Edited by: Vaani Garg
Marriage is the union of both husband and wife. After solemnization of marriage, it imposes a duty on both husband and wife to live with each other. For a valid marriage, both spouses have to cohabit with each other. Marriage is considered as sacrament under Hindu law, so it is the duty of both husband and wife to fulfill all the matrimonial obligations and conjugal rights towards each other.
After marriage, if one party refuses to live with the other, then the suffered party can compel the guilty party to live with him. A decree of restitution of conjugal rights ordered to guilty party to live with the suffered party. This concept is known as the Restitution of conjugal rights.
ORIGIN OF RESTITUTION OF CONJUGAL RIGHTS
The restitution of conjugal rights is an ancient concept and its origin is from Jewish law . This right was adopted into Indian Legislature in Hindu marriage act, 1955.
This concept owns its origin to ancient times, where marriage was based on proprietary rights of the husband. A wife had to live under the roof and protection of her husband. If the wife refused to live with her husband, she could be compelled to live with him which was viewed as grave injustice to women and it viewed as contrary to public policy. In the later law, this right of restitution was made available to wife.
PROVISION OF RESTITUTION OF CONJUGAL RIGHTS IN HINDU LAW
Section 9 of Hindu marriage act, 1955 provides that;
“When either the husband or the wife has,without reasonable excuse, withdrawn from society of the other,the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court,on being satisfied on the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly”.
An Explanation has been added under the Marriage laws(Amendment)Act,1976;
”Where a question arises whether there has been reasonable cause from withdrawn from the society,the burden of proving reasonable excuse shall be on the person who has withdrawn from the society”.
THREE CONDITIONS TO BE FULFILLED FOR A DECREE OF RESTITUTION OF CONJUGAL RIGHTS;
1.Either of the party has withdrawn from society of the other without any reasonable cause;
2.The court is satisfied about the truth of the statements made in such application;
3.There is no legal ground why the application should not be granted.
TIRATH KAUR VS KRIPAL SINGH, AIR 1964 PUNJ.28
At the instance of the husband the wife took up training and obtain a diploma in tailoring. Thereafter, she got a job which was at a distance from the husband’s house. The parties continued to live together, but differences arose between them and the husband asked his wife to resign from her job.
The wife refused to resign and continued her job which was at the distance of her husband’s house. Justice Grover said that under no law the wife could be allowed to withdraw virtually from the society of husband in this manner,and thus such refusal is deemed to be a withdrawn from the society on the part of the wife and hence the husband is entitled to be obtain a decree of restitution of conjugal rights.
It is violation of right to select profession and right to reside in any part of India which is granted by Constitution of India.
In SHANTI VS RAMESH 1971 A.L.J. 67, katju J. of Allahabad High Court held that mere refusal of the wife to resign her job at the instance of husband is not a sufficient ground for granting a decree of restitution in favor of husband,as wife’s taking up of job even contrary to the wishes would not amount to withdrawing from his society.
Restitution of conjugal rights is a right which places an obligation on the spouses to save their marriage. In the age of modern era, it is no longer deemed appropriate that wife is considered as the property of her husband. Everyone has the right to work and take up any profession and a man’s wife taking up a job or not giving up at the instance of her husband cannot amount to be withdrawn from society.