MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

Term Paper towards fulfillment of The Assessment

In The Subject of Family Law

Restitution of conjugal rights: An effective way to divorce

Submitted to : Prof R.K Sinha Submitted By : Anugrah Joy

(Course Instructor) Roll No. : 2018 003

B.A.,LL.B. (HONS.) FIRST YEAR, SECOND SEMEMSTER

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 Table of contents

Introduction…………………………………………………………………….. ……..3-5

“Withdrawn from the society of the other” Section 9, Hindu Marriage Act 1955…5-9

Judicial Interfernce on the subject matter of Conjugal rights ……………………..9-11

Defence to a petition : The excuse of reasonable cause……………………………..11-13

Conclusion……………………………………………………………………………..14-15

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 Chapter I

Introduction
The human society rests on the two basic institutions of family and marriage. Every society is governed by
certain norms and rules, which have developed into customs and usages with the passage of time. The
institution of marriage is governed and recognized by the personal laws of all the religions. After a due course
of time marital complexities such as divorce, judicial separation and conjugal rights came up in personal law
and it became inevitable to codify the laws relating to marriage in India. Consequently, Hindu Marriage Act,
1955, Indian Divorce Act, Parsi Marriage and Divorce Act, 1936 and various other acts were codified. The
concept of marriage vests the parties with certain rights that exist only out of the wedlock. These rights are
known as Conjugal Rights. When the parties to the marriage get separated, then the disadvantaged party can
seek a remedy in the form of restitution of these conjugal rights.

This section in the Hindu Marriage Act reproduces section 32 and 33 of the Indian divorce Act. Such provisions
as to restitution of conjugal rights exist in other personal laws as well. Muslim Law equates this concept with
securing to the other spouse the enjoyment of his or her legal rights. Earlier, the concept was seen as specific
1
performance in the contract of marriage. In the case of Abdul Kadir v. Salima , the High Court of Allahbad
decided that Case of restitution must be decided on the principles of Muslim Law and not on the common legal
facets of: justice, equity and good conscience. The concept of the restitution of conjugal rights has also been
dealt in the Christians and Parsis personal law.

“The order of restitution of conjugal rights is observed by its breach rather than its abeyance.” The Court has a
power to enforce the decree under Order 21 Rule 32 of Civil Procedure Code, 1908. Under Rule 32(1), if a
person willfully fails to comply with the decree of restitution, then the Court can attach his property. Under
Rule 32 (3), the Court can sell the attached property if there is a failure on the part of the decree holder to
comply with the decree for six months. The difficulty arises when the judgement-debtor is not in possession of
any actual property. In rural India, we find that in most cases wives' do not have actual possession over any
property.

In such cases, if a restitution decree does not comply with, then the court attaches the share of wife in the
husband's undivided property. But this involves cumbersome procedures. The difficulty also arises if the
husband is a property-less person—say, a daily wage labourer living in a slum—how will the Court execute the
decree in such cases? Coercing a person that his property would be attached and sold away can change the

1
(1886) ILR 8 All 149.
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attitude of the adamant spouse and make him obey the decree. The objective of this remedy is to ensure
cohabitation of the spouses, but when the property is attached and sold, it will lead to bitterness between the
spouses and the purpose of the remedy will get frustrated. However that is beyond the scope of this work.

To avail this remedy under Section 9 there are certain ingredients that must be present under the circumstances.
The onus of proving that these ingredients have been fulfilled lies on the person who has withdrawn from the
society of the other. The ingredients include:

1) Existence of a valid marriage

2) Withdrawal from society of the other
3) Absence of any reasonable excuse for such withdrawal
4) Satisfaction of court about the truth of statements
5) No legal ground under which the application should not be granted
Of these five ingredients, it is the duty of the Court to determine the last two.

Chapter II

History of Conjugal rights in India

As stated by Paras Diwan, the remedy of restitution of conjugal rights was neither recognized by the
Dharmashastra nor did the Muslim law made any provisions for it. It came with the Raj. Restitution of conjugal
rights has its roots in feudal England, where marriage was considered as a property deal and wife was part of
man’s possession like other chattels. The concept of restitution of conjugal rights was introduced in India in the
case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum, where such actions were regarded as
considerations for specific performance.

