Denial of conjugal rights

Last Updated at: Mar 06, 2020
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In January 2020, a Supreme Court bench sought a response from the Attorney General on a plea to strike down the restitution of conjugal rights. This is sough on the ground of the 2017 judgment recognizing the right to privacy and individual autonomy as fundamental rights.

Denial of conjugal rights

Conjugal right is the privilege or sexual rights granted to a married couple. In other words, it is the right of sexual intercourse between the husband and wife.

Denial of Conjugal Rights

If the either of the spouses denies enjoying the conjugal rights or withdraws from the society without any reason, then the other party can file a suit for restitution of conjugal Rights. This restitution of conjugal rights can be filed only under personal laws.

Restitution of conjugal rights:

The marriage concept cannot be revoked. So if either of the spouses parts away, the court grants the remedy in favour of the spouse who seeks remedy. The theory behind the restitution is the concept of General equality. In Shakila Banu v. Gulam Mustafa case, the court held that the restitution of Conjugal rights guarantees the personal liberty and equal opportunity to both men and women. The person who files the restitution suit has a burden of proof to prove the statement.

For granting restitution of conjugal rights, the three conditions should be satisfied.

    1. Either spouse should be withdrawn from the society. Here the society means marital cohabitation which means both husband and wife should support each other in their respective duties. It is not necessary that they should live together under a single roof if the husband works in different place and the wife stays in their native, even then they should maintain a strong cohabitation. Thus, the withdrawal from the society means withdrawing the mental cohabitation apart from physical separation.
    2. The court should be satisfied that the statement is true and the fact is based on unreasonable ground
    3. No legal grounds are mentioned if the relief is denied.

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Let’s have a look at it with some past cases:

Section 9 of the Hindu Marriage act (HMA) deals with the restitution of Conjugal rights. It states that marriage cannot be on Contractual basis. In Pravinaben v. S.T.Arya, the Court held that if the wife is working in a place away from the house with the full consent of the husband, then the husband cannot file a restitution suit. In Jagadish v. Shyam case, the husband filed restitution of conjugal rights. The wife proved that the husband is impotent and so the court had rejected the restitution suit on reasonable ground. The wife can claim maintenance under Section 25 of HMA during the period of proceedings. There is no specific section for restitution under Muslim law.

If the spouses withdraw from the society, for instance, in Moonshee Buzlur Raheem v. Shumsoonnissa Begum , the court held that there is no space for restitution. Only the dissolution of marriage will take place under Muslim law. Section 32 of Indian Divorce Act deals with the restitution for Christians. In Samraj Nadar v Abraham case, the wife filed for restitution suit. The husband as per Sec 33 of IDA gave the answer for the petition that she deserted herself without any information. But the wife proved him wrong. The court made an effort and passed a decree favouring wife. Section 22 of Special Marriage Act deals with the restitution.

Procedure to be followed

  1. The aggrieved spouse files a restitution suit petition in District Court. Later the petitioner transfers the case application to HC
  2. A copy of the petition will be sent to the other party along with the hearing date
  3. Both the parties should appear before the court on the mentioned dates
  4. Then both the parties will be sent to the counseling sessions by the court. Usually, these the court recommend 3 sessions with an interval of 20 days between sessions which goes for four months.
  5. The judge will finally pass a decree on the basis of the statement provided by the parties and on the counseling held.

Rejection of the restitution suit

The court can reject the restitution petition on the following grounds

  • Ground for relief, if there is any matrimonial problem
  • Matrimonial misconduct
  • Cruelty by either spouse or by their in-laws
  • Either spouse marries again
  • Unnecessary or improper delay in instituting the proceeding.

The aim of the restitution of conjugal rights is to create a good relationship between the couple. If the court rejects the restitution suit, then the other party can go for further for Judicial separation or can file for divorce.