RESTITUTION OF

CONJUGAL RIGHTS
• This week examines the law and principles that apply to the “matrimonial relief” of
restitution of conjugal rights. We explore how it is understood and applied in Indian
jurisprudence, and discuss its gendered implications, including those on privacy and
bodily autonomy.
• Hindu law and English Common law have been wedded to the notion that on marriage husband and wife, become one.
Hindus categorically laid down that wife was ardhangni, half of the husband. The Hindu sages enjoined that every
Hindu must marry, since before marriage a man was incomplete; it was on marriage that he completed himself But the
Hindus did not take the notion of fusion of personality of husband and wife to the extent as to lay down that on
marriage, wife's chattels and other assets become that of the husband, as was the position under English Common law.
The peculiar fall out of the common law doctrine of unity of personality was that one spouse could not sue the other.
Similarly, though consortium has been likened to the right attached to ownership, in one important respect, this analogy
breaks down as the duty to cohabit, as between the spouses, is legally unenforceable.
• The result was that the only remedy that a deserted spouse had against the other was the petition for restitution of
conjugal rights. Like many other anachronistic remedies, the restitution of conjugal rights dates back to the feudal
England, where marriage was considered a property deal, and wife was part of man's possession like other chattels.
Wife was treated like a cow, if ran away from master's shed, could be roped back.
• It is a remarkable feature of English law that many anachronistic common law actions
were abolished in other spheres, but they survived in matrimonial law and from there,
were transplanted in the colonies.
• Restitution of conjugal rights is a remedy which was made available to members of all
communities at a very early period of the British rule in India. In India, a decree for
restitution of conjugal rights can still be executed by attachment of respondent's property.
• 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.
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 1867, where such actions were
regarded as considerations for specific performance.
HISTORY

• In English law, restitution of conjugal rights was an action in the ecclesiastical courts and
later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating
to marriage, over which the ecclesiastical courts formerly had jurisdiction.
• This could be brought against a husband or wife who was guilty of "subtraction"; that is,
living away from their spouse without a good reason. If the suit was successful, the
married couple would be required to live together again.
CURRENT SITUATION IN FORMER BRITISH COLONIES AND
COMMONWEALTH NATIONS

• English law was imported to many parts of the world through colonization, and so was
the concept of restitution of conjugal rights, which continues to exist in law, in various
forms, in some former British possessions, including India. In India, the concept has been
subject to controversy, and was called by Khardekar (MP), at the time of the drafting of
the Hindu Marriage Act, 1955 (which contains it), "uncouth, barbarous and vulgar".
IN MODERN INDIA,

• Where can RCR be seen? Which personal laws?

• The remedy is available to Muslims under general law, to Hindus under Section 9, Hindu Marriage
Act, to Christians under Section 32, Divorce Act and to Parsis under Section 36, the Parsi Marriage
and Divorce Act and to persons marrying in the civil form under Section 22, Special Marriage Act.
• Except under Muslim law, a decree for restitution of conjugal rights enables the wife (under Hindu
and Parsi law, husband or wife) to claim maintenance as an ancillary relief under the Hindu Marriage
Act and the Special Marriage Act, and Parsi Marriage and Divorce Act, it entitles either party to sue
for divorce if decree of restitution is not complied with for a period of one year or more.' The remedy,
which has been rightly called worse tyranny and worst slavery, should be, it is submitted, abrogated
from the Indian law.
THE PROVISIONS OF RESTITUTION OF CONJUGAL RIGHTS

• The provisions for restitution of conjugal rights are identical in the Special Marriage Act
and the Hindu Marriage Act.
HMA

• 9. Restitution of conjugal right.—5** * 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 of 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.
• 6[Explanation.—Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society.]
SMA

• 22. Restitution of conjugal rights.―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 of 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.
• 2[Explanation.―Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of providing reasonable excuse shall be on the
person who has withdrawn from the society.]
PMDA

• The provision has been worded differently in the Parsi Marriage and Divorce Act from
the Hindu Marriage Act and the Special Marriage Act. Section 36 runs as under :
• 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.
DIVORCE ACT

• The provision is somewhat different under the Divorce Act and reflects the state of the
then English law of Restitution. The provision is contained in sections 32 and 33 which
runs as under:
• 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 1*** for restitution of conjugal
rights, and the Court, on being satisfied of 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.
• 33. Answer 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.
MUSLIM LAW

• Under Muslim law, Tayabji's formulation of the remedy is as under:

• 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 legal rights.
• In this language if we substitute the words "without reasonable cause" for "without lawful
ground", the remedy of restitution of conjugal rights becomes more or less at par with the
remedy under other personal laws; moreover, in most of the cases coming under the Muslim
law, the courts have used this expression.
• It is submitted that under all the personal laws, for restitution of conjugal rights, the
following conditions must be satisfied:
• A. that respondent has withdrawn from the society of the petitioner,
• B. that withdrawal is without any reasonable cause or excuse,
• C. that the court is satisfied about the truth of statement made in such petition, and
• D. that there is no legal ground why relief should not be granted.
RESTITUTION PRE-SUPPOSES VALID MARRIAGE

• It is a well established proposition that if a valid marriage does not exist between the
parties, no decree for restitution of conjugal rights can be passed. But once the factum of
a valid marriage is established, everything necessary for the validity of the marriage, such
as capacity to marry and performance of requisite formalities of marriages, would be
presumed.
WHO HAS THE ONUS OF PROOF IN A SUIT FILED FOR RESTITUTION
OF CONJUGAL RIGHTS?