The remedy of Restitution of Conjugal Rights is a new notion in Indian matrimonial jurisprudence that finds its
origin in the Jewish laws. The remedy was unknown to Hindu law till the British introduced it in the name of
social reforms. In fact, it is the only matrimonial remedy which was made available under the British rule to all
communities in India under the general law. After independence this remedy found place in the Hindu Marriage
Act, 1955.  But even as the Hindu Marriage Act was being passed in the Parliament, there were voices of
skepticism regarding the efficacy of the remedy. 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 shocking…”. Bromley has also opposed this concept in his book.[6]  Sir J.
Hannen in Russell v. Russell 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
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obtain divorce.” Some scholars have even expressed the view that the remedy should be abolished.
Unfortunately, all pleas to abolish the remedy have fallen on deaf ears. The inherent incapacity of the remedy
has been manifested numerous times in various forms yet we are continuing with this archaic remedy even
though it has been abolished in England by the Law Reforms (Miscellaneous Provisions) Act, 1947.

Chapter III

“Withdrawn from the society of the other” Section 9, Hindu Marriage Act

The expression, “withdrawn from the society of the other” raises certain questions in the mind of the reader
such as “What constitutes withdrawal in a marriage?” and “What is the scope of the word society?” It has been
observed through judgements passed over the years that withdrawal involves a mental process besides physical
separation. Such a withdrawal must be of a voluntary nature and done by the free consent of the party
withdrawing from society of the other spouse. In India it may be borne in mind that conjugal right, i.e. right of
the husband or the wife to the society of the other spouse is not merely a creature of statute. Such a right is said
2
to be inherent in the very institution of a Hindu marriage.

The foundation of the right to bring a suit for restitution is the fundamental rule of matrimonial law that one
spouse is entitled to the company and comfort i.e. consortium of the other. The Rigveda (RV 10.84.52) said:

“O bride and bridegroom! You two stay here. Never be disunited i.e. be faithful, never think of any other man
or woman.” (Enjoy the full span of life in your matrimonial home and never leave it.)

Even Manusmriti had a similar verse that states that for a man to be perfect he must always be in the company
of his wife and offpsrings and the learned Brahmans propounded this maxim that only he who resides with the
wife can be declared to be a husband. (Manu IX, 45, Apastamba II.14.16). Thus, Hindu Law stressed on the
wife’s implicit obedience to her husband. It was never imagined that the wife would desert the husband and
refrain from giving him conjugal bliss. Therefore the basis of this right to restitution of conjugal rights is not
just a statutory provision as far as Hindu Law is concerned.

A second aspect to this is whether prior cohabitation is a pre-requisite for “withdrawal”. There is a difference of
opinion that seems to occur here. One opinion says that for there to be a decree of restitution of marital rights,

2
Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562; Shri Vidyanidhi Dalmia v. Smt. Nilanjana
Dalmia, 150 (2008) DLT 19.
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there must be withdrawal and for withdrawal to occur, there must be a condition precedent that the parties to the
marriage were living together earlier, and only then can conjugal rights that flow from the marital ties, be
3
restored or the position be reversed to as previously. A second opinion says that the remedy provided in this
section is something more than mere reinstatement of something which was already enjoyed; therefore, for
obtaining the remedy of restitution it would not be necessary that the parties should have at some time cohabited
with each other and then separated. The withdrawal can be proved either from the date of marriage or from the
4
time when cohabitation was withdrawn till the date of commencement of proceedings under this section.
Where spouses have not cohabited earlier at any time after the marriage, a petition for restitution of conjugal
5
rights would lie if the intention to not cohabit is established.

It must also be noted that temporarily leaving the matrimonial home does not amount to withdrawal as animus
6
deserendi is missing (intention to withdraw permanently). Marital set-ups in which exceptional circumstances
like economic factors creep in and one spouse has to do a job at a different place than the other, does not
amount to withdrawal from the society of another and does not give a ground to ask for restitution of conjugal
rights.

Withdrawal from society of the one’s spouse is considered a blow to the sanctity and stability of the marriage
which matrimonial law scorns and derides unless such withdrawal is accompanied by a warranted and
justifiable cause. Thus the entire purpose of Section 9 is to bring the spouses together to enjoy conjugal life with
each other once again and such a right is fundamental in character in Matrimonial Law as the principle of
marriage enshrines such a duty to be followed faithfully.

