Marriage, according to all matrimonial laws, is a bond that imposes certain marital responsibilities on each of the spouses and confers certain legal rights on each of them. Marriage entails the people living together, which is an unavoidable conclusion. Each spouse is entitled to the other’s comfort consortium.
So, after the marriage is solemnized, if any of the spouses withdraw from the society of the other without justifiable cause, the aggrieved party has a legal right to submit a petition in the marital court for restitution of conjugal rights. After hearing the petition of the aggrieved spouse, the court may issue an order of restitution of conjugal rights if it is satisfied that there is no legal reason why the application should be denied and that the allegations provided in the petition are true.
A restitution of conjugal rights decision requires the guilty person to reside with the injured party. The sole remedy available to the abandoned spouse against the other is the restitution of conjugal rights. A husband or wife can submit a petition to have their rights to cohabiting with the other spouse restored.
However, carrying out the decision of restitution of marital rights is quite difficult. Although the court has the authority to issue an order of restitution of conjugal rights, it lacks the authority to have its particular performance enforced by any statute. Failure to comply with the issued decree results in constructive destruction on the side of the erring spouse.
According to the provisions available under Indian personal laws, the aggrieved party may file a petition for a decree of divorce one year from the date of the decree’s issuance, and the competent court may issue a decree of divorce in favour of the aggrieved party. The decision of restitution of conjugal rights can be implemented by the attachment of property, and if the party complained against continues to fail to comply, the Court may even penalize him or her for contempt of court.
However, under no circumstances may the court compel the erring spouse to marry. Only in the case of legitimate marriages might a decree of restitution of conjugal rights be issued.
In India, Hindus have a remedy under Section 9 of the Hindu Marriage Act, 1955, Muslims have a general law remedy, Christians have a remedy under Section 32 and 33 of the Indian Divorce Act, 1869, and Parsis have a remedy under Section 36 of the Parsi Marriage and Divorce Act, 1936, and persons married under the Special Marriage Act have a remedy under Section 22 of the Special Marriage Act, 1954.
Section 22 of the Special Marriage Act of 1954 and Section 9 of the Hindu Marriage Act of 1955 both provide provisions for the restitution of conjugal rights. It proceeds like this:
- The respondents depart from the petitioner’s society.
- There is no legitimate justification, explanation, or legal foundation for the withdrawal.
- There should be no other legal basis for denying the relief.
- The court should be satisfied that the assertion stated in the petition is true.
It should be highlighted that such reparation violates the respondent’s right to privacy, as guaranteed by Article 21 of the Indian Constitution.
The court stated in Kharak Singh v. State of UP that the right to life and personal liberty includes the right to privacy. When this law was to be incorporated into the Hindu Marriage Act of 1955, there were heated debates in parliament.
In Sareetha v. T. Venkatasubbaiah, the petitioner claimed that section 9 of the Hindu Marriage Act, 1955 violates Article 14 (right to equality) and Article 21. (right to life and personal liberty). The Hon’ble High Court ruled that section 9 of this legislation violates the basic rights guaranteed by our constitution since it is bestial, particularly for women, as it robs them of their right to their own bodies. As a result, Section 9 was declared unlawful.
The Hon’ble Supreme Court revoked the order of Sareetha v. T. Venkatasubbaiah in Saroj Rani v. Sudharshan and held that it is the duty of the legislature to invalidate the law and section 9 has the main purpose of bringing separated parties of the Hindu Marriage together and not to infringe on the fundamental rights of the party. As a result, Section 9 was found constitutionally legitimate.
The legal provision in Hindu marriage pertains to the restitution of conjugal rights since marriage under Hindu law is regarded to be a holy tie and the main aim of such law is to safeguard such bond in case of minor misunderstandings and to aid in the maintenance of good marital life.
However, if a remedy is used by a party for some hidden purpose that is not morally acceptable, and the constitutionality of the restitution, which is occasionally interpreted by the judiciary, it is up to the husband and wife to accept the decree or seek other remedies such as divorce and judicial separation.https://indianexpress.com/article/explained/explained-conjugal-rights-before-supreme-court-7411007/