This article is written by Shivani Verma, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the principle of conjugal rights, its prerequisites, history, conjugal rights of husband and wife and its constitutional validity. 

Introduction

One of the basic requisites of marriage is that the husband and wife should live together and respect each other’s mutual rights. Both husband and wife have some mutual obligations towards each other which can not be ignored come what may. This is a distinctive feature of a conjugal relationship. In no other relationship, right to society exists. The expression “conjugal rights” signify two ideas:

• The right of the couple to have each other’s society.
• The right to marital intercourse.

According to Manu, “Let mutual fidelity continue till death. Let a man and woman united by marriage, constantly beware, lest at any time disunited they violate their mutual fidelity.” This is the only positive remedy under the Hindu Marriage Act,1955 while other reliefs tend to weaken the marriage.

Conjugal meaning

The term “conjugal” means “matrimonial”. It refers to the relationship between a married couple. Conjugal rights are matrimonial rights of both of the spouses. One spouse is entitled to the society, comfort and consortium of each other. The expression “Restitution of conjugal rights” means the restoration of matrimonial rights. Provisions regarding restitution of conjugal rights are provided in various Personal Laws such as:

1. Section 9, Hindu Marriage Act, 1955
2. Section 22, Special Marriage Act, 1954
3. Section 32, Indian Divorce Act, 1869
4. Section 36, The Parsi Marriage and Divorce Act, 1936

Click Here

Prerequisites for grant of Restitution of Conjugal Rights

To obtain a decree of restitution of conjugal rights, the petitioner has to prove that:

1. From the society of the petitioner, the respondent has withdrawn.
2. The withdrawal by the respondent is without any reasonable excuse.
3. The court is satisfied with the fact that the statements made in the petition are true.
4. There is no legal ground for refusing to grant application.
5. Then the court may direct the respondent party, to live with the petitioner.

Withdrawn from society

It means withdrawal from all types of conjugal relationships. It includes:

1. Refusal to stay together,
2. Refusal to give comfort to each other,
3. Refusal to have marital intercourse, or
4. Refusal to discharge matrimonial obligations.

In Zavari vs. Zavari[1], the court held that in the petition of restitution of conjugal rights if the aggrieved spouse proves the withdrawal from the society by the defendant, the defending spouse must prove that he/she had a reasonable excuse to withdraw from the society in the court only then the decree of restitution of conjugal rights must be granted. When the husband persuades wife to come back from her parents home, stay with him and to resume marital life by writing letters and she is not ready to live with her husband because of the intimidating contents mentioned in the letter then the court will consider such letters to be harmless documents.

Without Any Reasonable Excuse 

Without any reasonable excuse includes:

1. High standard of living is not maintained by husband,
2. The husband refuses to live with her in her paternal place, or
3. There is an agreement between the parties(ante-nuptial/postnuptial) and it is opposed to the public policy etc.

In the case of Shanti Nigam vs. Ramesh Chandra[2], the court observed that withdrawal from the society of the husband may be physical but without any intention to leave his company. So as long as wife completely cut herself and decided not to go to her husband and she breaks all marital ties with him then it will be a ground for a decree of restitution of conjugal rights. Refusal to quit the job at the instance of the husband is not a ground for a decree of restitution of conjugal rights. The court also said that it will not follow the old concept and rules, its decision will be based on considering the present-day situations..

Effect of the Decree of Restitution of Conjugal Rights

If the decree of restitution of conjugal rights is passed by the court than it is compulsory for the respondent to resume cohabitation with the plaintiff and if the respondent fails to do so within one year then it can act as a ground for divorce for the plaintiff.

In the case of Sushil Kumari Dang vs. Prem Kumar[3], the appeal of a wife against the decree of restitution of conjugal rights was allowed by the court. The husband filed a petition for restitution of conjugal rights because the wife has left his matrimonial home against his wish and consent and is living separately and she is not ready to come back. But the court through facts and circumstances of the case found that the intention of the husband behind this petition is not genuine. So the court allowed the appeal of the wife.

