Business Setup

BookAppointment

Prefer to talk to a business advisor first?

Book a call back

Tax & Compliance

BookAppointment

Prefer to talk to a business advisor first?

Book a call back

Trademark & IP

BookAppointment

Prefer to talk to a business advisor first?

Book a call back

Documentation

BookAppointment

Prefer to talk to a business advisor first?

Book a call back

Others

BookAppointment

Prefer to talk to a business advisor first?

Book a call back
user-login
Consult an Expert

Consult an Expert

Business Setup

Business Setup

Tax & Compliance

Tax & Compliance

Trademark & IP

Trademark & IP

Documentation

Documentation

Others

Others

More

More

Login

Professional tax is mandatory in your state! Avoid penalties. Apply Now

Now you can read this page in Hindi.Change language to हिन्दी

Restitution of Conjugal Rights

Email
Mobile Number
City/Pincode
  • No results found
Language
  • English
  • Hindi
  • Tamil
Get easy updates through
WhatsappWhatsapp

Restitution of Conjugal Rights (RCR) - Overview

A partner who is being deserted by the other partner may use restitution of conjugal rights as leverage against the other party. A formal decree may require the guilty spouse to live with the aggrieved spouse. It is a procedure used in both religious tribunals and courts for divorce and matrimonial matters. It is a marriage matter over which the Christian courts have previously exercised authority.

Each party is given certain legal rights under it. According to the restitution of conjugal rights clause, if either the husband or the wife at any time failed or refused to carry out the obligations that were incumbent upon him or her without giving a reason, the aggrieved party may seek legal aid from the relevant district court. For this reason, it is sometimes recognised as a matrimonial remedy.

What is Restitution of Conjugal Rights? (RCR)

When, in accordance with section 9 restitution of conjugal rights of the Hindu Law Marriage Act of 1955, either the husband or the wife withdraws from the other's social circle without cause. The victim of injustice may file a petition with the district court to have their marital rights restored. The court may proclaim restitution of conjugal rights if it determines that the representations provided in the petition are effective and that there is no valid defence.

What Are Conjugal Rights in India?

The right to remain together is known as a conjugal right. The freedom for a husband and wife to engage in sexual activity. This is seen as having marital privileges. According to Section 9 of the Hindu Law Marriage Act of 1955, it is unlawful for either the husband or the wife to exclude the other from their respective social circles without justification. The person who has been wronged may ask the court to restore their conjugal rights.

Conjugal Rights of Husband

Conjugal rights, or the right of the husband or wife to the other spouse's company, are rights resulting from marriage. The law recognises these rights, both in personal laws governing marriage, mutual divorce, and other family-related issues as well as in criminal laws mandating the payment of alimony and maintenance to a spouse. A wife violates your conjugal rights, you can seek legal assistance by asking for the restoration of your rights. Numerous personal laws expressly prohibit the exercise of conjugal rights.

RCR Benefits For Husband

The advantages of RCR vary based on the particulars of each case. RCR has typically been reduced to a tactic to persuade the opposing party to consent to a divorce. Furthermore, you can ask to have the wife's property attached if RCR has been decided in your favour but the wife refuses to join you.

After a year, you may be able to apply for divorce if your partner prevails in the RCR and ceases to be a part of you. The easiest benefit to accrue to you is this one. A negative judgement against her won't stop or invalidate her legitimate divorce paperwork.

How the Court Can Refuse to Grant an Order of Restitution of Conjugal Rights (RCR)?

The wife may ask for the restoration of her marital rights if the husband either deserts her or neglects to fulfil their contractual commitments without justification. A husband may also request the return of his wife's conjugal privileges. However, the court may decline to issue a decree restoring marital rights for the following reasons:

  • Husband or in-laws' harshness.
  • Regarding the husband's failure to fulfil his commitments to the marriage.
  • On the husband's failure to pay a fast dower.

Constitutional Validity of Section 9 Hindu Marriage Act

Section 9 of the Hindu Marriage Act, 1955 deals with the restitution of conjugal rights. Under this law, if one spouse has deserted the other without any reason, the aggrieved party may approach the court for a decree of restitution of conjugal rights.

It is important to note that the constitutional validity of Section 9 of the Hindu Marriage Act of 1955 has been challenged on the grounds that it violates the right to privacy and personal liberty guaranteed under Article 21 of the Indian constitution. The argument is that forcing a person to have sexual relations against their will with their spouse is a violation of their bodily autonomy and privacy.

