Open Access Research Article
VALIDITY OF RESTITUTION OF CONJUGAL RIGHTS
Published Paper
Article Details
VALIDITY OF RESTITUTION OF CONJUGAL
RIGHTS
AUTHORED BY -
PAVITHRA PRAKASH
BBA.;LL.B.
2ND
YEAR
TABLE OF CONTENTS
ü Abstract
ü Introduction
ü Objectives of Paper
ü Restitution of Conjugal Rights - Meaning
ü Section 9 of Hindu marriage Act
·
Conditions for granting decree
·
Meaning of reasonable cause
ü Opposition to Restitution of conjugal rights
ü Restitution of Conjugal Rights in other
statues
ü Constitutional Validity of Restitution of
Conjugal Rights
·
Infringement of Right to Equality
(Article 14)
·
Infringement of Freedom of Association
(Article 19(1)(c))
·
Infringement of Right to Privacy
(Article 21)
ü Emotional Validity of Restitution of Conjugal
Rights
ü Conclusions
ü Suggestions
ü References
ABSTRACT
Family is solid pillar of a society.
The members of the family must be united by love not by force. Union by love
makes the family stronger to survive in the society. One should stay in family
with one’s full consent and willingness not by any others force, which makes
the family bond weaker.
“Family
should be the place where you can be your most complete self. Where you're
accepted and appreciated, seen and valued, even in moments of disagreement. It
should be your soft place to fall, the place where you're reminded that no
matter what happens to you, in the face of your deepest challenges, you are
loved.”
The members of family should be
united by their own wish not by others influence. Union by force makes the
relationship, between persons, bitter. Marriage is important event in the
family which creates the family itself. The partners of marriage should marry
each other on their own consent. They should not be forced by others or one on
another. Forcing one to enter a relationship, which they don’t like, due to any
reasons, won’t last longer.
“Getting
married at the right age is not important. Getting married to the right person
who will love you for ages is important.”
During these times, the cases in
family courts increase mostly for divorces. There are also provisions which
make the couple to reunite after a separation for better understanding. This
was the opportunity given to one of the partners who wish to reunite. This
paper deals and analyses about the validity of restitution of
conjugal rights, provided by the statue, to the partners of a marriage. It
deals with validity of Section 9 of Hindu Marriage Act, 1955.
Key Words: Marriage, withdrawn, restitution of
conjugal rights, constitutional validity.
INTRODUCTION
Restitution of conjugal rights has
been provided by the Hindu Marriage Act, 1955 through Section 9. It
gives a chance to one of the marriage partners, who wish to be together, to
reconcile with the other through legal procedures. It available to those, whose
spouse withdrawn from society, without any reasonable ground to validate the separation.
The Family Court looks into the case and makes the spouse to reconcile with the
other if reasonable grounds are missing.
One won’t left one’s spouse merely on
any unreasonable or unjustified ground. When one left the other, he or she must
has a reason for oneself to withdrawn from the society, marriage. Forcing the
other to reunite with one through the court procedures, judicially may by
legally valid but not emotionally. The law made by the law makers must provide
equal rights to all people in the country where the law is applicable. It
should respect the feelings of all people who follow the law. It should not be
biased. Section 9 of Hindu Marriage Act gives chance to one but forces the
other to reconcile, who left with on their own consent. This provision makes
the person live with one who they don’t want to live with. This will affect
both the persons marriage life and their family. Marriage life will smooth and
happy only if both the partners to the marriage love each other and like to
live together. Even if one is not willing to continue their marriage life with
the other, family will not be happy. Forcing one to live with other won't make
a family happy. Mere physical union won’t make a family stronger. Union
by love makes a family strong.
The section 9 of Hindu Marriage Act
violates person’s constitutions rights provided to them by the Constitution of
India. It violates person’s personal liberty provided under Article 21 of the
Constitution of India. It also violates Article 14 which gives equal rights to
all. It also violates the freedom of association provided through Article19 of
the Constitution of India. The law of restitution of conjugal right violates
the fundamental rights of person provided to them through the Constitution of
India.
This restitution of conjugal rights,
therefore, affects the person emotionally as well as constitutionally. Thus,
the provision is not valid by emotional and constitutional, which I would like
to express through this paper. This paper explains the validity of restitution
of conjugal rights in detail with the help of reference case laws.