In Shanti Devi vs. Balbir Singh[4], the court provided the requirements for filing the petition for restitution of conjugal rights. The court said that it has to be seen whether one spouse has withdrawn from the society of the other without any reasonable excuse. The second requirement is that the court must be satisfied with the facts mentioned in the petition. And at last, there should be no legal ground for rejecting the petition. But if the husband is having a love affair with a girl, or his behaviour towards his wife is torturesome than these will be considered as reasonable excuses.  

Resumption of Cohabitation

The petition for restitution of conjugal rights is not maintainable if the parties resumed the cohabitation. There can be a resumption of cohabitation by resuming to sexual intercourse in case their circumstances prove that setting up of a new matrimonial home is not possible. But it depends upon the intention of the parties. Mere acts of sexual intercourse will not be proof that the parties have resumed cohabitation.

If a spouse has withdrawn and later made several attempts to resume cohabitation with a bona fide intention and the other spouse refused, then, in this case, it was held that the spouse who initially withdrew from the society was entitled to the decree of restitution of conjugal rights as his/her original wrong was rectified by the bona fide offers made by him/her to resume cohabitation. The offer must be with a bona fide intention if such intention is not there than there can be no question of resumption of cohabitation.

Matrimonial Rights

Several rights and duties that start from the day husband and wife get married. Those rights and duties are known as “matrimonial rights”. After marriage, a wife has to leave her home and adjust with the new surroundings. In order to protect her from the various atrocities that she may face, various matrimonial rights are provided to her, such as:

1. Right to streedhan: wife has a right over all the streedhan she gets before and after her marriage. Streedhan is the property or gifts that are made to a woman before, during or after her marriage on which she has complete possession. 
2. Right to residence: wife has a right to stay in the matrimonial home where she shares the society of her husband.
3. Right to a committed relationship: wife has a right to have a committed relationship, disloyalty on any ground from her husband’s side will be punishable by a court.
4. Right to live with dignity and respect: she must be treated with respect and must live with the same dignity as all other people in the house.
5. Right to maintenance by the husband: a husband must provide maintenance and financial support to her.
6. Right to child maintenance: in case of a minor child, the husband is responsible to maintain and provide financial support to the child.

In Swaraj Garg vs. K.M Garg[5], 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.

Judicial Separation

Instead of a divorce, if the parties are willing to give each other some time and don’t want to seek immediate dissolution of marriage then the remedy of judicial separation is asked for. It does not affect the legality of the marriage. It is a temporary suspension of marital rights between the spouses.

The Hindu Marriage Act,1955 provides the provision for judicial separation under section 10. If the cohabitation between the spouses didn’t resume for one year or more the decree of judicial separation act as a ground for divorce.

Section 10(1) states that the parties to a marriage solemnized before or after commencement of the Hindu Marriage Act,1955 may present a petition in order to obtain a decree of judicial separation on any of the grounds mentioned in Section 13(1), and the wife can also seek divorce on the grounds mentioned in Section 13(2).

In section 10(2) it is mentioned that after obtaining a decree of judicial separation, it is not obligatory for the parties to cohabit together but the court may revoke the decree if it finds it reasonable to do so.

Grounds For Judicial Separation

Following are the grounds for judicial separation –

1. Adultery towards the spouse: If a party had voluntary sexual intercourse with a person other than his/her spouse, then it can act as a ground for judicial separation for the other spouse.
2. Cruelty towards the spouse: When the petitioner is treated with cruelty, then the petitioner can claim the decree of judicial separation. 
3. Desertion by the spouse: If one spouse deserts the other without a proper excuse, without his/her consent for a continuous period of two years then the neglected spouse can seek judicial separation on this ground. 
4. Unsoundness of mind of the spouse: In order to get a decree of judicial separation a petitioner has to prove that the respondent has been incurable of unsound mind and the petitioner cannot be expected to live with the respondent.
5. Attempting to Convert one party to another religion: If one spouse converts him/her into another religion then it can act as a ground for judicial separation for the non-converting spouse.
6. Any of the parties are suffering from virulent and incurable leprosy: If one spouse is suffering from a virulent or incurable form of leprosy then the other spouse can file a petition for judicial separation on this ground.
7. Any of the parties are suffering from the venereal disease: If the respondent has been suffering from venereal disease in a communicable form then the petitioner can seek a decree of divorce on this ground.
8. If any spouse Renounce the world: If a spouse renounce the world, and before that he/she was married then the other spouse has a right to seek judicial separation.
9. If the spouse is missing from a continuous period of 7 years: If the spouse is missing for a continuous period of seven years and there is no information about the missing spouse from his near and dear ones then the petitioner can seek divorce.

