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Restitution
of Conjugal Rights
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There
is a very popular proverb that one can take the horse to
a water tank, but you cannot force him to drink water. The
provision of Restitution of Conjugal Rights in the Hindu
Marriage Act seems to be a similar one. After solemnisation
of marriage under the Act if one of the spouse abandons
the other without reasonable excuse, the aggrieved party
has a legal right under section 9 of the Hindu Marriage
Act, 1955 to file a petition in the matrimonial court for
restitution of conjugal rights.
Section
9 of the Hindu Marriage Act, 1955 reads as follows:-
"When either the husband or the wife has without reasonable
excuse withdrawn from the society of the other, the aggrieved
party may apply, by a petition to the district court, for
restitution of conjugal rights and the court, on being satisfied
of 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".
Where a question arises whether there has been reasonable
excuse for withdrawal from the society, the burden of proving
reasonable excuse shall be on the person who has withdrawn
from the society.
If,
after hearing the petition of the aggrieved party, the court
comes to this conclusion that the grounds made out in the
petition are genuine and have satisfactorily been proved,
the court in that case would pass a decree of restitution
of conjugal rights.
The
execution of the decree of restitution of conjugal rights
is very difficult. The court though is competent to pass
a decree of restitution of conjugal rights, but it is powerless
to have its specific performance by any provision of law.
Of course, the non-compliance of the said decree amounts
to constructive desertion on the part of the erring party.
As per provisions of the present Act, the aggrieved party
can move a petition for a decree of divorce after a period
of one year from the date of the passing of the decree and
the competent court is fully authorized to pass a decree
of divorce in favour of the aggrieved party.
But
under no circumstances the court can force the erring party
to consummate marriage. Another advantage is that the aggrieved
wife can have from this provision is that she can claim
maintenance from the husband.
At
the time of introducing this provision in the Hindu Marriage
Act, and in the Special Marriage Act, there were heated
debates in the Parliament in favour and against. Acharya
J. B. Kriplani, a senior Parliamentarian is on record to
say that "This provision was physically undesirable, morally
unwanted and aesthetically disgusting" (Parliamentary Debates
on Special Marriage Bill - December 10, 1954)
Before
the Andhra Pradesh High Court, the constitutional validity
of section 9 of the Hindu Marriage Act, 1955 was challenged.
In T. Sarutha V/s T. Venkatasubbaiah, AIR 1983 AP 356, the
Hon'ble Court observed that "section 9 of the Hindu Marriage
Act is violative of right of privacy and human dignity guaranteed
under Article 21 of the Constitution of Indian Republican
and is, therefore, ultra vires the Constitution. It denies
woman her choice whether, when and how, her body is to become
the vehicle for the procreation of another human being…."
It
was very practical and progressive judgment, but unfortunately
the High Court of Delhi gave a dissenting judgment, and
ultimately the Supreme Court over-ruled it.
The
Supreme Court observed that introduction of Constitution
Law in the matrimonial home was like the introduction of
a bull in a china shop. The Supreme Court, in Saroj Rani
V/s Sudharshan, overruled the judgment of the AP High Court
delivered in T. Sarutha V/s T. Venkatasubbaiah, approving
the Delhi High Court judgement.
The
approach of both the judges misses one fundamental aspect
of family, that is, when home is broken beyond all possibilities
of repair, when it has become an arena of bouts between
the spouses, neither the restitution of conjugal rights
nor the constitutional law can help.
Such
a union should be broken with maximum fairness and minimum
bitterness, distress and humiliation.
The
only merit here is that one year's non-compliance of the
decree can lead to divorce. This is hardly a merit of the
decree of restitution of conjugal rights.
Books
Referred:
Law of Marriage and Divorce
Divorce-Law and procedure
Hindu Law
Sandeep
Shenoy
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here if you would like to Contribute or send a feedback.
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