• When the court has to decide whether the withdrawal was made on a reasonable excuse,
the burden of proving the reasonability of the excuse is upon the person who has
withdrawn from the society or the respondent. But primarily the onus is on the shoulders
of the petitioner to prove the wrong done against him. Once he/she proves his/her case,
the burden shifts over the respondent to prove the reasonability of his/her excuse. This
was also ruled out in the case of P. RajeshkumarBagmar v. Swathi Rajeshkumar Bagmar
• It appears to be now established law that once the petitioner has proved that the
respondent has withdrawn from the society of the respondent, the burden of proof that the
withdrawal is for a reasonable cause is on the respondent. This has been made clear by
adding Explanation to S. 9 of Hindu Marriage Act and S. 22 of Special Marriage Act.
• This means that initial burden to prove that the respondent has withdrawn from the
society of the petitioner is on the petitioner, and once that burden is discharged, it is for
the respondent to prove that there is a reasonable excuse to do so.
WITHDRAWAL FROM THE SOCIETY AND
DESERTION
• The expression "withdrawal from society" means cessation of cohabitation by a voluntary act of the
respondent. It means withdrawal from conjugal relationship. The word "society" here means the same thing
as cohabitation. Thus, it is withdrawal from the totality of conjugal relationship, such as refusal to live
together, refusal to have marital intercourse, and refusal to give company and comfort. In short, it is total
repudiation of marital togetherness, marital two-in-oneship.
• Rejection by one of the relationship coupled with difficulties of normal affection does not amount to
withdrawal from the society. In withdrawal from the society, there is an element of desertion also. Desertion
by one spouse of the other would obviously amount to withdrawal from the society. However, to establish
withdrawal from the society, it is not necessary to prove legal desertion. What is required to be established is
the total repudiation of cohabitation. Obviously, while the spouses are living together, mere refusal to have
sexual intercourse does not amount to withdrawal from the society.
• In a petition for restitution, it is not necessary to show that spouses were cohabiting
earlier, even if spouses did not cohabit at all, the cause of action arises, once intention not
to cohabit is established.
• If one of the spouses refuses to cohabit with the other, it is not necessary to show that the
consummation of marriage has taken place. Even when parties are living together under
the same roof, refusal to cohabit would give a cause of action for a petition for restitution.
• The question of "withdrawal from the society" has come in an interesting manner in several cases in the
situation where both spouses were employed and, per force, were living at two different places. They had
arrangements under which whenever possible (either on holidays or by taking leave), spouses visited and
lived together for as long as was possible either at husband's place or at wife's place, and in this way they
continued to live together.
• But when for some reason or some misunderstanding relationship soured, the husband asked the wife to
resign or give up her job and join him at the place he was living. On wife's refusal to oblige him, he filed a
petition for restitution alleging that she had withdrawn from his society, some courts passed the decree for
restitution in favour of the husband holding that the matrimonial home being the place where husband has
established himself, the wife must join him there, otherwise it would be deemed that she had withdrawn
from the society of her husband.
• Sandhawalia, C.J. called such living together decisively as "weekend marriages." But
some High Courts expressed a different view and held that mere refusal to resign the job
will not amount to withdrawal from the society. It is submitted that in days of equality of
sexes, the former category of judgments are wrong. Further, there is also
misinterpretation of the word "cohabitation."
• In our submission, withdrawal from the society of the petitioner means cessation of
cohabitation by a voluntary act of the respondent. Cohabitation means living together as
husband and wife in the circumstances as they exist. If parties are forced to live
separately because of the requirement of their employment, but meet together whenever
circumstances permit, they are cohabiting. In such situations, the matrimonial home is at
two places, the place where husband is living and the place where wife is living.
• Where the husband dumped his wife at her father's house and thereafter totally neglected
her, it was held that husband had withdrawn from the society. Withdrawal from the
society is total cessation of cohabitation. Mere refusal to have sexual relationship while
parties are living together does not amount to withdrawal from the society.
WHERE CAN A PARTY MOVE FOR A SUIT FOR RESTITUTION OF
CONJUGAL RIGHTS?

• A party can file a suit for restitution to the District Court in whose jurisdiction – the
marriage was solemnized, the couple stayed or the couple last stayed. Thus, a spouse to
file a suit for restitution of conjugal rights may approach a court with proper jurisdiction.
WHAT IS THE PROCEDURE FOLLOWED?

• The following steps are followed:-

1. The aggrieved party files a RCR petition in the district court. This petition can be transferred by an application in the High
Court or the Supreme Court.
2. Copy of the petition is sent to the respondent with a hearing date from the district court.
3. The Court requires both parties to be present on the hearing date in front of the Hon’ble judge.
4. If both the parties are not available then another date is given.
5. After this the court sends the party for court counselling.
6. The Court counselling is done mainly by family courts and usually goes for 3 to 4 times. This might take 4 months
approximately.
7. Based on the counselling and the statements made and keeping in view the conduct of the parties the judge finally grants the
decree.
EFFECTS OF NON –PERFORMANCE OF DECREE

• During this time the wife can claim maintenance under Section 25 of Hindu Marriage Act,
1955. If the decree is not complied with, then the court goes for attachment of property. If
the decree is not followed within one year it can become a ground for divorce.
• In case a decree of RCR is passed by the Court, and the party willfully disobeys the decree
then the decree holder can file an application for execution of decree under Order 21 Rule
32 of Civil Procedure Code, 1908. The rule says that where the party against whom a
decree for restitution of conjugal rights, has been passed, and has had an opportunity of
obeying the decree and has willfully failed to obey it the decree may be enforced by
attachment of his property.
CAN A WIFE ASK FOR MAINTENANCE IN CASES OF SUITS FOR
RESTITUTION OF CONJUGAL RIGHTS?