Failure to render conjugal duties, refusal to stay together or of marital intercourse with the other spouse, would
normally constitute withdrawal from the society of the other spouse. However it must also be observed that
when the spouses are living together mere refusal to have marital intercourse will not amount to withdrawal
7
from the society. Mere rejection by one of the marital relationship coupled with difficulties of normal affection

3
S. Krishnamurthi Aiyar, Law of Marriage, Maintenance, Separation and Divorce, 4th Ed., Universal Law
Publishing Co., New Delhi, 2012 at 68.
4
J. Ranganath Misra & Dr. Vijender Kumar, Mayne’s Hindu Law& Usage, 16th Ed., Bharat Law House, New
Delhi, 2008 at 203.
5
Venugopal v. Laxmi, AIR 1936 Mad 288
6
Ratnaprabhabai v. Sheshrao Shankarrao Bhoge, AIR 1972 Bom 182.
7
Weatherly v. Weatherly (1947) 1 All ER 563.
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does not amount to withdrawal from the society. Here, the expression “society” should be understood as
marital cohabitation that is to say that the husband cherishing and supporting his wife as a husband should do
and wife rendering duties as a housewife and does not necessarily imply a husband and wife living together
physically for purpose of sexual intercourse under the same roof. It is possible that they do not live under the
same roof but there is still cohabitation in the wider sense of the term if they fulfil marital obligations to each
other. However, even while residing within the same four walls, if one of them does not fulfil marital
obligations then it amounts to withdrawal from society of the other, as then they are not living together as
husband and wife in the truest sense of the term.

Another scenario that needs to be taken into consideration is when the spouses are living separately under an
agreement. Where a married couple is living separately owing to a mutual understanding it does not amount to
withdrawal from society of the other because neither party has taken steps to set aside that agreement as was
9
opined in the case of Aryasomayajula Venkata Subba Rao v. Aryasomayajula Surya Kumari . The case was
regarding desertion however the same principle may be applied here. It was held that desertion necessarily
implied absence of agreement between the two parties to reside separately and if such an agreement was being
peacefully and mutually followed for a considerable period of time only then would a decree in favour of the
complaining party be granted by the Court. However, a second and contrary approach to this was taken in the
10
case of A. E. Thirumal Naidu v. Rajammal where any such agreement, even if mutual and bona fide, is
11
invalid as it is opposed to Hindu Law and public policy. This decision cited Justice Banerjee’s book that says
that the right follows from the express conditions in the nuptial vow of the Hindu that the husband and wife
12
must each be entitled to the society of the other.

The judgement relied on another case of 1901 that held that “having regard to the texts of the sages and the
exposition thereof by different authors...the duty imposed upon a Hindu wife to reside with her husband
13
wherever he may choose to reside is not only a moral duty, but a rule of Hindu law” while also clarifying that
though Hindu law upon this subject has an archaic character, Hindu marriages are not merely a contract but also

8
Mouneer v. Mouneer (1972) 1 All ER 289.
9
AIR 1957 SC 176 at ¶ 5.
10
AIR 1968 Mad 201 at ¶ 9.
11
Sir Gooroodass Banerjee, The Hindu Law of Marriage and Stridhan, Thacker Spink, 1879.
12
Id at 114.
13
Takait Mon Mohini Jamalai v. Basanta Kumar Singh, ILR (1901) Cal 751 at 763
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a sacrament, and the rights and duties of the married parties are determined solely by the law and are incapable
14
of being varied by their agreement however this is because the aim of the court will always be to protect and
preserve the marriage and any agreement contrary to such a rule of Hindu law is against public policy. Thus we
see two contrary views taken by two High Courts on the issue of nature of relationship in a Hindu marriage and
withdrawal of one spouse from it. The latter view may be criticised to an extent as it adopts a very rigid and
archaic view of Hindu Law by referring to a case that was decided in the year 1901 and applying that principle
to the circumstances before it in 1968, almost seventy years later.

By virtue of decisions of various courts over the past decades, it has been seen that the following acts can be
considered to be “withdrawal from the other’s society” for the purposes granting a decree of restitution of
conjugal rights under Section 9:

1) Ill-treatment of the wife by the husband and virtually dumping the wife in her father’s house and
15
thereafter being completely cold and unresponsive towards her.
2) Husband has not cared to look after children from that marriage, nor is there anything to indicate that he
16
had sought custody of the child it is taken to be withdrawal.
3. Refusal on the wife’s part to reside with the aged parents of her husband under the same roof when their
conduct is not provocative in any manner to the wife is also a form of withdrawal from providing the
17
husband the joys of conjugal bliss.
4. Where one spouse has obtained a decree for restitution, the other spouse cannot simultaneously file a
restitution petition. However, if a fresh cause arises then any spouse, including the respondent of the
previous petition, can file a petition for restitution. Therefore, if a husband and wife are living apart, the
husband files for a resitution decree and it is granted to him afterwhich the wife goes to reside with him.
If after a few hours or weeks, she is turned out of the house by the husband, the wife can file a fresh
18
petition under Section 9 and the husband cannot take defence of the previous petition.