However, the Supreme Court of India has upheld the constitutional validity of Section 9 in multiple judgments. In the case of Saroj Rani v. Sudarshan Kumar Chadha (1984), the Supreme Court held that the concept of restitution of conjugal rights is based on the idea that marriage is a sacrament and it is the duty of the parties to live together. The court held that Section 9 does not violate any fundamental right, including the right to privacy and personal liberty. Therefore, it can be concluded that the constitutional validity of Section 9 of the Hindu Marriage Act has been upheld by the Supreme Court of India and it is still in force.

Restitution of Conjugal Rights Under Christian Law

Under the Indian Divorce Act, 1869, Christians are granted the right to seek restitution of conjugal rights through Sections 32 and 33. Section 32 permits either spouse to file a petition for restitution of conjugal rights in the district or high court if one of them has unjustly withdrawn from the other's society.

The court may order the restitution of conjugal rights after verifying the truthfulness of the claims and determining that there is no reasonable excuse to reject the petition. Additionally, Section 33 states that only issues that would not result in nullifying the marriage or a lawsuit for judicial separation can be raised in defence against a request for restitution of conjugal rights.

Restitution of Conjugal Rights Under Muslim Law

The concept of restitution of conjugal rights in Muslim law is based on the premise that if either spouse has unjustly withdrawn from the other's society or failed to fulfil the obligations of the marriage, the court may decree restitution of conjugal rights, securing the other party's rights. This remedy is associated with ensuring that the other spouse enjoys their legal rights, and it was previously related to specific performance of a contract. Unlike other laws, Muslim law requires a lawsuit instead of a petition to be filed for restitution of conjugal rights.

However, restitution of conjugal rights can only be claimed if the marriage is legal, and it is considered a discretionary and equitable relief. In cases where a wife refuses to live with her husband without a valid reason, the husband may file a lawsuit to restore his conjugal rights, and the wife may request the husband to fulfil his marital responsibilities.

The court generally supports the wife, and strict evidence is required to prove all allegations for matrimonial relief, indicating that this remedy is not an absolute right. In Muslim law, the husband has dominant authority over matrimonial issues and is directed by the Quran to treat his wife with kindness and retain or dismiss her.

Requirements of Restitution of Conjugal Rights

  • Leaving the neighbourhood of the petitioner by the respondent
  • There is no legitimate justification, defence, or legal basis for the withdrawal
  • There shouldn't be any other legal justification for denying the relief
  • The court should be informed of the accuracy of the observation provided in the petition.

Documents Required for Restitution of Conjugal Rights

  • Address proof
  • Evidence of the petitioner's identity
  • Evidence of matrimony
  • An image of the petitioner
  • Anything that verifies the court's jurisdiction.

Procedure to Be Followed for Restitution of Conjugal Rights

The reparation suit petition is submitted to the district court by the injured spouse. Later, the petitioner designates HC to receive the case application.

  • On the dates stated, both parties must appear before the court
  • The court will then schedule appointments for both parties with counsellors
  • These courts typically meet three times, with breaks of 20 days in between, for a total of four months
  • The court will then render a decision based on the data presented by the parties and the counselling sessions.

Petition for Restitution of Conjugal Rights Filed by Husband and Wife

The petition for the Restitution of Conjugal Rights can be filed by either party- either by husband or wife.

On What Grounds, Can the Court Pass the Order of Restitution of Conjugal Rights?

Following are the valid points on which the court passes the order of restitution of conjugal rights (RCR):

  • If the petitioner can convince the judge that the respondent (spouse) withdrew from society without citing a valid cause, the petition will succeed.
  • The petitioner's (the aggrieved spouse's) claims made in the petition are valid, and the court did not discover any legal justifications as to why the aggrieved party should not be granted the restoration of conjugal rights.

Circumstances Where the Court Cannot Pass the Rule of Restitution of Conjugal Rights

The following are some legitimate grounds on which the court will not restore marital rights:

  • Any basis on which the responder might have argued for the declaration of the nullity of the marriage, a judicial separation order, or even a divorce
  • Any behaviour on the petitioner's part or circumstance that would be consistent with the petitioner abusing his or her wrong or any incapacity to obtain such relief; and Any other plausible justification for the petitioner's exclusion from society.

Marital Obligation

According to Section 9 of the Hindu Marriage Act of 1955, a consent decree for the restoration of conjugal rights may be granted and it won't be null and void. If it is not objected to in an appeal or another manner permitted by law, at which point it becomes final. Such a directive cannot be disregarded, but if it is, Section 13 (1A) of the Hindu Law Marriage Act of 1955 permits it to be used as a legal basis for divorce.

