Why not to file restitution of conjugal rights

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Regards,

 

Shonee Kapoor

shonee sir thank you very much for explaining disadvantages of rcr. sir my story is very much similar to story of many members here. Got married in month of jan. Wife's behaviour was very much influenced by her elder sister and parents. For her our family is not taking proper care of her. She left our home in month of march and then again in month of may after arguing with my mom on trivial issues and third time she and her parents misbehaved with my parents and leftt my home in month of june till then she is there with her parents and continously fighting with me and demanding me to shift to their town and indirectly threatening us for legel complications and all. All efforts of reconsilation are from my side only and all failed. Now in such situation what is suggested in place of rcr. What if she claims for money under crpc 125. She works in unorganised sector and this cant be proved in courts easily.one more thing no cases are filed yet from there side. One possible reason for this is they may not have sufficient proofs and they may be aware of/fact to provr such allegations strong evidences are required and to fabricate evidences against us if she files rcr and tries to come back that way then whats the remedy? Hoe to tacle such situation. How to inform higher authorities of state about all this as precautionary measure.

Dear Victim,

I think u have not followed the entire thread.  Please locate to Shoneek suggestions. Inform the higher officials DSP, SP and get a stamped receipt from their office with all the relevant facts from the date of marriage till date.  This is only precautionary measure to be followed in 498a case.  Keep in touch with a good a lawyer with 50k amt with you which decreases pressure.

sir what about pariwar paramarsh kendras approaching them is advisable or not. Will this help me in my case as an relatively safe alternative. I dont want to break this marriage but at the same time dont want to put my family members in risk. . Is it possible to get something in writing from then in form of a mou that all this was because some mismatch of views and not alt all a case of dowry or harassesment. some

Parivar Pramarsh Kendra or Family Counselling Centers are Alternative Dispute Resolution Mechanisms, you can try them. However, going there is no surety of resolution of dispute. If you are going there, go with an open mind and try to finsih all disputes in one go.

 

 

 

Regards,

 

Shonee Kapoor

Restitution of Conjugal Rights:

Section 9 of the Hindu Marriage Act is one of the most misunderstood sections of the Matrimonial law. Despite the controversy it has continuously been upheld by the Judiciary. Even the legislature through various committees and its reports has supported this section. All the reasons so stated by abolitionists can be easily encountered if this socially benefiting section is read in the right light and its essence is understood. It is imperative that a clear understanding of the section 9 is required because it is often invoked.

First of all, it cannot be said that the concept of conjugal rights and that its embodiment in section 9 is foreign to the Indian culture and society. It may be borne in mind that conjugal rights. Such a right is inherent in the very institution of marriage itself.[12] The only thing is new is the embodiment of this concept which has been prevailing since antiquity.

The prime objective of section 9 is to preserve the marriage.[13] According to the Hindu Marriage Act marriage is a civil contract and a religious ceremony.[14] It is a contract of the greatest importance in civil institutions, and it is charged with a vast variety of rights and obligation,[15] cohabitation being one of them. It is the very soul of marriage and this section enforces the right of cohabitation. If there is no reasonable ground for living apart, the court orders for cohabitation and enforces the Contract there is nothing wrong as the parties had voluntarily stipulated this at the time of entering into the marriage bond.[16]

Section 9, in actuality, is a means of saving the marriage, it is in a sense an extension of sub-sections (2) and (3) of section 23 of the Act which encourage reconciliation by the court. It is the policy of the Act that the parties should live together and assist in the maintenance of marriages.[17] By enforcing cohabitation, the court is serving this purpose of the Act.

Further, it is criticized on the ground that it allows the withdrawing spouse to take an advantage of his own wrong, which is against the scheme of section 23 and allows him/her to apply for a decree in case of non consummation of the marriage within one year of passing of decree. However in Dharmendra Kumar v. Usha Kumari,[18] the Hon'ble Court clearly stated that The expression "in order to be a 'within the meaning of section 23(1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to.[19]

It is also often claimed to be gender discriminatory and violative of Article 14. T. Sareetha case[20] confirmed this view. It is obvious that the judge considered the entire question of restitution from the point of view of the woman. It seems that it has been overlooked that restitution of conjugal rights can also be claimed by the wife. It is relevant to state that the section is gender neutral as by the Amending Act 44 of 1964 either party to a marriage has been allowed to present a petition for divorce on the ground given in section 13(1-A). Even the party found guilty in restitution proceedings is entitled to petition for divorce under section 13 (1-A)(ii). There is complete equality of s*xes here and equal protection of the laws.[21] Therefore this claim of abolitionist is incorrect.

