In this article, we shall discuss what conjugal rights mean and on what grounds can a court deny conjugal rights to a spouse.
Conjugal rights are rights and benefits that a couple can exercise and enjoy upon marriage. Conjugal rights include the right to live with each other, maintain a physically intimate relationship and procreation. While these rules have already been established as social norm and tradition their place in jurisprudence becomes of consequence in two circumstances. One is restitution of conjugal rights and the other is denial of conjugal rights. In this article we are focusing on the legal framework of denial of conjugal rights. And while the two are polar opposites, they usually function in a circular dynamic where one does not come into play without the other.
Denial of conjugal rights is not some application or restriction that one makes through official channels. Usually denial of conjugal rights occurs when one spouse denies the other their conjugal rights. The aggrieved spouse can then seek restitution of conjugal rights in a court of law which will then enquire into why the aggrieved spouse is being denied conjugal rights and if the court finds the grounds for denial sufficient, then the court can award a denial of conjugal rights or rather reinforce the decision of the spouse that has denied conjugal rights to the aggrieved party that is seeking restoration. There is no one act that specifically addresses conjugal rights. If 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, namely:
- Section 9 ; Hindu Marriage Act – 1955
- Section 22; Special Marriage Act – 1954
- Section 32; Indian Mutual Divorce Act-1869
- Section 36; The Parsi Marriage and Divorce Act -1936
Now let us first look at some of the technical terms to gain a better understanding of what qualifies as a denial of conjugal rights.
Denial of Conjugal Rights
The general wording of denial of conjugal rights is “if a husband or a wife withdraws himself/herself from the society of his/her partner without any major reason & intimation, the aggrieved person can appeal to the court for restitution of your conjugal rights.”
The term ‘withdraw from society’ has been defined specifically under the law. For a matter to qualify as a denial of conjugal rights, the circumstances of the marriage have to be as follows:
- Withdrawal from sexual intercourse.
- Non-cooperation in the performance of marital obligation.
- Intention to abandon indefinitely.
- Cessation of cohabitation voluntarily.
It must be noted here that this is specifically worded for the purpose of the right to restitution of conjugal rights. The right to deny conjugal rights is an implied right meaning that a person needn’t go through any judicial channel to deny conjugal rights to the spouse. Only restitution of conjugal rights can be addressed through the judicial system and if the restitution is rejected, then the denial of conjugal rights is upheld implicitly.
Restitution of Conjugal Rights:
There is no provision for revocation or annulment of a marriage. So if either of the spouses parts away, the court grants the remedy in favour of the aggrieved party. 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 personal liberty and equal opportunity to both men and women. The person who files the restitution suit has to bear the burden of proof to prove the statement.
The court should be satisfied that the statement is true and the fact is based on unreasonable ground. No legal grounds are mentioned if the relief is denied.
Section 9 of the Hindu Marriage act (HMA) is an 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.
Another example of a spouse withdrawing from the society is the Moonshee Buzlur Raheem v. Shumsoonnissa Begum wherein 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(IDA) 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 him without any information. But the wife proved him wrong. The court made an effort and passed a decree favouring the wife.
Section 22 of Special Marriage Act deals with the restitution.
Procedure to be followed for denial of conjugal rights
- The aggrieved spouse files a restitution suit petition in District Court. Later the petitioner transfers the case application to HC
- A copy of the petition will be sent to the other party along with the hearing date
- Both the parties should appear before the court on the mentioned dates
- Then both the parties will be sent to the counselling sessions by the court. Usually, these courts recommend 3 sessions with an interval of 20 days between sessions which goes for four months.
- The judge will finally pass a decree on the basis of the statement provided by the parties and on the counselling held.
- If the grounds for denial of conjugal rights are found reasonable, then the restitution petition is denied and the denial of conjugal rights are upheld
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 further for Judicial separation or can file for divorce.
The situation as far as family law is concerned is paradoxical in India. The laws we have adopted are mostly laws that have emerged from western thought. Our cultural traditions, especially when it comes to marriage, are contrastingly different from western thought and hence dealing with failed marriages and the granting and denying of conjugal rights can be a very tight rope to walk on. A good counsellor or an expert in family law should be engaged in such matters as the proceedings in family law court, especially when it comes to the dissolution of a marriage because the proceedings in these matters can go on for months. The intent of these hearings is always in the spirit of reconciliation rather than separation. If you have any queries or doubts with regards to family law or are seeking assistance with regards to similar matters, contact us and we will ensure that our team of experienced lawyers will get in touch with you and help you resolve your concerns.
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