Additional Grounds for Wife To Claim Judicial Separation

A wife can seek divorce on the grounds not only mentioned in Section 13(1) but also on the grounds mentioned Section 13(2).

Following are the grounds that are mentioned in section 13(2) –

1. Bigamy: Wife can claim a decree of judicial separation in case of bigamy, if she proves that that respondent-husband had married again before the commencement of this act and his other wife was alive at the time of the presentation of the petition.
2. Rape, sodomy, bestiality: If the husband is guilty of rape, sodomy, bestiality than the wife can seek judicial separation on this ground.
3. Non-resumption of cohabitation after the order of maintenance: If the cohabitation between the parties has not been resumed for a period of one year or more since the passing of the decree of maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956 or under section 125 of CrPC against the husband, then the wife can seek judicial separation on this ground.
4. Repudiation of marriage (at the option of puberty): If a girl is married before attaining the age of fifteen years then she can repudiate her marriage after attaining the age of fifteen years and after attaining the age of twenty years. 

Effects of an Order of Judicial Separation

Following are the effects of an order of judicial separation –

1. The marriage is not dissolved in this case.
2. There is no compulsion for the spouses to live together or eat together as judicial separation is separation from bed to board.
3. After the decree, it is not necessary for the parties to cohabit together.
4. The parties can resume cohabitation with each other without undergoing the ceremony of marriage.
5. If either of the spouses marries during the period of the decree, then he/she will be liable for bigamy.
6. The wife is considered as independent women from the date of decree till separation.
7. The petitioner
   1. If she is the wife, becomes entitled to alimony from the husband, and
   2. If he is the husband, he may claim maintenance from wife under section 25 of the Hindu Marriage Act,1955.

History of Conjugal Rights

Evolution of conjugal rights is different in various countries. To establish a comparison, we will first be looking at the development of conjugal rights in English Law, Canada and Australia. After that, we will try and understand the history of conjugal rights in India and how it has changed over the years.

English Law

Earlier in English Law, the decree of restitution of conjugal rights was provided by ecclesiastical courts that were known as Court Christian or Court Spiritual. Later the decree was obtained through the Court for Divorce and Matrimonial Causes.

Before 1813, matrimonial offences did not include desertion in it, so a deserted spouse could ask for the remedy of restitution of conjugal rights. Once the decree was provided, the spouse had to return home and continue with his/her marital obligations. If one did not comply with the decree than he/she was punished with excommunication.

Following Acts were prevalent are as follows: 

1. The Ecclesiastical Courts Act,1813 replaced the punishment of excommunication with imprisonment up to six months.
2. The Matrimonial Causes Act,1923 provides that the wives no longer needed to ask for a decree of conjugal rights on the ground of cruelty alone instead she was given the right to divorce her husband. This equalized the grounds for divorce for both husband and wife. 
3. Supreme Court of Judicature(Consolidation) Act, 1925 repealed the Matrimonial Causes Act, 1925. Failure to comply with the order of conjugal rights would not be considered as desertion and will continue to be a ground for judicial separation. New provisions were also made by the act for finances, alimony that has to be provided by the husband to the wife, related to the share of property between husband and wife and the custody of children.
4. The Matrimonial Proceedings and Property Act 1970(Abolition Act) abolished the action of conjugal rights as it was seen as an outdated action.