Section 9 is also criticized for being an instrument of forced s*xual relation and hence being violative of right to privacy guaranteed under Article 21. But much contrary is its purpose. The remedy of restitution aims at cohabitation and consortium and not merely at s*xual intercourse.[22] In Halsbury's Laws of England[23] it is observed: (cohabitation) aces not necessarily mean serial intercourse, which the court cannot enforce, so that refusal of s*xual intercourse by itself does not constitute refusal to cohabit."[24] In support of this proposition the high authority of Lord Stowell in Forster v. Forster,[25] Orme v. Orme, [26] and Rowe v. Rowe[27] may be cited. One thing is clear from Lord Stowell's decision in Forster v. Forster[28] and Halsbury's statement of law that the Court does not and cannot enforce s*xual intercourse. In cases like T Sareetha, [29] the concept of marriage is pictured as if consists as if it consists of nothing else except s*x. Chaudhary, J.'s over-emphasis on s*x is the fundamental fallacy in his reasoning. He seems to suggest that restitution decree has only one purpose, that is, to compel the unwilling wife to "have s*x with the husband". This view was discarded long ago in as early as 1924 Sir Henry Duke President in Jackson v. Jackson.[30]To say that restitution decree "subject a person by the long arm of the to a positive s*x act" is to take the grossest view of the marriage institution.[31]Therefore, it is fallacy to hold that the restitution of conjugal rights constituted "the starkest form of governmental invasion" of "marital privacy".[32] Further, applying the standard that law has to be just, fair and reasonable as enunciated in Maneka Gandhi,[33] section 9 said tries to bring the parties together. Whether to grant restitution decree would be just, fair and reasonable in the facts and circumstances of a given case is left to the court to be decided in its judicial discretion. What better guarantee can the law afford for the "inviolability of the body and mind" of the wife and her "marital privacy"[34] And therefore it can be safely stated that section 9 is not violative of Article 21.

It also stated by critique that restitution decree serve as a stepping stone to divorce and is condemned to be a passage or passport to divorce. The reason behind the scheme of putting non consummation of marriage after one year of passing the decree of restitution of conjugal rights under section 13 of the Act is that the Indian Legislature believes that there should not be a sudden break of the marriage tie. It believes in reconciliation and that that cooling-off period is not only desirable but essential. If the marriage cannot be saved even after passing the decree of restitution it must be dissolved. A factual separation gives an easily justifiable indication of breakdown.[35] That is, under the Act it serves a double purpose. It first finds the fault and where it lies. Secondly it leads to the dissolution of the marriage, if there is no resumption of cohabitation.

Further, recognizing non-consumption of marriage after 1 year of passing of Restitution Decree as a ground of divorce enables the aggrieved spouse to apply to the court for maintenance under section 25; and maintenance pendente lite may also be claimed by making out a case for the same as provided in section 24. This enables a wife, who does not desire disruption of the marriage or even judicial separation from the husband, to secure provision for her support by an order of the court under the matrimonial jurisdiction conferred on it, instead of filing a suit for maintenance under the law relating to maintenance now embodied in the Hindu Adoptions and Maintenance Act 1956.[36]

People who are against the concept of restitution of conjugal rights argue that England which is the nation of origin of the concept has deleted this remedy from its legislation and India is still continuing it. The Law Commission, in their Fifty-ninth Report have- not recommended its abolition nor in their Seventy-First Report of 1978. The Commission was aware that it had been abolished in England under section 20 of the Matrimonial Proceedings Act 1970. However, it is germane to state that retaining this section all these years is not without reason. The truth is that the legislature has not accepted the breakdown theory in toto, as has been accepted in England.[37] Adding on, a recent writer[38] has suggested that "the opinion of Derrett is more realistic and that the Hindu society is not mature enough to do away with the remedy. Its abolition would be like throwing away the baby with the bath-water."[39]

It is also argued that the methodology adopted in execution of the decree as mentioned in the Code- of Civil Procedure (0-21 Rules 32 and 33) is erroneous as it provides for financial sanction in case of non fulfillment of this decree. It is to be remembered that marriage is also contractual in nature. Providing for a financial sanction in case of non fulfillment of contractual obligation is a common practice. Also that enforcement by attachment of property is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments. 0 21, Rules 31 and 32 C.P.C. provide only a financial sanction to serve as an inducement by the court to effectuate restitution and serve a social purpose i.e. prevention of the break-up of the marriage.[40]

Often the case of Russel v. Russel[41] is quoted by abolitionist, however the bigger picture as to why Lord Herschell called this remedy as barbarous is not brought in light. What he said and meant was that reasonable excuse, an essential for the decree of Restitution of Conjugal Right, was not confined only to the grounds of divorce. It can as well be "something short of legal cruelty" which might constitute a reasonable excuse for refusing restitution. What was stated by him was that if the meaning of reasonable excuse was restricted to the grounds, then this remedy shall be barbarous. This is precisely what has been taken care of in India as the history of the Act would show. Section 9(2) as originally enacted provided that "Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce." This created considerable difficulty. The Law Commission in its Fifty-Ninth Report recommended its deletion. It is now possible for the party to plead a reasonable excuse which may not necessarily be a ground either for judicial separation or nullity or divorce. So the Act was amended and by Act No. 68 of 1976 section 9 (2) was deleted. This brought the law in conformity with the opinion of Lord Herschell. It will, therefore, appear that Lord Herschell's expression "barbarous" was used in a different context.[42]

Conclusion
In summation, it may be stated that the grounds and arguments are baseless and they do not sufficiently prove that the Remedy of Restitution of Conjugal Rights is archaic, barbarous and violative of the basic Human Rights. It cannot be said that this remedy is unconstitutional. Section 9 has sufficient safeguards to prevent the marriage from being a tyranny.[43]In truth, it serves the social good purpose, by promoting reconciliation between the parties and maintenance of matrimonial. It protects the society from denigrating. And all the years that it has been enforce it has efficiently played it's a role.