Restitution of Conjugal Rights Notice

Under section 9 of the Hindu Marriage Act, a spouse who has abandoned the other without a good reason is issued a legal notice requesting that they return.The party that has been wronged may ask the court for restitution of conjugal rights if they haven't received legal notification regarding the marriage difficulties under section 9 restitution of conjugal rights of the law.

What Is Judicial Separation?

Any of the factors listed in the conditions for divorce may be used by any party to the marriage as the basis for a petition asking for a judicial separation order. A judicial separation is an acceptable approach to maintain your distance from your spouse without obtaining a divorce decree.

Additionally, it assists to support a petition for the restoration of conjugal rights. A spouse who has been legally separated from another by a court order cannot be used as evidence against that spouse in court.

If the parties to the marriage have not resumed cohabitation (the act of living together) for a period of one year or more following the entry of the judgement for judicial separation, it shall constitute a reason for divorce.

What Are the Limitations of Restitution of Conjugal Rights?

The offended spouse must wait for a year even if they reject the decree of restitution of conjugal rights. Alternatively, the petition for divorce cannot be filed with the petition for the restoration of marital rights. These prayers are thought to be mutually destructive of one another and must thus be said after the previous one fails.

Judicial Approach on Restitution of Conjugal Rights Section 9

The court ruled that S.9 of the Hindu Marriage Registration Act, which deals with the restitution of conjugal rights, is unconstitutional because it forces the wife to live with her husband against her will in T. Saritha Vengata Subbiah v. State[11]. The wife's privacy has certainly been violated. In Harvinder Kaur v. Harminder Singh[12], the judiciary went back to its original course of action and backed Section 9 of the Hindu Marriage Act as being completely valid. The ratio of the case was upheld by the court in Saroj Rani v. S.K. Chadha[13].

Restitution of Conjugal Rights Violated

  • Associational Freedom - Article 19 (1) (c)
  • Freedom to live and work wherever in India – 19(1) (e).
  • Any profession may be practised freely - 19 (1) (g)

Infringement of Freedom of Association

Every citizen in our nation has the fundamental right to associate with whoever they choose. A wife's freedom is violated by the matrimonial remedy of restitution of conjugal rights since she is forced to associate with her husband against her will. The court ordered restitution in Huhhram Vs. Misri Bai[14] against the wife's wishes. Even though the woman in this case had made it plain that she did not want to live with her husband, the court nonetheless decided in the husband's favour. In contrast, in the case of Atma Ram v. Narbada Dev[15], the wife's side was favoured in the decision.

Constitutional validity of Section 9 Hindu Marriage Act

The constitutional validity of Section 9 of the Hindu Marriage Act 1955 has been a subject of debate. The provision for restitution of conjugal rights has been questioned because it may violate the rights to privacy and personal liberty protected by Articles 14 and 21 of the Indian Constitution.

In the case of Sareetha v. T. Venkatasubbaiah, the Andhra Pradesh High Court declared Section 9 unconstitutional, stating it violated the right to privacy and dignity. But, in the subsequent Saroj Rani v. Sudharshan case, the Supreme Court overturned the ruling. It upheld the constitutionality of Section 9, emphasising its role in promoting reconciliation and preserving the institution of marriage. Various judgments have highlighted differing perspectives. While some argue for the abolition of the remedy, stating it is outdated and infringes on personal choices, others affirm its validity as an additional ground for divorce and emphasise its aim to encourage cohabitation.

Ultimately, the Supreme Court's decision in Saroj Rani v. Sudharshan established the constitutionality of Section 9, considering it within the framework of the Hindu Marriage Act and the objective of maintaining marital harmony.

Suggestions for Improvement

Conjugal rights restitution is a sensitive debated and contentious subject. Some people believe it is to keep the marriage together, while others argue that it serves no purpose to make the offended person stay with the other party because they are not at all interested. There is, however, always room for improvement through tweaking.

In place of rigid marital rights, the idea of reconciliation could be considered. Restitution is a very hard and cruel concept since it requires compromise from both parties. On the other hand, the plea for reconciliation is made in a very gentle manner. Restitution is problematic since there is a high probability that it will become controversial when both parties are forced to live together against their will. However, if reconciliation is the chosen course of action, it may not offend either party and will also clear up any confusion.

Availability of Restitution of Conjugal Rights

The restitutional remedy is accessible in India:

  • To Muslims under the ordinary law
  • To Hindus below Section 9 of the Hindu Marriage Act, 1955
  • Section 36 of the Parsi Marriage and Divorce Act of 1936
  • To Christians under Sections 32 and 33 of the Indian Divorce Act of 1869
  • And for those married in accordance with the Special Marriage Act, under Section 22 of that same 1954 law.