14
Supra note 7 at 107.
15
Sushila Bai v. Prem Narayan, AIR 1986 MP 225.
16
Usha Rani v. Lachhman Dass, 2002 (1) HLR 320 (P&H).
17
Kanthimathi v. Parameswarayyar AIR 1974 Ker 124.
18
Dr. Paras Diwan et al., Law of Marriage & Divorce, 6th Ed., Universal Law Publishing Co. Pvt. Ltd., New
Delhi, 2011 at 353.
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Whereas the following actions on part of one party would not amount to “withdrawal from society of the other”
for the purposes of Section 9:

1. Where two persons of the husband’s family are suffering from tuberculosis and living in the same house,
the wife’s refusal to reside with the “diseased” family, but consent to stay with the husband in a separate
19
house would not amount to withdrawal.
2. When the husband creates circumstances such that the wife is compelled to leave the matrimonial home
20
(for example, keeping a mistress in the marital home in the presence of the wife ) in that case the wife’s
act of staying separately from the marital home cannot be termed as withdrawal from society of
husband. In fact, it is the husband whose acts would be called constructive withdrawal.
3. In a case where a separate court order/decree is the cause why one spouse is not living with the other,
that act cannot be termed as “withdrawal” for the purposes the Section.
4. Where the wife offers to fulfil all her marital obligations in the matrimonial home, however the husband
refuses her access to him and denied his society to her, in that case it is not open to the husband to
21
complain that the wife has not complied with the decree for restitution of conjugal rights.
5. Where the wife had expressed her unwillingness only to go to husband’s parents house and stay there
but made it clear that if she is taken to the place of his employment (BSF, Punjab) she is willing to go
22
and stay with him, it was held to not constitute withdrawal under the scope of this provision.
Thus, the above-mentioned are examples of the scope of “withdrawal from the other’s society” as has been laid
down by decisions in the past.

Chapter IV

Judicial interference in the subject matter of Conjugal rights

19
Sunil Kumar Datta Roy v. Swarna Datta Roy, AIR 1982 Gauhati 36.
20
Banari Lal v. State of Maharashtra, 1978 (2) Mah LR 501.
21
M. Somesara v. Leelavathi, ILR 1968 KAR 260 at ¶ 30.
22
Nalini v. Radha Krishnan,1988 (2) HLR 408 Ker.
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 23
SWARAJ GARG V. K. M. GARG : The Parties in this case lived at two different places before marriage. The
wife was working as a teacher in Sunam and the Husband was employed in Delhi, but he had no house of his
own there. At the time of the marriage there was no express or implied understanding between the two about
where the matrimonial home should be. At the time of marriage, the wife had already been a teacher at Sunam
for eight years and was expecting a promotion in her job. The husband, on the other hand, does not have any
permanent worthwile job at the time of getting married. After marriage, due to service and financial conditions
the parties seem to have parted voluntarily. However later the husband wrote to his wife’s father (at whose
house she was resiing) that he wished for his wife to resign and join him in Delhi. The wife at this point had
already visited the petitioner twice in Delhi but had not visited him since the last time now.

The Court in this case observed the present day societal trends and norms. Various women take up jobs and help
their families and in the process become useful and productive members of the society. It may be that the wife
is financially and in other aspects better situated to choose the place of matrimonial home than the husband, the
Court observed. The existence of such circumstances would nullify the view taken in the case of Kailash Wati
v. Ayodhia Prakash which said that the wife is bound to live with her husband and to submit to his authority
provided the court is satisfied that the petition is of bona fide nature and that the husband is in a position to
provide for the wife a matrmonial home and dignified comforts of life. The Court also recognised that social
change among the Hindus has been generally accompanied by appropriate changes in the Hindu Law,
particularly the part that relates to the unequal conditions in which Hindu women have been placed. The Court
decided that there is no warrant in Hindu law to regard the Hindu wife as having no say in choosing the place of
matrimonial home.

Article 14 of the Constitution guarantees equality before the law and equal protection of the law to the husband
as well as the wife. Any law which would give exclusive right to the husband to decide upon the place of the
matromonial home alone without considering the merits of the claim of the wife would be contrary to Article 14
and unconstitutional for that reason. The usual trend seen in judgements of the Court was due to the prevalent
trend in Indian-Hindu society of the husband being the sole wage earner of the family. Now, however the times
have changed and are changing; the wife also has her own income in some households and if that income is
sufficient to maintain herself and the husband then she will not be expected to be maintained by the husband
and also it would not be a matter of course for her to resign her job and come to live with her husband.

