RESTITUTION OF CONJUGAL RIGHTS

INTRODUCTION
MARRIAGE ENJOINS some rights and obligations on both the spouses. These rights and obligations are
equal in some respects to both the spouses but unequal in some other respects. One of these obligations is
that both spouses will cohabit with each other. It implies that the parties to marriage will live together as
husband and wife. It is one of the express conditions in the nuptial vow of the Hindus that each party is to
become the associate of the other.1 According to Manu, Let mutual fidelity continue till death. Let a man
and woman united by marriage, constantly beware, lest at any time disunited they violate their mutual
fidelity.2 And the sages denounced the desertion or neglect of either party by the other without just cause
as an act punishable in this world and in the next.3

However, an agreement on the part of the husband entered into at the time of the marriage that he will not
be at liberty to remove his wife from her pa rents abode to his own abode has been held to be void as
being contrary to Hindu law as well as to public policy.4So far the duties of the husband and the wife with
respect to each others person are reciprocal. As regards rights, perfect equality in between the married
couple has so far not been allowed by any system of law. If there be inequality, it has always been in
favour of man. To use the language of Bentham : In his hands the power maintains itself. Give the
authority to the woman, and every moment a revolt would break out on the part of her husband5 This
inequality was originally very great, but the tendency of society has been to reduce it as far as possible.
According to Banerjee the Hindu law In respect of this inequality partakes to some extent, no doubt, of
the character of other archaic systems, but on the whole, it is far more equitable towards the female sex
than most of those systems. 6

The remedy of the restitution of conjugal rights is based upon the concept of good ancient days about
marriage when the wife was considered as property. Actually in Hindu law corrective measures were
provided for wifes faults7, but it was not peculiar to Hindu law only. On the contrary Manus authority is,
1

V lll, Asiatic Researches, 303.

X Manu, 102-3.
3
Colebronk's DiGEST,, Book IV, 57-61.
4
Takait Mon Mohini v. Basanta, T.L.R. 28 Cal. 751. See also Thiruma! Naiduy,Rajammal, A.I.R. 1968 Mad. 201; Pothuraju v.
Radha A IM. 1965 A.P. 407.
5
Bentham, Theory o f Legislation 230.
6
Banerjse, The Hindu Law o f Marriage and Stridhana, 115 (3rd ed,),
7
ID. at 119.
2

in this instance, almost balanced by a text of high authority, which says : strike not even with a blossom a
wife guilty of a hundred faults.8 A virtuous wife was placed at high position by all sages and it was
ordained that such a wife should be revered by the husband.

EXECUTION OF THE DECREE

In India, the Code of Civil Procedure (Order 21, Rules 32 and 33) has retained the attachment of property. Thus, this
remedy is backed by a financial coercion. Thus, if the decree is disobeyed then the court has the power to attach the
property of the judgement-debtor. The court also has the authority to sell the attached property if the decree remains
not obeyed for 6 months. It has the authority even to exercise discretion in enforcing the financial sanction by
attachment of property or ordering to pay certain sum in instalments or make periodic payments. Hence, even though
the court is bound to issue a decree of restitution of conjugal rights, it is not bound to enforce it through the financial
sanction. Though it is the only positive relief under the Hindu Marriage Act, 1955 aiming at preserving and affirming
marriage but with changing times, the concept of marriage has suffered distinctive changes and several negatives are
propping up of this remedy. This puts a question mark to its validity and viability in the present scenario.

EVOLUTION

OF

THIS

REMEDY

EVOLUTION

OF

RESTITUTION OF CONJUGAL RIGHTS IN ENGLAND

The remedy of restitution of conjugal rights was not recognised by any of the personal laws in India. It came, only
with the British Raj. It is remarkable that this was the only matrimonial remedy which was made available by the
British rulers of India to all the Indian communities under general law. In England it came from the Jewish law. Like
any other anachronistic remedy, the restitution of conjugal rights dates back to feudal England, where marriage was
primarily a property deal, and the wife and the children were part of mans possessions as other chattels. The remedy
finds its origin the ecclesiastical courts of England. Before 1813, the sanction of such a decree was
excommunication. Later on, 6 years imprisonment was substituted by the English Parliament. Hence, a decree could
be executed by arresting the wife. It is remarkable that many other anachronistic common law actions were gradually
abolished but they survived in English matrimonial law. This remedy was retained in the capitalist England, though
some of its stings contrary to the concept of equality of sexes were picked out. The decree could no longer be
executed by the arrest of the respondent but it could be by the attachment of the property. Later on this mode of
execution of decree was also abolished. The non-compliance of the decree amounted to constructive desertion, thus
becoming a ground for divorce. The modern English law has fortified wifes position by making adequate financial
provisions for her. The British Law Commission218 presided by Mr. Justice Scarman in its report on 09-07-1969
recommended abolition of this remedy in English law which lead to S.20 of the Matrimonial Proceedings and
Property Act, 1970 which abolished the right to claim restitution of conjugal rights in English Courts

Colebrooke's Digest, Book III, ch. I, II note.

