The 71st Law Commisiion report defines conjugal rights as follows:
“The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life. Living together is a symbol of such sharing. Living apart is a symbol indicating the negation of such sharing.”
In India, the conjugal rights of a husband or a wife to rejoin his/her spouse in the society of the other spouse are not merely created by statute. They are inherent in the very institution of marriage itself.
Thus RCR provides a remedy to preserve this institution of marriage.
The provisions of restitution of conjugal rights are contained in sections 9 and 22 of Hindu Marriage Act, 1955 and Special Marriage Act, 1954 respectively. Broadly, it gives the aggrieved party, either the husband or the wife, remedy to apply for restitution of conjugal rights if the other party has withdrawn from his or her society without any reasonable excuse.
The court, on being satisfied with the truth of the allegations and that there is no other legal ground barring such remedy, may order the other party to join the company of the aggrieved party.
The enforcement mechanism for this decree is contained in Order 21, rule 32 of the Code of Civil Procedure which provides for attachment of property, detention in a civil prison, or both, if the other party fails to comply with the decree.
Further, under section 13(1A)ii of the Hindu Marriage Act, 1955, if there is no restitution within one year of the passing of the decree, it becomes a ripe ground for divorce and either party can ask for the decree for divorce on this basis.
The burden of proof lies on the party who has withdrawn unreasonably.
1. Withdrawal from the community.
2. The withdrawal shall be without rational cause, excuse or legitimate reason.
3. No other legal grounds for denying relief should exist.
4. The court must be satisfied with the reality of the statement made in the petition.
The withdrawl here means the withdrawl from the totatility of conjugal relationship,such as refusal to live together,refusal to have marital intercourse and refusal to give company and support.
Constitutionality of the restitution of conjugal rights in India
The constitutionality of RCR was first challenged in the case of T. Sareetha v. T. Venkata Subbaiah before the Andhra Pradesh High Court where the court observed that that the enforcement of section 9 against an individual compelled her to have sexual relations with her spouse, thus depriving her of control over her body. This, according to the court, was a serious breach of the right to privacy as it transfers “the choice of whether or not to have marital intercourse to the State from the concerned individual”.
Unfortunately,it was overruled in the case of of Harvinder Kaur v. Harmander Singh Choudhry by the Delhi High Court.
The Delhi High Court held that sexual relations are not the ultimate goal of a marriage and that restitution of conjugal rights aims only at compelling the parties to a marriage to live in the same household and does not compel them to have sexual intercourse.Thus it was held to not be violative of Articles 14 and 21 of the Constitution.
This ruiling was affirmed subsequently in the case of of Saroj Rani v. Sudershan Kumar, where the court said that the decree for restitution of conjugal rights offers the husband and wife an opportunity to settle up the matter amicably. It allegedly serves a social purpose as an aid to the prevention of break-up of the marriage.
A report of the High-level Committee on the Status of Women in 2015 suggested deletion of provisions relating to conjugal rights. The Law Commission of India finalized a similar recommendation in its Consultation Paper on ‘Reforms In Family Law’.
Both husbands and wives have the right to request the restitution of conjugal rights. The provisions are facially neutral, however, considering unequal family power structures in Indian society, the punitive immunity given to the husband in the cases of marital rape, might hit the women more heavily.
It is about time that section 9, restitution of conjugal rights, be abolished because it is most often used by men to entangle women in abusive relationships or force them to return to homes with abuse to escape from the liability of maintaining them.
It is often used collusively by the parties to get a divorce by making reference to section 13(1A)ii which provides an additional ground for divorce on the grounds of non-compliance with a RCR decree for a period of one year.This defeats Section 9’s own purpose as its purpose is to prevent divorce.
Marriage is a bond of emotions. How can court intervention bring back the emotions in a matrimonial life?
Furthermore, the provision of attaching property on non compliance of the RCR decree contrasts with the sacramental nature of marriage as opposed to the contractual nature in which breach/non-performance of a contract invites sanction for an amount of damages.It rather a coercive act aimed at bringing together the spouses against their will.
I believe that the state's coercive power cannot bring the unwilling partners together or correct the misunderstanding between them. Despite this coercive remedy to help spouses live together, no one can ensure that their marriage is happy and healthy.
The restitution can be claimed by other “more appropriate methods” and in case these other methods fail to bring the desired outcome, it is unlikely that a forceful co-habitation would succeed.
Family Law by Paras Diwan
Faculty of Law, University of Delhi