ASSIGNMENT 2 – RESITUTION OF CONJUGAL RIGHTS UNDER MUSLIM,

CHRISTAIN AND PARSI LAWS

INTRODUCTION

Marriage under all matrimonial laws is union imposing upon each of the spouse’s certain
marital duties and gives to each of them certain legal rights. The necessary implication of
marriage is that parties will live together. Each spouse is entitled to comfort consortium of the
other. So after the solemnization of the marriage if either of the spouses without reasonable
excuse withdraws himself or herself from the society of the other then the aggrieved party has
a legal right to file a petition in the matrimonial court for restitution of conjugal rights. The
court after hearing the petition of the aggrieved spouse, on being satisfied that there is no
legal ground why the application shall be refused and on being satisfied with the truth of the
statements made in the petition may pass a decree of restitution of conjugal rights.

A decree of restitution of conjugal rights implies that the guilty party is ordered to live with
the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by
the deserted spouse against the other. A husband or wife can file a petition for restoration of
their rights to cohabiting with the other spouse. But the execution of the decree of restitution
of conjugal rights is very difficult. The court though is competent to pass a decree of
restitution of conjugal rights, but it is powerless to have its specific performance by any law.
The non-compliance of the issued decree results to constructive destruction on the part of the
erring spouse.

At present as per the provisions available under the Indian personal laws, the aggrieved party
moves a petition for a decree of divorce after one year from the date of the passing of the
decree and the competent court can pass a decree of divorce in favor of the aggrieved party.
The decree of restitution of conjugal rights can be enforced by the attachment of property,
and if the party complained against still does not comply, the Court may also punish him or
her for contempt of court. But under no circumstances, the court can force the erring spouse
to consummate marriage. Decree of restitution of conjugal rights could be passed in case of
valid marriages only.

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage
Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of
the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and
Divorce Act, 1936 and to persons married according to the provisions of the Special
Marriage Act, Section 22 of the Special Marriage Act, 1954.

MEANING OF RESITUTUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights basically comprises of two major words, “Restitution” and
“Conjugal Right”.
• RESTITUTION: The restoration of something lost.
• CONJUGAL RIGHT: rights relating to marriage or the relationship between husband and
wife.
If either party to a marriage withdraws from the society of the other without reasonable cause,
the aggrieved party has a right to file a petition claiming relief for restitution of conjugal
rights. The court will grant the relief if there is no legal bar to such decree.
The legal definition given under Section 9 of Hindu marriage act 1955. The idea of providing
for restitution by a court decree is to preserve the marriage tie as far as possible, by enabling
the court to intervene and enjoin upon the withdrawing party to join the other. The condition
to be satisfied for obtaining such decree are-

 The other spouse has withdrawn from the society of the petitioner.
 There is no reasonable excuse for such withdrawal. Should the respondent allege
reasonable excuse, the burden of proof lies on him/her.
 The court satisfied as to the truth of the statements made in the petition.
 No legal grounds exist for refusing the decree.
There is withdrawal from society when one of the spouses, without reasonable excuse,
terminates an existing relationship with the intention of forsaking the other, and permanently
or indefinitely abandoning such relationship. Thus, while a husband and wife might be at
times living apart, but maintaining a frequent and regular social and conjugal relationship, in
such a case there would be no withdrawal from society. So after the solemnization of the
marriage if either of the spouses without reasonable excuse withdraws himself or herself from
the society of the other then aggrieved party has a legal right to file a petition in the
matrimonial court for restitution of conjugal rights.

In Ranjana Kejriwal v. Vinod Kumar Kejriwal1 , Petitioner Wife alleged that the husband
was already married and had suppressed the fact from her. The Court held that the petition for
restitution of conjugal rights is not maintainable since there is no legal marriage.
REMEDY OF RESTITUTION OF CONJUGAL RIGHTS UNDER DIFFERENT
PERSONAL LAWS

The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of
restitution of conjugal rights is a positive remedy that requires both parties to the marriage to
live together and cohabit.

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage
Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian
Divorce Act, 1869, to Parsi’s under Section 36 of the Parsi Marriage and Divorce Act, 1936
and to persons married according to the provisions of the Special Marriage Act, Section 22 of
the Special Marriage Act, 1954.

MUSLIM

Restitution of the conjugal rights to Muslims under general laws.1

1
Dr. R. K. Sinha, Muslim Law, 6th ed., Central Law Agency, Allahabad, p.64
The conceptualization of the provision for restitution of conjugal rights under Muslim law by
Tayabji is as follows: 

 “Where either the husband or wife has, without lawful ground withdrawn from the society of
the other, or neglected to perform the obligations imposed by law or by the contract of
marriage, the court may decree restitution of conjugal rights, may put either party on terms
securing to the other the enjoyment of his or her rights”

If the husband either deserts a wife or neglects to perform his marital obligations without any
proper reason, then the wife can apply for restitution of conjugal rights. Even husband can
apply for restitution of conjugal rights. But the court can refuse to grant order of restitution of
conjugal rights for following reasons:

• Cruelty by husband or in-laws

• On the failure by the husband to perform marital obligations
• On non-payment of prompt dower by the husband

Therefore, this concept under Muslim Law is directed towards securing the spouse his/her
legal rights. The concept of Restitution of Conjugal Rights in Muslim Law was explained in
the case of Abdul Kadir v. Salima2, where the Allahabad High Court held that restitution
must be decreed as per Muslim Law (Sharia) and not based on Judicial Morality or Natural
Law.