OBJECTIVES
OF PAPER:
·
To
know the meaning of restitution of conjugal rights
·
To
know the scope of Section 9 of Hindu Marriage Act, 1955
·
To
check the emotional validity of restitution of conjugal rights
·
To
check the Constitutional validity of restitution of conjugal rights
·
To
give suggestions over this provision
RESTITUTION OF CONJUGAL RIGHTS – MEANING
Restitution
of conjugal rights means resuming marital life between husband and wife.
The provision is made to reconcile who were separated to get along with each
other. The petition filed by any of the spouses makes the court to intervene
between persons make them reconcile.
Even though restitution of conjugal rights is relief to one
spouse, who got abandoned by other, it is a forceful act on the other to
reconcile with one whom he or she dislike and left.
SECTION 9 OF HINDU MARRIAGE ACT
Section
9 of Hindu Marriage Act, 1955, states that
“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.
[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.]”
Section
9 of HMA tells us that when either of the spouses withdrawn from other without
any reasonable cause, the party who got abandoned may file a petition
on another to reconcile with him or her. The court after investigation
and if satisfied, that there is no ground to deny the grant, may grant the
restitution of conjugal rights to the aggrieved party. When the court says that
there is no reasonable ground to withdraw from society of other, then the
burden of proof lies on the respondent, who withdrawn other, to prove the
reasonable cause.
Conditions
for granting decree:
The
conditions where the court will grant restitution of conjugal rights are,
1. Either of the party withdrawn from
the society of other on reasonable cause.
2. The court is satisfied that the
statements mentioned in petition are true.
3. There is no legal ground that the
petition should deny.
Meaning
of reasonable cause:
The
term ‘reasonable cause’ used under section 9 of HMA means that,
1. Reasonable excuse which may grant the
respondent marital relief.
2. The reasons which are grounds of
separation but not mentioned under grounds for divorce.
3. The act or omission of petitioner
which makes the other hard to live with the petitioner.
The
reasonable excuses are some of the following:
i.
Cruelty
ii.
Impotency
iii.
Dowry
demand
iv.
False
accusations of adultery
v.
Act
or omission of petitioner which makes it impossible for the other to continue
living with
Here,
the court intervenes in the personal life of two persons. Court should not
decide whether the ground of separation is reasonable or not, even though one
of the spouses approach the court for restitution of conjugal rights. The
decree of reasonableness differs from one to other. The court can’t force one
to live with other, on the basis that the separation is not reasonable cause,
in their view.
OPPOSITION TO RESTITUTION OF
CONJUGAL RIGHTS
There
are many people who opposed the remedy of restitution of conjugal rights, which
was introduced in the case of Moonshe Buzloor Ruheem
vs. Shumsoonissa Begum. Some of them were:
§ Khardekar, the former Member of Parliament
opposed the restitution of conjugal rights.
§ Brombley, an author has opposed the
restitution of conjugal rights in his book.
RESTITUION OF CONJUGAL RIGHTS ON
OTHER STATUES
In
our country not only in HMA, there are also various acts which provide
restitution of conjugal rights. There are different acts because each of the
religion has their own act on marriage. The other statues are,
CONSTITUTIONAL VALIDITY OF
RESTITUTION OF CONJUGAL RIGHTS
I say that the restitution of
conjugal rights violates the fundamental rights of human provided to them
through the Constitution of India. It violates the rights given through Article
14, article 19, Article 21 of the Constitution.
Infringement of Right to Equality (Article 14)
Article 14 of Indian Constitution state that,
“The State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India”.
This article under the Constitution clearly mentions that
there is equal rights to each and every person in the country, no one have the
right to deny or violate other’s right for any reason. The law made for any
field in the country should not violate this. Any law made in the territory
should abide by the Constitution. Law made in the territory should protect all
people equally; there should not be any bias. Laws should protect all the
people in equal manner.
In my view, the restitution of conjugal rights violates
article 14, equality of people. The provision of restitution of conjugal rights
affect the equality provided to the person who abandoned the other by granting
decree to the petitioner. If the court grants decree to restitution of conjugal
rights, it automatically affects the equality of the respondent. The respondent
has the right to equality under law. He or she can’t be forced to reconcile
with the one they dislike. It seems like biased towards the petitioner. The
court will fail to hear the side of respondent if they didn’t find any
reasonable cause of their view. The respondent has the equal right under law
that he or she can leave his or her spouse if they dislike or due to any
reason. The court should not compel one to resume their marital life after
their separation.