Canada

Restitution of conjugal rights has been a part of the law in Canada because traditionally Canadian family regulations were based upon concepts already existing in English Common Law except in Quebec. The legal action of restitution was abolished in Britsh Columbia by the Family Relations Act, R.S.B.C.1979 and through several other provisions.

In Alberta, the Family Law Act, 2005 abolished the action of restitution of conjugal rights. Moreover, the law has never been strict in Alberta. In fact, if the spouse does not comply with the degree, it serves as a ground for judicial separation.

In Saskatchewan, by repealing the section based on the restitution of conjugal rights it completely abolished the concept through the Family Maintenance Act, SS 1990-91.

In Nova Scotia, Matrimonial Statutes Repeal Act repealed six legislations, some of them referred to restitution of conjugal rights in the year 2012.

In New Brunswick, the legislation which included restitution of conjugal rights was repealed by “Act to Repeal the Divorce Act”.

Australia

Courts have no power to make a decree for restitution of conjugal rights as it was abolished by the Family Law Act, 1975. Section 114(2) of the Family Law Act, 1975 provided that the court can order a party to provide for conjugal rights or marital services. But it was last used in 1978 and has now become obsolete. This was also supported by the Australian Law Commission in 2010 which was in favour of this view and said that Section 114(2) is inconsistent with the principles of Family Law so it should be abolished.

India

Indian laws borrowed the principle of restitution of conjugal rights from the English law. These rights were borrowed from various colonies of England. For all the religious communities, due to the absence of any statutory law, the Indian law passed the order for restitution of conjugal rights.

The first time this principle was applied in India in 1886 in the case of Moonshee Bazloor vs. Shamsoonaissa Begum by the Privy Council. The importance of this principle was clearly laid down in the 71st Law Commission Report. This report provides that divorce and getting separated is the only solution, marriage is a sacramental tie and efforts should be made for reconciliation rather than breaking the tie completely. 

Conjugal Rights of husband

Post marriage, husband and wife must live together. If in any circumstances the wife denies to stay with the husband and withdraws from his society without any reasonable excuse than the husband may file a petition for restitution of conjugal rights. If the court is satisfied and there is no legal bar to it, then the petition is granted.

Restitution of Conjugal Rights filed by the wife

In case, if husband withdraws from the society of wife, and denies to obey any matrimonial duty and deny to perform any matrimonial rights and that too without giving any proper excuse the wife may claim the right of restitution of conjugal rights by filing a petition in the court.

During this period can the wife claim maintenance?

Maintenance is provided to either of the spouses in case if he/she is not able to maintain themselves or they are not financially independent enough to earn a living for themselves.

Yes, the wife can claim maintenance under Section 25 of Hindu Marriage Act,1955. If the decree is not obeyed then the court may attach the properties of the husband. It is also applicable to the provision of judicial separation. Moreover, if the decree is not obeyed for a period of more than one year than it is considered as a ground for divorce.

Also, Section 18 of the Hindu Adoption and Maintenance Act,1956 provides the grounds under which wife can claim maintenance and the grounds where she cannot claim maintenance. 

Wife denying husband Conjugal Rights

If the wife denies to enjoy the conjugal rights or withdraws from the society without any reasonable cause, then the husband can file a suit for restitution of conjugal rights.

Reasonable Cause

A reasonable cause could be any act that will make impossible for the wife to live with the husband. If the court is satisfied that the ground is a reasonable one, then the court will dismiss the petition otherwise it will pass a decree in favour of the husband. 

The burden of proof lies on both the parties i.e. husband as well as wife.

1. Petitioner: husband needs to prove that the wife has withdrawn from his society.
2. Respondent: wife has to show a reasonable cause for doing so.