In Asfaq Qureshi v. Aysha Qureshi3, the Chhattisgarh High Court held that in cases of
conversion followed by a marriage where conversion was improper, decree of restitution of
Conjugal Rights cannot be given because the marriage is itself null and void. The court also
observed that a decree of restitution can only be given in case of a valid marriage.

CHRISTIAN
SEC.32 PETITION FOR RESTITUTION OF CONJUGAL RIGHTS:-

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

SEC.33 ANSWERS TO PETITION:

“Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which
would not be ground for a suit for judicial separation or for a decree of nullity of marriage”.

The Court cannot pass the decree for following reasons:

2
Abdul Kadir v. Salima (1886) ILR 8 All 149
3
• Cruelty of husband or wife
• If either of the spouse is insane
• If any one of the spouse marries again.

PARSI

Section 36 of the Parsi Marriage and Divorce Act, 1936[12] provides for restitution of
conjugal rights

SEC.36 SUIT FOR RESTITUTION OF CONJUGAL RIGHTS:-

 “Where a husband shall have deserted or without lawful cause ceased to cohabit with his
wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her
husband, the party so deserted or with whom cohabitation shall have so ceased may sue for
the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the
allegations contained in the plaint, and that there is no just ground why relief should not be
granted, may proceed to decree such restitution of conjugal rights accordingly”.

To sum up, under all personal law, the requirements of the provision of restitution of conjugal
rights are the following:

• The withdrawal by the respondent from the society of the petitioner.

• The withdrawal is without any reasonable cause or excuse or lawful ground.
• There should be no other legal ground for refusal of the relief.
• The court should be satisfied about the truth of the statement made in the petition.

CONSTITUTIONALITY: RELIEF OF RESTITUTION OF CONJUGAL RIGHTS

 During the time of introducing the provision for restitution of conjugal rights under different
personal laws, there were heated debates in the Parliament for and against it. In Shakila Banu
v. Gulam Mustafa4, the Hon’ble Bombay High Court observed:

“(The concept of restitution of conjugal rights) is a relic of ancient times when slavery or
quasi-slavery was regarded as natural. This is particularly so after the Constitution of India
came into force, which guarantees personal liberties and equality of status and opportunity to
men and women alike and further confers powers on the State to make special provisions for
their protection and safeguard.”

The constitutional validity of the provision for restitution of conjugal rights has time and
again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh
High Court in T.Sareetha v. T. Venkatasubbaiah5 where the Hon’ble High Court held that the
impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v
Harminder Singh6 though had non-conforming views.

4
Shakila Banu v. Gulam Mustafa  AIR 1971 Bom 166
5
T.Sareetha v. T.Venkatasubbaiah AIR 1983 AP 356.
6
Harvinder Kaur v Harminder Singh AIR 1984 Delhi 66
Ultimately Supreme Court in Saroj Rani v. Sudharshan Kumar7 gave a judgment which was
in line with the Delhi High Court views and upheld the constitutional validity of the Section 9
of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T.
Venkatasubbaia8.

CONCLUSION

Above mentioned, I familiarized with the legal provisions related to restitution of conjugal
rights under different personal laws. Here, one question arises whether any one forced to live
with a partner he/she does not want to live with? Marriage is a pure relation between two
person but it is not right to only prevent for this relation force to live together However, there
is a bigger debate we need to dwell into. 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. The decree of restitution of conjugal right
or right to stay together is not obeyed for a period of more than one year, subsequent to the
date of the decree; it becomes a good ground for divorce. 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. 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.

BIBLIOGRAPHY
http://www.legalservicesindia.com/article/814/Restitution-of-Conjugal-Right.html

https://lawrato.com/indian-kanoon/family-law/restitution-of-conjugal-rights-in-india-
procedures-under-different-religions-2832

http://www.lawvedic.com/blog/restitution-of-conjugal-rights-meaning-and-scope-50#_ftn9

https://www.lawctopus.com/academike/marriage-and-restitution/

https://lawtimesjournal.in/restitution-of-conjugal-rights/

https://www.latestlaws.com/wp-content/uploads/2018/07/Restitution-of-Conjugal-Rights-An-
Analysis
https://www.otj247.com/blog/page/122/restitution-of-conjugal-rights/

7
Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1652

8
T.Sareetha v. T. Venkatasubbaiah AIR 1983 AP 356