Marriage imposes an obligation on both spouses with each other. The necessary implication of marriage is that parties will live together. But suppose, one party refuses to live with the other, can the latter by a legal process, compel the former to live with him? The restitution of conjugal rights means that if one of the parties of marriage withdraws from the society of the other, the latter is entitled to compel the former to live with him. Thus, it is a positive relief. This remedy of restitution of conjugal rights is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation.
The foundation of a right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort – consortium – of the other spouse.
Sec.9. Hindu Marriage Act
Restitution of conjugal rights- When either the husband or the wife has,without reasonable excuse,withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the courts, on being satisfied of the truth of the statements made in such petition and there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
The term “conjugal rights” means matrimonial rights i.e. the rights of the parties to society and comfort of each other . Thus the term include enjoyment of association, sympathy, confidence, comforts of dwelling together, intimacies of domestic relations, etc.
The word “society” means companionship, cohabitation i.e. consortium (living together as husband and wife). The words “withdrawal from the society of other” means withdrawal from the totality of conjugal relationship, such as refusal to stay together, refusal to have marital intercourse and refusal to give company and comfort. For instance, when a husband dumped his wife in his father’s house and thereafter showed totally unresponsive attitude towards her, it amounted to withdrawal from the society on the husband’s part.
In withdrawal from the society, there is an element of desertion. If it is established that the respondent has deserted the petitioner, it will obviously,amount to withdrawal from the society. However, it can be less than legal desertion. It is a total repudiation of cohabitation. That is why, for a couple which is sharing the same household, rejection by one of the physical relationship coupled with difficulties of normal affection does not amount to withdrawal from the society.
In Jackson Vs. Jackson , 1924 the Court held , “The court cannot enforce sexual intercourse, but only cohabitation, and restitution of conjugal rights cannot be ordered where the respondent refuses sexual intercourse but continues to cohabit with the petitioner.”
A petition for restitution of conjugal rights will fail, even if it is established that the respondent has withdrawn from the society of the petitioner, where there is a reasonable excuse for doing so. It will amount to reasonable excuse:
(1) If there exists a ground on which, the respondent can claim any matrimonial relief. Thus if petitioner is guilty of cruelty or is an impotent, the petition will fail.
(2) If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him. However, the reason should be ‘ grave and weighty’ .
Burden of Proof
Explanation to sec.9 means two things: (1) The initial burden to prove that the respondent has withdrawn from the society of the petitioner is on the petitioner, and (2) Once that burden is discharged it is for the respondent to prove that there exists a reasonable excuse for the withdrawal.
Effect of non-compliance of decree of restitution
Non-compliance of the decree of restitution of conjugal rights by one spouse enables the other spouse to obtain a decree of divorce after the lapse of one year. Thus, this decree is used as a device to obtain divorce because grounds of divorce were not available to him or her.
Thus, there must be a bona fide desire to resume cohabitation (e.g. husband sincere to bring wife back) and a petitioner who is sincere is entitled to decree even though parties may not have any affection for each other. In Sushil Kumar Dang Vs. Prem Kumar Dang (AIR 1976 Del. 321), the allegations by the husband that wife had an intimacy with another person was held to be a reasonable excuse for the wife to leave the matrimonial home. After decree of Restitution of Conjugal rights, husband soon started proceedings for judicial separation without waiting for the wife to return. The court observed: “Matrimonial law ought not be made the pawn for selfish gains unconnected with matrimonial home in the hands of one spouse to the detriment of the other” .
In order to succeed in a petition for restitution of conjugal rights it is necessary that the husband or wife must be sincere. A decree for restitution may be refused if the court finds that the petition is not presented bona fide and that there is an ulterior motive other than the sincere desire for a resumption of cohabitation. The petitioner must show that he is “sincere” i.e., that he has a bona fide desire to resume matrimonial cohabitation and to render the rights and duties of such cohabitation, and a petitioner who is sincere in that sense is entitled to a decree even though the parties may not have any affection for each other.
If the judge is satisfied that the object is not to live together but to attain some other ulterior purpose he might refuse the husband the assistance of the court and call for the strong arm of the law to force his wife under pain of imprisonment to resume cohabitation. In Smt. Gurdev Kaur v. Swaran Singh, Justice Grover said: “The Court would refuse to order restitution where it has become a practical impossibility for the parties to live together.” In a case for restitution of conjugal rights as in any other case the court has to see the conduct of the parties and their attitude of mind. In Gollins v. Gollins, 1964 , Lord Reid said: “A judge does, and must try to read the minds of the parties in order to evaluate their conduct.
The remedy of restitution is not to be treated as a fiction. It is as a reality, as an opportunity for the parties to allow their passions to cool down and return to the conjugal fold and rebuild the broken home, if they can.