• Section 9 of the Hindu Marriage Act, 1955 in addition to provide for the restitution of
conjugal rights also provides for an opportunity to the petitioner spouse to seek maintenance
under Section 25 of the Act. It is to be noted here that maintenance under these provisions
could be sought for even in cases where the action concerning maintenance is still pending.
Therefore, a wife who does not want the disruption of marriage can get maintenance from her
husband directly through these provisions even without actual dissolution. In Seema v. Rakesh
Kumar, Hon’ble Supreme Court held that in cases for decree of restitution of conjugal rights,
the petitioner wife becomes entitled to receive maintenance from her husband if the two are
living with each other and the wife is unable to live a decent life on her own.
REASONABLE EXCUSE OR REASONABLE CAUSE

• Under all the matrimonial laws, whenever withdrawal from the society of petitioner is
shown to be with "reasonable cause" or "reasonable excuse", it is complete defence to a
petition for restitution of conjugal rights.
• Section 33 of Divorce Act specifically lays down that only that may be pleaded against a
petition for restitution of conjugal rights which is a ground for nullity of judicial
separation. The other three matrimonial statutes use the expression "lawful cause" or
"reasonable excuse." A ground for any matrimonial cause is obviously "a reasonable
excuse." But "a reasonable excuse" need not be equivalent to a ground for a matrimonial
cause
• "Reasonable excuse" may mean much less than a ground of a matrimonial cause. Any
matrimonial misconduct which is grave and weighty will amount to reasonable excuse. In
sum, the following will amount to reasonable excuse :
• (a) a ground for relief in any matrimonial cause,
• (b) a matrimonial misconduct not amounting to a ground of a matrimonial cause, yet
sufficiently weighty and grave, or
• (c) such an act, omission or conduct which makes it impossible for the respondent to live
with the petitioner.
(A) A GROUND FOR RELIEF IN ANY MATRIMONIAL CAUSE,

• The defences coming under (a) are obvious cases. Thus, for instance, if it is established
that the petitioner is related to the respondent within degrees of prohibited relationship, or
if petitioner is impotent or is guilty of cruelty, the petition for restitution will be
dismissed.
• (b) a matrimonial misconduct not amounting to a ground of a matrimonial cause, yet
sufficiently weighty and grave, or
• (c) such an act, omission or conduct which makes it impossible for the respondent to live
with the petitioner.
• The cases coming under (b) and (c) may be illustrated from some decided cases. Thus, husband's
persistence that wife must live with his parents, wife's reasonable apprehension that it would be
unsafe to live with her husband, husband's insistence that the vegetarian wife should eat meat and
drink wine, husband having another wife,'' wife's nagging by husband's parents, husband's keeping
a concubine or addiction to drinks or drugs accompanied by conduct dangerous to oneself or
others," husband's acts of physical violence (not amount to cruelty), husband's false accusation of
adultery or unchastity against the wife, husband's overbearing, domineering and dictatorial
conduct, husband's extravagance in living and husband's persistent friendship with a member of
opposite sex" amounts to reasonable excuse. If a husband tries to persuade his wife to have sex
with his friend and on account of that she withdraws from his society, it is reasonable cause.
• In some cases, it has been held that it would amount to reasonable excuse, if the petitioner
is guilty of such conduct or act which makes it impossible for the respondent to live with
the petitioner. However, a conduct or act on the part of the petitioner which makes it
impossible for the respondent to live happily with the petitioner would amount to
reasonable excuse.
• Restitution will be refused where the petition is not bona fide or filed with an ulterior
motive, such as to take possession of wife's property, or where the court feels that passing
of the decree will not be just, reasonable or equitable.
• In cases coming under Muslim law, in Itwari v Asghari, the court said that the very act of
taking a second wife constitutes cruelty, even though polygamy is recognized by the
personal law. Similarly, restitution will not be granted where wife is living separately
from her husband on account of non-payment of dower''.
• Petitioner's apostasy also disentitles him to a decree of restitution. The modern approach
to restitution is thus summed up in a case under the Muslim law (it is submitted that this
observation is equally valid under other personal laws) by Venkataramiah, J:
• It has to be borne in mind that the decision in a suit for restitution of conjugal rights does
not entirely depend upon the right of the husband. The court should also consider whether
it would make it equitable for it to compel the wife to live with her husband. Our notion
of law in that regard have to be altered in such a way as to bring them in conformity with
modern social condition.
• Equally apt is the observation of Vaidya, J. The learned judge observed :
• Restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded
natural and this barbarous remedy should be sparingly awarded, particularly after the Constitution
of India came into force, which guarantees personal liberty and equality of status and opportunity to
men and women alike.
• In Sadhu Singh v Jagdish, the Punjab and Haryana High Court observed that reasonable excuse is
something less than a justification and something more than a mere whim, a fad or brainwave.
Following English decision, the Indian courts have taken the view that the act or omission or
conduct amounting to reasonable cause must be something grave and weighty or grave and
convincing.
BREAK

• History and RCR in other nations

• The 5 major cases (essential readings)
• Challenge to RCR: Ojaswa Pathak v. Union of India
https://www.scobserver.in/court-case/challenge-to-restitution-of-conjugal-rights
RAM PRASAD V. STATE OF UP, ALLAHABAD, 1961

