Restitution Of Conjugal Rights (ROCR)

Restitution Of Conjugal Rights

Author: Mr. Aditya Aryan from ICFAI Law School, Dehradun.

In India marriage and society are two important pillars of the society, both of these are considered as highly respected in our society. In India marriage is a religious establishment which is very important for the growth of our society.

We live in a generation where life is very fast that somehow results in many fields. All these disputes have resulted in a lack of harmony between married couples.

During the last 10 years, it is also been observed that the cases of matrimonial disputes are rising uninterrupted. Earlier these kinds of disputes were not given much of an importance, but as the time changed different types of thoughts have taken place and different types of methods are adopted to solve these matrimonial disputes. Due to these reasons, it becomes important to study and analyze the topic.

In this article, we will be critically analyzing the Restitution of conjugal rights, a matrimonial remedy available for the hindus and Hindu Marriage Act of 1955. We will be analysing with the cases decided by the apex court regarding the issue.

Marriage in India is an establishment that gives rise to a relationship between two partners, the husband and the wife, which later give rises to more relations. The relationship also gives emergence to different rights and obligations. These rights and obligations together constitute “conjugal rights” which means “right to stay together”.

It is a general custom in India, that both the spouse should act as a support for each other in hard times, the should be there to comfort and love their partners. But in cases where one of the partners leaves others without any reasonable justification or without any sufficient cause then the suffering party can knock the door of the court to seek justice.

Section-9 of The Hindu Marriage Act Of 1955 deals with restitution of conjugal rights which says:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with 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.”

When one of the partners is guilty of leaving another and staying away without any justified or reasonable cause and if the suit of restitution of conjugal rights gets succeeded then the couple would be required to stay together. Section-9 of the said act is also known as the marriage saving clause.

It may also be noted that under section 13(1-A) of the Hindu Marriage Act of 1935, if there has been no restitution of conjugal rights among the parties for the period of one year or more after the decree is passed, then it qualifies as a valid ground for divorce. Any party may invoke it for the dissolution of the marriage.

For the first time in India, this remedy was implemented by the privy council in the case namely Moonshee Bazloor v. Shamsoonaissa Begum.

The three main essential requirements to be fulfilled under section 9 of the act as to constitute the suit are:

  1. The couples must not be staying together.
  2. The separation of the partners must have no reasonable cause or justification.
  3. The suffering party must apply for restitution of conjugal rights.

According to the constitutional validity of sec-9, it is to be noted that there arises an argument that restitution of conjugal rights clearly violates the right to privacy of the lady partner. However, the supreme court on its judgment in Kharak Singh vs. the State of UP had held the right to privacy “is an essential ingredient of personal liberty”. In another case of Gobind v. State of M.P the court had to encounter the issues raised in the case of Kharak Singh. In this case, the Supreme Court came to the conclusion that the right to privacy among other rights should be included in the right to liberty.

Decided Cases: 

In T. Saritha Vengata Subbiah v. State, the court ruled that Sec-9 of the Hindu Marriage Act associating with restitution of conjugal rights as unconstitutional because the decree clearly sizes the privacy of wife by forcing her to live with her husband against her wish. In another case of Harvinder Kaur v. Harminder Singh, the judiciary went back to its original approach and held Section 9 of the Hindu Marriage Act as totally valid. The ratio of the case was validated by the court in Saroj Rani Vs. S.K. Chadha.

The Restitution of Conjugal Rights Violates:

  • Freedom of Association – Article 19 (1) (c)
  • Freedom to reside and settle in any part of the country – 19(1) (e).
  • Freedom to practice any profession – 19 (1) (g)

Violation of Freedom of Association – In India every citizen has a fundamental right to associate with anyone according to their wish, By matrimonial remedy of restitution of conjugal rights the freedom is violated as the wife is forced to have an association against her will, with her husband. In Huhhram Vs Misri Bai, the court passed restitution against the will of a wife. In this case, though the wife clearly stated that she would not like to live with her husband, then also the court went ahead and gave the judgment against the wife and in favor of the husband. The opposite thing happened in the case of Atma Ram. v. Narbada Dev, where the judgement was passed in favour of the wife.

Violation of Freedom to reside and settle in any Part of the country and to practice any profession – We live in a country where there is complete freedom as to which profession to choose and what to practice. At several times under the restitution of conjugal rights, the person is forced to live with the partner with no common wish or interest. And therefore, this freedom to freely reside and practice any profession of choice seems to be violated. many times in the past, courts have attempted to give a remedy. The Supreme court in the case of Harvinder kaur v. State said that “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bill in a China shop”

Recommendation :

Restitution of Conjugal Rights is a very highly debatable and controversial topic. Some people feel it is necessary to preserve the marriage while some say that there is no meaning at all in forcing the other party to stay with the distressed party as they are not at all interested. nevertheless, there is always a scope of improvement by adjusting something.

The Restitution of Conjugal Rights is a type of matrimonial remedy, which can force the person to save the marriage but it cannot guarantee the effectiveness of such savings.

The concept of Re-uniting may be adapted in place of the inflexible conjugal rights. The idea of restitution is very hard and cruel, as it forces one of the parties to compromise. While on the other side the tone of reuniting is very soft and requesting. The main problem with restitution is that there are very high chances that the situation may turn up disagreeable after both the parties are forced to live together without common interest. But if the remedy is re-uniting than it may not be objectionable to any of the parties and will also clarify the air of misunderstanding.

To execute this, the judiciary should not be involved, as the function of the Court is to settle disputes and not to reunite. What can be done is that a separate committee should be formed and the main function of this particular formed committee will be to direct and solve the matrimonial disputes. The idea of reuniting is also very effective as it is fast, fruitful and practical.