Circumstances under which withdrawal from the society of husband is justified

1. When husband remarries: in case the husband remarries when the first wife is still alive, then he loses the right of restitution of conjugal rights for the second wife and it is a valid ground for the wife to withdraw from the society of husband.
2. When conduct of the husband makes it impossible for the wife to live with the husband: In the case of Moonshi Buzloor Ruheem v. Shamsonnissa Begum[6], it was held that if a husband treats wife with cruelty or there is gross negligence on the part of husband for performance of marital obligations, then it is the valid ground for refusing him relief.
3. In case, if the wife is living separately due to a different place of work: when the economic considerations require the wife to take up the job because it is necessary for the upkeep of the family.
4. In case, if there is no economic necessity for the wife to take a job and live separately, this was decided by the court in the case of Smt. Kailash Wati v. Ayodhia Prakash[7], in three parts-
   1. If the wife is already working before and at the time of marriage, then it does not give the husband a right not to share his matrimonial home with her.
   2. If the husband himself encourages the wife to take up employment after marriage then the husband cannot give up his right to live with his wife.
   3. But if the wife takes up employment against the wishes of her husband then it is the case of unreasonable withdrawal.

Constitutional validity

The constitutional validity of section 9 of the Hindu Marriage Act,1955 has always been a matter of debate. It has been discussed in three landmarks and most important cases.

1. In 1983-1984, the High Court of Andhra Pradesh in T.Sareetha vs. T.Venkatta Subbaiah [8], observed that the decree of restitution of conjugal rights is uncivilized, barbarous, an engine of oppression and assailed. It is the grossest form of violation Article 14, 19 and 21 of the Constitution as it denies women her free choice as to whether, when and how she is to become a vehicle of procreation of another human being. The court also said that since it did not serve any social good, it must be held to be arbitrary and void offending Article 14 of the Indian Constitution.
2. The Delhi High Court, in Harvinder Kaur vs. Harmandar Singh[9] case not only upheld the validity but also discussed its advantages. He observed that the purpose behind the decree of restitution of conjugal rights is cohabitation and consortium and not only sexual intercourse, so there is nothing barbarous or coercive about it. It aims at stabilising a marriage and encouraging reconciliation.
3. The debate on the constitutional validity of Section 9 was settled by the Supreme Court in the case of Saroj Rani vs.Sudarshan Kumar[10]. The court overruled the judgment of Andhra Pradesh High Court and said that Section 9 of the Hindu Marriage Act, 1955 is not violating Article 14, 19 and 21 of the Constitution. In fact, it serves a social purpose by preventing breakup in a marriage. In case the order is disobeyed then the court has no right to enforce sexual intercourse between the spouses and if the parties don’t resume to cohabitation after one year of the passing of such decree then they can obtain a divorce on this ground alone.

The idea behind providing for restitution of Conjugal Rights

As marriage is considered a sacramental tie, in Hindu Shastra it is believed that a man is incomplete without his wife and they both need the company to provide support to each other. The idea behind is to preserve the marriage tie as far as possible through court intervention and ask the withdrawing party to join the other party.

Restitution of Conjugal Rights judgements

In the case of Rukmani Ammal vs. T.R.S.Chari[11], Pandrang Rao, J. held that for husband in order to obtain a decree of restitution of conjugal rights it is not necessary that actual cruelty must be established. Hindu Law is silent on the point that whether the husband has a right to seek the help of the court in securing the company of his wife. Hindu law does not consider a suit for restitution of conjugal rights proper. It was also held that whether the husband is entitled to the decree of restitution of conjugal rights must be provided after considering all the facts, equitable relief and equitable consideration must be sought.

In the case of Seetha yamma vs. Venkataramma[12], it was held by Bum, J. that in a suit for restitution of conjugal rights the court will consider the entire conduct of the parties and if it has been proved that the husband has neglected his wife and the suit instituted by the husband is not with a bona fide intention then the suit will be dismissed. It is not obligatory for a wife to prove that she has been subjected to violence by the husband in order to seek the decree for separate maintenance.

Qualifying criteria

When either of the spouses files the petition for restitution of conjugal rights, then he/she has to fulfil the basic criteria. The grounds on which the petition is filed are:

1.  A valid marriage must be there. 
2. The spouses are not staying with each other.
3. The withdrawal of one party from the society of the other should be without any reasonable cause.
4. The petitioner must have a bona fide desire to live with the spouse.