• Facts: Married Hindu man, employed by the State Government, desires to marry again to beget a son, in pursuance of
religious belief
• Writ petition filed to challenge the UP Government Service Rules, relevant provision of the HMA prohibiting bigamy, on
the basis of contravening Aritlce 25 of the Constitution.
• UP Government Service Rules – Rule 27 (Post HMA)
• Bigamous marriages. No Government servant who has a wife living shall contract another marriage without first
obtaining the permission of the Government notwithstanding that "such subsequent marriage is permissible under the
personal law for the time being applicable to him.”
• The petitioner in his supplementary affidavit filed certain extracts from the Manusmriti, Yagnavalkayasmriti, Dattak
Mimansa, Yatrisahinta etc., and the argument is that one of the essential parts of the Hindu religion is that a Hindu is
permitted to marry a second wife in the presence of the first wife if his first wife is incapable of bearing a male child.
25. FREEDOM OF CONSCIENCE AND FREE PROFESSION,
PRACTICE AND PROPAGATION OF RELIGION

• (1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion
• (2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
• (a) regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;
• (b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus
• "Even assuming that polygamy is a recognised institution according to Hindu religious practice, the right of the
State to legislate on questions relating to marriage cannot be disputed. Marriage is undoubtedly a social institution in
which the State is vitally interested. If, therefore, the State of Bombay compels Hindus to become monogamists, it is
a measure of social reform and the State is impowered to legislate with regard to social reform under Article 25(2)
(b) notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practise and propagate
religion."
• It may not be universally recognised but still it has been admitted by a large volume of world opinion that
monogamy is very desirable and praiseworthy institution. If under the circumstances the law-makers decide to enact
a law which has the effect of making Hindus monogamists it can only be regarded as a measure of social reform
within the competence of the State. It was contended that it is just and proper for this Court to consider whether a
particular measure can be regarded as a social reform or for the welfare' of the society and that cannot be left to the
exclusive discretion of the legislature.
• What is social reform to be defined by the legislature as representating the will of the
people
• Polygamy in Hindus not an integral part of religion, “nor can it be regarded as practising
or professing or propagating Hindu religion which is protected under Article 25 of the
Constitution. Even if bigamy be regarded as an integral part of Hindu religion the
impugned rule is protected under Article 25(b) of the Constitution.”
• State is interested in the regulation of social institutions like marriage, even though it may
be considered sacramental in character.
KHURSHEED AHMAD KHAN V. STATE OF U.P., SC, CIVIL APPEAL
NO.1662 OF 2015

• The Court upheld constitutional validity of Rule 29(1) of the U.P. Government Servant
Conduct Rules, 1956. The impugned rule lays down ground for removal from service as a
misconduct by contracting another marriage during existence of the first marriage without
permission of the Government.
• The appellant who was employed as an Irrigation Supervisor, Irrigation Department,
Government of Uttar Pradesh had contracted second marriage during subsistence of the
first marriage and was consequently terminated after giving charge sheet. His contention
that he had divorced the first wife throughtout rejected based on his earlier statement
denying such divorce.
HELD

• In the petition before the Apex Court, apart from the challengeto the High Court’s order
affirming removal, the appellant also challenged the above said rule to be violative of
Article 25 of the Constitution.
• It was argued that under Muslim Personal Law, it is permitted to contract four marriages.
Such a rule prescribing punishment in form of removal from service is ultra vires the
consituttional scheme of freedom to practice one’s religion. It was submitted that the state
cannot legislate restricting one’s freedom to follow his religion in a duly approved
manner and that the only reasonable restrictions under Art 25 are Public Order, Morality
and health.
• “It may be permissible for Muslims to enter into four marriages with four women and for anyone
whether a Muslim or belonging to any other community or religion to procreate as many children
as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or
polygamy or to have children more than one. What is permitted or not prohibited by a religion
does not become a religious practice or a positive tenet of a religion. A practice does not acquire
the sanction of religion simply because it is permitted. Assuming the practice of having more
wives than one or procreating more children than one is a practice followed by any community or
group of people, the same can be regulated or prohibited by legislation in the interest of public
order, morality and health or by any law providing for social welfare and reform which the
impugned legislation clearly does."
ITWARI VS SMT. ASGHARI AND ORS., AIR 1960
ALL 684
• The court said that the very act of taking a second wife constitutes cruelty, even though
polygamy is recognized by the personal law.
• https://indiankanoon.org/doc/1456722/
• The Court will grant the equitable relief of restitution in accordance with the social conscience of
the Muslim community, though always regarding the fundamental principles of the Mohammedan
Law in the matter of marriage and other relations as sacrosanct. That law has always permitted
and continues to permit a Mohammedan to marry several wives upto the limit of four. But the
exercise of this right has never been encouraged and if the husband, after taking a second wife
against the wishes of the first, also wants the assistance of the Civil Court to compel the first to
live with him, the Court will respect the sanctity of the second marriage, but it will not compel the
first wife, against her wishes, to live with the husband under the altered circumstances and share
his consortium with another, woman if it concludes, on a review of the evidence, that it will be
inequitable to compel her to do so.
• Even in the absence of satisfactory proof of the husband's cruelty, the Court will not pass a decree for
restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it
will be unjust and inequitable to compel her to live with him.
• The onus today would be on the husband who takes a second wife to explain his action and prove that
his taking a second wife involved no insult or cruelty to the first. For example, he may rebut the
presumption of cruelty by proving that his second marriage took place at the suggestion of the first
wife or reveal some other relevant circumstances which will disprove cruelty. But in the absence of a
cogent explanation the Court will presume, under modern conditions, that the action of the husband
in taking a second wife involved cruelty to the first and that it would be inequitable for the Court to
compel her against her wishes to live with such a husband.
• But in determining what constitutes cruelty, regard must be had to the circumstances of
each particular case, keeping always in view the physical and mental condition of the
parties and their character, and social status
HISTORY
UNITED KINGDOM