References:
[12] Kondal v. Ranganavaki, A.I.R. 1924 Mad. 49.
[13] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66.
[14] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66.
[15] Linda v. Belisario (1795) 1 Hag. Con. 216(21) per Sir William Scott at pp. 30, 232.
[16] Harvinder Kaur v. Harmander Singh Choudhr, A.I.R. 1984 Del. 66.
[17] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[18] A.I.R. 1977 S.C. 2218.
[19] Dharmendra Kumar v. Usha Kumari, A.I.R. 1977 S.C. 2218.
[20] T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356.
[21] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[22] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[23] 12th Vol., 3rd Ed., p. 284.
[24] A reference may be made to Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[25] (1790) I Hag. Con. 144.
[26] (1924) 2 Addf 382-162 E.R. 335
[27] (1865) 34 L.J.P. M&A 111
[28] (1790) I Hag. Con. 144.
[29] A.I.R. 1983 A.P. 356.
[30] (1924) Probate 19 (2).
[31] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[32] A reference may be made to Harvinder Kaur v. Harmander Singh Choudhry, A.I.R.1984 Del. 66.
[33] Mrs. Maneka Gandhi v. Union of India (UOI) and Anr, A.I.R. 1978 S.C. 597.
[34] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[35] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Delhi 66.
[36] S.A. Desai, Mulla Hindu Law, Vol. 2, 19th Ed., p. 60.
[37] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[38] R. C. Nagpal, Modern Hindu Law, (1983), p. 110.
[39] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[40] Saroj Rani v. Sudharshan Kumar Chadha, A.I.R.1984 S.C. 1562.
[41] (1897) A.C. 395 (16).
[42] Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66.
[43] Saroj Rani v. Sudharshan Kumar Chadha, A.I.R.1984 S.C. 1562.

 

Imran,

 

Even after readin this article, my views remain the same. The remedy is not unconstitutional, but even Law Commission recommended its deletion. The fact is that on ground this provision is plainly ineffective and more often than not misused.

 

Also what I stated was that when a husband to ward off 498a should not file RCR.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Hello sir,

Need your help. My son and my daughter in law married a year ago that was a love marriage. My son is studying and i also admitted my daughter in law so that they can complete their education. I paid for all the expenditure that was incurred in their studies and also took upon the day to day living charges. I am currently acting as a guarantor of the loan which we took for the fees of my daughter. She had a fight with my son and now she is living in hostel. She is acting very weiredly as she married just on to get money from us what we think. Now her parents threaten us to file false case. We tried to settle this by talks but we are not sure that this will bring some good solutions. Her parents are not acting now because of two reasons what we think lack of money and secondly they are waiting for the completion of the education. We have two concerns, either she should come back and live happily with my son which my son desires for and if not so secondly how to get those amount which are huge and which i am liable for as a guarantor, because she is not ready to answer anything on this also..what should we do? Is there any way to protect my son' and my family and my hard earned money ?? please provide me some way to get out of this.

 

Thanks and Regards,

 

Onnoval

Dear Shonee,

I read this at the very first time and swiftly avoided my RCR and filed divorce pettion. Thanks a lot. because that time i was not even aware what is HMA. Now having spent adequate time I realize the value of it. Atleast my divorec pettion moved in right time avoided 498a.

double thanks now,

I would have said, never mention.

 

Rather, I would say, do mention the same to any possible victims.

 

You can guide them to various places like www.498a.org, Sahodar yahoo group, Save Indian family, My Nation and also LCI.

 

Regards,

 

Shonee Kapoor

Hear Hear.

 

Good advise shoneeji

Sir Ji, Aap great ho. Thank you for clearing my doubts.

Hi experts, You have explained it from husband's side.That is if husband files RCR what are the adv. and disadv. Can you explain it from Wife's side also?? In the same way...its a kind request. I would like to know whether RCR is always filed by husband or wife? its little confusing.

Charu,

RCR can be filed by both, husband or wife. Both spouses are enrightened to do it as it is calling other spouse to join the regaulr family life including conjugational rights.

From wife side,

If wife wants to continue the married life, let us say a husband separated himself willfully, all she can do is to seek RCR on her husband. However if husband denies to cohabitate, RCR cannot be enforced as no one can force a unwilling person  to live together. Again, she needs to file Divorce or if husband files divorce, RCR is useless and high cost is imparted to litigants.  Only a meaniful or fruitful thing that comes out is her chance of maintenance seems to be brighter. However even with divorce case, the same can be availed. The only thing that favours wife is, she can atleast see a chance for reunion if at all there is a possibilty.

though  if some is not interested in money , but if husb win RCR then he get rid from maintenacet to wife and if wife win RCR the she have strong chances of getting money. only this is the benefit also either will have chance of reu;nion if reason for sepration are minor if any one deny then court will not force him/her for cohabition, and they can go for divorce easily.