Essential Elements of Restitution of Conjugal Rights

Following are the key components of Section 9 of the Hindu Marriage Act of 1955 (restitution of conjugal rights):

  • The parties must be legally married to one another
  • One should exclude themselves from another's social circle
  • This withdrawal has to be made without a valid justification
  • The assertion that there is no legal justification for rejecting the decree must be proven to the court's satisfaction.

Rights of Claiming Maintenance

The wife has the liberty to request supervision under Section 25 of the Hindu Marriage Act , which is for the judicial separation notes. If the husband doesn't complete this duty, the court will seize the husband's assets.

Challenges Faced By Conjugal Rights of Husband

The primary basis on which the law has been contested is its alleged infringement upon the fundamental right to privacy. The 2017 judgment has raised potential challenges to several laws, including the provision for restitution of conjugal rights.

The judgment argues that court-ordered restitution of conjugal rights can be considered a coercive action by the state, disregarding an individual's autonomy, sexual freedom, dignity, and right to privacy. It implies that such a legal provision may interfere with personal choices and intimate aspects of one's life.

Why Vakilsearch?

Vakilsearch has the best legal experts in the town. Our lawyers can help you in multiple aspects and provide in depth and clear resolutions. They can help you with all the paperwork and complete the whole process without any delay. We have helped multiple couples and other individuals to exercise their legal rights. Get in touch with our legal experts right away to resolve all your queries.

FAQs on Restitution of Conjugal Rights

In the context of Conjugal Rights, 'withdrawal from society' encompasses:
  • Refraining from engaging in sexual activities
  • Non-cooperation with marital duties
  • Demonstrating an intention to abandon the marriage for an indefinite duration
  • Stopping cohabitation due to the willing actions of the respondent.
  • In the recent Joseph Shine ruling, the Supreme Court has determined that the state lacks authority to intervene in personal matters of individuals, thereby infringing upon the freedoms safeguarded by the Constitution of India.
    Restitution of conjugal rights can be rejected if one of the parties has deserted the other without a reasonable cause, if there has been cruelty or adultery on the part of the petitioner, or if the marriage has irretrievably broken down.
    Restitution of conjugal rights can be claimed when one spouse has withdrawn from the other without any reasonable cause. The party seeking restitution must show that they have made attempts to reconcile and that they are willing to resume the matrimonial relationship.
    No, the court cannot force the husband to stay with the wife. Restitution of conjugal rights simply means that the court can order the parties to resume cohabitation and marital relations, but it cannot force them to live together against their will.
    The wife may request restitution of conjugal rights if the husband either flees her or ignores his marital duties without justification. Even the husband may request the return of conjugal privileges.
    According to the High Court, an order of restitution of conjugal rights grants a spouse the right to ‘marital relations’ with the other spouse in addition to the right to company. In essence, the clause ‘coerces, by judicial process, an unwilling participant to have intercourse with the decree-holder against consent and freewill’.
    You can immediately petition for a contested divorce on the same grounds if the abandonment or reluctance to have a romantic relationship has lasted more than two years. Additionally, you are free to seek a divorce on the basis of cruelty, but you will need to provide evidence.
    Conjugal rights, or the right of the husband or the wife to the company of the other spouse, are rights created by marriage. Both personal laws governing marriage, divorce, and other family matters as well as criminal laws mandating alimony and maintenance payments to a spouse recognise these rights.
    Real estate that is owned by both the husband and the wife is known as conjugal property. When you are married, all or some of your possessions become marital property. Your spouse's property, whether it be entirely or partially, also becomes conjugal property.
    Conjugal rights in marriage refer to the legal rights and obligations of spouses to have sexual intercourse with each other and to provide each other with companionship, emotional support, and other forms of physical and emotional intimacy.
    The conjugal rights of husband in india :
  • Non-cooperation in the discharge of marital obligation
  • With the intent to discontinue forever
  • Cohabitation that has ended freely.
  • In the context of Conjugal Rights, 'withdrawal from society' encompasses:
  • Refraining from engaging in sexual activities
  • Non-cooperation with marital duties
  • Demonstrating an intention to abandon the marriage for an indefinite duration
  • Stopping cohabitation due to the willing actions of the respondent.
  • In the recent Joseph Shine ruling, the Supreme Court has determined that the state lacks authority to intervene in personal matters of individuals, thereby infringing upon the freedoms safeguarded by the Constitution of India.
    Get me more details
    Select City*
    Select Language*

    Easy monthly EMI options available

    No Spam. No Sharing. 100% Confidentiality.