• Prior to 1813
Under the jurisdiction of the Ecclesiastical Courts, which controlled marriage regulations,
desertion was not defined as a matrimonial offense, instead a deserted spouse could ask for
a decree of restitution of conjugal rights. After such a decree was obtained, the other spouse
had to return home and continue marital cohabitation - failure to do so was punished
with excommunication.
• The Ecclesiastical Courts Act 1813
The Ecclesiastical Courts Act 1813 abolished the excommunication punishment, replacing it
with imprisonment of up to six months.
• The Matrimonial Causes Act 1884
Under the Matrimonial Causes Act 1884, failure to comply with an order of restitution of
conjugal rights was no longer punishable by imprisonment, and only served to establish desertion
("statutory desertion") which gave the other spouse the right to an immediate decree of judicial
separation, and, if coupled with the husband’s adultery, allowed the wife to obtain an
immediate divorce.
• The Matrimonial Causes Act 1923

The Matrimonial Causes Act 1923 equalized the grounds for divorce of husband and wife, giving the wife the
right to divorce her husband on the ground of adultery alone (previously only a husband had such a divorce
right), so that asking for an order of restitution of conjugal rights was no longer as needed for wives.
• Supreme Court of Judicature (Consolidation) Act 1925

The Supreme Court of Judicature (Consolidation) Act 1925 repealed the Matrimonial Causes Act 1884.
Failure to comply with an order of restitution of conjugal rights continued to be a ground for judicial
separation, but would no longer be considered, on itself, desertion. In addition, failure to comply with a
decree of restitution of conjugal rights also allowed a court to make provisions regarding finances, alimony,
property, and custody of children.
• The Matrimonial Proceedings and Property Act 1970 (abolition)
In 1969 a Law Commission report recommended the abolition of the action, and it was
abolished by the Matrimonial Proceedings and Property Act 1970. By that time, the action
was seen as outdated and was rarely used.
• Scotland
In Scotland, the legal action for "adherence" - the Scottish equivalent for restitution of
conjugal rights - was abolished by Section 2(1) of the Law Reform (Husband and Wife)
(Scotland) Act 1984.
• Ireland
The legal action for restitution of conjugal rights was abolished in Ireland by the Family
Law Act 1988.
AUSTRALIA

• In Australia the legal action for restitution of conjugal rights was abolished by the Family Law Act 1975 (Cth) s 8(2). Therefore,
since 1975 courts no longer have the power to make a "decree of restitution of conjugal rights" to enforce marital duties. One
problematic provision today is considered to be Section 114(2) of the Family Law Act 1975, which remains on the books, and
provides that a court can "make an order relieving a party to a marriage from any obligation to perform marital services or render
conjugal rights". Although this section is now obsolete (its last recorded use was in 1978; and the 1991 High Court of Australia case
of R v L (1991) 174 CLR 379, 398 criminalized marital rape (ruling that, if the common law exemption was ever part of Australian
law, it no longer was by 1991), the existence of such wording in the Family Law Act 1975 is argued to send problematic messages to
the public; and in a 2010 report the Australian Law Reform Commission strongly recommended its abolition, writing that "Section
114(2) implies that there is a continuing obligation to render conjugal rights and provide marital services—obligations that no longer
exist in law and which should not be assumed to form part of a marriage as a social or legal institution" and "The Commissions
therefore consider that the power to make an order relieving a party to a marriage from any obligation to perform marital services or
render conjugal rights is unnecessary and inconsistent with current principles of family and criminal law, and, as such, should be
repealed." (see section on Injunctions to relieve a party to a marriage from rendering conjugal rights). Despite this, this provision still
remains on the books.
SOUTH AFRICA

• In South Africa, the legal action for restitution of conjugal rights was abolished by the
Divorce Act, 1979 (Act No. 70 of 1979), Section 14.
CANADA

• In Canada, family law has varied significantly (and still varies today) by province/territory. Canadian family regulations have
traditionally been based on concepts existing in English common law (except in Quebec, where the principal source of
inspiration has been French law). As such, restitution of conjugal rights has been a part of law in most, but not all, provinces.
In Canada, it was only in the second part of the 20th century that a standardization of family law has been started. For example,
until 1968, there was no uniform federal divorce law in Canada. Although the Divorce Act (Canada) is a federal Act that
governs divorce in Canada, applying to all the country, many other issues regarding family law are left to province/territory.
• The legal action of restitution of conjugal rights was abolished in British Columbia by the Family Relations Act, R.S.B.C.
1979, c. 121, s. 75; in Manitoba by the Equality of Status Act, R.S.M. 1987, c. E140, s. l(2); in Newfoundland and Labrador by
the Family Law Act, S. Nfld. 1988, c. 60, s. 76.3, as amended by S. Nfld. 1989, c. 11, s. 2.
• Not all provinces in Canada had adopted this concept; according to a 1993 report by the Alberta Law Reform Institute, the
concept of restitution of conjugal rights has never been a true part of the law of Ontario, which is Canada's most populous
province: the report stated that "In Ontario, actions for restitution of conjugal rights have never been entertained".
• While in many Canadian provinces the family law has been overhauled and modernized in the 1970s and 1980s, in others, such as Alberta,
this only happened in the 21st century: the legal action of restitution of conjugal rights was abolished by the Family Law Act (Alberta) which
came into force in 2005 (see section 103). The concept of restitution of conjugal rights has never been as harsh in Alberta as it has been in
England; indeed, according to the 1993 report, unlike in England, "Neither excommunication nor imprisonment has applied in Alberta"; in
fact by 1993, the refusal of a spouse to comply with a decree of restitution of conjugal rights only served as giving the other spouse a ground
for judicial separation. In Saskatchewan, the concept of restitution of conjugal rights was effectively abolished by the Family Maintenance
Act, SS 1990-91, c F-6.1, through its repeal of the section on restitution of conjugal rights relating to judicial separation (which was defined
in the Queen's Bench Act).
• In Nova Scotia, the 2012 Matrimonial Statutes Repeal Act ("An Act to Repeal Out-dated Matrimonial Statutes") repealed six pieces of
legislation related to family law, which were considered obsolete, including the Alimony Act, which made reference to restitution of conjugal
rights.
• Also in New Brunswick, the 2008 "Act to Repeal the Divorce Court Act" repealed legislation which made reference to restitution of conjugal
rights. Although family law in Canada varies by province/territory, the criminal law of Canada is under the exclusive legislative jurisdiction
of the federal government and is the same throughout Canada. Under the criminal law, marital rape was made illegal in 1983.
INDIA STILL HAS RCR

