The 71st Law Commission Report titles “Irretrievable Breakdown of Marriage as a ground for Divorce”, para 6.5 read as follows:
“The essence of marriage is a sharing of common life, a sharing of all the happiness that life had to offer and all the misery that has to be faces in life. Living together is a symbol of such sharing. Living apart is a symbol indicating the negation of such sharing.”
In India, the conjugal rights, i.e. the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself.
The importance of the concept of conjugal rights was very clearly portrayed in the above Law Commission Report. It serves as a social purpose as an aid to the prevention of breakdown of marriage.
a. Hindu Marriage Act, 1955: Sec 9 of the Act deals with restitution of conjugal rights. By 1976 Amendment, ‘Explanation’ was added and Sec 9(2) was deleted.
b. Code of Civil Procedure: Order 21 of Rule 32 and Rule 33 deal with decree for specific performance of conjugal rights or for an injunction. There can be only financial sanction behind every restitution decree.
The remedy had its origin in ecclesiastical law of England. It was applied for the first time in India in 1866 by the Privy Council in Moonshee Bazloor v. Shamsoonaissa Begum.
According to Oxford English Dictionary, ‘conjugal’ is defined as ‘of pertaining to marriage or to husband and wife in their relations to each other.’
Dictionary of English Law defines ‘conjugal rights’ as ‘the right which husband and wife have to each other’s society and martial intercourse. Its suit is a marital suit cognizable in the Divorce Court.’
The case was decided by the Andhra Pradesh High Court which observed that Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity and equality guaranteed by Article 14 & 21 of the Constitution.
Hence, Sec 9 was declared to be constitutionally void for abridging rights guaranteed under Part III of the Constitution. According to the learned Judge, a decree for restitution of conjugal rights deprived of her choice as and when and by whom the various parts of her body should be allowed to be sensed. The court relied on the Scarman Commission’s Report in England that recommended its abolition.
It was held that sec 9 was not violative of Articles 14 and 21 of the Constitution, since the leading idea behind Sec 9 was to preserve the marriage. The remedy of restitution was aimed at cohabitation and consortium and not merely at sexual intercourse.
The above contradictions about the constitutional validity of Sec 9 were set at rest by the Apex Court in this case. The case primarily raised 3 issues:
1. Determination of husband entitlement to divorce when petition of restitution of conjugal rights was filed by wife. – since a spouse is not barred by Sec 23(a) from claiming relief under Sec 13(1A), the decree was passed.
2. Constitutionality of remedy of restitution of conjugal rights provided under Sec 9 of the Act. – it was held that Sec 9 is not violative of Article 14 and 21 of Constitution.
3. Determination of maintenance – Separate maintenance was ordered for the wife and the daughter.
In the instant case, there was a pre- nuptial agreement between the husband and wife that after marriage, the husband would live with wife at her foster- father’s house. Subsequently he was ill-treated there and returned to his village and requested his wife to come over to him. On her refusal, he initiated a suit of restitution of conjugal rights. The Court held that pre- nuptial agreement was unenforceable and subsequently allowed the petition.
As a general principle, any agreement, be it under Hindu law or Muslim law, between husband wife to live separately, is considered to be void for being contrary to public policy.
This case primarily deals with the effect of husband and wife serving in different places. In this case, the husband was in service near Ajmer and the wife worked in Adipur. On the wife’s refusal to quit her job, the husband moved the petition for restitution of conjugal rights.
The court held that if there is no refusal on the part of the wife to allow access to her husband and no reluctance on her part in going to her husband, then the mere refusal on her part to resign her job is sufficient ground for the husband to seek relief for restitution of conjugal rights.
Hence the petition was dismissed.
Burden of Proof
Restitution of conjugal rights can be claimed when the other party to the marriage has withdrawn from conjugal society without and reasonable care.
It is for the party who has withdrawn from conjugal society to show valid excuse. This excuse should be reasonable and convincing.
The facts that the aged parents of the husband are residing with him or that the wife has to look after her deceased father’s lands are not reasonable excuses. However a wife would be justified in leaving her husband is she is forced to non-vegetarian food or drinking alcohol against her wishes.