Restitution of Conjugal Rights
Restitution of Conjugal Rights
According to S. 9 of the HMA, 1955, “where either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the Court ( district ) for restitution of conjugal rights and the court, on being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 RCR’s accordingly.”
Under S.9 the Court may grant a decree for restitution of conjugal rights, when
(a) Either of the party has without reasonable excuse withdrawn from the society of the other;
(b) The court is satisfied of the truth of the statements made in the petition for restitution of conjugal rights; and
(c) There is no legal ground why the application should not be granted.
Grounds : Decree for restitution of conjugal rights can be Granted
The courts in their decisions have held the following to be valid grounds for separate living dissenting the other spouse to a decree for restitution of conjugal rights-
(i) Grossly indecent behaviour.
(ii) Extravagance of living on the part of wife affecting the financial position and prospects of the husband.
(iii) Excessive drinking carried to such a degree as to render it impossible for the duties of married life to continue or to be discharged.
(iv) Persistence in a false charge against the respondent of having committed an unnatural offence.
(v) Refusal of marital intercourse without sufficient reason.
(vi) Apprehension of violence due to development of insanity in the petitioner.
(vii) Agreement to live separate.
(viii) Misconduct approaching cruelty but falling short of it.
(ix) Imputation of unchastity persistently by the husband.
Grounds : restitution of conjugal rights can be defended
The decisions of the courts have also declared some excuses in the case of restitution of conjugal rights as unreasonable. Thus, under the following pretexts no spouse is allowed to withdraw from the society of the other spouse –
1. Mere joking or even impropriety falling short of adultery and other spouse. giving no reasonable ground for belief that it has been committed.
2. Mere frailty of temper and habits which are distasteful to the other spouse.
3. Habits of intemperance even if prolonged and accompanied by untrue accusations and hysterical outburst.
4. Existence of differences on account of the wife’s inability to agree with the step children
5. Discovery of pre-marital misconduct which has not resulted in pregnancy with another man at the time of the marriage.
6 Development of insanity after marriage which does not give rise to reasonable apprehension of violence.
Right of restitution of conjugal rights violative of Art 21 of the Constitution?
A decree of restitution of conjugal rights deprived a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be served. It constitute the grossest form of violation of any individual’s right to privacy. The remedy provided under S. 9 of the Act is savage and barbarous remedy violating the right to privacy and human dignity guaranteed under Art 21 of the Constitution. It was arbitrary and void as offending Art. 14 of the Constitution.
But this view was dissented in Smt. Harivindu Kaur V.s. Harminder Singh, A.I.R. 1984. This view was expressed by their Lordship that S.9 of the Act was not violative of Art 14 and 21 of the Constitution. The remedy of restitution aimed at cohabitation and consortium. It was a fallacy to hold that the institution of conjugal rights constituted the starkest form of governmental invasion on marital privacy.
Effect of Decree for Restitution of Conjugal Rights
A decree of RCR’s , if passed, makes it obligatory for the respondent to resume cohabitation with the plaintiff. Under the Law, as now in force if this is not done within one year from the date of the decree; either party is entitled to seek divorce.