• In the late nineteenth century suits for restitution of conjugal rights were transplanted into the marital laws of the
native religions in India from English ecclesiastical laws and quickly gained popularity. Such suits were mainly
brought about by abandoned wives who hoped that the courts would allow them to regain access to their marital
homes or compel their husbands to provide some maintenance, or by husbands who desired that their wives were
forced to return home. Since at the time there was no divorce within Hindu marriages and both Hindu and Muslim
personal laws allowed for polygamy such suits often exacerbated the legally sanctioned inequalities between the
sexes.
• Restitution of conjugal rights ceased to be ‘alien’ when in post-Independent India, such suits were give a statutory
footing under sec 9 of the Hindu Marriages Act of 1955. Sec 13 of the same Act introduced divorce within the Hindu
marriage. The HMA was one of one of four statutes grouped together as the Hindu Code Bills which sought to
reform Hindu personal laws in India. Sec 9 is one of many ways in which the reform failed to live up to its aim of
bolstering the rights of Hindu women.
WHY DO YOU THINK RCR STILL EXISTS?
WEEKEND MARRIAGES

• As women started gaining more independence, a discernible shift could be perceived

within suits for RCR, where men began to bring about significantly more cases for
restitution of conjugal rights than women. Many of these cases focused on ‘weekend
marriages’ where the couple lived apart due to work constraints.
• For instance, in Tirath Kaur v Kirpal Singh (1964) when after her marriage a woman took
a job in another town in order to support the family, she found herself faced with a suit
for RCR. The lower court found that: “the husband was justified in asking the wife to live
with him even if she had to give up service”. The decision was reinforced by the Punjab
High Court which argued that “a wife’s first duty to her husband is to submit herself
obediently to his authority, and to remain under his roof and protection.”
• Long deemed toothless the action of RCR was abolished altogether in England through the
Matrimonial Proceedings and Property Act 1970. Meanwhile, in India it went from strength to
strength. As middle-class Hindu women became more independent and often had careers
before their marriage the courts ordered them to give up their jobs if that is what the husband
desired. For instance in Kailash Wati v Ayodhia Parkash (1977) the court held that“[T]he true
position in law appears to be that any working woman entering into matrimony by necessary
implication consents to the obvious and known marital duty of living with a husband as a
necessary incident of marriage.” And in case the woman was in any doubt, the court reiterated
that only the husband had the “right to choose and establish the matrimonial home”.
• A handful of cases in the mid 1970s across India found in favour of the working wife
who wished to live away from her husband, but this was contingent on her still being
willing to let her husband exercise his ‘marital rights’ if he wished to do so [Mirchumal vs
Smt. Devi Bai (1977)].
• The biggest blow to the notion of RCR was dealt by the Andhra Pradesh High Court in
1983 in the case of T Sareetha v T Venkata Subbaiah (1983), where the famous South
Indian actress Saritha sought to defend herself against a suit for RCR from her actor
husband.
• Since the 1980s suits for RCR have continued to remain popular with Indian men. As the
renowned Indian lawyer and women’s rights activist Flavia Agnes has noted, as divorce
and separation have started becoming more socially acceptable, men are increasingly
filing suits for RCR as a retaliatory measure against wives seeking divorce, judicial
separation and annulment of marriage.
KAILASH VATI V AYODHIA PRAKASH (1977) 79
PLR 216
• Facts
• The parties got married to each other in 1964 and were employed as village teachers at different
places.
• After marriage, Kailash Vati, herein the Appellant was transferred to the station of Ayodhia
Parkash’s posting, herein the Respondent and they lived together for nine months.
• Kailash Vati got transferred back to the previous village against the will of the Respondent and
hence he filed an application for the restitution of conjugal rights under Section 9 of the Hindu
Marriage Act, 1955(hereinafter referred to as the “Act”).
ISSUE

• Whether the Hindu Marriage Law sanctifies the concept of matrimonial home be whittled
down to a weekend marriage at the unilateral desire of the wife to live separately?
CONTENTIONS OF THE APPELLANT

• The Respondent at the time of marriage, with his eyes open, had accepted the Appellant
as a working wife. Hence, she had a right to live at the place of her posting and not
obliged to live with her husband.
• The Appellant had never refused to honour her matrimonial obligations or to stay with
her husband. So, she is justified in not resigning from her job to accompany the
Respondent-husband.
CONTENTIONS OF THE RESPONDENT