In cases like Ojaswa Pathak v. Union of India, and Shakila Banu v. Gulam Mustafa, it was held
that the provision for restitution of conjugal rights is violative of article
14 of the Constitution.
Hence in my point of
view the provision of section 9 of HMA is violative of article 14 of the
Constitution.
Infringement
of freedom of association (Article 19(1)(c))
Article 19(1)(c) of the
Constitution of India states that,
“All
citizens shall have the right—
(c) to form associations or unions”
According to this article, every citizen in the country has
the right to associate with anyone they like. No one can force or compel anyone
to associate with other against their will. Citizens of the country have the
freedom to associate with anyone they love on their own will or wish.
In my
view, the provision for restitution of conjugal rights is violative of article
19(1)(c). Every citizen has the right to associate with anyone they like; they
can’t be forced or compelled to associate with anyone. The court forces the
respondent to live with the petitioner whom they dislike and withdrawn from
their society. The court involve in the freedom of respondent by forcing them
to reconcile with the one the abandoned on their own will.
In the case of Huhhram v. Misri Bai, the wife left
her husband as a result of her father-in-law had an evil look on
her and also the husband treated her badly. Even then, the
Madhya Pradesh state supreme court granted a decree of restitution to
the husband. It is concluded that if she was assaulted by
her father-in-law as a result of her association along with
her husband due to the decree, then the decree of the court
would be accountable for the mishap.
Further, within the case of Atma Ram v.
Narbada Devi, the Rajasthan state supreme court granted a
decree of restitution in favour of the wife even once the
husband clearly declared that he doesn't wish to
measure along with her. This clearly violates the liberty of
association of the husband.
Hence in my point of view the provision of section
9 of HMA is violative of article 19(1)(c) of the Constitution of India.
Infringement of Right to Privacy
(Article 21)
Article 21 of the Indian Constitution states
that,
“No person shall be deprived of his life or personal
liberty except according to procedure established by law”.
According to this article, person’s personal freedom is
protected. No one can’t interfere in the personal life of other. Every person
has their own personal liberty. No one shall be deprived of their personal
freedom. Person’s personal liberty should not be disturbed or violated by
anyone or any law.
In my view, restitution of conjugal rights violates this
article. When one on their own will leave their spouse, it is their own
freedom; it should be respected. No one, even the court, has the right to
interfere in their personal freedom. If the court forces the person to
reconcile with other, through the decree of restitution of conjugal rights, it
affects the personal freedom of that person.
In the
case of T. Sareetha v. T. VenkataSubbaiah, where it was argued
that this Section is constitutionally invalid as it violates the fundamental
right to liberty guaranteed under Article 21 of the Indian Constitution. The High Court of Andhra Pradesh held that Section 9 of HMA
is unconstitutional and void as it is violative of personal liberty which is a
fundamental right guaranteed under Article 21 of the Indian Constitution. It
was stated by the Court that “If the wife is compelled to live with her
husband, this will also violate her right to privacy.” and the Court
further stated that “the remedy of restitution offends the inviolability of
the body and mind and invades the marital privacy and domestic intimacies of
such person.”
In the
case of Gobind v. State of Madhya Pradesh, in the
year 1975, when the Supreme Court held that although the right to privacy can
be extended to personal intimacies of home and marriage, it is a private space
of the individual and law should not interfere with the same.
Hence, section
9 of HMA is violative of article 21 of the Indian Constitution, clearly.
EMOTIONAL VALIDITY OF RESTITUTION OF CONJUGAL RIGHTS
Restitution of conjugal rights is not constitutionally
invalid but also emotionally. In my point of view, the provision of restitution
of conjugal rights is violative of person’s emotional feelings. When the court
grants a decree of restitution of conjugal rights, it seems like forcing a
person to live with someone they don’t like and abandoned them on their own
wish due to some reasons. The provision says that the court will grant decree
if there were no reasonable cause and given some reasonable causes which were
reasonable from their view. The one which is reasonable for someone may not be
reasonable for the other. It can be proved that their withdrawal from the
society of their society is reasonable by the act. The act may miss many
reasons to separate from their spouse. One can’t be forced to live with other.
