Restitution of conjugal rights

 Restitution of Conjugal Rights in India: Provisions and Precedents

By Shreya Verma

Conjugal Rights mean the rights that arise out of nuptial/matrimonial relationship between husband and wife and includes companionship and cohabitation and Restitution means an act of restoring something to its original state. If either of the spouse has left the other without reasonable and provable cause, or has withdrawn from the totality of conjugal relationship by refusing to stay together, refusal to have marital intercourse, refusal to company and comfort, then through exercising his restitution of conjugal rights the aggrieved spouse can call the other back. In this Article an endeavour is made to understand this concept in Indian pretext with the help of Legal provision Under Hindu Marriage Act and Judicial pronouncements.

Legal Provisions:

Section 9 of Hindu marriage Act, 1955 deals with the provision of Restitution of conjugal rights (RCR) and it says that, If any of the spouse (husband/wife) has withdrawn from the society or simply has deserted the other, without any reasonable excuse then, the other spouse who has been deserted may seek a decree for restoration of such conjugal rights by filing a decree before the district court.

Explanation annexed to the section talks about burden of proving the presence of a reasonable cause for desertion, the initial burden lies over the petitioner that the respondent has deserted without any reasonable cause, however, once discharged, the Burden of reasonable cause lies over the respondent.

A decree of RCR enables aggrieved spouse to get maintenance under the provisions of Sections 24 and 27 of the Act. Also, non-compliance of the decree by one spouse enables the other to claim for divorce after one year as per Sec. 13 (1A) (ii) of Hindu Marriage Act.

Judicial Precedents:

Desertion and intention to desert: Desertion, as defined by the Uttrakhand High Court in, Sukhjeet Singh vs. Kulwant Kaur (2017) means, “separation of one spouse from the other with an intention on the part of the deserting spouse of bringing the cohabitation permanently to an end without any reasonable cause and without the consent of the other spouse” With time the concept of desertion has evolved, Now, courts have declared desertion to be actual or virtual. Actual desertion is one where one of the spouses has actually (physically) left the other; on the other hand, virtual desertion involves the cases whereby there is no physical actual desertion, however, the conduct of one of the parties is such that, his presence or absence does not matter. For example in, Jyotish Chandra vs. Meera ( 1970) Cal. HC. Where the conduct of husband was very cold and arrogant against her wife, he did not respond to anything despite of tremendous efforts by the wife to convince him to indulge him in marital relationship. Wife in this case decided to get a job after completion of her P.H.D. but husband didn’t like her working. He once went to her office and insulted her to leave her job. Wife left her matrimonial house, here husband’s claim for Restitution of conjugal rights was denied by the Calcutta HC as it was husband who was the deserter (Virtually) and wife here can claim for RCR. 

It is important to note here that, the presence of Animus deserendi i.e., the firm intention on one of the spouses to desert the other is a must. Supreme Court in Indira Ganguli vs. S.K. Ganguli (2002 SC)  held that mere fact that husband wants the wife back is not sufficient, rather it is important to prove the animus deserendi on the part of the wife, and that, she has left her husband without a reasonable cause. Also, if the desertion is not without a reasonable cause or if there is a reasonable explanation on the part of deserting spouse for deserting the other then the other cannot ask for restitution of conjugal rights, for example in, Kamladevi vs. Shiva Kumar Swami (2003) Kar. HC. It was held by the Karnataka HC that if the conduct of husband is such that it creates a reasonable apprehension in the mind of the wife that it is not safe for her to cohabit with him, So here husband cannot ask for restitution of conjugal rights. It is based on the equitable principle that, ‘one who seeks equity must do equity’.   

  Marriage is considered to be a sacrament and the necessary implication of marriage is that the parties must live together, thus by invoking the right of restitution of conjugal relationship the spouses are made to live together through the decree of court, who have no reasonable ground to live separately.