• The Appellant manoeuvred to get herself transferred back to the previous village and has
been residing there with her parents against his wishes, virtually ever since.
• The Appellant had unilaterally withdrawn from the matrimonial home for a continuous
period of six years and has denied the Respondent the society and sustenance of conjugal
life.
• The Respondent is in a position to maintain his wife in dignified comfort at his
place of posting with his salary, income from agricultural land and also from other sources.
JUDGEMENT

• The Full Bench while referring to “general principles” of ancient Hindu law, passed a decree in
favour of the Respondent for the restitution of conjugal rights under Section 9 of the Act.
• The Court observed that a marital home is the basis of the concept of marriage and the “bundle of
indefinable rights and duties which bind the husband and the wife can perhaps be best understood
only in the context of their living together in the marital home.”
• The husband and wife may, consensually, live separately without jeopardising their marriage and
violating their marital duties. In context of the present case, the Court held that any working woman
solemnizing a marriage, by necessary implication consents to the marital duty of living with her
husband.
• There shall be a violation of such duty when she unilaterally and unreasonably withdraws
from the matrimonial home and society of the husband by accepting employment away
from the matrimonial home against the wishes of her husband.
• The wife cannot claim a legal right to withdraws from the matrimonial home on the
ground of being employed before marriage or having procured employment afterwards.
SWARAJ GARG V. GARG AIR 1978 DELHI 296

• It is a case of Restitution of Conjugal Rights which fall under the section 9 of HMA 1955.
The wife was working as a headmistress in government school in Punjab. At the time of
her marriage, she had been working for sometimes as a teacher. The husband was well
qualified but he did not had satisfactory job and not even his own house. The parties did
not discuss before marriage neither after marriage to have their matrimonial home. The
wife even after the marriage continued to live at the place of her posting although she
came twice to Delhi for very short period to live with her husband.
FACTS

• The fact of this case is the husband asked the wife to resign the job which she refused.
The husband filed a petition against the wife on the ground of Restitution of Conjugal
Rights on the ground that wife has withdrawn from his society without a reasonable
cause.
ISSUE

• When the husband and wife are both gainfully employed at two different places from
before their marriage where will be the matrimonial home after marriage?
JUDGEMENT

• In this case court held that the location of the matrimonial home is to be determined by
the husband and wife are based on common convenience and benefit of the parties. Court
prefer a case Dunn v Dunn in this case Lord Denning. J. give a statement “It is not
preposition of law…It is simple a proposition of ordinary good sense arising from the fact
that the husband is usually the wage earner and has to live near the work”
• The judgement was given in the favour of defendant. The conduct of the husband was to
frighten his wife for joining him. The husband has failed to prove the ground for
awarding him restitution of conjugal rights.
• The court held that if a husband and wife are gainfully employed and the wife is earning
more than the husband, then there are sufficient reasons for the wife to live separately. So,
in this case, the court didn’t grant the petition for restitution of conjugal rights in favour
of the husband. The court also said that there is nothing in Hindu Law saying that the
wife has no right in choosing the place of a matrimonial home.
T. SAREETHA V. T. VENKATA SUBBAIH AIR 1983
AP 356
• This civil revision petition is filed by Sareetha, a well- known film actress of the south
Indian screeen against an order passed by the learned subordinate Judge , Cuddapah,
overruling her objection raised to the entertaining of an application filed by one venkata
subbaiah, under section 9 of the Hindu Marriage Act for restitution of conjugal rights
with her.
• by enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely
to be altered irretrievable whereas the husband‟s can remain almost as it was before this
is so because it is the wife who has to beget and bear a child. This practical but the
inevitable consequence of the enforcement of this remedy cripples the wife‟s future plans
of life and prevents her from using that self-destructive remedy.
• In our social reality, this matrimonial remedy is found used almost exclusively by the husband and is
rarely resorted to by the wife. A passage in Gupte‟s Hindu law in British India page 929 (second
edition) attests to this fact... the reason for this mainly lies in the fact of the differences between the man
and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is
likely to be altered irretrievable whereas the husband‟s can remain almost as it was before this is so
because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of
the enforcement of this remedy cripples the wife‟s future plans of life and prevents her from using that
self-destructive remedy... The pledge of equal protection of laws is thus inherently incapable of being
fulfilled by this matrimonial remedy in our Hindu society. As a result this remedy words in practice only
as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.
• sexual cohabitation is an inseparable ingredient of a decree for restitution of conjugal
rights, it follows, therefore, that a decree for restitution of conjugal rights passed by a
civil court extends not only to the grant of relief to the decree-holder to the company of
the other spouse but also embraces the right to have marital intercourse with the other
party. The consequences of the enforcement of such a decree are firstly to transfer the
choice to have or not to have material intercourse to the State from the concerned
individual and secondly, to surrender the choice of the individual to allow or not to allow
one's body to be used as a vehicle for another human being's creation to the State.
• Struck down Section 9 of the Hindu Marriage Act as null and void.
HARVINDER KAUR V. HARMANDER SINGH AIR
1984 DEL 66
• The facts of the case are as follows: The appellant, Harvinder Kaur, was married to the
respondent, Harminder Singh Chaudhary. Both the respondent and the appellant were
employed. There was a child born out of the wedlock. The wife left the matrimonial home
and husband brought a petition under Section 9 of the Hindu Marriage Act. The learned
judge in his judgement passed a decree in favour of husband for the restitution of
conjugal rights. The aggrieved Wife appealed before the Delhi High court against the
constitutional validity of Section 9 of Hindu Marriage Act and claimed that the order
violated Article 14 and 21 of the Constitution.
ISSUES