The Court also accepted that it is possible that in a marriage, the husband can have the casting vote however this
casting vote can only serve as a tiebreaker. It can only be used in case of a stalemate. The question of
23
AIR 1978 Del 296.
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matrimonial home can only be decided on the balance of circumstances. The Court in this case, due to the
financial difficulties of the husband and comfortable position of the wife and also due to the discouraging
conduct of the husband towards the wife, held that the wife had a reasonable excuse to retain her job and not
reside with the husband. The question of withdrawing herself from the society of the husband did not arise here
at all because the husband and the wife has not been able to decide where the matrimnonial home should be set
up. Therefore, the appeal was dismissed and no decree of restitution was granted to the husband.

Chapter V

Defense to a Petition : The excuse of a reasonable cause

Undoubtedly one of the most controversial aspects of the RCR provision is that the respondent can establish a
24
defense for the same by proving that there existed “reasonable excuse” for the act of withdrawal. A large
number of cases have arrived at the doorsteps of the Indian judiciary, pleading the courts to explore this concept
25
in depth so as to provide clarity on the matter. The provision makes it amply clear that the success of an RCR
petition quite heavily depends on the ability of the withdrawing party to show that there was a reasonable
excuse for the withdrawal and the explanation appended to the section (added by the Marriage Laws
Amendment Act 68 of 1976) clarifies that this is entirely the duty of the person who has withdrawn from the
26
society.

The beginning point, as in the case with several other provisions in Indian statues, is the trouble of a
jurisprudential void caused due to the lack of a definition. Thus one must necessarily proceed to examine the
origins of the provision and then go on to analyze how domestic courts have interpreted the same. As the
Section originally stood, it provided (through the later deleted Sub-Section (2)), that the defense to a petition of
restitution of conjugal rights can only be in the form of a contention which constitutes ground for judicial
separation under Section 10 or for nullity of marriage under Section 11 or for divorce under Section 13.

24
Supra note 18 at 347.
25
PROFESSOR KUSUM, Family Law Lectures, 3rd Edn. (LexisNexis/Butterworths Wadhwa), p.36
26
G. Ramakrishna Pillai v. J. Vijayakumari Amma and Others, AIR 1990 Ker 55
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This provision led to a considerable difference of opinion among some of the High Courts as to whether there
27
could be a defense that would not constitute an adequate ground for a decree under Section 10, 11 or 13. The
controversy has now been set at rest by deleting Sub-section (2). As the law now stands, the ambit of what can
28
be a defense to an RCR petition is much wider because any situation which constitutes reasonable excuse
would be a sufficient defense, however such reasonable excuse must be grave and weighty or convening though
29
it may fall short of constituting a matrimonial offence. Thus, such instances would include those where the
30 31
husband treats the wife cruelly (apart from abusive in-laws ) or where the wife was serving as a teacher away
32
from the matrimonial home. Additionally, cases where the husband had forced the wife to cook meat and
33
drink alcohol, in contravention of her religious beliefs, have been held to be within the ambit of the defense.
From time to time, the courts have deemed it necessary to intervene and provide obvious fetters on this defense.
For instance, the husband was held to be disentitled to a defense that the wife left the matrimonial home and his
34
company when the wife files the petition for restitution.

35
Though it has been held that a ground for any matrimonial cause would obviously be a reasonable excuse but
a “reasonable excuse” need not be equivalent to a ground for a matrimonial cause. Right from the beginning, the
courts have stressed that the interpretation of the term “reasonable excuse” must depend upon the facts and
36
circumstances of each case. In order to provide further clarity, it would be helpful to note Sarkaria J. in the
37
case of Sadhu Singh Balwant Singh v. Jagdish Kaur Sadhu Singh . The word “excuse” appears to have been
advisedly used. It is something less than “justification”, and something more than a mere whim, fad, or brain

27
Revanna v. Susselamma, AIR 1967 Mys 165; K. Ramopi v. K. Kameshwari, AIR 1975 AP 3.
28
Supra note 27
29
Id
30
Kuldeep Kumar Dogra v. Monika Sharma, AIR 2010 HP 58
31
Shanti Devi v. Balbir Singh, AIR 1971 Del 2913
32
Manpreet Kaur v. Devinderpal Singh, AIR 1000 Utr 4: 3009 AIHC 181 (NOC)
33
Chand Narain v. Saroj, II (1999) DMC 32
34
Pilli Venkanna v. Pilli Nookalamma, AIR 2009 AP 69
35
Annapurammaa v. Poparo, AIR 1963 AP 312
36
Annie Thomas v. Pathrose (1988) 2 Ker LT 237
37
Sadhu Singh Balwant Singh v. Jagdish Kaur Sadhu Singh, AIR 1969 P&H 139
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wave of the respondent. It is a fact that has to be determined with reference to the respondent’s state of mind in
the particular circumstances of each case.