The complaint of restitution of conjugal rights is entertained by the Civil Courts in whose jurisdiction the following was performed.

1. The marriage of the parties was performed.
2. Husband and wife stay together.
3. Husband and wife last stayed.

What the aggrieved party can do? 

The aggrieved party can file a petition in the district court. When the court finds out that the plea of the aggrieved party is based on true facts and they have no valid reason to dismiss it then the court passes the decree of restitution of conjugal rights in the aggrieved party’s favour.

Grounds for Rejection

The petition for restitution of conjugal can be rejected on the following grounds:

1. Any matrimonial relief can be provided to the respondent.
2. For the purpose of employment, the couple needs to stay separately.
3. If the action of the petitioner is not favourable for a marital relationship.
4. Confession made by the petitioner relating to marital misconduct on his part.

Restitution of Conjugal Rights and Divorce

The merging of a petition for divorce and restitution of conjugal rights is still under discussion. Some of the eminent jurisdictional powers are of the view that the petition for conjugal rights can be supported with an alternative prayer for divorce.

While some of them are of the view that the prayer for divorce and conjugal rights are of different nature and cannot be made together. 

Most of them agree on the point that the petitions are mutually destructive as conjugal rights on reuniting the parties rather than separating them and it is the only positive remedy in the Hindu Marriage Act 1955, other remedy tries to disrupt the marriage.

Conjugal Rights in Islam

In Islamic law, it was observed that whenever the wife tries to file the suit for maintenance under section 2(ii) of Dissolution of Muslim marriages Act,1939  the husband used to counter it by filing the suit for restitution of conjugal rights. This makes the study of restitution of conjugal rights in Islamic law important.

What “Right to Conjugal Rights” Legally Means? 

According to Tyabji, “When either of the spouses withdraw from the society of another without any reasonable excuse, the aggrieved party may apply by filing a petition for a decree of restitution of conjugal rights and if the court has no valid reason to reject the petition then the court may order the decree in favour of petitioner”.

It has the same meaning as provided in Hindu Law, restoration or marital relationship between husband and wife. But this right is available to the husband only because the husband can frustrate the wife’s petition for restitution of conjugal rights by pronouncing the decree for divorce. And another main reason behind it is that the suit for restitution of conjugal rights is filed by husband in most of the cases.

Origin of Right to Conjugal Rights 

The Holy Quran under Islamic Law provides the husband with the right to keep their wives with kindness and they can part with them but with equal consideration. The husband has a reasonable right over his wife and not absolute. Husband has no conjugal rights if he had not paid the dower money

1. Prompt dower: If the husband fails to pay prompt dower the can refuse to live with him until the dower is paid. This right continues even if the marriage is consummated.
2. Deferrable dower: The husband gets the conjugal rights when the whole dower is paid as in case of deferrable dower the whole dower is regarded as prompt.

The doctrine of restitution of conjugal rights was made available to Muslims, Hindus, Christians, Parsis and others in Colonial India. With the increase of women empowerment due to the Dissolution of Muslim Marriage Act 1939, in order to counter it, the husband used this doctrine.

The Privy Council laid down in the case of Moonshee Bulzoor Ruheem vs. Shumsoonissa Begum that marriage is a civil contract under Mohammedan law and the court has the power to enforce all the rights and duties which flow from it.

In the case of Abdul Kadir vs. Salima[13], the Allahabad High Court observed that the concept of restitution of conjugal rights must be based on principles of Muslim Law rather than the principle of justice, equity and good conscience. It also stated that the remedy of English ecclesiastical law, right to restitution of conjugal rights became a remedy for breach of marriage because the matrimonial relationship was being a civil contract. 

Right to Restitution of Conjugal Rights Available to Muslims

1. In India, under General laws.
2. In Pakistan, Family courts have exclusive jurisdiction to entertain its suit under section 5 of the West Pakistan Family Courts Act,1964.