• Whether or not Section 9 of the Hindu Marriage Act, 1955 was constitutionally valid.
• Whether or not the decree for restitution was against Right to Life, Equality and Privacy?
• What object does restitution actually seek to bring between the aggrieved parties?
JUDGEMENT

• The High Court on deciding the appeal found that the withdrawal from the wife was
intentional and without just cause, and hence dismissed the appeal. Justice Rohtagi stated
that “the legislature has created restitution of conjugal rights as an additional ground for
divorce” and held the Section 9 to be constitutionally valid.
• This case is in stark contrast to the Sareetha case, and J Rohatgi held that Section 9 of the Hindu Marriage Act is not
unconstitutional. The Court observed that the view taken by P.A. Chaudary J., in Sareetha case was based on a misconception
of the true nature of the remedy of restitution of conjugal rights. The Court, while dissenting from the opinion of the Andhra
Pradesh High Court observed that under Section 9 the Court has the power to make a decree of restitution of conjugal rights to
enforce the return of the spouse who has withdrawn from the society of the husband without reasonable excuse.
• However, the Court observed that under a decree of restitution of conjugal rights, the court cannot enforce sexual intercourse
but only cohabitation. The object of the restitution decree is to bring about cohabitation between the estranged parties so that
they can live together in their matrimonial home in amity. Sexual intercourse is not a necessary condition for cohabitation.
Cohabitation means the husband and wife living together as husband and wife. The Court held that all that the Court in a
husband’s petition under Section 9 seeks to enquire is whether there is a reasonable excuse for the withdrawal by the wife from
the society of the husband. A spouse is entitled to the other’s society and if the law enforces this conjugal duty there is nothing
wrong.
• The Court held that the leading idea of Section 9 is to preserve the marriage. Section 9 is
an endeavor to bring about reconciliation between the parties. The Court then moved on
to discuss the concept of the breakdown of marriage as enunciated by Salmond J., in
Lodder v. Lodder[4]. If the decree for restitution is not obeyed for the space of one year
and the parties continue to live separately it is undoubtedly the best evidence of the
breakdown of marriage and the passing of time the most reliable evidence that the
marriage has finished.
• The decree of restitution of conjugal rights serves a useful purpose because it gives the
parties a cooling-off time of one year which is essential.
• The Court also observed that Section 13(1-A) is based on proceedings under Section 9. If Section 9 is
unconstitutional, then Section 13(1-A)(ii) is also constitutionally void. Thus implying no decrees of
restitution and no divorce under Section 13(1-A)(ii). The Court held that the abolition of Section 9 is to
be done by the legislature and not the courts. As the ground for divorce under Section 13(1-A) is
available to either party to a marriage, there is complete equality of sexes and equal protection of the
laws. Hence, it is not violative of Article 14 of the Constitution. The Court even scorned at the
introduction of principles of constitutional law in the private matters of family. The Court held that to
hold Section 9 unconstitutional without regard to Section 13(1-A) is to take too narrow a view. The
Court held that though the remedy under Section 9 may be outmoded, it is not unconstitutional. Thus,
Section 9 is perfectly valid. Following this line of reasoning, the Court shot down all the contentions of
the appellant.
SAROJ RANI V. SUDERSHAN KUMAR AIR 1984 SC
1562
• In this case, the wife petitioned for restitution of conjugal rights. She was married in 1975 and had given birth to
two daughters during her brief married life. She was turned out of her matrimonial house in 1977 and
subsequently filed a petition to which she was granted interim maintenance by the Court. The husband later filed
a consent memo for the passing of the decree and the decree of restitution of conjugal rights was accordingly
passed in favor of the wife. One year later, the husband applied for divorce under Section 13 (1-A) of the Hindu
Marriage Act, 1955 on the ground that he and his wife had lived separately during the one year period.
• The question of cohabitation arose wherein the spouses stayed together for a period of two days after the decree
was passed. It was submitted that the ground for divorce was unjustified and the husband was getting away with
his ‘wrongs’. This argument was based on the principles of natural law, i.e. justice, equity and good conscience.
It was further argued that the concerned section, that is Section 9 of the Hindu Marriage Actviolated Articles
14 and 21 of the Indian Constitution. The Hon’ble Court under Justice Sabyasachi Mukhatji observed:
• “We are unable to accept the position that Section 9 of the Hindu Marriage Act is
violative of Art. 14 and 21of the Indian Constitution. Hindu Marriage is a sacrament and
the object of section 9 is to offer an inducement for the husband and wife to live together
in harmony. If such differences may arise as in this case, it may be a valid ground for
divorce after a period of one year. Hence Section 9’s validity is upheld.”
• Thus the Court granted the divorce but at the same time understanding the situation of the
wife and daughters, ordered the husband to pay prescribed maintenance to the wife until
she remarries. The Hon’ble Court has thus considered the interests of both parties and
maintained harmony in this area.
WHAT NOW?

• Human Rights Watch has criticized this concept as being a cause

of violence and discrimination against women. Recently this law was challenged again in
the Supreme Court post the Right to Privacy verdict by Ojaswa Pathak and Mayank
Gupta, two students of Gujarat National Law University.
CHALLENGE TO RCR: OJASWA PATHAK V. UNION
OF INDIA
• http://images.assettype.com/barandbench/import/2019/03/Restitution-of-Conjugal-Rights
-petition.pdf