mental disorder (b)psychopathic disorder
(v)Talks about VENERAL DISEASE in a communicable manner.
(vi) person who RENOUNCED the world by entering into a religious order.
(vii) a person who had not been heard of being alive for a period of seven years.
After the court issues a decree of judicial separation but there is no RESUME of cohabitation between the parties for a period of one year or more. when after the adoption of a court decision on the restoration of conjugal rights, there is no resumption of cohabitation between the parties.
Ground available for wife :
-The marriage was contracted before the commencement of this act and their husband remarried before such act took effect or, if the wife remarried, during the lifetime of the spouses. In both these cases, the second wife should be alive at the time of application..
-Husband guilty of RAPE, SODOMY, BESTIALTY, since the solemnization of marriage.
-A decree passed against the husband under SECTION 18 of The Hindu Adoptions and Maintenance Act ,1956 and proceedings under SECTION 125 of The Code of Criminal Procedue,1895, awarding maintenance to wife, but since that passing of decree the cohabitation between parties has not been resumed for one year or upwards .
Her marriage (whether consummated or not) was solemnized before attaining fifteen years of age and she has repudiated the marriage after attaining that age, but before attaining the age of eighteen years.
Section 13B: Divorce by mutual consent
The couple has been living together for over a year and have mutually decided to end their marriage.
SamarGhosh vs. JayaGhosh [11]: [12]Supreme Court mentions grounds of divorce based on cruelty . The court bifurcated cruelty into two- physical , mental cruelty; the case fall under mental cruelty and mentioned cruelty depends on facts, circumstances.
Naveen Kohli v. Neelu Kohli :-[12] [13]Supreme Court observed that one of the ground of divorce is breakdown of marriage and decided the case in their favour and add it to one of the ground for divorce.
Akansha v. Anupam mathur the Supreme Court observed the demand for mutual divorce and requested for a waiver of six months. Thereafter, court waived off six months- marriage was concluded.
Sureshta Devi v. Om Prakash [13]: [14] Supreme Court ruled – mutual consent (divorce) must last until final decision. If either party withdraws consent before the final order is issued, the petition will be dismissed.
2.3 LEGAL PROCEDURE FOR DIVORCE:
1) Either party can file Petition in family Court. Petition must clarify grounds on basis of which divorce is demanded.
2) Court issue notice to respondent spouse ,to give suitable reply to the notice. In case of mutual divorce, both need to jointly file that application .
3) first motion passed and 6 month gap given to rethink and can have extension till eighteen months from date.
4)all things goes right in favour of staying together, divorce petition notwithstanding ; but in case parties refuses to live together, proceeding will proceed to second motion.
5) The court issues order on divorce and declares their Marriage void (later being satisfied with the arguments presented by parties).
In HMA,1955, there are several grounds for divorce such as adultery, cruelty, desertion, conversion, unsound mind, leprosy, venereal disease, renunciation and presumption of death. These foundations are comprehensive; however, they can be reframed with more contemporary issues such as emotional abuse and digital infidelity. Although legislation is silent on the “irretrievable breakdown of marriage”, judiciary is increasingly allowing . An amendment to add this as a ground for divorce might make it easier and probably shorten the waiting time for definitive proof of such marriages.
Although the law is written in a more gender-neutral way, its application is sometimes gender-biased. It is so important that everyone, women and men, be protected by the law. The Autonomous Council supports mediation and conciliation before you proceed with a divorce to help you resolve conflicts peacefully. Rethinking and strengthening the role of ADR cases can reduce likelihood of divorce proceedings that lead to a contested situation and positively impact family reunification efforts.
Many people are unaware of their rights and responsibilities under HMA. Increasing legal awareness and ensuring easy access to legal support can be major ways to restore understanding of matrimonial disputes.
From generations past, divorce was considered a bad idea. There can be myriad reasons for divorce . In India ,such problems have a separate dimension. The culture of India is such that a man or woman is considered the property of the foster parents because they take care of the child. Such treatment may be pleasant, but it is also one of the main reasons for the increased number of divorces.
Other reason could be a communication gap in wed-lock. Where there is no proper communication, misunderstandings are bound to occur. Both men and women are separate entities having own rights in marriage. However, to better communicate and a successful marriage, some rights must be shared. Divorce could also occur as a result of disproportionate influence without the knowledge of both parties, which can alternate in various ways after wedding. reason behind breakdown of marriage machinery could be embezzlement during wedding/ hiding one’s true identity and gender.
Court ruled in a petition for RCR, if the aggrieved spouse proves to the defendant that he has withdrawn from the company, the defendant must prove that he had a reasonable excuse for his withdrawal from company, only then must he issue a order for the restoration of RCR. When the Appellant husband convinces wife to return from her parent’s house and to stay with him and again continue married life by writing letters, and she is not ready to live with her husband because of the intimidating content mentioned in the letter, then the court will consider it. letters for innocuous documents.
[1] p. diwan, Family Law: Marriage and Divorce in India 1st Ed., Sterling, 1983.
[2] “Section 9 of the Hindu Marriage Act,,” 08 february 2022. [Online]. Available: https://www.juscorpus.com/section-9-of-the-hindu-marriage-act/.
[3] Moonshee Buzloor Ruheem v Shumsoonissa Begum 11 Moo Ind App 551.
[4] Sushila Bai v Prem Narayan AIR 1986 MP 225.
[5] AIR1978DELHI296.
[6] T. Sareetha v T. Venkatasubbaiah AIR 1983 AP 356.
[7] Harvinder Kaur v Harmander Singh Chaudhary AIR 1984 Delhi 66.
[8] Saroj Rani v Sudarshan Kumar Chadha 1984 AIR 1562.
[9] K.S. Puttaswamy v Union of India (2017) 10 SCC 1.
[10] Ojaswa Pathak v Union of India, Writ Petition (Civil) No.250/2019 the Supreme Court of India.
[11] Samar Ghosh vs Jaya Ghosh AIR 2007 SC 347.
[12] Smt. Neelu Kohli vs Naveen Kohli AIR 2004 ALL 1.
[13] SURESHTA DEVI V. OM PRAKASH 1992 AIR 1904,.
Author: Yashasvi Sharma
Juris Centre 