Restitution Of Conjugal Rights | 07
In our on-going season about matrimonial laws, in this episode, Pallavi simplifies laws that govern Conjugal Rights in India.
Hi! My name is Pallavi Pratap and welcome to Law Simplified, from Motor Mouth Podcasts. The idea of this podcast is to simplify law for you so that you can apply law and understand it better. The first season we have discussed on various aspects of matrimonial laws in India. In this episode, I discuss the law relating to Restitution of Conjugal Rights.
Even though marriages in India are considered more of a religious alliance between a man and a woman and not a contract, while exercising certain rights or obligations arising out of the marriage, it definitely takes up the nature of contract.
The term “Conjugal” simply refers to “matrimonial”, i.e., the relationship between the married couples. Hence, conjugal rights are referred to as the rights arising out of a marriage between two persons. These rights are purely based on the premise that from the date of entering into the wedlock, both the spouses are equally entitled to the society, comfort and consortium of one another. Each spouse is to provide conjugal company to the other spouse and not to withdraw from the society of the other without a reasonable cause or excuse. If one spouse is not providing conjugal company to the other spouse without a cause, the other spouse will be naturally an aggrieved party. In order to provide a relief and to restore the cohabitation between the couple, the matrimonial remedy for Restitution of conjugal rights have been provided for under different personal laws in India.
The concept of Restitution of Conjugal rights has no roots in the Indian history. Forcing of either spouse to cohabit with the other was neither recognized in the Hindu textbooks nor has been admittedly provided for anywhere under the Muslim Shariat Law. Hindu sages believed in mutual fidelity of the spouses, however, never supported the view of compelling either of the spouse to stay with other. The concept was introduced to India only during the British Raj, when the remedy was made available to all irrespective of their religion, by way of the British-Indian Courts.
Restitution of conjugal rights has its roots in feudal England, where marriage was deemed as a property deal and wife was considered a part of man’s possession like other chattels.
Therefore, the British-Indian courts assumed wide discretion to grant the relief of restitution of conjugal rights on the basis of ‘general principles of law’ and circumstances of case. If the courts did not find any reasonable cause for the spouse to desert the other, they would simply grant the relief of RCR to the aggrieved party.
Provisions under Personal Laws
The Indian Divorce Act, 1869 provides for the remedy of RCR under sections 32 and 33. This Act can be regarded as to have laid down the very foundation of the remedy, having been enacted in 1869.
RCR, as a remedy has not been codified under any of the Muslim personal laws, however, it is still available under the general law. It must also be noted that a marriage under the Muslim personal law is in the nature of a civil contract and therefore, suit for restitution of conjugal rights is a civil suit within the meaning of section 9 of Code of Civil Procedure, 1908.
Section 36 of the Parsi Marriage and Divorce Act, 1936 incorporates the remedy of RCR which is provided to both, husband and wife.
Under the Hindu Law, the provision for RCR was codified for the first time under the Hindu Marriage Act, 1955 under section 9 according to which, if either of the spouses withdraws themselves from the society of the other, without reasonable excuse, the other party which is aggrieved has a legal right of filing a petition demanding for the restitution of conjugal rights.
Special Marriage Act
Like all the above provisions, Section 22 of the Special Marriage Act, 1954 also incorporates the remedy and is completely identical to the provision of the Hindu Marriage Act, both the legislations having been codified at the same time.
Essential Requirements for Decree of RCR
The essential conditions for granting of decree of RCR are more or less similar amongst all the personal laws in India, which can be as follows:
- Withdrawal by either spouse from the society of the other.
- Such withdrawal must be without any reasonable cause or ground.
- There should be no other legal ground for refusal of such relief.
- The court must be satisfied about the truth of the statements made in the Petition seeking RCR.
Where the question as to whether there was reasonable cause/excuse for withdrawal from the society, the burden of proving reasonable cause shall be on the Respondent. The primary onus of proving withdrawal from the society of the spouse is upon the Petitioner.
Even upon the passing of decree for restitution of conjugal rights, unlike a suit for specific performance, the courts cannot force the erring spouse to consummate the marriage. Reference can be made to the proverb “you can lead an unwilling horse to the water, but you can never force the horse to drink”, which explains the problem with creating a remedy such as RCR. However, Code of Civil Procedure has provided a yet more barbaric provision for attachment of property. Under Order XXI Rule 32, 33, the court has discretion to enforce the decree of restitution of conjugal right by attachment of property of the erring spouse if the erring spouse does not comply with the decree so granted to the aggrieved spouse. The rule says that where the party against whom a decree for restitution of conjugal rights, has been passed, and has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by attachment of his property. If the party still does not comply with the decree, the aggrieved person has no other remedy else than seeking divorce on the ground of desertion from their spouse.
In conclusion, the provision of Restitution of Conjugal Rights seems to have an unwarranted intrusion into the personal life of an individual. It is one of the colonial legacies which has taken a shape of law by the legislature and is in a way treating individuals as chattel of their spouse. It is also interesting to note that this colonial legacy has been abolished under the English Law itself in as early as 1970, however, the same has not been repealed from the Personal Laws in India.
The remedy of RCR is not serving any useful purpose to the society, rather has become an engine of oppression and is nothing more than a classic example of excessive intervention by the state into one’s personal life. The remedy may compel spouses to stay together, however, it cannot ensure protection of the relationship between the married couple.
Thanks for listening to this episode of law simplified. You can follow us Twitter, Instagram and Facebook – our handle is @MotorMouthPods
Check out more episodes of this show and other MotorMouth Originals on our website – motormouthpods.com . This episode was written and hosted by me, Pallavi Pratap
Sound design and mixing by Prateek Sharma
Our Creative Director is Gargie Sharma
Executive produced and created by Prateek Sharma, for MotorMouth Podcasts