RESTITUTION OF CONJUGAL RIGHTS AS A BORROWED

CONCEPT IN INDIA
As mentioned earlier, the remedy of restitution of conjugal rights was not recognised by the Hindu law, i.e, by the
Dharmashastras and the Vedas. The Vedas recognised the necessity for a son relieves his father from hell called
Puth resulted in the desire for a male offspring for the continuance of the family and for the performance of funeral
rites and offerings. Consequently, the sacredness of marriage was recognised. The texts of Hindu law also recognised
the principle let mutual fidelity continue till death. Hindu law enjoined upon the spouses to have society of each
other. While, the old Hindu law stressed on the wifes implicit obedience to her husband, it did not lay down any
procedure for compelling her to return to her husband against her will. It became necessary to find some remedies
and procedures so as to see that the marriage is intact and would not be disturbed by petty quarrels between the
spouses. The procedure of Restitution of Conjugal Rights was introduced in our country by the British rulers in India
at least from the time of the decision in Monshee Buzloor v. Shumsoonissa Begum219 considering such actions as a
species of suits for specific performance. This case clearly marks the advent of such relief and the current law in
India. This remedy was subsequently done away with in England, but such remedies did not bind the Indian courts
wherein the procedure had become statutorily recognised. After independence this remedy found place in the Hindu
Marriage Act, 1955220. When the provision in the Special Marriage Bill and Hindu Marriage and Divorce Bill was
being debated in parliament, many members voiced their opinion against it. J.B. Kriplani said: This provision is
physically undesirable, morally unwanted and aesthetically disgusting... Mr. Khardekar had opposed the remedy,
saying, to say the least this particular cause is uncouth, barbarous and vulgar. That the government should be
abettors in a form of legalized rape is something very shocking221. Sir J.Hannen in Russell v. Russell222 also
vehemently opposed the remedy saying, I have not once known a restitution petition to be genuine, that these were
merely a convenient device either to enforce a money demand or to obtain divorce.223 Some scholars224 have even
expressed the view that the remedy should be abolished. The viability of such opinions would be further examined.

REMEDY HAVING BEEN ABOLISHED IN ENGLAND

The remedy of Restitution of Conjugal Rights is a borrowed concept from England. It was introduced through the
British Raj. It has taken to all the developments in the concept which were there in the English law. But, the remedy
had been abolished in England under Section 20 of the Matrimonial Proceedings Act, 1970. The 23rd Law
Commission of England proposed this abolition under its report, Proposal for the abolition of the matrimonial
remedy of Restitution of Conjugal Rights. The various arguments that they cited, in support of their plea for
abolition, under their report, roughly, were: Restitution proceedings are a platform through which the spouse can
show his willingness and endeavour to resume the married life. But, this can be demonstrated through various, more
appropriate, procedures and approaches. If the aggrieved spouse fails to make effective use of them, and these
approaches fail to bring out the effective result, it is unlikely that legal proceedings would be of greater help. In so
far as, disobedience of restitution proceedings for a particular period are effective in bringing about desertion as a

ground for divorce, this can be effected more appropriately even without the decree of restitution of conjugal rights
by obtaining an order of divorce independently, on the ground of desertion. (There is not much difference, in the
desertion after the decree and normal desertion. The difference in the time period of the respective desertion is
negligible). If the real purpose of the restitution proceedings is financial assistance in any case, then the proper
remedy for this would be section 22 of the Matrimonial Clauses Act,1965 (Maintenance). In most of the cases, no
steps are taken after the petition for restitution is filed. It is mostly because, the applicants realise the futility of such
proceedings and the fact that a decree is not going to bring their partner back. A court directing individuals to live
together is hardly an effective measure of attempting to effect reconciliation. The order has no teeth and brings law
to disrepute, it is suspected that few, if any, decrees are obeyed and the futility of the decree is well illustrated by
Nanda v. Nanda P. 351, where a wife, having obtained a restitution decree, went to the husbands flat, and the court
was prepared to grant an injunction to restrain her from molesting him and entering the premises. The very fact
that the remedy of restitution of conjugal rights is so rarely used indicates that the remedy is not an effective one.
Several reasons as to the retention of this remedy were also stated in its report, by the Law Commission. On
comparison, the demerits or the arguments in favour of the abolition of the remedy outweighed the positives or
reasons for its retention. All of the reasons stated in the report match and fit into the Indian scenario in a perfect
manner. The problems outlined in the report completely comply to the present deplorable situation of the remedy in
India. Hence, the remedy should be done away with in the similar lines.