Islamicity of the Right of Restitution of Conjugal Rights 

The Islamic personal law instructs the husband to keep the wife with kindness while aiming at preserving the marriage. When the husband is found guilty of gross cruelty towards his wife and deserts her on this account, he will not be allowed to get the relief of restitution of conjugal rights. This was the restriction that was put on the husband’s right to seek the decree of restitution of conjugal rights.

Muslim law provides a defence to the wife so that she can frustrate the husband’s suit for restitution

1. Non- payment of dower.
2. Cruelty: It includes both legal and physical cruelty
   1. Physical cruelty: actual violence is included which causes injury to life, limb or health or causes a reasonable apprehension thereof.
   2. Legal cruelty: It includes all the instances of cruelty stated in Section 2(viii) of the Dissolution of Muslim Marriage Act,1939. 

Other Defences 

1. If the marriage is performed during the iddat period.
2. If the law is satisfied with the reasons of wife for not living with the husband.
3. Irregularity of marriage.
4. If there is no harmony and happiness between the spouses the Islam permits separation.

Section 5 of the West Pakistan Family Courts Act,1964

1. If the husband gets the decree of restitution of conjugal rights then according to Order XXI, Rule 32 and 33 of the Code of Civil Procedure the court can attach wife’s property or can order her to make periodic payments to the husband for non- compliance with the decree.
2. This section was challenged in the case of Nadeem Siddiqui vs. Islamic Republic of Pakistan[14] as it was against the injunctions of Islam.
   1. The court held that there are cases in which it is impossible for the husband and wife to live together so in that case, the court passes the decree of divorce.
   2. Also, there is no Verse or Hadith which put a bar on the Family Court from passing the decree of restitution of conjugal rights.
   3. Hence, it is not against the injunctions of Islam.
   4. Decree of the court has much sanctity in Islam and Rule 32 and 33 of the Code of Civil Procedure gives to the decree of the court.

The laws of Pakistan has no power to force the wife to go to the house of the husband in order to comply with the decree passed in favour of the husband. Right to seek conjugal rights were brought as a countermeasure because of the certain grounds present under the Dissolution of Marriage Act,1939 which allow women to seek dissolution of marriage. Before British Raj, in Islamic Personal Law after the payment of dower, there was no concept of restitution of conjugal rights.

Restitution of conjugal rights is a highly debatable topic because it has a two-fold view, first is that it is a positive remedy that provides marriage with a second chance, another one is that it forces two unwanted people to live together. Before using this remedy each and every aspect of the case must be considered so that it doesn’t get misused.

Draft petition for restitution of Conjugal Rights

BEFORE THE METROPOLITAN MAGISTRATE

KARKARDOOMA DISTRICT COURT, NEW DELHI

PETITION NO. _______/ 2019

In the Matter of:

ABC                                                                                                            ….Petitioner  

Vs.

XYZ                                                                                                         ..Respondent

 U/S 9 of HMA

MEMO OF PARTIES

ABC

S/o JKL,

R/o A – 100,

Karkardooma,

New Delhi – 110096                                                                                        ….Petitioner  

   Vs.

Mansi Mehta

D/o MNO,

R/o B – 26,

Prem Nagar,

Delhi – 110094                                                                                           ….Respondent

Petitioner

Through

For PQR Advocates,

D- 44, Kapoor Building, Saket

New Delhi – 110019

Place: New Delhi

Dated: __.__.2019

 BEFORE THE METROPOLITAN MAGISTRATE

KARKARDOOMA DISTRICT COURT, NEW DELHI

PETITION NO. _______/ 2019

IN THE MATTER OF:

ABC                                                                                                        …….Petitioner  

Vs.

XYZ                                                                                                     …..Respondent

U/S 9 of HMA

APPLICATION UNDER SECTION 9 OF HINDU MARRIAGE ACT, 1955 FOR RESTITUTION OF CONJUGAL RIGHTS.

