RESTITUTION OF CONJUGAL RIGHTS: A COMPARATIVE STUDY AMONG

INDIAN PERSONAL LAWS

By

Anuja Aiyappan

anujaaiyappan@gmail.com

Restitution of Conjugal Rights: Concept and Origin

RCR neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it.

It came with the Raj

The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum, (1867) 11 MIA 551, where such actions were regarded as considerations for specific performance.

contd.

Hindus under Section 9 of the Hindu Marriage Act, 1955,

Muslims under general law,

Christians under Section 32 and 33 of the Indian

Divorce Act, 1869,

Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936

Persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.

contd.

Under all personal law, the requirements of the provision of RCR are the following:

1. The withdrawal by the respondent from the society of the petitioner.

2. The withdrawal is without any reasonable cause or excuse or lawful ground.

3. There should be no other legal ground for refusal of the relief.

4. The court should be satisfied about the truth of the statement made in the petition.

contd.

The court will normally order restitution of conjugal rights if:

1. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her society

2. The statements made by the aggrieved spouse in the application are true, and

3. There is no legal ground why the petitioner’s prayer should not be granted

contd.

The court has held in various cases that the following situations will amount to a reasonable excuse to act as a defence in this area

1. A ground for relief in any matrimonial cause.

2. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave

3. Such an act, omission or conduct which makes it impossible for the respondent to live with the petitioner.

Constitutionality: Relief of Restitution of Conjugal Rights

The constitutional validity of the provision for RCR has

time and again been questioned and challenged.

In 1983 before the AP HC in T.Sareetha v. T.

Venkatasubbaiah AIR 1983 AP. 356 where the Court

held that the impugned section was unconstitutional.

Supreme Court in Saroj Rani v. Sudharshan AIR. 1984

SC 1562 upheld the constitutional validity of the

Section 9 of the Hindu Marriage Act, 1955

Application of the Provision in Different Communities

Hindus :

– Any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;

– Reasonable excuse for withdrawing from the society of the petitioner;

– Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disability for the purpose of such relief;

contd.

Muslims :

– Cruelty by spouse or in-laws

– On the failure by the spouse to perform marital obligations

– On non-payment of prompt dower by the husband

Christians :

– Cruelty of husband or wife

– If either of the spouse is insane

– If any one of the spouse marries again

contd.

Parsi :

– Where a husband/wife shall have deserted or without

lawful cause ceased to cohabit with his/her spouse,

the party so deserted or with whom cohabitation shall

have so ceased, may sue for the restitution of his or her

conjugal rights and the court if satisfied of the truth of

the allegations contained in the plaint and that there is

no just ground why relief should not be granted, may

proceed to decree such RCR accordingly.

Provisions under Hindu, Christian and Muslim Law

A petition for RCR is maintainable only when there is a valid marriage.

A Hindu and Christian can file a petition for RCR while under Muslim law a suit in a civil court has to be filed.

The concept of gender discrimination has not been incorporated in the Hindu and Christian Marriage but a Muslim husband can defeat wife’s petition for restitution at any time by pronouncing talaq on her

contd.

A decree for RCR cannot be refused in a marriage in violation of the age under Hindu and Christian law while in Muslim law under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 when the marriage has been avoided in the exercise of option of puberty the suit for RCR fails

Under Hindu and Christian law polygamy not allowed while under Muslim law controlled polygamy is allowed

Hindu law as well as Christian law the courts have the wide power and discretion to decide what constitute cruelty. While in Muslim law, Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939, both physical cruelty as well as legal cruelty together with all instances of cruelty is included under the definition of cruelty.

contd.

Under Hindu and Christian law separation agreements are not allowed while under Muslim law valid separation agreement is a good defence to a suit for RCR

The concept of dower is specific to Mohammedan law only. A Muslim wife living separate from the husband on account of non payment of prompt dower, RCR cannot be granted subjected to certain conditions.

Steps for filing a suit/petition for RCR

1. Decide the appropriate court and its location having jurisdiction to adjudicate the case

2. Drafting the Plaint

3. Remitting the Court fees into the Court and filing the Plaint

4. Getting process served to the respondents

5. Initial hearing

6. Filing of written statement by the respondents

7. Framing of Issues by the Court

8. Posting of the suit for evidence

9. Filing documents & Leading Evidence

10. Evidence by the respondents

11. Posting for Final Arguments

12. Posting the case for Pronouncement of the decree & Passing of Decree

Conclusion

• It is a remedy that is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation

• The court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse

• “You can take a horse to the water, but you can't make him drink”