This article on ‘Restitution of Conjugal Rights: All You Need to Know‘ was written by Shruti Korgaonkar, an intern at Legal Upanishad.
Restitution of Conjugal Rights is made up of the words “Restitution” and “Conjugal Rights,” respectively. Conjugal Rights refer to the rights pertaining to the union, the marriage, or the relationships between a husband and wife. Restitution is often defined as the restoration or restitution of anything that has been lost. Conjugal Rights are those (sexual) privileges and rights associated with marriage. Most of these rights and advantages are aspects of marriage that are implied. These fundamentally refer to the freedom to remain or coexist. Restitution of Conjugal Rights, as the term implies, refers to regaining the ability to cohabitate.
In the strictest sense, marriage rights refer to the freedom to cohabit and have a sexual relationship with one’s spouse. One of the foundational tenets of marriage is that the woman and husband live together in harmony and respect for one another’s rights. “Restitution of Conjugal Rights” is a legal clause that enables the offended party to restore cohabitation against a spouse who withdrew without cause. It’s frequently thought of as a strategy to keep a marriage intact. Marriage imposes various marital obligations and grants each spouse legal rights under all matrimonial laws.
The Act’s contested clause has a lengthy history due to its constitutional legitimacy. There are two opposing views in the debate over whether or not this regulation is constitutional. Conjugal rights are viewed from a traditional perspective as the social glue that binds marriage as an institution. One is the conventional perspective, which maintains that marriage is a social institution held together by conjugal rights. Contrarily, the feminist viewpoint views marital rights as being intrusive, unlawful, and in violation of fundamental human rights.
A kind of personal liberty violation, and hence a violation of their rights, to life, is thought to have occurred when the court intervened in the enforcement of the spouse’s right to restore conjugal rights.
Conjugal Rights under Hindu Law
Conjugal rights, as mentioned above, refer to the sexual privileges and duties associated with marriage. Section 9 of the Hindu Marriage Act deals with ROCR
Essential Ingredients of Section 9
A “marriage saving” clause is Section 9 of the Hindu Marriage Act. When a partner or spouse violates a reasonable clause and moves out without permission, Section 9 of the Hindu Marriage Act may be used. In accordance with this Section, the Court may order the couple to remain together if certain requirements are met and the lawsuit is successful. For Section 9 to be invoked and successful, three crucial conditions must be met. The following are:
- The parties must be legally married to one another.
- One should exclude themselves from another’s civilization.
- This withdrawal has to be made without a valid justification.
- The assertion that there is no legal justification for rejecting the decree must be proven to the court’s satisfaction.
In Sushila Bai v. Prem Narayan Rai (AIR 1985), the court emphasized that the husband would be seen to have withdrawn from his wife’s social circle if he left her in her father’s home and made no effort to keep in touch with her. As a result, the court permitted restitution.
Validity of Section 9 of the Hindu Marriage Act under the Constitution
There have been a number of claims that the restitution of conjugal rights breaches the rights enshrined in the Indian Constitution and is therefore illegal. It is argued that the restoration of conjugal rights breaches other constitutional rights, such as the right to freedom (Article 19) and the right to privacy (Article 21)
In the beginning, the Court determined that Section 9 of the Hindu Marriage Act was unconstitutional since it was stealing the wife’s privacy by forcing her to remain with her husband against her will. However, a later landmark decision determined that Section 9 was entirely constitutional and that the husband and wife’s restoration of their conjugal rights served this objective.
ROCR In Muslim Law
A claim for restitution of conjugal rights can only be maintained if the marriage is legal. Restitution of marital rights is a discretionary and equitable relief.
When a wife refuses to live with her husband for no legitimate reason, the husband may file a lawsuit to regain his conjugal rights, and the wife may request that the husband perform his marital responsibilities. The Court tends to support the wife and requires strict proof of all the allegations that are required for matrimonial relief, so this is not an absolute right. The Muslim husband has dominance in the martial matter, according to the Quran the wife must be divorced or retained with kindness.
ROCR under Christain Law
Christians have access to the remedy of restitution of conjugal rights under Sections 32 and 33 of the Indian Divorce Act, of 1869. If either the husband or the wife withdraws from the other’s social circle without a valid reason, the petition for restitution of conjugal rights may be submitted before the District Court or the High Court, according to Section 32 of the Indian Divorce Act, 1869. As a result, after deciding that the claims provided in the petition are accurate and that there are no valid reasons why the motion should be granted, the Court may order the restoration of conjugal rights.
Nothing that would not be a foundation for a judgment of nullity of marriage or a lawsuit for judicial separation may be cited as a defense against a request for the restoration of marriage, according to Section 33 of the Indian Divorce Act, 1869.
ROCR under Parsi Law
Section 36 of the Parsi Marriage and Divorce Act, of 1936 provides a remedy for restitution for conjugal rights. marital rights
When no continuation of cohabitation or restoration of conjugal rights has occurred for a period of one year or longer following the entry of a decree for restitution of conjugal rights in a proceeding in which the husband and wife were parties, this can be used as a basis for divorce under Section 32A of the Parsi Act. If there has been no return to cohabitation or restoration of conjugal rights between the husband and wife after the judgment for judicial separation was issued, either party to the marriage may use this as a reason for divorce and bring a lawsuit for the dissolution of the marriage.
ROCR under the Special Marriage Act, 1954
The Special Marriage Act is the law that governs court marriages and interfaith marriages. According to Section 22 of the Special Marriage Act of 1954, the party who has been wronged may petition the district court for Restitution of Conjugal Rights if either the husband or the wife has isolated themselves from the other without a good reason.
The Court will issue a judgment for Restitution of Conjugal Rights if it is convinced that the allegations mentioned in the Petition are true and is given the assurance that there is no legal justification for rejecting such an application.
It is unfair to prohibit a married couple from living together because marriage is a healthy connection between two people. But we also need to think about a bigger problem. One crucial aspect to stress is that, unlike divorce or legal separation, restitution of conjugal rights is a remedy meant to keep the marriage together rather than tear it apart. Helping to prevent a marriage’s breakdown, can help save a marriage.
A more progressive viewpoint and perspective are required from our judicial system regarding marriage. If the court develops a novel procedure for the restitution of conjugal rights, it may be entitled to form a reconciliation committee. The courts should assess whether reparation is a viable alternative or not based on the committee’s recommendations, but they should not impose their decision on the spouses. The ceremonies are secondary to two people consenting to share their autonomy and freedom with each other.
- LIMITATION OF RESTITUTION OF CONJUGAL RIGHTS- RUCHITHA DEVU AND ANANYA MOHAPATRA, March 25, 2022 https://articles.manupatra.com/article-details/LIMITATIONS-OF-RESTITUTION-OF-CONJUGAL-RIGHTS
- RESTITUTION OF CONJUGAL RIGHTS UNDERSECTION9 OF THE HINDU MARRIAGE ACT- RITESH KUMAR https://www.writinglaw.com/restitution-of-conjugal-rights/
- RESTITUTION OF CONJUGAL RIGHTS IN INDIA; PROCEDURES UNDER DIFFERENT RELIGIONS-Advocate CHKIRISHA MOHANTY, September 26, 2022 https://lawrato.com/indian-kanoon/family-law/restitution-of-conjugal-rights-in-india-procedures-under-different-religions-2832