Restitution Of Conjugal Rights: Legal Provisions & Constitutionality

Key Takeaways

• A brief description of the Hindu marriages in early times and how they evolved over years, by the codification of the Hindu Marriage laws.
• A brief explanation of various provisions concerning Restitution of Conjugal Rights, mentioned in Code of Civil Procedure, 1908 and Hindu Marriage Act, 1955; along with its constitutional validity.

Introduction

Hindu marriage laws have adopted the dynamic trait over the centuries. No doubt the marriages in the Hindu religion have always been considered a sacrament and traditionally the marriages were indissoluble, but today the scenario has changed by bringing in the concept of divorce. Similarly, there are several other traditions and laws related to Hindu marriages that existed earlier but now have been either repealed or amended resulting in some different forms, for example- divorce, widow remarriage, a shift from polygamy to monogamy, sagotra marriages, etc. are the drastic amendments made to the Hindu marriage system. Also, the introduction of several provisions in the codified Hindu Marriage laws and the other substantial and procedural laws, that govern the Hindu marriages today, are hugely impacted by the western culture. The concepts of live-in relationships and inter-caste marriages that were not acceptable earlier are legal and enforceable by law today. In fact marriages today do not even require the family’s will, unlike in earlier times, when people were bound to get married at a proper age and with the due consent and choice of their parents. As the time passed, and our country got its Constitution enacted, we got the fundamental rights guaranteed under it which further had its effect on the traditional practices that were derogatory to the Constitutional provisions. The Right to Life under Article 21, the Right against Discrimination under Article 15, and Equality before the law under Article 14 of the Constitution are some of the basic rights that cannot be taken away and hence, have formed the basis for the amendments in the traditional or ancient Hindu marriage system. The Constitution disregards all sorts of inequalities and hence has helped in uplifting the underprivileged status of women under the Hindu law as well. However, the constitutionality of the provision of restitution of conjugal rights has been challenged several times.

The modern scenario of Hindu Marriage laws

The law that we have today is considerably unbiased and rather it is more inclined towards the recognition and protection of women’s rights. The framers of the Indian Constitution, by the way of fundamental rights, have ensured the equality and freedom to all without any discrimination and unreasonable restrictions, and other codified Hindu laws such as the Hindu Marriage Act, 1955, and certain provisions mentioned in the in Indian Penal Code, 1860, Code of Civil Procedure, 1908 and Criminal Procedure Code, 1973. Today women are free to give divorce and marry after the divorce or demise of their husbands. People can marry the partner of their choice and no one can force them otherwise, inter-caste marriage is also allowed unless against the law, staying and reproducing and procreating children without marriage is legal and bigamy for Hindus is completely void under the law today. In one of the judgments of the Hon’ble Supreme Court, in the case of Laxmibai Chandaragi B v The State of Karnataka [(2021) 3 SCC 360], the two judges bench held that two consenting adults do not need to take permission from their parents, community or the clan to which they belong. Since it has been an age-old practice to marry as per the choice of the parents, it has now come to an end. Legally, two adults who are willing to marry can do so without the consent or against the choice of their parents. It will not be incorrect to say that the mentioned judgment has brought the ancient practice of ‘swayamwar’ (right specifically granted to the women to choose their husband) into the existence again which not only prioritizes one’s fundamental rights but also empowers women to rise above the patriarchal pressures concerned with marriages. However, it will take time to get incorporated into the cultural or religious practices persistent in the Indian society that has been consistently followed by the natives for the ages.

Modern Provisions of Hindu Marriage Law

Section 9 of the Hindu Marriage Act, 1955 defines restitution of conjugal rights as:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

“Restitution” means “restoration” and “conjugal” means “marriage relationship”. Therefore, restitution of conjugal rights means restoration of marital relationship or status. The above-mentioned Section clearly states that when either the husband or the wife withdraws from the society of the other, then the aggrieved party can file a petition for the restitution, and the District Court if finds it fit and there is no legal ground for why such application should not be entertained, can pass a decree for the restitution of conjugal rights. There are, however certain grounds when the restitution cannot be granted like in the case of bigamy, the restitution against the second wife cannot be claimed or in the case of dowry demand if the wife stays away then the restitution cannot be claimed, etc.

Section 13 (1A) (ii) of the HMA provides:

“Either party to a marriage whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.”

The Section says that, if the Court awards the decree of restitution to the aggrieved party and even then the parties do not comply with it, as a result of which there has been no restitution of conjugal rights for the period of 1 year or upwards after the decree was passed, then, the parties can file for divorce on such a ground.

Order XXI Rule 33 of Code of Civil Procedure, 1908

It provides for the execution of the decree passed by the Court against the husband for restitution of conjugal rights. If the order of restitution is not executed, then the Court may order that the judgment-debtor shall make such periodical payments as may be just to the decree-holder, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments. The Court may also make amendments regarding the same from time to time regarding the payment order passed by it.

Constitutional Validity of Restitution of Conjugal Rights

Although the provision of restitution of conjugal rights protects the rights of the aggrieved when they are indirectly violated by the spouse, it still violates the fundamental rights of the spouse against whom the application for restitution has been made. The one, who stays away either due to valid or invalid grounds, has got his/her fundamental rights protected by the Indian Constitution. Article 19 (1) (e) of the Constitution provides for freedom to reside and settle in any part of India and Article 21 provides for the right to life and personal liberty. These rights of the spouse, against whom the restitution is claimed, get violated which is unconstitutional. However, because our Hindu Marriage law is based on the ancient theory that marriage once done is done for a lifetime, therefore, the courts in India try to maintain the sanctity of the law. Hence, the parties who file for restitution or divorce, are given time to protect the marriage bond. Similarly, the decree of restitution is passed so that the marital bond is not destroyed over small problems that can be sorted out either mutually or by the legal enforcement ordered by the Court. If the parties still do not intend to live together then, the option to get separated is always open to them, which shows their rights are not being ignored by the statutes but are only restricted for their and their families benefit.

Conclusion

The Hindu Marriage Act, as of today is a combination of both traditional and modern aspects but is more of a modern kind. Therefore, the changing needs of the society should be the prime concern of the legislation even if the traditional laws have to be subjected to the amendments accordingly. However, the essence of the tradition should be maintained that binds the society together through a well-managed and disciplined system so that the Hindu Marriages continue to hold the sanctity of the marriages. Restitution of conjugal rights is a step towards achieving such goals and it is constitutionally valid since it does not impose absolute restrictions on one’s fundamental rights. The restrictions are reasonable and only for a limited period of time so that the fate of the marriage can be finally decided.