It will not only affect the life the respondent but also the petitioner. The
petitioner can’t live with one who dislikes them. The one who abandon their
spouse does the act due to any reasons which may be disclosed or undisclosed to
another. If they wish to live with other they will continue their marital life
with them, if not they need to separate for the benefit of both the partners of
marriage. If one, due to compulsion of the decree of the restitution of
conjugal rights, resume his or her marital life with their spouse it won’t
change their mind after their reconcile. They will continue their marital life
only for the sake of the decree granted by decree. They won’t live happily or
willingly. It will affect their emotional feelings. This may disturb them
mentally which may lead to suicides or any mental defects in extreme cases. In
any case or situation one should not be forced to enter their marital life.
Marital life is an important part of one’s life. One should enter their marital
life with their full consent and wish. When both the parties to the marriage
were happy on their marital life, then only it will be a good life for both in
further. If not, it will affect both of their lives. Even though the object of
the provision is to make the parties to the marriage reconcile and get along
with each other well, it forces one of party to enter into a marital life with
they didn’t like.
Hence, it is very obvious that the section 9 of HMA
violates person’s personal emotions. One’s feeling should be respected. It
should not be dishonored by any not even by the court. Every person’s feeling
should be respected; they should be forced even it is beneficial to the other.
CONCLUSION
When a person is separated from their spouse on their
own wish and will, it will be hard to unite them emotionally back. The
restitution of conjugal is a remedy for one but it is forceful act for the
other, which should not be done by the court. Spouses getting along with each other
well are good but at the same it should be a forceful union; it should be
willful union by both of them. The provision makes the one live with other whom
they dislike and don’t want to live together with.
The provision is violative of fundamental rights of
people provided to them through the Constitution of India. It also emotionally
affect the party to marriage.
Hence, the provision of section 9 of Hindu Marriage
Act is void, according to me.
SUGESSTIONS
In my opinion,
“A Horse can be brought
to the water pond but cannot be compelled to drink”
The provision of section 9, the restitution of
conjugal rights, reminds me of the above mentioned proverb. I relate the
restitution of conjugal rights with this proverb. Like the proverb, one can be
brought to live with other by the decree, but they can’t be forced to live with
them happily. Happiness of the person can’t be brought by compulsion.
The restitution of conjugal rights is meaningless, as
it forces someone to live with other in which they are not interested. No one
should be forced to enter a marital life which they don’t like which will
affect the life of both the partners of the marriage. A life entered by one
will not turn happy as shown in cinema. The feelings of the person should be
respected. One’s right should be interfered.
I would like say that reconciliation is good but it
should not be done in a forceful way. Reconciliation should happen only after
the disputes, which are the reasons for separation, have settled down. A Counseling
Committee can be formed by the government instead of the provision. The
provision should be repealed as it is a forceful way of reconciliation. The
Counseling Committee should function only for counseling and act as a medium to
solve the disputes between the spouses. No other family members should involve
in that process, even their parents. The committee should make the husband and
wife solve their disputes on their own. Involvement of the committee should be
only as a medium and in some cases as a advisor not more than that. If not it
will also become a forceful way of reconciliation, which is not the purpose.
When a person who got abandoned by other really wishes
to reconcile with the other, they may approach the Counseling Committee for the
support and medium. After few talks between of them, if they wish they will
reconcile with each other. It will help both them to understand each other
better and more. It will also increase the bond of love between the both.
“Even one minute talk of loved one can change the
mind”
Talking to each other help them reconcile in a
stronger way than th provision give. Solving the disputes on their own make
them understand better.
Therefore, the provision of section 9 of Hindu
Marriage Act and other provision in various acts related to the restitution of
conjugal rights should be repealed by the judiciary.
Hence, my opinion on the restitution of conjugal
rights is to repeal the provision and to set up a Counseling Committee for
reconciliation of husband and wife. Reconciliation should happen in a smooth
manner not in forceful way.
REFERENCES
1.
HMA – Hindu Marriage Act, 1955
2.
Section 9 of Hindu marriage Act
3.
The Constitution of India – Article 14, 19, 21
4.
Ojaswa Pathak v. Union of
India
5.
Shakila Banu v. Gulam Mustafa
6.
Huhhram v. Misri Bai
7.
Atma Ram v. Narbada Devi
9.
Gobind
v. State of Madhya Pradesh
10.
Ipleaders
11.
Legal
Service India- E-Journal
12.
Manupatra
Article Information
VALIDITY OF RESTITUTION OF CONJUGAL RIGHTS
Authors: PAVITHRA PRAKASH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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