Assistance can also be taken from England where the question of whether conduct falling short of cruelty or any
38
other matrimonial offence can justify one spouse leaving another has been much debated and the judicial
opinion so developed, is not wholly uniform. With respect to the consideration of extent of the conduct, the case
of Timmins v. Timmins clarifies that where the husband was not guilty of cruelty but his conduct was a grave
and weighty matter, he had to satisfy the court that if his wife returned to him, he would behave with conjugal
39
kindness. Thus, it must be understood that the concept of “just cause” or “reasonable excuse” assumes
significance since the conduct of the spouse seeking restitution may fall short of cruelty in the legal sense, but
40
may be such that it may justify withdrawal from the society by the respondent. Finally, it must be kept in
mind that even the execution of a decree of restitution can be refused if there exist reasonable grounds for doing
41
the same.

38
Edwards v. Edwards (1949) 2 All ER 145 and Pike v. Pike, (1953) 1 All ER 232; Dixon v. Dixon, (1953) 1
All ER 187
39
Timmins v. Timmins (1953) 2 All ER 187.
40
S. Jayakumari v. S. Krishnan Nair, AIR 1995 Ker 139.
41
Koshti v. Kavita Koshti Shaiendra, AIR 2007 MP 46
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 Chapter VI

CONCLUSION

Under the Indian law a decree of restitution of conjugal rights can be executed by attachment of the
respondent’s property. But it is to be noted that the court cannot compel the defaulting spouse to physically
return to the comfort-consortium of the decree-holder spouse. As understood, the restitution of conjugal rights is
a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and
custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy is
aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation. It serves
to aid prevention of the breakup of marriage, thus is a means of saving the marriage. So the restitution of
conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It
tries to protect the society from denigrating.

However, is it really serving a purpose in preserving the institution of marriage? With the existing legal
framework and social set up, it is common sense that no spouse who wants his/her spouse to return would
approach the court for it; it is the least appropriate line of attack any spouse would opt for. Under this
circumstance, it is simply ridiculous that Civil Procedure Code, 1961, under Rule 32 Order 21, provides for the
attachment of property of the spouse for disobedience to this decree, and in case of failure to comply with the
decree within one year, the court may order the sale of property and award such compensation to deserted
spouse, as it deems fit.

In Britain, where the remedy originated, even in 1861, the court observed that it would not force any person to
return to his/her spouse’s company against his/her will, and in the year 1884, it passed the Marital Causes Act,
by which failure to comply with the decree ceased to be punishable. On the contrary, it amounted to desertion
and constituted a ground of speedy divorce. In India, the progressive decisions of High Courts in T. Sareetha v.
42 43
T. Venkata Subbaiah and Harvinder Kaur v. Harmander Singh held the remedy of restitution of conjugal
rights unconstitutional, being violative of Article 21 and Article 14 of the Constitution of India. However, the

42
AIR 1983 AP 356.
43
AIR 1984 Delhi 66.
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 44
Supreme Court of India, in its decision in the Saroj Rani v. Sudarshan Kumar Chadha case overruled these
decisions. The social and economic conditions in India and the United Kingdom are different. However, there
are basic human values or rights that are universally accepted, like one’s right to life, which definitely and
concretely includes with whom one should spend his/her life. Just because one is married to a certain person
doesn't allow for neither the court nor any other authority to force him/her to live with his/her spouse, unless
they are willing to. In India, people file restitution of conjugal rights for two purposes: A hassle free divorce,
and as a defence for maintenance. It is high time this misuse or abuse of the court process is stopped, and
provisions for restitution of conjugal rights are abolished. But the final decision is that of the parties whether to
obey the decree of restitution of conjugal rights and to continue with the matrimony or not.

References:

1.

44
AIR 1983 AP 356.
AIR 1984 Delhi 66.
AIR 1984 SC 1562.

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