THE CHANGES BROUGHT ABOUT BY MARRIAGE LAWS

(AMENDMENT) ACT, 1976
In the olden times, marriage was purely sacramental. Large emphasis was laid on its indissoluble character, rituals
and religious ceremonies. As the time evolved, the sacramental character gradually started diminishing and the
contractual character increased tremendously. With the advent of the Hindu Marriage Act, 1955, marriage no longer
had the religious sanctity and was greatly contractual in its character. The Act by providing several matrimonial
remedies such as divorce and nullity of marriage eroded its sacramental character. The changes further brought about
by the Marriage Laws (Amendment) Act, 1976 are revolutionary in nature. Divorce was further liberalised.
Section 13-B was introduced which provided for Divorce by mutual consent. The period required to elapse before
a decree of Restitution of Conjugal Rights or Judicial Separation, which has not been able to bring about
reconciliation, could become a ground for divorce was reduced from 2 years to 1 year. Desertion, which was
earlier a ground for Judicial Separation, was made a ground for Divorce as well. This Act brought about a
tremendous change in the entire conception of marriage over time and made it primarily contractual. With the entire
concept of Divorce by mutual consent, it is clear that the court no longer hinders the breaking off of a marriage if
the parties are too estranged to reconcile. As Restitution of Conjugal Rights was primarily based on the sacramental
character of marriage, with its degradation, the remedys foundation has shaken up. This has had some impact (if not
large), on the restitution proceedings and the number of cases under restitution of conjugal rights has diminished by a
large extent as is seen statistically. This shows how redundant the provision is.

DECONSTRUCTING THE SEMINAL CASE: T. SAREETHA V

VENKATASUBBIA
The case of T.Sareetha, was the first to question the foundational legitimacy of the proviso on the restoration of
conjugal rights. In this case Sareetha, a 16 year old high school girl was married to one Venkat in Tirupati. Post
their marriage, they spent 6 months in Cuddapah in Venkatas house and then in Madras. After a while, the two
separated and Venkata petitioned for restoration of marital privileges. The court ruled that the place of residence
as per the meaning of the act would be construed to be the place where they reside together, permanently or for
a length of time, thus excluding temporary residences. Based on this, the court held that Madras could not be
considered the last place of residence. The court then addressed the issue of constitutionality of section 9 as
contended by the petitioner. The petitioner contended that Sec 9 was liable to be removed from the statute as it
was in violation of articles 14, 19 and 21. The petitioner implied that this remedy is contrary to the freedoms of
life, liberty and dignity.
According to Justice Chowdary, marital rights connote two formulations, first that marriage partners have right
for each other and second, marital intercourse. He held that enforcing this right would amount to transfer of the
right of the individual over her body, to the state. He posited against the continued use of the section to enforce
unwilling sex over a partner, under the garb of tyranny of the law. Lord Herschell has also recorded his strong
opinion about such proviso, since it violates the sanctity of the body. In Russel v Russel,28 he went as far to say
that some of the case outcomes, based on restitution, bordered on the barbaric. The judgment highlights the
fact that even the decision to have a child is an intimate decision that should be taken by the woman and not
something she should be coerced into against her will. This provision is truly a reminder of the illegitimate
colonial era. It lacks legal backing and is a blatant infringement of an individuals right over his/her body,
thereby violating an individuals liberty under Article 21 of the Indian constitution. Justice Subba Rao
perceptively made this observation and extended the right to life to include individuals liberty as well.
The Supreme Court in Govind v State of M.P29also used the American Judgment in Roe v Wade30 to examine
the right to privacy under article 21. The honorable court held that this right should encompass the right to
personal intimacies of home, family and marriage. The court reiterated that the right to privacy is available to
every person irrespective of the marital status. Similarly, Justice Chowdary held that there could be no
legitimate grounds for the withdrawal of this right to privacy, by state sanction. Read together, the two
judgments can be construed to advocate the protection of the right to privacy, over restitution.
Concomitantly, the law as laid out in Menaka Gandhi31 case, provides insightful balance. The court ordained
that due process connotes being right, just and fair and does not accept arbitrary action by certain individuals.
Further, under Article 14 it was observed that a blind adherence to equality of treatment without a reference to
circumstances is neither just nor constitutional. The court acknowledged that while section 9 32 might exhibit
formal equality, wherein there are no distinctions between the rights of husband and wife. However, husband

and wife in them are unequal and treating unequals equally is neither just not fair. Since this makes the
remedy oppressive for the wives, while benefiting the husbands. These cases mark the evolution of a different
line of thought in family jurisprudence.