 MOST RESPECTFULLY SUBMITTED:

1. That the instant application under Section 9 of the Hindu Marriage Act, 1955 is being filed by Petitioner for restitution of conjugal rights.
2. That the Petitioner is ABC, S/o JKL, R/o A – 100, Karkardooma, New Delhi – 110096.
3. That the Respondent is Petitioner’s wife, XYZ, D/o MNO, R/o B – 26, Prem Nagar, Delhi – 110094.
4. The marriage between the Petitioner and the Respondent was solemnized on_(date)_______, in New Delhi, according to Hindu rites, rituals and ceremonies, without any demand for dowry whatsoever.
5. That the Petitioner and the Respondent lived happily together at Petitioner’s place of residence.
6. That when the Petitioner came back home from the office on _____ at ______, he found out that the Respondent has packed all her belongings and left the house.
7. That after trying to contact the Respondent for an hour, the Respondent picked up the Petitioner’s call and told him that she won’t be living with him on anymore. When the Petitioner asked for a reason, the Respondent simply refused to say anything.
8. That the Petitioner found out that the Respondent has gone back to her parent’s house and he went there to understand the problem and bring her back.
9. That the Petitioner went to his father-in-law’s house on ________ and again on ________ to bring the Respondent back to his house; however, on one pretext or the other, the Respondent kept on declining to come along with the Petitioner to his house.
10. That the Respondent has deserted the Petitioner or/and has withdrawn from his company without any reasonable excuse.
11. That the Petitioner submits that he has been sincere, ready and willing to cohabit with the Respondent since the very beginning.
12. That the cause of action for this petition first arose on _________, when the respondent voluntarily deserted the Petitioner and withdrew from his society.
13. That this petition is filed well within the limitation period.
14. That this petition being chargeable with a fixed rate of court fee, the same is paid herewith.
15. The Petitioner craves liberty from this Hon’ble Court to file additional documents and arguments thereof, as and when needed, at a later stage.
16. It is further submitted that a prima facie case exists in favour of the Petitioner.
17. It is further stated that the Petitioner and the Respondent married and were living together in Karkardooma, New Delhi, which falls within the territorial limits of this Hon’ble Court’s jurisdiction, and therefore this Hon’ble Court has jurisdiction to entertain the instant application.
18. This Application has been filed bona fide and therefore ought to be allowed by this Hon’ble Court.

Prayer

In the light of the above-mentioned facts and circumstances, it is most respectfully prayed that this Hon’ble Court may be pleased to:     

1. Pass a decree for restitution of conjugal rights again the Respondent.
2. Direct the Respondent to resume cohabitation with the Petitioner.
3. Pass any other order(s)/direction(s) as this Hon’ble Court may deem fit and proper in the interest of justice.

Petitioner

Through

For PQR Advocates,

D- 44, Kapoor Building, Saket

New Delhi – 110019

Place: New Delhi

Dated: __.__.2019

To know more about Approach of Family Court in settling Matrimonial Disputes, please click here.

References

1. Zavari vs.Zavari, AIR 1975 Guj 158
2. Shanti Nigam vs. Ramesh Chandra, AIR 1971 ALL 567
3. Sushil Kumari Dang vs. Prem Kumar, AIR 1976 Delhi 321
4. Shanti Devi vs. Balbir Singh, AIR 1971 Delhi
5. Swaraj Garg vs. K.M Garg, AIR 1978 Del 296
6. Moonshi Buzloor Ruheem v. Shamsonnissa Begum, (1867) 11 MIA 551
7. Smt. Kailash Wati v. Ayodhia Prakash, LXXIX P. L. R. 216. (1977)
8. T.Sareetha vs. T.Venkatta Subbaiah, AIR 1983 AP. 356
9. Harvinder Kaur vs. Harmandar Singh, AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
10. Saroj Rani vs.Sudarshan Kumar, 1984 AIR 1562, 1985 SCR (1) 303
11.  Rukmani Ammal vs. T.R.S.Chari, AIR. 1935 Mad 616 (T)
12. Seetha.yamma vs. Venkataramma, AIR 1940 Mad 906 (V)
13. Abdul Kadir vs. Salima, (1886) ILR 8 All 149
14. Nadeem Siddiqui vs. the Islamic Republic of Pakistan, PLD 2016 FSC 4