POST SAREETHA THE SUPREME COURTS VIEW ON

SECTION 9
One year after the historic Sareetha judgment, the Delhi High Court in Harvinder Kaur v Harminder Singh,34
re-examined this issue and held to the contrary. In this case the wife challenged a decree for restitution granted
to her husband by the lower court. The court, while dismissing the appeal, held that the section was
constitutionally valid, stating that the dual objective of the section was restoring amity in marital life through a
legally enforced rapprochement. The court went on to add that introducing constitutional law in the sphere of
marriage is like a bull in a china shop, and that articles 14, 21 have no place in the privacy of the home. The
Delhi court redefined the foundations of marital relationships, away from the protection of right to privacy.
Further, the court considered intercourse as a vital element of marriage, but not necessarily the sumnum bonum,
or the sole motivation behind petitions of restitution. Thus, unlike justice Chowdhary, the Delhi high court took
a more narrow view of the proviso of restitution.
Post these two diametrically differing judgments, the Supreme Court in Saroj Rani V. S.K Chadda,35 clarified
its stance on this provision. The court construed that marriage, as a socially sanctioned practice and family as its
essential structure, provided husband and wife inherent rights over each others society. The Supreme Court
expressed its motivation to protect these un-codified laws towards, the social function of preventing the breakup
of the marriage.
The Supreme Court also pointed out how the section contained sufficient safeguards to prevent oppression of a
party to the marriage. Further, the court held that the rule 32 of Order 21 was not coercive, but only a financial
instrument (attachment of property) to induce the re-establishment of conjugal relations and to prevent the
severing of the marital tie. Therefore, Justice Mukherjee was unequivocal in upholding Harvinder Kaur v
Harminder Singh, and finding that section 9 was not in violation of Art 14 and 21 of the constitution.
CONCLUSION
The Supreme Court by permitting section 9, yet calling it outdated and not in tune with modern times, provided
only a pyrrhic victory. Substantial progress in this jurisprudence can be claimed only after two breakthroughs.
First, if henceforth the grounds of divorce include, irretrievable breakdown of marriage. 36 Second, if courts
comprehensively test family laws on the touchstone of fundamental constitutional guarantees. 37 Generally the
Supreme Court has refrained from getting embroiled in personal law, probably guided by Appa Mali38 findings
that it is difficult to denote law based on customs, as either laws or enforced laws under Articles 13 and 372 of
the Constitution. However, it has occasionally tested (in cases -Vallamattom; Hariharan; Adithyan )39 personal
laws on the touchstone of fundamental rights. A three judge bench in the landmark Mudaliar v Swaminath
Thirukoil case40 opined that the fundamental principles of the constitution pervade equality and any law
imposing subsidiary status of women is abhorrent to equality. Further, every woman is entitled for removal of
obstacles to development and not their perpetuation by law. Thus the court re-established the primacy of
equality and constitutional guarantees.
Regrettably, the praxis is contrary to the above leanings of the Supreme Court. Even while deciding a petition
under section 9, the court has to look at whether the withdrawal was without reasonable cause. The subjective
interpretation of reasonable cause lies with the courts and portends a pernicious gender bias. Similarly in S
Nigam v RC Nigam41 the court relied on economic efficiency and held in favor of economic dependence,
employment restriction and resultant direction to` live together, against the wife. Abolitionists lament that the
court, totally evades the issue of the individual womans right to decide whether or not to work. Such gender
adverse interpretation of the statute is neither progressive nor restorative. The clamor by feminist groups is for
the courts to proactively lead this change, rather than be stuck in the interpretations of Manu.
I consider the restitution section unfit for a modern gender sensitive society and against the principles of
natural law. It fails at the touchstone of justice and fairness. Since the primary use of this section was by
women who sought an easier ground for divorce, exploring the authors suggestion for irretrievable

breakdown of marriage is introduced as a ground deserves to be considered by the courts. While some might
argue that this section aims at preserving the bond of marriage, the question we should possibly ask ourselves
is whether it is worth sacrificing our fundamental rights for a marriage beyond saving?